Allen Wayne Johnson v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 1990
• Docket: 10-90-00003-CR
• Status: Published

Opinion

Johnson-AW

AFFIRMED

DECEMBER 31, 1990

NO. 10-90-003-CR

Trial Court

# 23,448

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

          ALLEN WAYNE JOHNSON,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

From 13th Judicial District Court

Navarro County, Texas

O P I N I O N

* * * * * * *

          A jury convicted Allen Wayne Johnson, Appellant, of the offense of delivery of a controlled substance and sentenced him to 75 years in prison. He now appeals by eight points of error, complaining that the court erred in denying his motion for an instructed verdict, in allowing allegedly improper jury arguments, and in admitting certain testimony during the punishment phase of the trial. All points will be overruled and the judgment affirmed.

          The record reveals that on May 20, 1989, Corsicana Police Officer John Semetco was working "undercover" and was introduced to Johnson. Semetco gave Johnson $225 and Johnson promised he would be back the next day with drugs. Semetco testified that he did not see Johnson again until June 21, 1989, when Johnson gave him a ziplock bag containing a yellow-brown substance which he believed to be methamphetamine. Charles Mott, who is in charge of the Department of Public Safety lab in Waco, testified that the substance was methamphetamine. Johnson took the stand and denied selling the officer drugs.

          Johnson asserts in his first point of error that the court erred when it denied his motion for an instructed verdict because there was "insufficient evidence due to the fact that the State failed to properly prove that Appellant delivered methamphetamine." Johnson's motion at trial was as follows:

Your Honor, at this time we would make a Motion for Instructed Verdict by reason of insufficient evidence.

Number two, there is no connection between the State's Exhibit No. 1 and 1-A with Officer John Semetko.

Johnson insists that the evidence is insufficient to support his conviction because the State failed to properly submit proof of the analysis of the substance. Mott testified that although he may not have been present when the substance was analyzed, he was "in the lab in and around as a chemist was doing it," and that all of the analyses are done under his "direction and control." Citing Neptune v. State, 679 S.W.2d 168 (Tex. App.--Dallas 1984, pet. ref'd), Johnson alleges that the State failed in its burden because Mott did not testify about the qualifications of the person who actually analyzed the substance, nor did the State offer into evidence a lab report on the substance as a business record. Neptune's two methods of introducing laboratory test results are as follows:

          1.       "An expert witness may testify about the results of a laboratory analysis he did not personally perform only if he also testifies that a qualified expert under his supervision performed the analysis." Id. at 169.

          2.       "The State may also introduce the lab report itself into evidence if the State complies with the requisites of the rules of evidence concerning introduction of business records." Id.

These methods were derived from Jones v. State, 611 S.W.2d 64 (Tex. Crim. App. [Panel Op.] 1980), and the first of such methods was employed in this case. In Neptune, the witness only "implied" that a person under his supervision had performed the analysis (Neptune, 679 S.W.2d at 169), and in Jones the witness testified that the analysis was performed by someone who worked for him, but who also worked under the supervision of other persons. Jones, 611 S.W.2d at 66. The distinction between the present case and Neptune and Jones is that here the witness stated that the analysis was performed by a chemist under his direction and control. The court in Jones points out that the person performing the analysis was not shown to be a "chemist, lab technician, or otherwise qualified to perform the analysis or tests described." Id. (emphasis added). We hold that the evidence presented by the State was sufficient, and accordingly, this point is overruled.

          In his next two points, Johnson maintains that the court erred when it overruled his objection to the prosecutor's comments on matters outside of the record made during jury argument at the guilt stage of the trial. The prosecutor's statements were made in response to the following argument by Appellant's counsel:

Mr. Semetco was working for the Corsicana Police Department at that time. He's not a resident of this county, had never lived here before; but here's a man with a master's degree from Texas Tech, 45 years of age and wants to come to work for the Corsicana Police Department, not Houston, not Dallas, not Fort Worth, but Corsicana; and he makes a salary he says of about $1800 a month. A master's degree. He could be making three and four times that much money somewhere else. Why I ask you? A man 45 years old? Is he a total failure at other things he's done that he would want to do that, or does he have such an ego he just wants to go out and arrest people or wear a gun. I think you should take that into consideration as to whether or not you're going to believe his story.

The challenged comments made by the prosecutor which followed were:

Maybe it offends you that there's somebody out there that's educated that might want to get into public service that might have a master's degree. If that's it, you can turn him loose. I've got people in there, three of them with doctor's degrees--" and "I don't know what the school district pays all the teachers but there's a lot of awfully good ones that don't make $1200. Let's throw them out.

First, Johnson's counsel invited the prosecutor's comments by leaving the record in his own argument. Specifically, he stated that Semetco "could be making three and four times that much money." See Reynolds v. State, 505 S.W.2d 265, 266 (Tex. Crim. App. 1974) (holding that if the defendant's counsel goes outside of the record in his argument, the prosecutor is then also permitted to go outside the record to respond). Second, even if Johnson were correct that the prosecutor's response exceeded the boundaries of proper jury argument because it included matters outside the record, the response was harmless. For reversible error to exist, "the jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence." Shipley v. State, 729 S.W.2d 349, 350 (Tex. App.--San Antonio 1987, no pet.). The prosecutor's argument was not extreme or manifestly improper, especially in light of Appellant's counsel's remarks, nor did it inject new and harmful facts into evidence. These outside-of-the-record comments did not add any information pointing to Johnson's guilt. The jury members, more than likely, already realized that there are other people, who, for one reason or another, receive less money for their work than they may be worth. Points two and three are overruled.

          In Johnson's next two points he complains about the State's jury argument made at the punishment phase of the trial. By point four, Johnson alleges that the court erred when it overruled his objection to the prosecutor's telling the jury that "he had brought them all the evidence that was legally admissible" and, by point five, he contends that the court erred in denying his motion for a mistrial because the prosecutor "told the jury that if they gave [Johnson] less than 60 years they would regret it when they picked up a paper and somebody told them something else about the case."

          While the first statement by the prosecutor, that he had brought to the jury all of the evidence which was "legally admissible," may have implied that there was other evidence against Johnson which was legally inadmissible, the statement was not manifestly improper and it injected no new and harmful facts into evidence. See id. Without a doubt, the next challenged comment was improper because it actually informed the jury that there was other evidence that it had not heard, but would discover later. However, the court properly sustained Johnson's objection and instructed the jury to disregard the statement. In a similar situation, the court in Green v. State, 698 S.W.2d 776, 781 (Tex. App.--Fort Worth 1985, pet. ref'd), held that the prosecutor's statement that "there were questions and answers which were not allowed before the jury," although improper, did not constitute reversible error because it did not place before the jury any new and harmful facts. In Green there was no instruction to disregard the comment, as there was in this case. See id. Likewise, in Mims v. State, 466 S.W.2d 317, 318 (Tex. Crim. App. 1971), the court, even though the trial court had failed to sustain the defendant's objection and instruct the jury to disregard, refused to reverse on the defendant's complaint that the prosecutor stated to the jury, "The unfortunate thing is that you people don't get to know what we know, so you have to use common sense . . . ." The court in Mims held that, while the argument was improper, "no statute was violated and no new and harmful fact was injected in this case." Here, not only were there no new and harmful facts presented to the jury, the court instructed the jury not to consider the statement. Points four and five are overruled.

          During the punishment phase of the trial, an assistant district attorney testified that he had been acquainted with Johnson since 1977, and that as part of his experience in the criminal justice system he had had occasion to come in contact with many criminals and to examine rehabilitation efforts provided for them. After this testimony, the witness was asked if he had an opinion as to whether or not Johnson could be rehabilitated. Johnson's counsel objected to this question by stating: "We object. It's not a proper question for this proceeding." A similar objection was made to the same question posed to another witness who testified that he was a narcotics investigator with the Navarro County Sheriff's Department, that he had known Johnson for about 12 or 15 years, and that he had had occasion to see people who have been to the penitentiary in rehabilitation programs. This objection was phrased: "Objection as not pertinent to this transaction." Johnson's counsel also objected to a question as irrelevant and immaterial which asked the narcotics investigator if rehabilitation programs work sometimes.

          In his final three points, Johnson claims the court erred in (1) allowing the assistant district attorney to testify that in his opinion Johnson could not be rehabilitated, (2) allowing the narcotics investigator to testify that in his opinion penitentiary rehabilitation programs occasionally work, and (3) allowing the narcotics investigator to testify that in his opinion Johnson could not be rehabilitated in a penitentiary program. Johnson states in his brief:

Witness Jackson and witness Spencer did not testify as to qualifications, experience, or expertise in the field of rehabilitation of persons charged with crime. They were not shown to have given study to the matter, to have evaluated any rehabilitation program, to have evaluated a rehabilitation program Appellant may have attended in the past, to have observed Appellant in conditions that would give their opinion credence; they did not testify to any facts other than knowledge of Appellant or acquaintance with Appellant that would justify their opinions. Their testimony amounted to mere conclusion on their part. They showed no knowledge of rehabilitation programs--the different kinds, the locations thereof, the percentage of success with such programs. They were not shown to be instructors in such programs or participants in any shape, form, or fashion.

We cannot consider this argument that the witnesses were not qualified because there was no specific objection made about this at trial. See T.R.A.P. 52(a). The objections which were made were too general, and consequently preserved no error, if any, in allowing this testimony. See Simpson v. State, 507 S.W.2d 530, 534 (Tex. Crim. App. 1974). Points six, seven and eight are overruled, and the judgment is affirmed.

                                                                                                                                                                                                               TERRY R. MEANS

DO NOT PUBLISH                                                     Justice

[Participating: Chief Justice Thomas, Justice Means and Justice Hall (Retired)]