Cooper, Vaughn Mario v. State

Opinion

Opinion issued on February 13, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00672-CR

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VAUGHN MARIO COOPER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 35,589A

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O P I N I O N

          A jury found appellant, Vaughn Mario Cooper, guilty of possession of cocaine in an amount more than four, but less than 200 grams, and, after finding two enhancement paragraphs to be true, sentenced him to 99 years’ confinement. In two issues, appellant argues (1) the trial court erred in admitting sexually explicit photographs of appellant as evidence, and (2) the State made manifestly improper statements to the jury during closing argument.

          We affirm.

Facts

On August 18, 2000, Fort Bend County Narcotics Task Force officers entered

a house on 507 South Pine Street, Arcola, Texas, pursuant to a search warrant. Detective Paske found two measuring cups, both filled with water, with crack cocaine settled on the bottom of the cups. Powder cocaine was also found.

          Investigating officers found a magazine addressed to appellant and another person with 507 South Pine listed as the address, as well as Western Union receipts that indicated that appellant had listed his address at 507 South Pine. Envelopes were also found that had been sent to appellant at the 507 South Pine address. In a safe in one of the bedrooms, sexually explicit photographs of appellant were found. Detective Paske testified that, during prior surveillance of the house, he had seen appellant there on numerous occasions.

Admission of Photographs

          In his first point of error, appellant argues that the trial court abused its discretion in admitting sexually explicit photographs of appellant into evidence in violation of Texas Rules of Evidence 401, 402, 403, and 404(b). The trial court admitted three photographs of appellant. Two of the photographs showed appellant in nude poses, and the third showed appellant and a woman engaging in a sexual act. The genital areas in all of the pictures were redacted with a marker.

          Appellant’s objection to the introduction of the sexually explicit photographs was that the pictures were highly prejudicial, inflammatory, and irrelevant. We will review the trial court’s admission of the photographs for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

           In this case, appellant, in an apparent effort to show that he did not own the house where the cocaine was seized, established during the cross-examination of Detective Paske that Paske had not found the fingerprints of appellant in the house, no clothes of appellant’s had been identified in the house, and a magazine found in the house that was addressed to appellant was also addressed to another person as well. Appellant also asked Paske whether there were any personal items in the house that belonged to appellant. The dialogue was as follows:

Appellant’s Counsel:Were there any personal items that belonged to my client, such as trophies, keys, driver’s license, anything like that, found that belonged to [appellant]?

          Paske:                              Yes.

          Appellant’s Counsel:       And what specifically was that?

          Paske:                              Personal items that I found, we located in a safe with pictures and videotapes and stuff that I would have—I would consider “personal” to be [sic] if I was in possession of them.

Appellant then elicited testimony from Paske that it was possible that the safe could have belonged to someone other than appellant.

          We have reviewed the record and conclude that the photographs were admissible because appellant “opened the door.” Evidence, even if otherwise inadmissible, might be admissible to explain a matter once that matter has been injected into a proceeding. Gilbert v. State, 874 S.W.2d 290, 296-97 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). Appellant injected the matter into the proceeding by asking Detective Paske whether he had found any “personal items” that belonged to appellant. After asking the question to Paske, the State was entitled to present evidence that fully explained what those personal items were. See id. at 297 (“Once a matter is injected into the proceeding, evidence to fully explain the matter is relevant and admissible . . . .”). Accordingly, we hold that the trial court did not abuse its discretion in admitting the photographs.

          We overrule issue one.

Improper Jury Argument

          In his second point of error, appellant argues that the State made manifestly improper statements to the jury during closing argument.

          During the opening portion of closing argument, the State did not mention the photographs except to say that “[W]e found personal items in the house to show he lived there. It also shows he exercised control over the premises.” In his closing argument, appellant specifically minimized the significance of the pictures, stating that it was not known where the pictures had come from or who owned them. The State responded by stating the following:

The letters, the magazines, the Western Union receipts, the intimate pictures that were found inside that safe—Detective Paske told you that there was, like, 24 of these pictures in there; and they’re pictures of this guy right here naked (indicating). They’re also pictures of him having sex with another woman. I don’t know about you, but even my best friend—I don’t keep naked pictures of him in my house. The only people that are going to do that are people like that.

Appellant objected to the statement, and after the trial court asked what the legal objection was, appellant responded, “That information did not come from the witness stand.” The trial court informed the State that they could “Go ahead.”

          Appellant does not argue on appeal that the “information did not come from the witness stand.” Appellant concedes that the trial counsel did not make an objection of “improper argument,” but nevertheless contends that the issue of improper jury argument has been preserved for our review because the comment was manifestly improper. See Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996) (holding that, “Without timely and specific objections, the question of allegedly improper closing arguments is not preserved for our review unless manifestly improper.”). Appellant argues that the comment from the State was manifestly improper because it, “implied that appellant was an immoral, bad guy because he had intimate pictures in his possession.”

          The four generally approved areas for jury argument are (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). In determining whether an improper jury argument is manifestly improper, “we look at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.” Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997) (citing Johnson v. State, 604 S.W.2d 128, 135 (Tex. Crim. App. 1980)).

          The State’s comment regarding the photographs was a response by the State to the closing argument of appellant. The comment was given only after appellant tried to minimize the significance of the pictures, and it appears as though its primary purpose was to make significant the fact that most people would not leave sexually explicit photographs in a house that was not their own. To the extent that the statement was used to comment on the moral character of appellant, we cannot determine from our review of the record that it was a “willful and calculated effort” to deprive appellant of a fair and impartial trial. Accordingly, because we hold that the State’s comment was not manifestly improper, the issue of improper jury argument has not been preserved for our review.

           We overrule issue two.

Conclusion

We affirm the trial court’s judgment.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

Do not publish.