Ramon Lopez v. State ( 2004 )

MARY'S OPINION HEADING

                                                                                    NOS. 12-03-00057-CR

12-03-00058-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RAMON LOPEZ,                                               §                 APPEAL FROM THE 114TH

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §                 SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant was charged by indictment with assault causing bodily injury to a family member, a third degree felony. Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon 2003). A second indictment charged Appellant with the first degree felony of aggravated kidnapping. Tex. Pen. Code Ann. § 20.04(b) (Vernon 2003). By a separate pleading filed in both cases, the State gave notice of its intent to seek an enhanced punishment alleging Appellant had been previously convicted of a felony in New Jersey. The cases arose out of the same criminal episode, and the trial court consolidated them for trial. See Tex. Pen. Code Ann. § 3.02(a) (Vernon 2003). The jury convicted Appellant of assault and kidnapping, a lesser-included offense of aggravated kidnapping. The jury found the enhancement paragraph in each case to be true and assessed Appellant’s punishment at imprisonment for fifteen years and a $10,000 fine in the assault case and imprisonment for fifteen years and an $8,000 fine in the kidnapping case. Appellant presents three issues complaining that the trial court erred in not granting a mistrial based upon the State’s improper jury arguments, and contending that the evidence was legally and factually insufficient to prove that he had been previously convicted of a felony in New Jersey. We affirm.

Background

            Appellant and the victim, Isabel Santiago, were married at common law. A violent quarrel between the two erupted. Appellant threw all the telephones against the fireplace in a jealous rage; Isabel fled from the house and hid and Appellant left in her Isuzu Trooper. The next morning, Isabel found Appellant had returned and asked for the car keys so she could go to work. He said he did not have them. When she went to the only working telephone to call her workplace, Appellant jerked the cord from the wall; Isabel hit him on the head with the telephone, and ran across the street to the DeLaSancha house.

            Appellant returned with the Trooper, pulled Isabel from the DeLaSancha house by her hair, forced her into the Trooper, and drove away saying he was taking her to work. Isabel called to her sixteen-year-old son telling him, “Jonathan, if the police get here, tell them he’s taking me against my will.” Instead of taking her to work, Appellant drove Isabel to the Southside Bank drive through where he forced her to withdraw $225 from her account, threatening to use an open knife he had if she did not do as she was told.

            They got breakfast at McDonald’s drive through. Thereafter, he bought some crack cocaine and took Isabel to Tyler State Park where he spent the balance of the day smoking crack. They spent the night in the car at a truck stop picnic area on I-20. They returned to their home around 2:00 p.m., so Appellant could take a shower. Isabel fled to a neighbor’s house, but Appellant caught her at the porch. He pried her loose from the porch railing by hitting her and threatening to tear her clothes off. He forced her into the car, grabbed her by the hair, and shook her violently as he drove away with her. He pulled out his knife again, threatening to stab her if she disobeyed him or attempted to escape. They bought gas and a VCR using her Sam’s card. Appellant traded the VCR for crack, and he continued driving around into the night while he smoked the crack. Appellant took her back to the house with him where he got the lawnmower which he sold to get more drugs. They spent the night at a truck stop on I-20 where they met a couple who wanted drugs. The couple followed them to a place where Appellant purchased more drugs. Appellant left the engine running while he went to give the drugs he had bought to the couple in the other car. Isabel took advantage of the opportunity to escape and drove away. She drove until she saw a police car which she followed to the Kilgore Police Department where she reported the crime. Appellant hit and bruised Isabel several times during the two abductions, and he kept her in constant fear that he would use his knife if she disobeyed him. He told her that if she attempted to signal a police car, he would drive into a tree and kill them both.

Improper Jury Argument

            In his first issue, Appellant insists the trial court erred in refusing to grant a mistrial after the prosecutor’s improper jury arguments at both stages of the trial. During the prosecutor’s closing argument at the guilt-innocence stage, he argued as follows:

That’s restraint. Restricting her liberty. She wanted to go to work, needed to go to work. And then over the next couple of days, continued to go ahead and restrain her when she pushes him in the closet, runs out of the house, runs over to Mr. McDonnell’s. He’s restraining her. He’s dragging her back.

We probably should have had a two-count indictment for aggravated kidnapping because it looks now, based on all the evidence –

[DEFENSE COUNSEL]: Objection, Your Honor. Improper argument.

THE COURT: The Court sustains the objection.

[DEFENSE COUNSEL]: Ask the jury to be instructed to disregard.

THE COURT: The jury will be instructed to disregard.

[DEFENSE COUNSEL]: Because of the prejudicial nature of the statements, Your Honor, we would ask the Court to move the Court for a mistrial.

THE COURT: Motion for mistrial is denied.

Appellant contends that the prosecutor’s argument constitutes a comment on his failure to testify.

Applicable Law

            A comment on a defendant’s failure to testify violates the Fifth Amendment of the U.S. Constitution, as well as Article I, Section 10 of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure. See Cook v. State, 702 S.W.2d 597, 600-01 (Tex. Crim. App. 1984) (op. on reh’g). Proper jury argument may consist of (1) a summation of the evidence, (2) reasonable deductions from the evidence, (3) an answer to the argument of opposing counsel, and (4) a plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Faison v. State, 59 S.W.3d 230, 243 (Tex. App.–Tyler 2001, pet. ref’d). To violate a defendant’s constitutional and statutory rights against self-incrimination, the challenged argument, viewed from the jury’s perspective, “must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused’s failure to testify.” Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.). The mere implication or indirect allusion to a defendant’s failure to testify will not result in reversible error. Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App.), cert. denied, __U.S.__, 124 S. Ct. 806, 157 L. Ed. 2d 701 (2003). Such comments as “we don’t know” what defendant planned to do with the victim have been held sufficiently ambiguous to yield two plausible inferences, and therefore not a comment that would “necessarily” be viewed by the jury as a reference to the defendant’s failure to testify. Barber v. State, 628 S.W.2d 104, 111 (Tex. App.—San Antonio 1981, pet. ref’d). The argument is improper if it directs the jury to an absence of testimony that only the defendant could supply. Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992).

            There must be a proper objection stating a specific ground to preserve for appeal any error in jury argument. Hougham v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. 1978). The cases have been expressly overruled that hold that the failure to object to a jury argument does not constitute a waiver if an instruction to disregard could not have cured the improper jury argument. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Finally, in all but the most blatant examples, an instruction by the trial court to disregard a comment on the failure of the accused to testify cures any prejudicial effect. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999).

Analysis

            Appellant contends that the prosecutor’s argument called the jury’s attention to the absence of evidence which only he could have provided. Appellant argues that only through his own testimony could he show that his conduct toward Isabel did not amount to an abduction, and only he could offer evidence on whether or not he had a knife during the alleged kidnapping.

            We do not believe that the prosecutor’s remark that the evidence showed two abductions is anything more than a reasonable deduction from the evidence. Isabel testified that she escaped from Appellant once only to be recaptured on the neighbors’ front porch. Both abductions were witnessed by her son and by neighbors who testified at trial. On appeal, Appellant lays particular stress on the fact that only he could dispute Isabel’s testimony that he threatened her with a knife, the aggravating factor in the case. That is true. But it is not a comment on the accused’s failure to testify for the prosecutor to argue reasonable deductions from the State’s undisputed evidence. Viewed from the jury’s standpoint, the challenged argument in this case falls far short of being of such a character that the jury would necessarily take it as a comment on Appellant’s failure to testify. Moreover, the trial court sustained Appellant’s objection and instructed the jury to disregard the prosecutor’s comment. The trial court did not err in denying Appellant’s motion for a mistrial.

            Appellant also complains about the prosecutor’s argument during the punishment stage of the trial. Appellant contends that the prosecutor incorrectly stated the number of his prior convictions. During the argument on punishment, the prosecutor made the following argument:

And the testimony that you heard about an hour or so ago was the State coming forward and trying to prove to you that Ramon Lopez has a prior felony conviction for aggravated robbery, a weapon’s [sic] offense, and some other offenses. And the judgments are right there.

                            . . . .

Now, you’ve got to go ahead and decide where in [the punishment range] does he fit. Now, you’ve heard evidence that we’ve presented that, I think, when he was about 18 years old, he committed this violent offense in New Jersey, robbery with a firearm, aggravated assault, burglary, and carrying a weapon. So you saw that back there in New Jersey he needed to be punished 18 years and served a minimum of 8 years.

            The evidence showed that in New Jersey Appellant was charged with the following offenses in a six-count indictment: (1) Burglary, (2) Robbery, (3) Criminal Attempt to Commit Theft by Unlawful Taking, (4) Aggravated Assault, (5) Possession of a Weapon for an Unlawful Purpose, and (6) Unlawful Possession of a Weapon. The jury returned a verdict of guilty on all six counts. The trial court sentenced Appellant on count two, Robbery, and count six, Unlawful Possession of a Weapon. The court “merged” counts one, three, four, and five with count two, and they were therefore dismissed.

            Appellant made no objection to the prosecutor’s argument. By failing to object to a jury argument or to pursue his objection to an adverse ruling, a defendant forfeits his right to complain about the argument on appeal. Cockrell, 933 S.W.2d at 89. A defendant’s right not to be subjected to even incurably improper jury argument is one of those rights that is forfeited by a failure to insist upon it. Id. No error was preserved. Appellant’s first issue is overruled.

Sufficiency of the Evidence

            In his second and third issues, Appellant challenges the legal and factual sufficiency of the evidence.

Standard of Review

            In reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all of the essential elements of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). In conducting a factual sufficiency review, the appellate court must sustain the verdict unless a neutral review of all the evidence, both for and against the challenged finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury determination or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

            In the instant case, the State introduced a certified copy of a judgment of conviction and order of commitment from the New Jersey Superior Court showing that Appellant had been convicted of robbery and unlawful possession of a weapon. The document also shows that the jury returned a guilty verdict on four other offenses which were “merged” after verdict with the robbery count. There is, however, no evidence in the documents sent from New Jersey nor evidence elsewhere in the record that shows robbery is a felony in New Jersey. Therefore, Appellant argues, in the absence of such evidence, there is no proof that he had a previous felony conviction and thus no evidence or factually insufficient evidence supporting the jury’s finding of true to the enhancement paragraph of the punishment charge.

            A prior conviction in another state for a felony offense may be used to enhance punishment. See Tex. Pen. Code Ann. § 12.42 (Vernon 2003). It is presumed, in the absence of contrary proof, that the law of another State is the same as this State. Duncan v. State, 714 S.W.2d 15, 17 (Tex. App.–Corpus Christi 1982), aff’d, 717 S.W.2d 345 (Tex. Crim. App. 1986). Robbery is a felony offense in Texas. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). Therefore, the New Jersey judgment of conviction reciting Appellant’s conviction for robbery in New Jersey constitutes legally and factually sufficient evidence of his previous felony conviction. Appellant’s second and third issues are overruled.

Conclusion

            Having overruled, Appellant’s first, second, and third issues, we affirm the trial court’s judgment.

                                                                                                    BILL BASS

                                                                                                            Justice

Opinion delivered May 28, 2004.

Panel consisted of Worthen, C.J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)