11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Robert Nunez

Appellant

Vs.                   No. 11-01-00135-CR  -- Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted Robert Nunez of a first degree felony offense, delivery of more than 4 grams but less than 200 grams of methamphetamine.  After he pleaded Atrue@ to the allegation of one prior felony conviction, the jury assessed his punishment at confinement for life and a fine of $10,000.   We affirm.

                                                                  Issue Presented

Appellant presents only one issue for appellate review under TEX.R.APP.P. 38.1(e).  That issue reads in full as shown:

The State engaged in improper jury argument during the guilt/innocence phase of the appellant=s trial.

                                                                Background Facts

There were only five witnesses during the guilt/innocence phase of trial.  The State=s first witness was Rodney Price, a certified peace officer who served as a field supervisor for the narcotics task force.  He testified about the Acontrolled buy@ from appellant of methamphetamine by a confidential informant named Sharilyn Doyle.  Doyle was the State=s second witness, and she testified that she purchased Aa quarter of an ounce@ of methamphetamine from appellant for $550 on May 25, 2000.  She was wearing a recording device during that transaction, and the recording was heard by the jury.  The other three witnesses were used to prove the chain of custody of the contraband which the informant purchased from appellant and to prove that the contraband was methamphetamine which weighed 5.97 grams.

                                                             Controlling Authorities

Appellant cites Harris v. State, 784 S.W.2d 5, 12-13 (Tex.Cr.App. 1989), and Cortez v. State, 683 S.W.2d 419, 420-21 (Tex.Cr.App. 1984), to support his claim that the State engaged in improper jury argument.  First, we note that there was no objection and that the complaint has not been preserved for appellate review.  See TEX.R.APP.P. 33.1.  More importantly, we hold that the argument was not improper.

In Harris and Cortez, the Court of Criminal Appeals states the rule that a jury argument which refers to the Aexpectations or demands of the community@ is error.  The State=s argument in the case before us did not refer to the Aexpectations or demands of the community.@  The portion of the State=s argument which is discussed in appellant=s brief reads in full as shown:

Let me tell you folks something.  You have the opportunity to send out a message to this county.  And the people that come into this county and the people that are a part of this county that want to come in here and do this kind of stuff, say, if you bring it over here, we=re going to convict you.  If you bring it into this county, you come before this court, we=re going to convict you.  Okay.  It=s very simple.

The argument in the case before us was a plea for law enforcement.  The prosecutor was not asking the jury Ato lend an ear@ to community expectations; he was asking the jury to Asend a message@ to the community.  As the court said in Smith v. State, 966 S.W.2d 111, 112 (Tex.App. - Beaumont 1998, pet=n ref=d):

Cases holding an argument impermissibly pressured a jury to assess punishment to meet the expectations of the community invariably refer directly to the demands or expectations of the community for a particular verdict.

                                                            *   *   *

On the other hand, a reference to the community which asks the jury to represent the community is a plea for law enforcement which does not exceed the bounds of proper argument.  Included within this category are such arguments as:  AI am asking you...to send...a message to tell them we=re not tolerating this type of behavior in our county.@  (Emphasis added)

See also Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App. 1982), where the Court of Criminal Appeals affirmed a conviction in a case where the trial court overruled an objection to the State=s jury argument which asked the jury Ato send...a message to tell them we=re not tolerating this type of behavior in our county.@  The sole issue presented for appellate review is overruled.

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

October 25, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Wright, J., and

McCall, J., and Dickenson, S.J.^[1]