Richards, Johnny v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00933-CR ____________ JOHNNY RICHARDS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 832834 O P I N I O N A jury found appellant, Johnny Richards, guilty of aggravated robbery and assessed punishment at life in prison after finding true allegations of prior convictions for burglary of a building and robbery. In three points of error, appellant contends the prosecutor made improper jury arguments and the trial court imposed an unlawful sentence when it cumulated appellant's sentence with a sentence for which appellant was on parole. We affirm. Facts Appellant robbed a Chevron gas station on two occasions. The first robbery occurred on September 8, 1999, when Wilma Southern, the manager, and Anita Lewis, the assistant manager, were working at the station. Appellant entered the station and placed a short, rusty, double-barreled shotgun on the counter. Appellant threw a bag at Southern and demanded that she open the register and give him the money. Lewis placed $100 in the bag. Appellant then took the bag and walked out of the store. He left in a burgundy Ford Probe with the license plate partially covered by a paper towel. Southern and Lewis called the police and described appellant as a black male wearing sunglasses and a cap, with a scar on his forehead, big lips, and a medium afro. They also gave the police the partial license plate number. Two surveillance tapes captured the robbery. Appellant robbed the same Chevron station again on September 12, 1999. Lewis was there with her niece, Demetrius Lewis, who was also an employee of Chevron at the time. This robbery was similar to the first robbery. Appellant had on gloves, sunglasses, and a hat. Anita Lewis, Demetrius Lewis, and Wilma Southern all identified appellant in a lineup. Jury Argument In his first and second points of error, appellant contends that the trial court erred by denying appellant's motion for mistrial after the prosecutor made certain arguments regarding the State's witnesses' having to undergo cross-examination by the defense. Appellant contends, in his second point of error, that the trial court erred by overruling his objection to the prosecutor's jury argument allegedly commenting on appellant's right to trial by jury. Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). We review a trial court's denial of a mistrial for abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The prosecutor made the following argument in the opening portion of his closing statement: The State: Reference will be made, I'm sure, to the surveillance video, to the still photos of that surveillance camera. And I wish that video and those photos were clearer for you, but they are not. . . . The video and the photos alone don't answer the question for you. If they did, we wouldn't have to bring witnesses in front of you. We wouldn't have to drag Anita Lewis and Wilma Southern down here to testify. We wouldn't need it. Defense counsel responded with the following argument in his closing statement: Defense: Talk about how difficult it is for them to come down here, believing that this man is on trial; and he is the one who robbed them that day. And to sit here--and it doesn't take, I don't think, a rocket scientist to figure out who they are supposed to point to when we sit here. We talked about that during jury selection. We couldn't go through the whole process and bring them down here in front of you, they were going to say, "Well, I don't see the person in the courtroom." Who are they going to pick, Mr. Ramirez? Mr. Osso? If you eliminate us, who is left? Don't be swayed by the in-court identification because it really--if you think about the mechanics behind it, it's not that significant. And then I want you to question and look at the identification, the process of the identification, and ask yourselves, you know, are these people credible? Is this a --are these sound identifications? And let's talk about that for a moment. . . . . . . This woman [Demetrius Lewis], for whatever her motive was or however she came up with a positive identification, an identification of my client, you know, her testimony ended in a bold faced [sic] lie. . . . . . . So, how much credibility can you give her [Wilma Southern's] testimony? Here is another person who will come up here and basically lie to you in hopes that she can persuade you that you should convict this man because that is what it is. . . . . . . . . . Because I will submit to you that these people didn't remember much of anything. Anything that I asked them about they couldn't recall, except that that's the man that robbed me. If that's not learned--a learned response, then you tell me what is. . . . Shortly thereafter, the prosecutor began rebuttal to defense counsel's closing argument: The State: I don't know why he [defense counsel] wants you to assume that the eyewitness identifications in this case are --that they're liars, that they are not credible. Who are these people? These are ordinary salt of the earth folks working in that convenience store trying to earn a living. You know, they are not lawyers. They don't have postgraduate degrees. They are not rocket scientists. They are just people earning minimum wage in a convenience store. And unfortunately, that is a hazardous occupation in Houston because people like Johnny Richards who don't want to show up to work might come in with a shotgun and point it at you and demand the money in the register. And then, after that happens, we got to go to court; and they come into court and they get scared and hung out to dry on the witness stand. Defense: Your Honor, I object to his references. My client has a constitutional right to cross-examine his accuser. The Court: Sustained. Defense: And I ask that the jury be instructed to disregard that comment. The Court: Thank you. Please disregard the last comment. Defense: I move for a mistrial at this time, Your Honor. The Court: Consider the last comment for no purpose. Your request for a mistrial is denied. The State: You know, I wouldn't blame you one bit if you thought that, but for the grace of God go I. To have to come into court after being robbed at gunpoint with a shotgun and have to submit to what they have to submit to. Defense: Your Honor, here again, improper comments on my client's right to a trial by jury. The Court: Overruled. Appellant contends the prosecutor sought to prejudice the jury by attacking him for exercising his right to trial by jury and to confront witnesses. Defense counsel, however, had attacked the credibility of the witnesses, and the prosecutor responded. A response to opposing counsel's argument is an appropriate jury argument. See Felder, 848 S.W.2d at 94-95. Moreover, a defendant cannot complain of improper prosecutorial argument if he invited the argument. Ripkowski v. State, 61 S.W.3d 378, 393 (Tex. Crim. App. 2001). Appellant cites Villarreal v. State for the proposition that a prosecutor cannot prejudice the jury by attacking a defendant's exercise of his right to trial by jury and to confront witnesses. See id.; 860 S.W.2d 647, 649 (Tex. App.--Waco 1993, no pet.). The court in Villareal held the prosecutor made an improper jury argument when he equated bringing the rape victim into a courtroom full of strangers with subjecting her to rape a second time. Id. Although appellant compares the argument in Villareal to the statements at issue here, this portion of Villareal is inapplicable because the Villareal prosecutor was not specifically responding to argument invited by defense counsel when he made this comment. See id. In a later portion of Villareal, the prosecutor made an argument more analogous to the statements at issue in this case: "The criminal justice system does not care about sympathy. If it did it wouldn't require a child to come into the court in front of strangers." Id. The Villareal court held these statements made by the prosecutor were made in response to comments made by defense counsel during voir dire and, when taken in context, constituted a proper response to defense counsel's argument. Id. We hold the trial court did not abuse its discretion by denying appellant's motion for mistrial and then overruling his objection. We overrule appellant's first and second points of error. Cumulated Sentence In his third point of error, appellant contends the trial court imposed an unlawful sentence when it cumulated appellant's sentence in this cause with a sentence for which appellant was on parole. Appellant argues that parole causes the prior sentence to "cease to operate" because appellant was not an inmate at the time the current offense was committed and that, under article 42.08(a), his subsequent sentence cannot be cumulated. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2002). Appellant cites Ex Parte Kuester to define "cease to operate." See id., 21 S.W.3d 264, 270 (Tex. Crim. App. 2000). In Kuester, however, the term "cease to operate" was construed to determine when the former sentence was completed for the purpose of deciding when the cumulated sentence began. Id. at 271. The court did not hold that, when a prisoner is on parole, the sentence "ceased to operate" or that a later sentence could not be cumulated upon a sentence for which he was on parole. Moreover, several courts have held that the trial court has authority to order the cumulation of sentences when a defendant is on parole. See Wilson v. State, 854 S.W.2d 270, 273 (Tex. App.--Amarillo 1993, pet. ref'd); Carpenter v. State, 828 S.W.2d 441, 442 (Tex. App.--Austin 1992, no pet.); Jimenez v. State, 634 S.W.2d 879, 881-82 (Tex. App.--San Antonio 1982, pet. ref'd). Accordingly, we hold the trial court did not abuse its discretion when it cumulated appellant's sentence. We overrule appellant's third point of error. Conclusion We affirm the judgment of the trial court. Tim Taft Justice Panel consists of Justices Taft, Alcala, and Price. (1) Do not publish. Tex. R. App. P. 47.4. 1.