McGee v. State

689 S.W.2d 915, 1985 Tex. App. LEXIS 6368

• Court: Court of Appeals of Texas
• Decided: March 28, 1985
• Docket: C14-83-105-CR
• Status: Published

Opinions

OPINION

JUNELL, Justice.

Appellant was convicted of delivery of less than 200 grams of a controlled substance, Pentazocine, under Tex.Rev.Civ. StatAnn. art. 4476-15 §§ 4.02(d)(4)(U), 4.032(b) (Vernon Supp.1985). His sentence was enhanced by one prior felony conviction, and he was sentenced to twenty years’ confinement and fined $5000.00. We affirm the conviction.

A recitation of facts is unnecessary.

In grounds of error one and two, appellant argues that his conviction should be reversed because the state did not allege and the court did not charge that the quantity of Pentazocine he delivered had a “potential for abuse associated with a depressant effect on the central nervous system.” In ground of error three, he argues that, even if the indictment and charge had contained that language, the evidence was insufficient to establish that he delivered a quantity with a potential for abuse. Appellant derives these arguments from the language of Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 4.02(d)(4)(U) (Vernon Supp.1984):

(d) Penalty Group 3. Penalty Group 3 shall include the following controlled substances:

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(4) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with depressant effect on the central nervous system:

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(U) Pentazocine, its salts, derivatives, or compounds or mixtures thereof;

In the indictment, the State alleged that Appellant:

on or about the ... 13th day of ... February_A.D. One Thousand Nine Hundred and Eighty-Two, and anterior to the presentment of this indictment in the County of Galveston and State of Texas, did then and there intentionally and knowingly deliver to Eddie Collins a controlled substance, to-wit: Pentazocine in the amount of less than 200 grams by aggregate weight including any adulterants or dilutants by the actual transfer of the said controlled substance from Don Carlos McGee to Eddie Collins,

The charge tracked the language of the indictment.

As the State correctly points out, the term “having a potential for abuse” modifies the word “substance,” not the word “quantity.” See Sheffield v. State, 623 S.W.2d 403 (Tex.Crim.App.1981); Sheffield v. State, 635 S.W.2d 862 (Tex.App.—Tyler 1982, no pet.). Thus, the State was not required to allege or prove, and the court was not required to charge, that appellant delivered a quantity of Pentazocine which had a potential for abuse associated with a depressant effect on the central nervous system. Since the indictment and charge were properly drawn and the testimony of the undercover narcotics officer was sufficient to prove the allegations, grounds of error one, two and three are overruled.

In ground of error four, appellant asserts that he did not receive a fair trial because, during voir dire, the State “convey[ed] to the jury the fact that [he] had a prior felony conviction.” Appellant represents to this court that the prosecutor asked each potential juror a question similar to the following:

Could you consider a 20 year sentence that we have been talking about earlier if you found in a proper case that a Defendant had been previously convicted of a felony? Could you consider that punishment if you found he again pushed drugs?

Appellant then attempts to analogize these facts to facts in cases which hold that the admission into evidence of an extraneous offense is incurable, reversible error, see Newman v. State, 485 S.W.2d 576, 578 (Tex.Crim.App.1972), regardless of whether an objection was lodged. See Navajar v. State, 496 S.W.2d 61 (Tex.Crim.App.1973).

We first observe that appellant has misrepresented the facts to this court. Of the thirty-one veniremen, the prosecutor asked twenty of them a general question such as whether they could assess the maximum range of punishment if it were shown that appellant had a previous felony conviction. Although courts have expressed disapproval with such a question to the panel as an entirety, they have held that it is permissible because the answers received aid both parties in the wise use of their peremptory challenges and their challenges for cause. See, e.g., Mathis v. State, 576 S.W.2d 835 (Tex.Crim.App.1979) (en banc). The Mathis court also mentioned without comment that the prosecutor similarly questioned individual veniremen. Id. at 837. As stated in Plair v. State, 102 Tex.Crim. 628, 279 S.W. 267 (1925), it is reversible error to refuse a defendant’s request to individually interrogate veniremen. We can find no fault with such a procedure merely because the prosecutor, rather than the defendant, wishes to do so.

The prosecutor asked only two veniremen the question quoted above.

We acknowledge that the prosecutor overstepped the permissible boundaries of voir dire by inquiring of those two veniremen whether they could assess. the maximum punishment if they found appellant was “again pushing drugs.” However, appellant’s attorney made no objection to any of the questions now complained of. His failure to do so constitutes a waiver of the error and preserves nothing for review.

Tex.Code Crim.Proc.Ann. art. 36.01 (Vernon 1981), states that:

A jury being impaneled in any criminal action, the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

While our situation does not fall within the confines of art. 36.01 because the prosecutor did not read the enhancement paragraph of the indictment and because appellant had never been convicted of “pushing drugs,” we find the reasoning employed in cases interpreting the article enlightening and applicable.

Cox v. State, 422 S.W.2d 929 (Tex.Crim.App.1968), involved a situation governed by art. 36.01. In Cox, the prosecutor read the indictment, including the five enhancement paragraphs, to the jury during opening arguments in the guilt stage of the trial. No objection was made. The court stated:

The only question presented is whether in absence of an objection, a violation of Article 36.01(1), supra, constitutes reversible error. There can be no doubt that the provisions of Article 36.01(1), supra, were designed to serve a salutary purpose and should be strictly complied with by all prosecutors. If the action here complained of had been permitted over objection, reversible error should follow. We cannot agree, however, that in absence of an objection, exception, or a request for an instruction or a mistrial, an accused may successfully raise such question for the first time on the motion for new trial as attempted here. Cf. Kelly v. State, 99 Tex.Cr.R. 403, 269 S.W. 796.

Id. at 930 (emphasis added). Similarly, in Bell v. State, 504 S.W.2d 498 (Tex.Crim.App.1974), the indictment was read to the jury and the prior conviction was proved during the guilt phase of the trial. Again, no objection was made. Relying on Cox, the court held that although the prosecutor acted improperly, the defendant did not preserve error for review because he did not object. Finally, in Frausto v. State, 642 S.W.2d 506 (Tex.Crim.App.1982), the prosecutor read the enhancement clause to the veniremen during voir dire. The trial court overruled the defendant's objections and the court of criminal appeals reversed the conviction. Read together, these cases hold that the failure of a defendant to object waives the error. Thus, ground of error four is overruled.

Appellant next complains in grounds of error five and six of several remarks the prosecutor made during his closing arguments. At the guilt/innocence stage of the trial, the prosecutor argued:

(1) If we can’t get a conviction in that type of situation, we might as well forget trying to get the drug pushers convicted in Galveston.

(2) If you let Don Carlos McGee go, if you say by your verdict not guilty, I want you to think of the effects of this on the community.

(3) You know as well as I do, in your hearts, that Don Carlos McGee is guilty. You know that_ All I am asking you to do is find him guilty of the offense that we have charged him with.

At the punishment stage, the prosecutor argued:

(4) Your verdict is very important. It is extremely important on the effect of people’s lives, but not just the dope dealers’ lives. You have got an obligation to the rest of society.... You can sentence him now or you can sentence the people out on the street

(5)The Defense tells us a story that this is not a crime of violence, that there was no violence. I submit that his felony conviction of possession of a prohibited weapon, not just possession of a handgun, but possession of a prohibited weapon is a crime of violence. I submit to you that possession of a handgun that he possessed and was convicted of is a crime of violence and I submit something else: When he is out there selling sets on the street, he is guilty of a crime of violence ...

The permissible areas of jury argument include: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) a plea for law enforcement. Wade v. State, 627 S.W.2d 777 (Tex.App.—Waco 1981, no pet.). Appellant argues that the above-mentioned statements made by the state overstepped these bounds. However, no objection to any of these arguments was made either during or after the prosecutor’s arguments. The court in Spaulding v. State, 505 S.W.2d 919, 922 (Tex.Crim.App.1974), stated the pertinent standard of review:

The test as to whether an improper argument constitutes reversible error is whether, (1) the argument is manifestly improper, harmful and prejudicial, or (2) it is violative of a statute or, (3) it injects a new and harmful fact into the case.

However, the court of criminal appeals repeatedly has held that, except in cases where the argument complained of was so obviously harmful that its effect could not have been controlled by the action of the trial court in response to a timely and proper objection, a timely objection is necessary to preserve error. In our opinion the argument complained of does not fall within the exception. See, e.g., Carrillo v. State, 566 S.W.2d 902 (Tex.Crim.App.1978) (objection must be timely); Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex.Crim.App.1977), appeal dism’d, 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 399 (1978); Clayton v. State, 502 S.W.2d 755 (Tex.Crim.App.1973) (specific objection preferred, but blanket objection will preserve error); Hall v. State, 492 S.W.2d 512 (Tex.Crim.App.1973); Joines v. State, 482 S.W.2d 205 (Tex.Crim.App.1972) (objection must be timely); Archer v. State, 474 S.W.2d 484 (Tex.Crim.App.1971). Thus, in our case, appellant’s failure to lodge even a single objection constitutes a waiver of the allegedly erroneous argument and preserves nothing for review.

Further, we hold that each of the above-mentioned remarks was within the permissible bounds of jury argument as set forth in Wade v. State, 627 S.W.2d 777 (Tex.App.—Waco 1981, no pet.).

Appellant quotes out of context the argument set forth in (1) above. The lead-in remarks and that conclusion are now set forth:

The question is this. The question is, when a police officer testifies and goes out and risks his life on the street and makes a buy from a drug dealer and gets a good look at him as he did here, when he goes up to the location — and remember that Officer Collins, remember his statement that the situation that it was like a Dairy Queen. You knock on what was at that time a sliding wooden window and the window goes up and the Defendant sells him drugs. The Defendant delivers drugs to him and the police officer gets a look at the Defendant and the Defendant is known to reside at that location and when this peace officer gets on the stand and he testifies. I will tell you something. If we can’t get a conviction in that type of situation, we might as well forget trying to get the drug pushers convicted in Galveston.

In our opinion, the prosecutor merely summed up the evidence and made a plea for law enforcement. The second and fourth arguments also constituted pleas for law enforcement. Similar arguments have been upheld. For example, in Givens v. State, 554 S.W.2d 199, 200 (Tex.Crim.App.1977), the prosecutor argued:

And that’s why I say your verdict is important. Not only when you talk about rehabilitating an individual and trying to keep him off the streets but to protect the rest of us until he is rehabilitated.

* * * * * *

If he cannot be rehabilitated it will keep him off the streets for as long as possible.

The court held that the inference to be drawn from the prosecutor’s argument was that the defendant should be placed where he could be rehabilitated and if he were not rehabilitated, society should be protected by keeping the defendant off the streets as long as possible. In Williams v. State, 607 S.W.2d 577, 581 (Tex.Crim.App.1980), the prosecutor argued:

You’re going to say by your verdict you can come down and you can just lope off with the first one if you will just tell people you’re sorry—

⅜ ⅝ * ‡ sje ⅝

... If you want to give him his first aggravated robbery free, if you want to give him probation, if you want to put him out on the street—

The court again held that this was merely a proper plea for law enforcement. Finally, in Jimenez v. State, 421 S.W.2d 910, 913 (Tex.Crim.App.1967), cert. denied, 391 U.S. 954, 88 S.Ct. 1859, 20 L.Ed.2d 868 (1968), the prosecutor argued:

This [drugs] is the sort of thing that can even get into the hands of school children and I believe we all know that. I am not saying that that is what this particular—

The court held that statement to be a reasonable deduction from the evidence.

Each of the above examples dealt with the effect of either the crime or criminal on the community and all were held not to constitute reversible error. The remarks made in our case are more pointed but still constitute a proper plea for law enforcement. We would hold that the remarks quoted in (1), (2) and (4) did not constitute error.

Appellant complains of the argument set forth in (3) above constituted error because the prosecutor injected his personal opinion of appellant’s guilt. However, once again, appellant made no objection to the argument. Thus, he has waived error, if any. Had the court sustained a timely objection, appellant could have requested an instruction to disregard the remark. The court of criminal appeals repeatedly has held that such an instruction would cure the error, if any. See Parr v. State, 575 S.W.2d 522 (Tex.Crim.App.1978); Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974); Ramos v. State, 419 S.W.2d 359 (Tex.Crim.App.1967); Rancier v. State, 63 S.W.2d 697 (Tex.Crim.App.1933); Hinton v. State, 65 Tex.Crim. 408, 144 S.W. 617 (1912).

Appellant argues that the final complained of remark, (5) above, constituted error because the prosecutor expressed a “personal opinion as to the gravity of the crime.” We can find no authority, and appellant has cited none, which forbids such an expression.

Finally, appellant argues that all of the remarks constituted cumulative error. We disagree and again note that no objections were lodged so as to preserve anything for review. Grounds of error five and six are overruled.

In ground of error seven, appellant argues that his conviction must be reversed because it was based upon the uncorroborated testimony of an accomplice, relying on Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979). Appellant bases his argument on the fact that nobody corroborated the testimony of the undercover narcotics officer who received delivery of the Pentazocine from appellant. In so arguing, appellant is attempting to place a burden on the state which is not statutorily mandated. As the state correctly points out, the Controlled Substances Act requires corroboration only in “offer to sell” cases. Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 1.02(8) (Vernon Supp.1984). See Sheffield v. State, 635 S.W.2d 862, 863 (Tex.App.—Tyler 1982, no pet.). This was a “delivery” case. Ground of error seven is overruled.

In appellant’s eighth ground of error, he urges that his conviction should be reversed because he did not receive effective assistance of counsel. He bases this conclusion upon unsubstantiated assertions that the attorney appointment system in Galveston County “works to frequently provide attorneys with little or no experience in criminal matters, to assert the rights of defendants,” that these attorneys frequently are mere figureheads, and that he was represented by an attorney who had never tried a criminal case.

The applicable standard of review in Texas is discussed in Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980) (en banc). In that case, the court held that a defendant has a right to “reasonably effective assistance of counsel.” Id. at 516. We observe that the court of criminal appeals has not yet had the occasion to decide whether the .second prong of analysis in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is applicable in Texas.

Strickland outlines a two-pronged analysis: (1) a defendant must show that he did not receive reasonably effective assistance of counsel; and if that prong is shown, (2) a defendant must then show a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial would have been different.

We hold that appellant has not established that the counsel he received was not reasonably effective. A defendant does not have a right to errorless counsel. Further, we are to scrutinize counsel's representation in a highly deferential manner while attempting to ignore the distorting effects of hindsight. See Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.1984) (en banc).

We acknowledge that the record reveals several instances in which appellant’s attorney could have objected. In each instance, except two, though, the objection properly should have been overruled. The sole instances in which an objection should have been sustained occurred during voir dire. However, as stated in Weathersby v. State, 627 S.W.2d 729 (Tex.Crim.App.1982), an isolated failure to make a certain objection does not constitute ineffective assistance of counsel.

As stated, we do not find ineffective assistance of counsel. Thus, we need not reach the second prong of Strickland. If we did need to reach this issue, we would hold that appellant has not shown that, but for counsel’s unprofessional errors, a different outcome was reasonably probable. Ground of error eight is overruled.

The conviction is affirmed.