John Henry Neal, III v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-028-CR

JOHN HENRY NEAL, III,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-666-C

O P I N I O N

A jury convicted Neal of possession of a controlled substance and assessed punishment at life imprisonment. See Tex. Health & Safety Code Ann. 481.115 (Vernon 1992). In three points of error, Neal argues that the court erred by denying his motion to suppress evidence seized without a search or arrest warrant, by overruling his objection to the State's closing argument, and by denying his motion for a new trial based on allegations that the jury overheard a statement made by his wife. We affirm the judgment.

Neal filed a motion to suppress the controlled substance seized when he was arrested. The court denied the motion. When the State offered the items seized from Neal at trial, Neal's attorney stated, "I don't have any objection to the other exhibits." The "other exhibits" included the crack cocaine which Neal had sought to have suppressed. Thus, Neal has waived any complaint concerning the court's denying his motion to suppress. See Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988). Point one is overruled.

In his second point, Neal complains about the trial court's ruling on an objection raised during the State's closing argument:

[The State]:We have rights too. We, the victims of actions that are committed by people like him affect all of us, and they take our rights away from us. Can you remember a time in this County, and I am sure many of you can, I can, when you could go up to a convenience store, park your car, leave the motor running, go in and get some milk and eggs, or whatever you wanted to buy, and come back and the car would still be there. Do you remember those times? Do you remember the times in this County where if you wanted to go shopping at the grocery, you could leave home, and leave your door open - -

[Defense Counsel]:Your Honor?

COURT:Yes, Sir.

[Defense Counsel]:Your Honor, that's objectionable. I do the same thing now.

COURT:Overruled.

Neal argues that the court erred by overruling his objection because the State was arguing facts outside the record and the prosecutor attempted to make himself the spokesman for the community in order to inflame the jury. To preserve a complaint, "a party must have presented to the trial court a timely . . . objection . . . stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." Tex R. App. P. 52(a). Neal did not preserve his complaint.

If Neal's objection was sufficient to preserve a complaint, it was only sufficient to preserve a complaint about an argument outside the record. However, "an argument, although outside the record, may be based upon matters of common knowledge." Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981). The fact that today's citizens must take more precautions than their predecessors is common knowledge. The court did not err in overruling Neal's objection. Point two is overruled.

In point three, Neal complains that the court denied his motion for a new trial. Neal alleged that the jurors at his trial overheard a comment made by his wife to him while the jurors were leaving the court room for lunch. Neal testified at the hearing on his motion for a new trial that his wife stated, "baby, you are fucked. . . they are going to fuck you. . . . I'm out of here." He claimed that these comments were made within the hearing of the jurors.

Neal failed to produce any evidence to substantiate his claim that some of the members of the jury overheard his wife's comment. No affidavits from any of the jurors were produced. None of the jurors testified at the hearing on his motion.

The judge is the finder of fact on a motion for a new trial. Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990). The decision on the motion will not be disturbed absent an abuse of discretion. Id. As the fact finder, the court could have disbelieved Neal's testimony that the statement was made or that the statement was made within the hearing of the jury. No abuse of discretion is shown. Point three is overruled.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 19, 1994

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