### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00545- CR

Antonio Vasqu ez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 11- 2021 53, TH E H ONO RAB LE CLIF F ORD B ROW N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A j ury convicted appellant Antonio Vasque z of delivery of a co n trolled substance,

coca ine, in an amount of less than one g ram. See Hea lth & Safety Code Ann. § 4 8 1

. 1 1 2 (West 2010). The jury found t he allega tion s i n the enhanceme nt para g raphs of the i ndictment to be true and asse ssed his punishment at confineme nt for 11 y ear s in the I nstitut ional Division of the Texas Depa rtment of Criminal justice. See Tex. Penal Code Ann. § 12.425 (West Supp. 2012). I n a single point of err or on appea l, appellant asser ts that the trial court err ed in overr uling his objection to the State’s jury arg ument during the g uilt-innocence phase of trial. We aff ir m t h e j u d g ment of conviction.

BACK GR OUND

The jury hear d evidenc e that on April 21, 2011, Offic er Geor g e Bla nch of the Austin Police Depa

rtment was working underc over in southeast Travis County in a buy /bust opera tion. I nsuch an opera tion, a n underc over police office r attempts to buy drug s from people who are easy to

acc ess while other office rs, monitoring and observing what is happening with the underc over office r throug h a wire, wait near

by to perf orm an arr est afte r a succe ssful transac tion. Bla nch’s role in the opera tion that night was to buy drug s from stree t level dea lers. At approxi ma

te ly 8 :30 in the evening , while driving his underc over vehicle, a pick-up truck equipped with a came ra and microphone, Bla nch approa ched appellant who was walking with 1

a y oung er male and fema le. Bla nch asked them if they could help him g et some “har d,” a street term for cra ck coca ine. The y oun ger m al e and fema le said no and walked awa y . Appellant, howeve r, ag ree d to help Bla

nch. Bla nch asked for $40 worth of cra ck coca ine and offe red appellant $10 for g etting it. Appellant said that his connec tion was in the near by apar tments and that he would g o g et it. Bl an ch k ep t appellant’s key s, so appellant would not leave with the money and not return. Bla nch pulled over

to the side of the r oad and w aited for the appe llant to return. When appellant returne d, he told Bla nch that his connec tion was n o t a v a il a b le b u t that he was g oing to be contac ted shortly when the narc otics wer e available . Appellant and B lanch sa t in the truck and chatted while they waited. Bl an ch told appellant he was having trouble finding

narc otics wher e he lived. Appellant offe red t o s el l h i m drug s in the future. Bla nch also told appellant he was having some financ ial problems. Appellant g ave him advic e about how to make more money . During the conve rsation, appe llant and B lanch e x chang ed phone numbe rs.

A DVD containing an audio and video rec ording of Bla nch’s encounte r with appellant was 1 admitted and play ed for

the jury

. 2A short time later, the fema le that appellant had b ee n wa l k i ng with ear lier y elled

sever al times from the parking lot. Appellant walked awa y from Bla

nch’s truck, talked to two people at a near

by apar tment complex, and then returne d to the truck. Appellant handed the coca ine to Bla nch in the underc over vehicle. Bla nch then g ave the prede t er m i n ed t ak edown signa l to his tactica l support team who came and arr ested appellant. The controlled substance was rec o vere d afte r the ar rest. Subsequent lab te sting re veale d that the substance was .33 g ram of c ocaine

. The jury found appellant g uilty of delivery of a controlled substance as char g ed in the indictment. After hear ing evidenc e of appellant’ s prior cri m i n al h i story , the jury found all four enhanc ement para g raphs o f t h e indictment to be true and assessed his punishment at 11 y ear s’ imprisonment. This appeal followe d.

DISCUSSIO N

Du ri n g closing arg ument of the g uilt-innocence phase, the prosec utor made the following arg ument:

We don’t blame drug addicts, d ru g u s ers. We don’t blame the defe ndant [si c] for their choice to use drug s. So why are we g oing to blame the users for this defe ndant’s choice t o deliver, reg ardle ss of the small amount? This defe ndant is prey ing on vulne rabilities of per sons with real issues for a quick buc k. Appellant’s counsel objected that this arg ument was “an improper jury arg ument.” The trial judge responde d, “A lawy er can make -- overr uled -- rea sonable deductions from the evidenc e.” I n a single issue, appellant complains that t h e p rosecutor’s arg ument, acc using him of “pre y ing upon

3vulnera

biliti es of persons with r eal issues for a quick buck,” was “not supported by the rec ord or a

rea sonable infe renc e fr om the evidenc e.” We disag ree .

Proper jury arg ument g ener ally falls within one of four are as: (1) summation of the evidenc e; (2) rea sonable deductions from the evidenc e; (3) answe rs to opposing counsel’s arg ument; and (4) plea for law enfor ceme nt. Freem an v. State , 340 S.W .3d 717, 727 (Tex. Crim. App. 2011); Brown v. State , 270 S.W .3d 564, 570 (Tex. Crim. App. 2008). Even ag g ressi v e ar gu m ent is permissible if it f

alls within one of these four cate g ories. See Berry v. State , 233 S.W .3d 847, 860 (Tex. Crim. App. 2007). Counsel is allowed wide latitude in draw ing infere nces from the evidenc e so long a s the infer ence s draw n are rea sonable, fair, l eg itimate, and offere d in good f aith. Gaddis

v. State , 753 S.W .2d 396, 398 (Tex. Crim. App. 1988); see also Cantu v. State , 939 S.W .2d 627, 633 (Tex. Crim. App. 1997) (State has wide latitude in draw ing infere nces from evidenc e, as long as infere nces are rea sonable and offe red in g ood faith). To deter mine whether there has been

an im p ro per jury arg ument, we consider the context in which the rema rk was made. Gaddis , 753 S.W .2d at 398.

We construe the prosec utor’s arg ument here as both a rea sonable deduction from the evidenc e as well as a response to opposing counsel’s arg ument. First, the rec ord ref lects that in his underc over role, while they wer e waiting for appellant’ s source to contac t him, Offic er Bla nch talked to appellant about the difficulty obtaining coca ine in his own n ei gh b o rh o od and his financ ial problems. I n fac t, the rec ord ref lects that appellant advised Bla nch about way s he could ear n more 2

Offic er Bla

nch testified that in his underc over role he was prete nding to be someone he was 2 not, play ing a

kind of cha

rac ter. 4money . I t was a reas o n able deduction from this evidenc e that the person Bla nch portrayed was a person who was vulnera

ble and had “re al issues,” such as drug addiction, low income, or both. The evidenc e also showed that appellant made $10 simply for o b taining the coca ine for Bla nch. I t

was a rea sonable deduction from this evide n ce t h at appellant eng ag ed in the drug delivery for “a quick buck.” Fur

ther, during his closing arg ument, appellant’ s counsel attempted to minimi ze the serious nature of this delivery offe nse by rema rking that althoug h appellant had sold cra ck coca ine, he had not sold i t in larg e quantities, nor ha d he sold it to children. Appellant’ s counsel aske d the jury to consider whether , beca use of these fac ts, this case “f it[ s] what y ou think should be a crime in th e S t at e o f T exas.” I n response , the State noted the appellant was selling coca ine, which is a crime in Texas, reg ardle ss of the amount or t o whom it is sold. The S tate was entitled to respond to counsel’s arg ument by explaining wh y ap p ellant’s criminal conduct was serious and why he should be held acc ountable. The prosec utor did so by m aking a rea sonable deduction from the evidenc e and draw ing upon common knowledg e—that drugs are freque ntly sold to those with a drug addiction.

W e conclude that the State’s arg ument was both a rea sonable deduction fr o m t h e evidenc e as well as a response to opposing counsel’s arg ument. Thus, the trial court did not err in

overr uling a ppellant’s objec tion. Accor dingly , we ove rrule a ppellant’s sing le point of err or.

CONCLUSION For the fore g oing r easons, we aff irm the judg ment of the trial c ourt.

5__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed: Aug ust 29, 2012 Do Not Publish

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