                        NUMBERS 13-13-00090-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

DIANE MARIE MUSACHIA,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 24th District Court
                          of DeWitt County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Perkes and Longoria
               Memorandum Opinion by Justice Perkes
      Appellant Diane Marie Musachia appeals her conviction of possession with intent

to deliver four to two hundred grams of methamphetamine, a first-degree felony. TEX.

HEALTH & SAFETY CODE ANN. §§ 481.102(6); 481.112(d) (West, Westlaw through 2013 3d

C.S.). Appellant pleaded guilty, and the trial court assessed punishment at thirty years
of confinement in the Texas Department of Criminal Justice, Institutional Division. By

two issues, appellant argues: (1) the State breached the plea agreement; and (2) the

State made improper closing argument. We affirm.

                                        I. BACKGROUND

        Appellant, appellant’s attorney, and a State prosecutor signed a plea agreement,

whereby appellant agreed to plead guilty in open court in exchange for the State agreeing

not to recommend a sentence of more than eighteen years’ confinement. 1                            The

agreement required appellant to “honestly debrief before sentencing and submit to

polygraph at State’s discretion.”

        At the plea hearing, the trial court acknowledged the terms and conditions of the

agreement and admonished appellant of her rights. The court explained to appellant the

applicable range of punishment and told her that it was not bound by the plea bargain but

that it would let her withdraw her guilty plea or enter a plea of not guilty if the court decided

against following the plea bargain. Appellant stated that she understood her rights,

options, and the impact of her plea. Appellant thereafter pleaded guilty, and the trial

court set the case for trial on punishment.

        During the bench trial on punishment, the State informed the trial court that the

plea bargain was no longer binding because appellant failed to comply with it. The State

explained:

        We had originally had a deal with the defendant that if she plead guilty and
        fully and honestly debriefed with law enforcement that we would cap the
        punishment at eighteen years. I believe all parties are in agreement that
        that agreement has not been complied with and that this is just an open

        1   The agreed cap on punishment excluded a fine, and the State also agreed to dismiss a pending
state jail felony against appellant.
                                                   2
       sentencing in which the entire range of punishment is available to the court
       for its consideration.

              If the defendant takes issue with that they can bring it up and we can
       discuss it but I believe we’re all in agreement that there is no cap and the
       State is not going to be bound by the cap that we had offered had there
       been a full and honest debriefing by the defendant.

       Appellant did not object or otherwise contest the State’s abandonment of the plea

agreement. Appellant neither objected to the State’s recommended sentence nor the

trial court’s actual sentence. Appellant filed a motion for new trial but did not mention the

State’s noncompliance with the plea bargain as a ground for relief; instead, she only

challenged the punishment as cruel and unusual.

                                  II. PRESERVATION

       By her first issue, appellant argues that the State violated the plea agreement by

requesting a sentence of more than eighteen years. Because appellant introduces this

argument for the first time on appeal, we overrule it as unpreserved.

       “Preservation of error is a systematic requirement of every appeal.” Moore v.

State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). Before a party may complain on

appeal, the record must show that the party made the complaint to the “trial court by a

timely request, objection, or motion that . . . stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make trial court

aware of the complaint.” TEX. R. APP. P. 33.1(a)(1)(A); see Griggs v. State, 213 S.W.3d

923, 927 (Tex. Crim. App. 2007). Errors related to noncompliance with a plea bargain

must be raised in the trial court to preserve them for consideration on appeal. See

Martinez v. State, 159 S.W.3d 655, 656 (Tex. App.—Corpus Christi 2004, no pet.); Ballard


                                             3
v. State, 149 S.W.3d 693, 696 (Tex. App.—Austin 2004, pet. ref’d); see also Stermer v.

State, No. 02-07-00425-CR, 2009 WL 1035237, at *4 (Tex. App.—Fort Worth Apr. 16,

2009, no pet.) (mem. op., not designated for publication); Gloria v. State, No. 13-01-

00367-CR, 2002 WL 1965336, at *2 (Tex. App.—Corpus Christi Aug. 22, 2002, no pet.)

(not designated for publication). The issue may be preserved by objection or, if there is

little opportunity to object at trial, in a motion for new trial. See, e.g., Bitterman v. State,

180 S.W.3d 139, 143 (Tex. Crim. App. 2005) (holding issue of noncompliance with a plea

bargain preserved because appellant raised it in new-trial motion); see also Martinez, 159

S.W.3d at 656 (holding noncompliance issue unpreserved because there was no

objection and the motion for new trial did not raise it); Gloria, 2002 WL 1965336, at *2

(same).

       Appellant had multiple opportunities to object but failed to do so.          The State

expressly invited appellant to object if she disagreed that the plea agreement was

inapplicable. Appellant failed to object when the State asked for a forty-year sentence,

and her motion for new trial did not assert any noncompliance claim. We overrule

appellant’s first issue as unpreserved. See TEX. R. APP. P. 33.1; Martinez, 159 S.W.3d

at 656; Ballard, 149 S.W.3d at 696; see also Stermer, 2009 WL 1035237, at *4; Gloria,

2002 WL 1965336, at *2.

                             III. PUNISHMENT ARGUMENT

       By her second issue, appellant contends the trial court erred by overruling her

objection to the State’s sentencing argument.          Specifically, appellant contends the




                                               4
following comments that were made during the State’s closing argument improperly

referenced facts2 outside the record:

      Bobby Bell likes to tell a story about the drug dealer that they caught that
      had a map of Texas drawn—

                ....

             . . . He [Bobby Bell] likes to make the argument that the map showed
      that they had a circle around Jackson County basically reflecting nobody
      ought to go into Jackson County, which is pretty good advice if you are
      going to be selling drugs. He has a right to be proud of that.

            By the same token, DeWitt County has always been extremely tough
      on drug dealers. Anytime we’ve tried them they’ve gotten virtually the max
      ....

A.    Standard of Review

      We review a trial court’s rulings on objections to argument for an abuse of

discretion. York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); Cole

v. State, 194 S.W.3d 538, 546 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d);

Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). We

uphold the trial court’s ruling if it is within the zone of reasonable disagreement.

Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus Christi 2010, pet. ref’d) (citing

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The State’s argument

must fall within one of the four permissible areas of jury argument: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to an argument of

opposing counsel; or (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717,

727 (Tex. Crim. App. 2011) (citing Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.



      2   Bobby Bell is the District Attorney for the adjacent Jackson County.
                                                    5
2008)); Lopez v. State, 288 S.W.3d 148, 159–60 (Tex. App.—Corpus Christi 2009, pet.

ref’d); see Harris v. State, 996 S.W.2d 232, 237 (Tex. App.—Houston [14th Dist.] 1999,

no pet.) (confirming four “categories apply equally to both the guilt-innocence and

punishment phases of a criminal trial.”). The State may not use argument to introduce

evidence “which is outside the record and prejudicial to the accused.” Borjan v. State,

787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (en banc) (citing Everett v. State, 707 S.W.2d

638, 641 (Tex. Crim. App. 1986) (en banc); Jackson v. State, 529 S.W.2d 544, 546 (Tex.

Crim. App. 1975)).

B.     Discussion

       The complained-of remark was a plea for law enforcement. Although the story

included facts from outside the record, they were not the type of facts proscribed by law;

the facts were unrelated to appellant and her trial, and they did not prejudice appellant

more than any other plea for law enforcement. See, e.g., Borjan, 787 S.W.2d at 57

(disdaining use of facts that not only come from outside the record but that are also

prejudicial to accused); Everett, 707 S.W.2d at 641 (same). The State’s story invited a

tough-on-crime approach to drug offenses, which is a valid plea for law enforcement.

See Borjan, 787 S.W.2d at 55 (“A proper plea for law enforcement may take many forms,

one of which is to argue the relationship between the [fact finder’s] verdict and the

deterrence of crime in general.”).

       Anticipating the foregoing assessment, appellant claims that the State’s argument

was an improper plea for law enforcement because it demanded satisfaction of

community expectations. Cf. Cortez v. State, 683 S.W.2d 419, 420–21 (Tex. Crim. App.


                                            6
1984) (en banc) (holding as improper argument premised on public sentiment and desire,

rather than on evidence; and that further invited jury to “lend its ear to the community”

rather than simply being voice of the community). We disagree. The State’s objected-

to comment did not invite the Court to rule in a manner the community demanded or

expected.

      Even assuming the State’s argument was improper, we consider it a harmless

error. Improper-argument of this type is a non-constitutional error, which we disregard

unless it affects appellant’s substantial rights. See TEX. R. APP. P. 44.2(b); Freeman,

340 S.W.3d at 728; Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000) (en

banc). To determine whether appellant’s substantial rights were affected, we balance

the following factors:   (1) the severity of the misconduct (prejudicial effect), (2) any

curative measures, and (3) the certainty of punishment assessed absent the misconduct

(likelihood of the same punishment being assessed). See Hawkins v. State, 135 S.W.3d

72, 77 (Tex. Crim. App. 2004) (en banc).

      Here, the alleged misconduct was an isolated anecdote supporting a tough-on-

crime plea for law enforcement. The rest of the State’s argument focused on the details

of appellant’s offense and criminal history. No curative measures were taken, but it was

likely appellant would have received the same punishment absent the allegedly improper

reference. Based on the admitted evidence, appellant has an extensive criminal history,

which most likely influenced the trial court’s sentence. See id. at 85. Moreover, the

offense to which appellant pleaded guilty was punishable by five to ninety-nine years’

incarceration. TEX. PENAL CODE ANN. 12.32 (West, Westlaw through 2013 3d C.S.).


                                            7
The State requested a forty-year sentence. The trial court’s assessment of a thirty-year

sentence was less than the State’s requested sentence and much less than the maximum

available for the offense. Thus, assuming there was error, on balancing the germane

factors, we conclude the error was harmless. See TEX. R. APP. P. 44.2(b); Hawkins, 135

S.W.3d at 77. We overrule appellant’s second issue.

                                   IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 14th
day of August, 2014.




                                               8
