### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00339-CR

Gilbert Espinoza, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 1010019, HONORABLE JON N. WISSER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Gilbert Espinoza guilty of possessing more than four ounces

of marihuana. Tex. Health & Safety Code Ann. § 481.121(a), (b)(3) (West Supp. 2003). The district

court assessed punishment at twenty-two months in a state jail. Appellant brings forward five points

of error, all complaining of improper jury argument by the State. Finding no reversible error, we will

overrule the points and affirm.

Police executing a search warrant found a brick of marihuana weighing approximately

two pounds in the tru nk of a car parked across the street from appellant’s residence. With the

marihuana, police found what appeared to be wrappers from other bricks of marihuana, scales

capable of weighing pounds, and a tackle box containing close to $7000 in cash. In a closet inside

the residence appellant shared with his wife and children, police found trace amounts of marihuana,2

scales capable of weighing grams and ounces, a police scanner, and over $6000 in cash. A police

officer testified that the brick of marihuana had a street value of about $1000.

Appellant’s first two points of error relate to state ments made by the prosecutor

during her opening argument at the guilt stage. She was addressing the policies underlying the drug

laws.

And it’s also about people who are affected by Mr. Espinoza’s drug possession and

drug dealing. People like his wife perhaps. People like his kids perhaps. Even like

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even a person like himself who may be denied the dignity of a real job. People like

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his kids who have to grow up in a house where they know their dad is selling drugs.

MR. ORR [defense counsel]: Excuse me, Your Honor. I object to this argument as

outside of the record. It’s improper argument. I

object.

MS. MUELLER [prosecutor]: Your Honor, it’s certain ly an inference from all of

the evidence.

THE COURT: I’ll just once again ask the members of the jury to please base

your verdict solely on the evidenc e admitted before you and the

reasonable inferences drawn from that evidence.

MR. ORR: And I move for a mistrial, Your Honor.

THE COURT: We’ll deny that request.

MS. MUELLER: Just think of the kids that are growing up in Mr. Espinoza’s home

who know that their dad deals in drugs.

MR. ORR: Well, Your Honor, excuse me. I renew my objection and move

that

– not only that she not be allowed to make that type of

argument. It’s outside the record. It’s inappropriate. It’s highly

prejudicial, and there’s

– it’s got nothing to do with the issues in

this case.

THE COURT: We’ll overrule the objection.3

MS. MUELLER: Thank you, Your Honor. You think that the neighbors on the

pictures that the defense provided for you of the street where Mr.

and Mrs. Espinoza live don’t know about the dealing that’s going

on? You think they don’t know that all the strangers that come –

that must come there to buy marihuana aren’t coming there to buy

something illegal?

MR. ORR: Well, once again, Your Honor, I object. She’s arguing outside the

record.

THE COURT: As the charge reflects, the defendant is charged solely with

possession of marihuan a and not with dealing or selling or

transfer. Just possession.

MS. MUELLER: I’m going to sit down and –

MR. ORR: And I move for a mistrial, Your Honor.

THE COURT: We’ll deny the request.

Appellant contends the court erred by overruling his motions for mistrial. He argues that there was

no evidence that he was selling marihuana, much less that his family and neighbors were aware of

any such activities. He contends the prosecutor was improperly seeking to inflame the minds of the

jury to his unfair prejudice.

Given the quantity of marihuana, the scales, and the large amount of cash found by

the police, the prosecutor could reasonably infer that appellant was selling marihuana. S ee Allridge

v. State

, 762 S.W. 2d 146, 155 (Tex. Crim. App. 1988) (permissible categories of jury argument).

Assuming, however, that the evidence did not support the further inference that appellant’s children

and his neighbors were aware of such selling , we conclude that the argument did not warrant a

mistrial.1 Because the sufficiency of the evidence is not challenged on appeal, we have only briefly

summarized it.

4

Appe llant urges that this cause should be governed by the holding in T hompson v.

State

, 89 S.W.3d 843, 850-51 (T e x. App.—Houston [1st Dist.] 2002, pet. ref’d). In that case, the

prosecutor, at t he punishment stage, urged the jurors to assess a ten-year prison term, saying,

“There’s a very important reason but legally I’m not allowed to tell you what it is but it is very

important.” The appellate court found this argument to be “flagrant[ly] and severely improper” and

reversed for a new trial as to punishment. I d

. at 854. In the cause now before us, the arguments

complained of were made at the guilt sta ge and were not so clearly calculated to prejudice the

defense.

A mistrial is called for when there is error so prejudicial that continuation of the trial

would be futile, and the decision to declare a mistrial is committed to the trial court’s discretion.

Ladd v. State

, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The prosecutor’s argument was, at most,

only mil dly improper. In denying appellant’s two motions for mistrial, the court admonished the

jurors that appellant was on trial solely for possession of marihuana and to base their verdict only

on the evidence before them. As we have already noted, the complained-of remarks were not made

at the punishment stage where they might arguably have been more prejudicial, but at the guilt stage

of a trial in which the evidence of guilt was substantial. 1 S ee Martinez v. State

, 17 S.W.3d 677, 692-

93 (Tex. Crim. App. 2000) (applyi ng harmless error rule to overruling of objections to jury

argument). Under the circumstances shown, the district court did not abuse its discretion by

overruling the moti o ns for mistrial underlying points of error one and two. These points are

therefore overruled.5 The remaining points of error relate to remarks made during the prosecutor’s closing

argument. In the argument of which appellant complains in point three, the prosecutor was

reviewing the evidence tending to establish appellant’s guilt.

And if that’s not enough, in addition to that, you have a search warrant that

authorizes the Narcotics Unit of the Travis County Sheriff’s Office to go search in

that enclosed area in those cars. And if that’s not enough in and of itself –

MR. ORR: Excuse me, Your Honor, I object as to arguing that the search

warrant

– this is really improper

– is somehow evidence of some

kind of guilt in this case. And I move the jury be instructed to

disregard.

THE COURT: We’ll sustain the objection, and the jurors will disregard it.

MR. ORR: And I move for a mistrial, Your Honor.

THE COURT: That request will be denied.

Appellant argues that it was improper to argue that the issuance of the search warrant, which was not

in evidence, was evidence of guilt.

We agree with appellant and the district court that this argument was improper. We

conclude, howev er, that the court’s instruction to disregard was sufficient to cure the error. S ee

Dinkin s v. State , 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (instruction to disregard will

generally cure error in jury argument). The argument was not so extreme or manifestly improper as

to render futile the court’s instruction. See Hernandez v. State

, 819 S.W.2d 806, 820 (Tex. Crim.

App. 1991). The court did not abuse its discretion by denying the requested mistrial. Point of error

three is overruled.6 Later, the prosecutor returned to the subject of the policies underlying the drug laws.

Lastly I’ll say that though you may

– some of you may disagree with the fact that the

State chooses to prosecute drug laws, one could argue that they are a sign of a higher

civilized society or the sign of a more sophisticated community. If you think about

drugs in one way, you know that using drugs like mar ihuana make people less

productive

– less productive citizens, less productive spouses, less productive fathers.

You also – we all know that drug use –

MR. ORR: Excuse me, Your Honor, I object to testifying outside the record.

Talk is

– is

– and what

– arguing about d r ug usage is

inappropriate and improper.

THE COURT: We’ll overrule the objection.

MS. MUELLER: Thank you.

Another thing that we all know about drug use is that using drugs

does alter the chemicals in a person’s brain. And it is fair to say

that what a lot of people do when they are under the influence of

drugs is not wha t they would do when they are not under the

influence of drugs.

It i s also a fair statement to say that most of the crimes that are

committed in the United States, in the Sta te of Texas and in

Travis County, Austin, Texas, are committed when the defendant

is either on drugs or they are in search of drugs.

MR. ORR: Your Honor, I object. It’s outside the record.

THE COURT: Okay, we’ll sustain the objection to the last statement.

MR. ORR: And I move the jury be instruct to disregard.

THE COURT: The jurors will disregard the last statement.

MR. ORR: And I move for a mistrial.

THE COURT: That request will be denied.7

MR. ORR: Specifically I’m objecting, Your Hon or, to her statement that

drugs – which we’re not charged with drugs in this case – cause

crime. So – to make – make my objection very clear.

THE COURT: We sustained the objection and asked the jurors to disregard the

statement. And the prosecutor should move to some other area,

please.

Appellant comp lains that there was no evidence regarding the chemical effects of drugs or

marihuana. He also urges that there was no evidence that most crime is caused by drugs or that his

marihuana possession contributed to other crimes.

For the reasons we have already discussed with respect to the preceding points of

error, we hold that the court did not reversibly err by overruling appellant’s objection to the

prosecutor’s remarks concerning the effects of drug use on human productivity. See Martinez , 17

S.W.3d at 692-93. The instruction to disregard was sufficient to cure the error in the remaining

argument, and the court did not abuse its discretion by denying the mistrial. Point of error four is

overruled.

In his last point of error, appellant complains that the prosecutor again went outside

the scope of the evidence during this argument:

A lot of times there are weapons at the homes of where drugs are found. You heard

from Mr. Orr that

– and then the evidence in this case that

– that we don’t

– there was

not a weapon found at the location of where the search warrant was

– was executed,

when the search warrant was executed, but you can understand why some people who

do deal in large amounts of drugs like this –

MR. ORR: Excuse me, Your Honor, I object. We’re here – this is Mr.

Espinoza’s case. We’re not here to worry about other people

charged in other cases. I object, and I move that the – I ask

–

request the jury be instructed to di sregard this argument. It’s

completely inappropriate.8

MS. MUELLER: It’s an inferenc e from the evidence, Your Honor. It’s a plea to

law enfo rcement. This is completely within my rights, and Mr.

Orr knows it.

MR. ORR: No, I don’t know it.

THE COURT: I think the State’s down to about two minutes anyway. So maybe

if you’ll just try to wrap it up. And I’m not exactly sure what the

relevance of the weaponry is since there is no evidence of –

MR. ORR: Is my motion for an instruction to disregard denied, Your Honor?

THE COURT: No, we’ll ask the jurors to disregard the weaponry remark –

MR. ORR: And I do move for a mistrial, Your Honor.

THE COURT: That request will be denied.

We agree with appellant that the argument in question was outside the record and improper. The

trial court said as much and then instructed the jury to disr egard the remark. Once again, we find

no abuse of discretion in denying the motion for mistrial. Point of error five is overruled.

The judgment of conviction is affirmed.

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: August 14, 2003

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