Reginald Fitzgerald Hodge v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-261-CR

REGINALD FITZGERALD HODGE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-507-C

O P I N I O N

Appellant was convicted by a jury of delivery of cocaine, enhanced by two prior felony convictions, for which the jury sentenced him to thirty-five years in prison and a $7500 fine. Appellant has raised three points of error on appeal. The first two points pertain to the State's final argument. Appellant complains in point three of the admission of hearsay evidence as fundamental error. We will affirm the judgment.

FACTUAL BACKGROUND

Appellant was indicted for delivery of cocaine on May 4, 1993. He made the delivery to one of his girlfriends, Estelle Wade. She had previously been arrested for unauthorized use of a vehicle. At the time of Appellant's delivery of 1.03 grams of cocaine to Wade on May 4, Wade was accompanied by an undercover officer, Joyce Shaw.

Appellant attempted to raise an alibi defense to the charge, claiming that he was elsewhere at the time the delivery was made. Various members of his family testified to his whereabouts on May 4. Another of Appellant's girlfriends testified that he came by her house about 11:00 p.m. on the evening of May 4 and spent the night. She explained that she had noted it on her calendar. Finally, a friend of Appellant testified that he spent virtually the entire day of May 4 with Appellant, picking him up in Waco, traveling to Appellant's mother's house in Hillsboro, then driving on to Six Flags in Dallas where they allegedly stayed until 11:00 or 11:30 that night.

POINTS OF ERROR

Appellant claims in point one that the court erred in overruling his objection to the State's final argument in which the State claimed that Appellant "would" have sold the drugs to a pregnant woman or child. We must initially decide whether Appellant preserved a complaint as to this portion of the State's closing argument at the punishment phase of the trial.

The record reads as follows:

MS. FIELDEN: Now let's talk about the underlying criminal offense. Crack cocaine, one gram, five rocks, $20 a rock. If nothing else, I want you to stop and ask yourself one thing. If these five rocks of cocaine were[n't] being intercepted by the police department, where do you think they would have ended up? They would have ended up in the bloodstream of some man, woman or child in McLennan County.

MR. GOAINS: Your Honor, we are going to object. That's improper argument, prejudicial, inflammatory, and outside the scope of the evidence.

THE COURT: Overruled.

MS. FIELDEN: The bloodstream of some man, some pregnant woman, some child here in McLennan County. That['s] where this could have ended up had the police not intercepted it.

(Emphasis supplied).

Appellant argues that the argument was improper because it invited the jury to speculate, leaving to the imagination of the jurors to whom Appellant may have sold the drugs. See Berryhill v. State, 501 S.W.2d 86, 87 (Tex. Crim. App. 1973). Appellant further argues that the only objection made applied to the prosecutor's subsequent statement as well.

We hold that, even if Appellant's single objection sufficed to preserve the complaint for appellate review, the State's argument did not constitute reversible error. The argument could be considered as either falling into the category of a reasonable deduction from the evidence or as a plea for law enforcement. See Monkhouse v. State, 861 S.W.2d 473, 477 (Tex. App. Texarkana 1993, no pet.); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Nor did it rise to the level to be, in light of the record as a whole, so extreme or manifestly improper or violative of a mandatory statute; nor did it inject new facts harmful to the accused into the trial proceedings. See Bell v. State, 724 S.W.2d 780, 802-03 (Tex. Crim. App. 1989), cert. denied, 479 U.S. 1046, 107 S. Ct. 910, 93 L. Ed. 2d 860 (1987). Point one is overruled.

In point two, Appellant complains that the court erred in overruling Appellant's objection to the State's final argument, which allegedly attacked Appellant "over the shoulders of defense counsel" by criticizing counsel for asserting a legitimate defense. During the State's final argument at the guilt-innocence phase, the prosecutor stated:

Now, Mr. Goains would like to come back here and take all of these dates about reports and various little things. Ladies and gentlemen, when you don't have a defense to muddy the water, you pick on little biddy things."

The court overruled Appellant's objection that the State was attacking him over the shoulders of defense counsel.

Proper jury arguments must fall within the areas of 1) summations of the evidence; 2) reasonable deductions from the evidence; 3) answer to the argument of opposing counsel; or 4) a plea for law enforcement. See Alejandro, 493 S.W.2d at 231.

Appellant maintained that he was at Six Flags over Texas in Arlington on the date of the offense, and he presented several witnesses to that effect. Appellant's counsel argued that Officer Shaw was mistaken on the identification of the person who delivered the cocaine to her and the informant. He further argued that the offense reports contained false information and pointed to different dates on those reports as proof that the officers were lying.

Although we specifically do not approve of the State mentioning defense counsel by name in this context, we nevertheless hold that the prosecutor's statements were made in response to defense counsel's remarks. See Gonzales v. State, 831 S.W.2d 491, 494 (Tex. App. Houston [14th Dist.] 1991, pet. ref'd); Finley v. State, 809 S.W.2d 909, 911-12 (Tex. App. Houston [14th Dist.] 1991, pet. ref'd). Point two is overruled.

In point three, Appellant argues that the court committed fundamental error in allowing the State to introduce hearsay evidence concerning the hours of operation of the Six Flags Amusement Park. As noted, Appellant asserted the alibi of having been at Six Flags on the day in question, and several witnesses testified to that effect.

In rebuttal, the State called an investigator from the district attorney's office who testified that she contacted Six Flags the day before and was told that the park had not been open on the date of the offense. The investigator further testified that Six Flags had "faxed" a calendar to her reflecting its dates of operation. That calendar was introduced into evidence. It established the facts to which the investigator had testified. The investigator's testimony as well as the calendar were admitted into evidence without objection.

Counsel for Appellant acknowledges that ordinarily error is waived by the failure to object at the time the evidence is offered. See Tex. R. App. P. 52(a). However, Appellant contends that an exception applies that Rule 103(d) of the Texas Rules of Criminal Evidence allows this court to take notice of "fundamental error affecting substantial rights," though no objection was made. See Tex. R. Crim. Evid. 103. We disagree.

The record reflects that Appellant's counsel informed the State's attorneys that he would not object to the investigator's testimony. On the record, Appellant's counsel stated to the court that he had no objection to the admission of State's Exhibit No. 4 and No. 5, a facsimile of an operating calendar from Six Flags and an advertising flyer also showing the days the park was open.

We hold that Appellant waived the right to complain of these matters on appeal by stating affirmatively to the court that he had no objection. See Tex. R. App. P. 52(a); Whiteside v. State, 756 S.W.2d 765, 767 (Tex. App. Corpus Christi 1988, pet. ref'd). The authorities cited by Appellant are distinguishable because the evidence in those cases was admitted over timely objection. The Court of Criminal Appeals has indicated that the admission of hearsay evidence, admitted without objection, does not constitute infringement upon a substantive right of a criminal defendant requiring reversal. Marin v. State, 851 S.W.2d 275, 280-81 (Tex. Crim. App. 1993). Appellant has presented no authority which stands for the proposition that hearsay evidence admitted without objection is fundamental error. Moreover, since the hearsay evidence was not only admitted without objection but Appellant additionally stated that he had no objection, he cannot now complain on appeal. Point three is overruled.

We affirm the trial court's judgment.

BOBBY L. CUMMINGS

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 1, 1994

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