Opinion issued December 18, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01084-CR

____________

JAIMEL SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 52,748

MEMORANDUM OPINION

A jury found appellant, Jaimel Smith, guilty of the offense of possession of a prohibited substance, namely, marijuana, in a correctional facility ⁽¹⁾ and assessed his punishment at confinement for eleven years. In two points of error, appellant contends that the trial court, during the punishment phase of the trial, erred in allowing the State to argue to the jury facts outside of the record.

We affirm.

Factual Background

Texas Department of Criminal Justice ("TDC") Law Library Supervisor R. Robas testified that on July 14, 2005, as she was working in the law library at the Stringfellow Unit, she heard the door open. Robas could not see whether someone had come into or had left the library, so she walked to the hallway where she saw appellant and another inmate, Davis, talking. Because Davis and appellant seemed nervous, Robas attempted to search their papers and books. After searching appellant's materials, Robas saw that appellant surreptitiously took something from Davis. Then both inmates began to walk away, ignoring Robas's instructions to stop and submit to a full search. Robas followed the two inmates into the main building hallway and called for TDC Correctional Officer R. Anyiam to strip search appellant. Before Anyiam could perform the search, appellant "took off running." While Anyiam pursued appellant, Robas searched through a binder of papers that Davis had been carrying and found a contraband twenty dollar bill.

Officer Anyiam pursued appellant outside into the west recreation yard, and he saw appellant drop books, papers, and other items as he ran towards the fence line. As appellant approached the fence, TDC Officer E. Gindele yelled at appellant to stop, and she put her hand on her weapon and unclipped the holster. At that point, appellant stopped running and submitted to restraints. While appellant was taken away to be strip searched, Anyiam and other TDC officers retraced appellant's steps and retrieved the items that appellant had dropped as he ran. Among the items that appellant dropped, Anyiam discovered a small, cellophane bag filled with a leafy green substance.

TDC Lieutenant S. Kelly escorted appellant inside to be strip searched. In the course of the search, Kelly discovered that appellant had concealed in his clothing a rectangular, white packet.

Brazoria County Crime Lab Chemist P. Van Dorn testified that after analyzing the contents of the small, cellophane bag and the rectangular, white packet, he discovered that they contained 1.2436 and 1.4059 grams of marijuana respectively.

Jury Argument

In two points of error, appellant argues that the trial court, during the punishment phase of trial, erred in overruling his objections to two portions of the State's jury argument because these arguments were not supported by any evidence in the record. The State contends that the arguments were supported by the evidence, or, alternatively, even if improper, the arguments were harmless.

The law provides for a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991); Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). Permissible jury argument generally falls into four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Dominguez v. State, 125 S.W.3d 755, 763 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). "[P]rosecutors have wide latitude in the language and manner of arguing their side of the case consistent with the evidence." Holberg v. State, 38 S.W.3d 137, 141 (Tex. Crim. App. 2000).

Appellant first complains of the following argument:

[The State]: [Appellant] has the opportunity inside the penitentiary to disrupt the whole process by possession of marijuana.

Justice in the days of prohibition when alcohol--you and I may think alcohol is no big deal on the streets. That's what the defense wants you to believe that a little bit of marijuana is no big deal on the streets. But inside the penitentiary, ladies and gentlemen, where it is difficult to get, it becomes a huge deal. And history shows you like in the days of prohibition when alcohol was difficult to get, it creates gang issues, violence issues, and power issues--

[Appellant]: Judge, I'm going to object to argument outside the evidence. The Court excluded this type of evidence in Mr. Holm's testimony.

[The trial court]: Overrule. You may continue.

[The State]: And it's the same thing, I would submit to you it does inside the penitentiary and that's why it's a big deal.

While that 2 grams of marijuana on the street may be a misdemeanor, inside the penitentiary the legislature has made it a felony . . . because it becomes a bigger issue inside the penitentiary because of the issues it creates.

(Emphasis added.)

Next, appellant complains of the following argument:

[The State]: [Appellant has] had chances to get his life straight. Ladies and gentlemen, he continue[s] to snub his nose at authority. He continues to do what he wants to do. He continues to live a life inside the penitentiary that many people on the outside world try to live and get in trouble for. And he wants you to come in and pat him on the hand and say two years is okay.

You see the only thing those guys inside the penitentiary understand is time and that's all they understand.

[Appellant]: Judge, I'm going to object. That's argument outside the record.

[The trial court]: Overrule.

(Emphasis added.)

After considering the above arguments in context, we disagree with appellant's contention that these arguments were improper. During his closing argument, appellant had asked the jury "how many years is [two-and-a-half grams of marijuana] worth in this case, [appellant's] case?" Appellant went on to argue that "it's worth at or near the two years, the minimum the legislature has given you . . . ." In the first challenged portion of the State's argument, the State responded to opposing counsel by pointing out that possessing even a small amount of marijuana in a correctional facility is more serious than possessing that same amount outside a correctional facility. Compare Tex. Penal Code Ann. § 38.11(g) (Vernon Supp. 2008) with Tex. Health & Safety Code Ann. § 481.121(b)(2) (Vernon 2003). The State's comments, read in context, amounted to no more than a response to the argument of opposing counsel and a plea for enforcing discipline in the institution. See Jackson, 17 S.W.3d at 673. Additionally, in the second challenged portion of its argument, the State further responded to appellant's argument that the jury should assess the minimum punishment and also made a plea for enforcing discipline within the institution. See id.

Applying the principle that prosecutors have wide latitude in the language and manner of arguing their side of the case, we hold that the above portions of the State's argument were not improper jury argument but were pleas for law enforcement in response to argument of opposing counsel.

We overrule appellant's first and second points of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Penal Code Ann. § 38.11(d)(1)(A) (Vernon Supp. 2008).