Ferrow, Undra Lanier v. State

Affirmed and Opinion filed March 6, 2003 Affirmed and Opinion filed March 6, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00558-CR ____________ UNDRA LANIER FERROW, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 887,038 M E M O R A N D U M   O P I N I O N Appellant, Undra Lanier Ferrow, was convicted by a jury of possession of more than one gram, but less than four grams, of cocaine with intent to deliver the same. The jury subsequently found two enhancement allegations to be true and assessed appellant=s punishment at 25 years= imprisonment. In two points of error, appellant contends the trial court erred in (1) allowing improper jury argument, and (2) in denying his motion to suppress. We affirm. On September 5, 2001, Officer John Huston conducted surveillance in a known narcotics area. During the surveillance, appellant walked directly in front of Officer Huston=s unmarked car to cross the street. After crossing, appellant placed a brown paper bag behind the rear tire of a parked car. A couple of cars drove by and stopped to talk to appellant, but no exchange occurred. Appellant then retrieved the bag and two men approached him, but again no exchange occurred. Officer Huston believed the bag contained narcotics and prepared to stop appellant. He notified two marked police units of the situation and asked them to determine the contents of the bag. As appellant began to walk south, two police units approached him from both north and south. As the officers neared appellant, he turned around and faced the opposite direction. With his back to the approaching officers, appellant concealed the bag with both hands and then dropped it near a parked car. Appellant then began walking away from the police. The officers ordered appellant to stop. Appellant continued walking, however, until one of the officers drew his firearm and ordered appellant to the ground. The officers secured appellant and the bag, which contained thirteen individually wrapped rocks of crack cocaine, weighing approximately 1.3 grams. Jury Argument In his first issue, appellant contends the prosecutor made an improper statement during voir dire. During voir dire, the prosecutor said: Now, when you try this case you=ll notice, if you look at the two tables, that defense counsel sits there with his client, but at my table its just the two prosecutors. We don=t have a client. That=s because you are the client. The client is actually all of you guys and the people of our country. People that you know, your friends, and your family. Appellant=s counsel objected to this statement and argued that the prosecutor represented the State of Texas. Appellant=s objection was overruled, and the prosecutor continued: We represent the laws of our State and the community that you live in. And we need a jury that can be fair to both sides; of course, fair to the defendant and his rights, but also fair to our client, because even though he doesn=t sit here in the courtroom, just as real as the client sits on that side. I just want you to be a little more fair to my client. No, I=m just kidding. Actually, the truth of the matter is Article 2.01 of the Code of Criminal Procedure says the job of the prosecutor is not to get a conviction B did you guys know that? It=s to see that justice is done . . . . Appellant=s counsel made no further objection to this argument. Appellant contends the statement suggests (1) the prosecutor represents a private entity; and (2) that jurors need not remain disinterested toward either party. In criminal matters, a district attorney represents the State of Texas. Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon Supp. 2003). A district attorney, as a representative of the State, must remain an impartial representative of justice. Rougeau v. State, 738 S.W.2d 651, 657 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 1029 (1988), overruled on other grounds by Harris v. State, 784 S.W.2d 5, 19 (Tex. Crim. App. 1989). The prosecutor does not represent a private entity and any statement to the contrary is error. Draughon v. State, 831 S.W.2d 331, 336 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 3045 (1993); Rougeau, 738 S.W.2d at 657 (approving statements such as, “I represent the State,” but disapproving, “I represent you [jury].”). While the prosecutor misstated his relationship with the jury during voir dire, the error does not warrant reversal. See Tex. R. App. P. 44.2. Generally, rulings related to jury argument are treated as non-constitutional error within the purview of Rule 44.2(b). See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). Rule 44.2(b) compels the reviewing court to disregard any error that does not affect substantial rights. Id. In other words, the appellate court will disregard any error, after looking at the entire record, that failed to influence the jury or had only a slight effect. Jones v. State, 38 S.W.3d 793, 797 (Tex. App.CHouston [14th Dist.] 2001, no pet.). To analyze the harm of an improper jury argument, courts look at: (1) the severity of the misconduct; (2) measures taken to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Id. It is common knowledge that the State=s attorney represents the State of Texas and society. Rougeau, 738 S.W.2d at 656. By implication, therefore, a prosecutor represents all the citizens of Texas. Moreover, to the extent that jurors are citizens of Texas, the prosecutor=s statement was accurate. However, a defendant is obviously prejudiced if the jury believes the prosecutor is serving as its attorney. Such a view at once pits the jury and defendant as adversaries. Here, we perceive the goal of the State=s attorney was not to prejudice the defendant, but rather to explain why no “client” sat at the counsel table with the prosecutor. While the argument was improper, we note that it was not thereafter emphasized or repeated. See Bryant v. State, 923 S.W.2d 199, 212 (Tex. App.CWaco 1996, writ ref=d) (holding that the extent counsel emphasizes the wrongful statement is a factor considered in assessing harm). In fact, the prosecutor later clarified that as a representative of the State, he also represented, “the laws of our State and the community that you [jurors] live in . . . and [that the State] need[ed] a jury that [could] be fair to both sides.” Finally, substantial evidence was offered by the State to establish appellant=s guilt. Appellant was seen in possession of the contraband. Moreover, his attempted concealment, abandonment, and subsequent flight all show his guilty knowledge. Based on the record, we find the argument did not affect appellant=s substantial rights and, thus, does not warrant a reversal of the conviction. Accordingly, appellant=s first issue is overruled. Abandoned Property In his second issue, appellant contends the trial court erred in denying his motion to suppress because he did not abandon the cocaine. In reviewing a trial court=s ruling on a defendant=s motion to suppress, an appellate court must first determine the applicable standard of review. The Court of Criminal Appeals made clear that while appellate courts should afford almost total deference to the trial court=s determination of the historical facts, mixed questions of law and fact not turning upon an evaluation of credibility and demeanor are to be reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87B88 (Tex. Crim. App. 1997). Specifically, questions of reasonable suspicion and probable cause should be reviewed de novo on appeal. Id. at 87. This is because the trial judge is not in a better position than the reviewing court to make that determination. Id. Appellant contends he did not voluntarily abandon the contraband at issue; rather, appellant seems to suggest that but for the unlawful actions of the police, he would not have dropped the contraband. A defendant does not have a constitutionally protected interest in abandoned property. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). A defendant abandons property if he (1) intended to abandon it; and (2) freely decided to abandon it, without merely being the product of police misconduct. Id. In other words, if a defendant drops or disposes of property after being unlawfully seized by police, the “abandonment” is not voluntary. In such a case, the “abandonment” flows from and is a product of the unlawful seizure. Here, however, appellant abandoned the contraband before being seized by police. Accordingly, we need not decide whether police possessed probable cause to detain appellant because his abandonment of the contraband was not a product of his arrest or detention. Under the Fourth Amendment, “[t]he word >seizure= readily bears the meaning of a laying on of hands or application of physical force to restrain movement . . . . It does not remotely apply, however, to the prospect of a policeman yelling >Stop, in the name of the law!= at a fleeing form that continues to flee. That is no seizure.” California v. Hodari D., 499 U.S. 621, 627 (1991). Likewise, under Tex. Const. art. I, ' 9 “the seizure of [a] citizen has not occurred until a reasonable person would believe he or she was not free to leave, and that person has yielded to the officer’s show of authority or been physically forced to yield.” Johnson v. State, 912 S.W.2d 227, 236 (Tex. Crim. App. 1995) (emphasis added). Further, this Court has upheld the legality of a seizure of cocaine abandoned by a defendant before he submitted to a police order or stop, or was subjected to physical force. Crawford v. State, 932 S.W.2d 672, 674 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). Here, appellant at first concealed and then abandoned the contraband when he saw the approaching police officers. The only police conduct that preceded appellant=s abandonment was that police made “eye contact” with him. He continued to walk away from the cocaine and never attempted to retrieve it nor asked police to return it. From these facts, we conclude appellant abandoned the cocaine. Accordingly, appellant=s second issue is overruled. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed March 6, 2003. Panel consists of Justices Yates, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).