Opinion
No. 05-04-00135-CR
Opinion Filed March 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80444-01. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Roy Lee Miller of robbery, and the trial court assessed an enhanced punishment of fifty years in prison. In three points of error, appellant complains about the State's jury argument and ineffective assistance of counsel. We overrule all points of error and affirm the trial court's judgment. The evidence reflects that appellant and two other people went into a Cigarettes Cheaper store in Plano. While appellant's two accomplices tried to distract the store clerk, appellant began to fill a trash bag with cartons of cigarettes. When store employee Regina Woods confronted appellant, his two accomplices left the store. Appellant tried to walk away, but Woods grabbed the trash bag. Appellant then grabbed Woods, put her in a headlock, and dragged her out of the store. A second store employee, Nelson Futrell, heard Woods screaming and came to help. Futrell tried to get appellant off of Woods, and the three fell to the ground. Futrell and appellant scuffled, but appellant was able to run away. Within fifteen minutes, the police located appellant, and Futrell identified him as the robber. At trial, appellant did not contest that he stole the cigarettes. He did, however, dispute whether Woods suffered any injury. In his first and second points of error, appellant complains the State made improper arguments at the guilt-innocence stage of trial. First, appellant complains about three specific comments made by the prosecutor that he contends were improper comments on his failure to testify. The complained-of comments are highlighted below:
[PROSECUTOR]: Beware of the man who urges an action in which he himself incurs no risk. No skin off [the defense attorney's] nose. There's no injury? We got hospital records that say they are. We've got doctors that wrote prescriptions. But how easy it is to say there's no injury. [1] Just like it was easy to say in opening statement, for [the defense attorney], that his client is not a thief. He's not under oath. He can't be cross-examined. He called no witnesses to confirm that fact. Why?
[DEFENSE ATTORNEY]: I have to object there, your Honor.
[TRIAL COURT]: Objection is overruled. Please continue.
[PROSECUTOR]: Why? That's the way we prove things in a court of law. If we say them in opening statement, or if we say them, then we prove them. [2] And if you say something you don't prove, then you don't put a witness on — and you know there were two witnesses there that day, don't you? [3] You don't know what he's capable of, except for this day, and that's all you know.
And let me just tell you something. He's from Dallas, and in Dallas this is commonplace.
[DEFENSE ATTORNEY]: Objection, your Honor. There's no testimony, no evidence, as to anything as to that fact, your Honor.
[TRIAL COURT]: Objection is overruled. The jury will recall the evidence.To preserve a complaint of improper jury argument for appellate review, a defendant must object to the argument and pursue the objection to an adverse ruling; otherwise, he forfeits his right to complain about the argument on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). An objection to jury argument does not serve its purpose unless it clearly informs the trial judge of the basis of the objection, affording him the opportunity to rule on it and to cure any harm. Levingston v. State, 651 S.W.2d 319, 323 (Tex.App.-Dallas 1983, pet. ref'd) (per curiam). With respect to the first comment, we agree with the State that appellant's objection ("I have to object there") was too general to preserve review. Appellant's objection was not specific enough to inform the trial court that he was complaining about a comment on his failure to testify nor does the record indicate the trial court interpreted the objection as such. See Earnhart v. State, 582 S.W.2d 444, 449 (Tex.Crim.App. [Panel Op.] 1979); Levingston, 651 S.W.2d at 323-24; Goff v. State, 681 S.W.2d 619, 623 (Tex.App.-Houston [14th Dist.] 1983, aff'd, 720 S.W.2d 94 (Tex.Crim.App. 1986) . This complaint is waived. As for the two remaining remarks, appellant did not object to them. After the prosecutor commented that robberies are commonplace in Dallas, appellant objected there was no evidence of that fact. Because appellant failed to object to the remarks he complains about on appeal, he has waived those complaints. We overrule the first point of error. In his second point, appellant argues the State made remarks that improperly referred to "expectations and demands of the community for a particular result." Within this point, appellant complains of the following four highlighted remarks:
[PROSECUTOR]: [1] You are the conscience of our community. You decide what —
[DEFENSE ATTORNEY]: Objection, your Honor. That's improper argument. That's asking the jury to disregard their oath to look at the evidence as regards to proof and only the proof, your Honor.
[TRIAL COURT]: Objection is overruled. Please continue.
[PROSECUTOR]: You are the conscience of the community. You decide what acceptable behavior is today. That's not shocking to you. That's not close. And we don't have a 17 or 18-year-old sitting over there. You know, basically we got a 53-year-old man.
Now think about that for a minute. You wake up one day and you just decide, let's go shoplift. Now, use your common sense on that one. Does that sound like anything — hmm. [2] People should pay. There are consequences for your actions. There is a reason [appellant] decided to come to Collin County. You know that's true.
[DEFENSE ATTORNEY]: Objection, your Honor. It's improper argument. There's no testimony as regards that.
[TRIAL COURT]: Objection is overruled. Please continue your argument.
[PROSECUTOR]: [The defense attorney] said that in opening statement, didn't he? I'm offended. What about you? There is a reason we all live in Collin County. Hopefully we like the quality of life. We like the fact that this is not something that we expect to happen to us. [3] There's reasons we don't live in Dallas County. There's reasons why they put burglar bars and things like that on shops in Dallas County. Because many times people have to lock themselves in. They're fearful. And they should be.
But, right now, up to now, we're not like that. But we could get like that. But think about it. Your verdict will make a difference. [4] It can make a big difference not only to Regina and Nelson and the police officers, but to the defendant and the kind of people that get up in the morning and say, let's go commit some crimes.
[DEFENSE ATTORNEY]: Objection, your Honor. That's an improper argument.
[TRIAL COURT]: Objection is overruled.We will address each remark. We begin with the first complaint that the jury was the "conscience of the community." An argument constitutes a proper plea for law enforcement if it urges the jury to be the voice of the community, rather than asking the jury to lend its ear to the community. Harris v. State, 122 S.W.3d 871, 888 (Tex.App.-Fort Worth 2003, pet. ref'd). In this case, the prosecutor did not argue that the jury must return a guilty verdict because the community expected it; rather, he argued that the jury was essentially the "voice" of the community and would determine acceptable behavior. See Holberg v. State, 38 S.W.3d 137, 141 (Tex.Crim.App. 2000) (concluding similar argument was permissible plea for law enforcement). Under these circumstances, we conclude the argument was not improper, but was a proper plea for law enforcement With respect to the argument regarding why appellant "decided to come to Collin County," appellant did not object on the ground of community expectations; he objected it was "improper argument" and there "was no testimony as regards that." Appellant's objection below does not comport with his complaint on appeal and is therefore waived. As for his third complaint, appellant did not object to the argument about burglar bars and Dallas County; that complaint is waived. Finally, as to the fourth argument that the verdict would make a "difference," appellant objected to "improper argument." That objection was too general to preserve a community expectation complaint. See Whittington v. State, 580 S.W.2d 845, 847 (Tex.Crim.App. [Panel Op.] 1979) (explaining that objection "improper jury argument" was general at best and presented nothing for review). We overrule the second point of error. In his third point of error, appellant argues that he received ineffective assistance of counsel when trial counsel failed to object to improper argument. The standards for reviewing ineffective assistance of counsel claims are well-established. Strickland v. Washington, 466 U.S. 668, 687-88 (1974); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim. Appl. 1999); McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Assuming without deciding that the complained-of arguments were improper, the record on direct appeal is not sufficient to show why counsel did not object to the various complained-of arguments. We could speculate, but the lower courts have been told repeatedly that it is improper for us to speculate. Unless we have a record that affords the trial counsel an opportunity to explain his decisions, we are unable to review the merits of ineffective assistance of counsel claims on direct appeal. Hervey v. State, 131 S.W.3d 561, 564 (Tex.App.-Waco 2004, no pet.). Appellant has not met the first prong of Strickland in this case because he has not shown counsel's performance was deficient. We overrule the third point of error. We affirm the trial court's judgment.