Smith, Demond Ray v. State

• Court: Court of Appeals of Texas
• Decided: October 24, 2002
• Docket: 01-01-01126-CR
• Status: Published

Opinion

Opinion issued October 24, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01126-CR

____________

DEMOND RAY SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 853886

O P I N I O N

A jury found appellant, Demond Ray Smith, guilty of the felony offense of aggravated robbery and assessed his punishment at 29 years in prison and a $10,000 fine. In two points of error, appellant contends the trial court erred in permitting: (1) hearsay testimony and (2) the prosecutor to make statements outside the record during its punishment argument. We affirm.

Facts and Procedural Background

Gerald Briand testified that, on the night of July 23, 2000, while he and Gristian Melendez, the complainant, were driving to a friend's house, a group of men standing in a convenience store parking lot waved to them to pull over. Melendez, the owner and driver of the car, turned into the parking lot, and appellant approached the car and asked Melendez and Briand to get out. After they refused, appellant pointed a pistol at Melendez's head and ordered him out of the car. Melendez and Briand got out of the car, and appellant got into the driver's seat. Members of the group searched Melendez's and Briand's pockets, taking a wallet from Melendez. Appellant drove away in Melendez's car and the rest of the group scattered into a nearby apartment complex. Briand and Melendez then walked to their friend's house, and Melendez called the police and reported the incident.

Later that night, police officers arrested appellant after he tried to evade arrest. During the pursuit, appellant threw down a pistol and Melendez's car keys, both of which were recovered by police. Melendez and Briand identified appellant on the night of his arrest as the robber.

At the punishment phase of the trial, the State presented witnesses who testified that, while he was being held in jail prior to trial, appellant sexually assaulted a cell mate. During his closing argument, appellant noted that he had not been charged with the extraneous offense and contended that he could not defend himself against the charge. The State, in its closing, argued that "it's common for the [Harris County] district attorney's office not to charge somebody with extraneous offenses."

Hearsay

In point of error one, appellant contends that the trial court erred in admitting testimony by Briand concerning Melendez's statement to him that Melendez was scared and glad that he was not shot. Appellant argues that the State failed to show the statement fell within the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2).

When an appellant claims that a trial court erred in admitting evidence offered by the State, the error must be preserved by a timely objection and a ruling by the trial court on the objection. Tex. R. App. P. 33.1. Texas law requires a party to object each time inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). An error in the admission of improper evidence is cured when the same evidence is admitted elsewhere in the record without objection. Id. The only two exceptions to this rule are when a party asks for and receives a running objection, or when a party receives a ruling outside the presence of the jury. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991).

In this case, essentially the same evidence was elicited by appellant during his cross-examination of Houston Police Officer Dean Stark, who interviewed Melendez and Briand after the robbery. Subsequent to the questioning of Briand, defense counsel questioned Officer Stark as follows:

Q: Well, did you read in the report that Officer Gonzales had written down that [appellant] had held a gun to his head?

A: Yes, sir. But I also heard [Melendez] on the night tell Officer Gonzales the gun was put to his head. That he was in fear of his life. That by the demeanor of the defendant that he thought he would shoot him. He thought the defendant would shoot the complainant.

Q: Well, these are certain words that's - is a legal terminology, isn't it?

A: Yes, sir.

Q: Like when you said "there's fear of your life," the average person don't talk like that, do they?

A: Yes, sir. I mean, I do.

. . . .

Q: They may say, I was scared; but they don't say - you say that don't you?

A: I've been told by plenty of complainants that they were in fear of their life.

Q: Well, we're talking about this complainant?

A: Well, I couldn't quote, no, sir.

Q: So you don't know whether or not they said that or not?

A: They said they were in fear of their life . . . .

Appellant made no objection to Officer Stark's testimony regarding the complainant's out-of-court statement that he was in fear for his life during the aggravated robbery. Thus, any possible error in the admission of Briand's testimony regarding Melendez's out of court statement was cured.

We overrule point of error one.

Punishment Argument

In point of error two, appellant contends that the trial court erred in allowing the State, in its punishment argument, to argue that, "it's common for the district attorney's office not to charge somebody with extraneous offenses."

Proper jury argument must fall within one of the following categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to arguments by opposing counsel; or (4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996).

The State contends its argument was in response to the following argument made by the appellant:

[W]e expect fairness and justice . . . . You seen [sic] some offenses here that he - the one he was charged with - the other one, he wasn't charged with - I come here, I don't have an opportunity to defend against [sic]. You get to here one side, and that's fair? That's justice?

I find it rather curious that you [sic] come in here and tell you-all, ladies and gentleman, this man raped somebody that he was never charged [sic]. This man [sic] charged with burglary and bring witnesses in here and I'm dared to ask the witnesses, "What court were you in?" That's fair.

(Emphasis added.) Although no evidence was presented as to why appellant was not charged with the extraneous offense and the State's argument injected a new fact into the case, the State's argument was in answer to appellant's argument. The invited argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record, so long as the prosecution's argument does not exceed the scope of invitation. Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981). Here, the State's response did not exceed the scope of appellant's argument.

We hold that the trial court did not err in permitting the complained of argument because it was in answer to appellant's argument and did not exceed the scope of that argument.

We overrule point of error two.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.