Opinion
No. 05-02-01385-CR
Opinion Filed December 12, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-74397-UI. Affirm.
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
Appellant appeals his conviction for aggravated assault. After finding appellant guilty, the jury assessed punishment at fourteen years' confinement. In two points of error, appellant contends the trial court erred in (1) overruling his objection to improper jury argument, and (2) allowing the victim's mother to testify in rebuttal. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for committing aggravated assault by shooting complainant, John Williams, with a firearm. At trial, the State presented evidence that appellant and Williams grew up in the same neighborhood and had been friends. One night, after a dice game, appellant drove Williams home. Shortly thereafter, appellant called Williams and accused him of stealing his drugs. The following morning, appellant went to Williams's house and the two engaged in a fist fight. After the fist fight, appellant went to his car, retrieved a gun, turned around, and started shooting at Williams. Williams ran as appellant chased him with the gun, continuing to shoot. Appellant shot Williams twice, once on his hand and once on his arm. During the shooting, a three-year old girl was in the front yard of the house next door. According to the child's father, the child was in appellant's line of fire. In his first point of error, appellant contends the trial court erred in overruling his objection to improper jury argument. In closing, the prosecutor argued that, in determining appellant's sentence, it should consider evidence that appellant was reckless about whether innocent bystanders would get hurt during the shooting. The State then argued "if you recall, there was an incident similar to this where a little boy on the porch got shot in the head during exactly this type of thing." Appellant's objection to this argument was overruled. Appellant asserts the trial court erred in overruling his objection to the argument because it was outside the record. To be proper, jury argument must fall into one of the following categories: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) response to arguments of opposing counsel, and (4) pleas for law enforcement. Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992); Dooley v. State, 65 S.W.3d 840, 843 (Tex. App.-Dallas 2002, pet. ref'd). Prosecutorial argument that is outside the record and injects new and harmful facts into the evidence is improper. Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App. 1986). Even assuming the trial court erred in overruling appellant's objection, any such error was harmless. Improper jury argument does not amount to a constitutional violation, and we must disregard it unless it affected appellant's substantial rights. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We will not reverse a jury's verdict if, after examining the record as a whole, the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In determining the harmful effect of improper argument at punishment, we consider (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of the punishment assessed absent the misconduct. See Mosley, 983 S.W.2d at 260; Torres v. State, 92 S.W.3d 911, 924 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd); see also Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). Here, the prosecuted informed the jury that a child had been killed in a prior shooting similar to the one appellant committed. The prosecutor's argument did not suggest appellant was responsible for this unrelated shooting. Further, it is common knowledge that children have been accidently shot during other crimes. See Laca v. State, 893 S.W.2d 171, 185 (Tex. App.-El Paso 1995, pet. ref'd) (holding "[i]t is common knowledge that children are dying in our streets, caught in the crossfire of gang violence."). Moreover, evidence was presented to the jury that a child was nearby when appellant chased the victim as he fired his weapon. The State specifically argued the jury should consider this evidence in determining appellant's sentence. We conclude in light of the evidence presented at trial and the argument based on that evidence, the jury would place little if any weight on the prosecutor's argument about a different shooting. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred in allowing a "rebuttal" witness to testify for the State at punishment. In the punishment phase, the State presented evidence of appellant's prior criminal record and rested. Appellant then called some family members who testified on his behalf. After appellant rested, the State called Sonya Williams, the victim's mother, to testify. Appellant stated "Your Honor, I would, I guess, object at this time. I believe the State has rested, and I don't know if she's being called in rebuttal or — ." The trial court overruled appellant's objection. Sonya then testified that the night before the offense appellant threatened her son. She also testified about the effect the offense had upon her. Appellant did not object during Sonya's testimony. In this point, appellant does not assert the substance of Sonya's testimony was inadmissible in the punishment phase. Instead, he complains only that she could not testify in rebuttal, after the State rested, because Sonya could not have rebutted any evidence he presented at punishment. Initially, we note that because appellant did not object during Sonya's testimony, he did not complain to that trial court that the substance of any specific testimony was inadmissible. To preserve error, a party must object every time allegedly inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003). We conclude appellant waived error by failing to object to Sonya's specific testimony. Moreover, appellant assumes, without argument or authority, that the trial court could not allow Sonya to testify unless she rebutted his punishment evidence. However, in Texas, a trial court has discretion to admit testimony in the rebuttal portion of a trial even if that testimony does not rebut other testimony. See Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981); Lackey v. State, 638 S.W.2d 439, 457 (Tex.Crim.App. 1982). In this appeal, appellant does not assert the trial court abused its discretion in permitting the State to call Sonya after it rested, even if she did not rebut other testimony. Thus, he does not present reversible error. We overrule appellant's second point of error. We affirm the trial court's judgment.