Opinion
No. 08-50845 Summary Calendar.
June 24, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Evers Jason Leach, Law Offices of E. Jason Leach, Odessa, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 7:08-CR-29-ALL.
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
A jury convicted Andera Thompson of possessing with intent to distribute five grams or more of a mixture or substance containing cocaine base. See 21 U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced to serve 120 months in prison. On appeal he challenges the district court's (1) rejection of his hearsay objection to cellular telephone text messages, and (2) failure to exclude certain prosecutorial remarks to which he did not object at trial.
At trial, the Government introduced evidence that Thompson had a cellular phone on his person that contained text messages from an unknown person apparently seeking to buy drugs and referencing "fronting" drugs. Thompson contends that the text messages constituted hearsay and that it was an abuse of discretion to admit them. We pretermit that question, however, because any abuse of discretion was harmless. See United States v. Yanez Sosa, 513 F.3d 194, 201 (5th Cir. 2008) (stating that an abuse of discretion in admitting or excluding evidence may be excused if, leaving aside the disputed evidence or remarks, the remaining evidence was substantial). Even without the text messages, there was substantial evidence of Thompson's guilt, including testimony by a person who spent the day with Thompson and observed his drug dealing and drugs found in the area of the car where Thompson was sitting when apprehended.
The district court found that the messages were co-conspirator statements and, thus, not hearsay. FED.R.EVID 801(d)(2)(E). We also note that it is questionable whether they were offered "to prove the truth of the matter asserted," FED.R.EVID 801(C), and, thus, whether they were even governed by Rule 801. Given our harmless error analysis, we need not decide either question.
Thompson also argues that the prosecutor made improper and impermissible statements in rebuttal closing argument. Because Thompson did not object to the remarks at trial, review is for plain error. United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Even assuming that the prosecutor's remarks constituted obvious error, Thompson has not shown that they had the "probable effect" of preventing the jury from "judg[ing] the evidence fairly." Id. The evidence against Thompson was "substantial and virtually uncontradicted," id. at 20, 105 S.Ct. 1038, and Thompson points to no reason why the jury should not be presumed to have heeded the district court's repeated instructions that remarks of counsel are not evidence. See United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999).
AFFIRMED.