                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00445-CR


DAVID DEWAYNE WILSON                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      A jury convicted David Dewayne Wilson of possession of cocaine in

excess of four, but less than 200, grams with the intent to deliver. 2 The jury also

found that he used a deadly weapon in the commission of the offense and

assessed punishment at twenty years’ confinement. The trial court sentenced

him accordingly. Appellant raises one issue on appeal: that the trial court erred

      1
       See Tex. R. App. P. 47.4.
      2
       Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010).
by overruling his counsel’s objection to the prosecutor’s improper argument on

guilt. Because the argument was proper for two reasons, we affirm.

                                Background Facts

      On January 19, 2010, officers executed a no-knock search warrant at

appellant’s residence.     Officers detained appellant near the front door and

proceeded to search the apartment. Officers found suspected cocaine and a

razor blade on top of appellant’s television.3 Under a flap in the couch, officers

also found a bag of cocaine and a bag of marijuana. Officers found the drugs

packed in smaller, individualized baggies inside the first two bags.          Tests

confirmed the baggies contained 32.71 grams of cocaine and 11.9 grams of

marijuana. Officer Roderick Martin testified that individualized baggies like the

ones found are generally used in dealing narcotics. Officers also found a loaded

Glock pistol on the floor near appellant and $445 in small denomination bills in

appellant’s pockets.     An officer testified that large amounts of cash in small

denominations were consistent with an individual dealing drugs.

      The trial court held a jury trial on October 1, 5, and 7, 2010. After the jury

convicted appellant, he timely filed this appeal.




      3
       The State did not perform any tests to determine whether the substance
on top of the television was actually cocaine. It was not presented as cocaine at
trial.


                                          2
                   Permissible Categories of Jury Argument

      Appellant says that he was substantially prejudiced by the following part of

the State’s argument, which he contends did not qualify as a summation of, or a

reasonable deduction from, the evidence. Nor, he contends, was it responsive to

arguments of the defense:

      But you have to ask yourselves - - Defense counsel gets up here
      and says you’ve heard no evidence about the investigation, why
      they were there. Ask yourselves why they were there? He begs the
      question, why were they there? Pursuant to a search warrant signed
      by a judge. So why did they have that search warrant? Because of
      the investigation that led them to that apartment, that quadplex, with
      concerns about guns and drugs. That’s why they were there. There
      was smoke. They were looking for the fire, and, boy, did they find the
      fire. It wasn’t a hunch. It wasn’t guesswork. This was pursuant [to]
      and this was a termination of a long investigation. Thank goodness
      they got it.


Appellant immediately objected to the argument, stating, ―[T]hat’s [a] comment on

something not in evidence along with the investigation.‖ The State contended

that appellant had invited the argument in his closing argument, and it was a

reasonable deduction from the evidence that an investigation had taken place.

The trial court overruled the objection.

Applicable Law

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or (4)

plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.



                                           3
App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973). See generally Tex. Code Crim. Proc. Ann. §

36.07 (West 2007) (giving State the right to make concluding argument). To

determine whether the State’s argument falls within one of the four categories of

permissible argument, we must consider the argument both in the context in

which it appears and in light of the entire record. Gaddis v. State, 753 S.W.2d

396, 398 (Tex. Crim. App. 1988); Hernandez v. State, 114 S.W.3d 58, 61–62

(Tex. App.––Fort Worth 2003, pet. ref’d). Here, we conclude that the State’s

argument falls under two of the four permissible types of jury argument when

analyzed in their context and in light of the entire record.

Summation

      The prosecutor claimed the search warrant came about as the result of an

investigation, and said, ―It wasn’t a hunch. It wasn’t guesswork.‖ This statement

qualifies as a summation of the evidence presented.            See Hernandez, 114

S.W.3d at 61–62.      On cross-examination, the defense asked Officer Carolyn

Gilmore, ―Officer, you did a follow-up investigation? Is that what you were doing

when you came in there?‖ Officer Gilmore replied, ―No, sir. The investigation

had already occurred.     I was just in there with the search.‖     This testimony

established that the police had conducted an investigation before obtaining and

executing the search warrant. Therefore, the prosecutor did not stray beyond the

record when he mentioned the topic of a prior investigation in his closing

argument.


                                          4
Reasonable Deductions

      Reasonable deductions and inferences from the evidence also support the

prosecutor’s arguments that an investigation occurred and that it was long.

Officer Martin testified that officers had ―intel‖ prior to the execution of the search

warrant at appellant’s address. It is a reasonable deduction from the evidence

that this ―intel‖ came about as the result of an investigation. See Orr v. State,

306 S.W.3d 380, 403 (Tex. App.—Fort Worth 2010, no pet.). The guidelines to

issue a search warrant also support the conclusion that an investigation

occurred.   A magistrate must determine that sufficient evidence of probable

cause exists before the magistrate may issue a warrant. See Tex. Code Crim.

Proc. Ann. art. 18.01(b) (West Supp. 2010).          Therefore, it is reasonable to

conclude from the issuance of the warrant here that some investigation had been

conducted before its issuance.

      Furthermore, Officer Charles Brady, an eighteen-year veteran of the Fort

Worth Police Department and SWAT team member, testified about the

procedures normally employed prior to the execution of a search warrant for

narcotics. When asked about the procedures, Brady said, ―[O]bviously, narcotics

[does] their investigation. Once they have probable cause for a warrant to be

written, they . . . bring the information to our administration. They’ll go out, do a

recon on a residence to do a briefing. And what that entails is going out taking a

look at it, windows, doors, . . . all the information we need to go up there and do

our job in a safe manner.‖ While the officer did not testify about the specific


                                          5
investigation in appellant’s case, it is a reasonable deduction from Officer Brady’s

testimony describing the pre-warrant narcotics investigation process followed in

general that the procedures would take some time to perform.            Thus, it is

reasonable to infer that the police performed a ―long‖ investigation here. See

Orr, 306 S.W.3d at 403 (holding prosecutor’s closing argument that defendant

had told her daughter to lie to the police was a reasonable deduction from the

evidence when a tape was admitted in which a Texas Ranger confronted the

defendant with a contradictory statement by her daughter).

      To the extent that appellant complains about the statement about guns and

drugs being a concern of the prior investigation, Officer Brady also testified that

SWAT team members were used in both high risk and narcotics searches.

Officer Carlos Cespedes testified about the presence of a firearm in the

apartment and said, ―[P]ossession of a firearm . . . quite frequently occurs

with . . . the amount of the narcotics that were in there.‖ Officer Cespedes agreed

that these weapons were often in place because drug dealers feel that they need

―to protect their product.‖ It is likewise a reasonable deduction from this evidence

that the investigation was concerned with guns as well as drugs.4




      4
       Even if this comment about the investigation involving guns was not a
reasonable deduction from the evidence, it was nevertheless harmless in light of
the entire record. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002).


                                         6
                                  Conclusion

      Because the complained-of arguments were within the bounds of

permissible jury argument, we overrule appellant’s sole issue and affirm the trial

court's judgment.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 4, 2011




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