Luis Carrasco v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LUIS CARRASCO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00071-CR

Appeal from the

210th District Court

of El Paso County, Texas

(TC# 20020D04606)

O P I N I O N

This is an appeal from a jury conviction for the offense of aggravated assault. The jury assessed punishment at eight years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Appellant was charged with a three-count indictment alleging the commission of the offenses of aggravated kidnaping, aggravated robbery, and aggravated assault. The jury found Appellant guilty of aggravated assault but acquitted him of the other two offenses. At the guilt-innocence stage of trial, the evidence indicated that in June of 2002, Carlos Parra drove to a convenience store in his new pick-up truck. He went into the store to buy lottery tickets. As he exited the store, Appellant, armed with a knife, came up to him and stated, Get up in the truck. Appellant pointed the knife at Parra. Parra struggled with Appellant. As Appellant struck at Parra with the knife, Parra was able to take hold of the knife. He twisted the blade of the knife and it broke off. Appellant ran away.

Parra reentered the store and the police were summoned. The police brought Appellant back to the store and Parra identified Appellant as the one who had attacked him. Parra stated that he felt threatened by the knife, and he was in fear of suffering imminent bodily injury during the assault. Parra s hand was scratched during the struggle, but he was not seriously wounded.

During closing argument at the guilt-innocence stage of trial, counsel for the State argued the following:

Remember in Voir Dire, the defense (inaudible) to investigate, subpoena people and documents--whatever--to prove something didn t happen? Didn t put on any defense to say this did not even happen. This is what happened. It happened that day. It happened as alleged.

No objection was lodged to this argument.

At the punishment stage of trial, Border Patrol Agent Dante Moreno testified that he was working the checkpoint on Interstate 10 near Las Cruces, New Mexico, on July 9, 2001 when Appellant was stopped and his vehicle was searched. Moreno found a .410-gauge shotgun in the trunk beneath the spare tire. The barrel was sawed off. The car was owned by Appellant s wife.

The complainant, Carlos Parra, stated he had lost income of around $7,000 to $8,000 as a result of the incident. He had restricted his activities.

Border Patrol Agent Manuel Ibarbo testified that Appellant s Border Patrol file indicated that Appellant was not in the United States legally when he was stopped at the checkpoint. There was an order of removal in the file stating that Appellant was to be removed from the United States on September 5, 2001. Therefore, Appellant was illegally in the United States at the time of this incident which subjected him to prosecution for the felony offense of Reentry After Deportation which carries a maximum punishment of twenty years imprisonment.

Attorney Chris Antcliff testified on behalf of Appellant. He stated that a person convicted of reentering the United States illegally would have to serve a federal sentence consecutively to any state sentence received for a state-court conviction.

During argument at the punishment stage of trial, the following exchange occurred:

STATE:What did you not hear? Remember we were talking about the character of the defendant? Some people say: in music, half the music is the silence between the notes. In a criminal trial--

DEFENSE:Objection, Your Honor. Objection. My client not testifying--

STATE:I am not going into any such nature.

DEFENSE:Your Honor--

STATE:I m talking about the evidence not presented, as he went into: Where is my judgment? I don t have one because it doesn t exist. He s got ability to subpoena witnesses; he can bring anybody he wants.

DEFENSE:Your Honor, if we can just rule as far as talking about the right that he was given within the Charge, not testifying not to be considered.

COURT:I ll overrule the objection at this time, but be careful, Mr. Meyers.

STATE:Thank you, Your Honor. Defense counsel can subpoena anyone to come to court. Who did you hear from? Who said he s not usually violent? Who said he s law-abiding at any time? Who said he s honest? Who said he or she would feel safe turning their back on him? No one. Does this man not have a friend on this planet? He s got a wife.

II. DISCUSSION

In Appellant s sole issue, he maintains that the counsel for the State utilized improper jury argument by commenting on Appellant s silence during trial. Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973); Caballero v. State, 927 S.W.2d 128, 132 (Tex. App.--El Paso 1996, pet. ref d). Jury argument must be analyzed in light of the entire argument made and not just isolated sentences. See Mosley v. State, 686 S.W.2d 180, 183 (Tex. Crim. App. 1985).

Both the state and federal constitutions prohibit the prosecution from commenting on a defendant s failure to testify. See U.S. Const. amend. V; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). As the reviewing court, we consider the comment from the standpoint of the jury. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992); Brown v. State, 92 S.W.3d 655, 665 (Tex. App.--Dallas 2002, pet. granted), aff d, 122 S.W.3d 794 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1678 (2004). For the prosecutor s argument to violate the defendant s right against self-incrimination and constitute reversible error, it must do more than merely imply or indirectly allude to Appellant s failure to testify; the argument must be or intended to be of such a character that the jury would necessarily and naturally take it as a comment on the accused s failure to testify. An argument does not impermissibly comment on the accused s failure to testify unless it calls the jury s attention to the absence of evidence that only the defendant s testimony could supply. Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026, 120 S. Ct. 541, 145 L. Ed. 2d 420 (1999).

Futhermore, to preserve any error from improper jury argument, a party must object to the argument and pursue the objection until the trial court rules adversely. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding Appellant waived complaint that prosecutor commented on his failure to testify during closing argument by failing to object); see Tex. R. App. P. 33.1. If an adverse ruling is obtained, the defendant must request an instruction for the jury to disregard, and then move for a mistrial. Cockrell, 933 S.W.2d at 89.

Appellant contends that the first above-referenced argument made at the guilt-innocence stage of trial was a comment on his failure to testify. As no objection was lodged, the contention has been waived on appeal. Id.

Appellant also asserts that the argument made during the punishment stage of trial was a comment on his failure to testify. We note that Appellant s counsel had previously argued to the jury that the State s evidence or lack thereof caused the jury to have to speculate regarding the proper punishment to assess. Specifically, counsel argued that the State had failed to produce a judgment showing Appellant had any prior felony convictions. Further, Appellant s counsel argued that the State was requesting the jury to speculate that he would reenter this country illegally and commit crimes if he were placed on probation. Defense counsel had also argued that the State had failed to produce any documentation showing that the complainant Parra had actually suffered the financial setbacks that he had related. Counsel argued that regarding the assessment of punishment, certainty was required--not speculation.

It is in this context that we must review the prosecutor s argument concerning Appellant s character and the silence between the notes. While the argument is not abundantly clear, it appears that it alludes to Appellant s failure to produce character witnesses. A prosecutor may comment about a defendant s failure to produce testimony from sources other than the accused concerning a disputed matter in issue. Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106, 116 S. Ct. 1323, 134 L. Ed. 2d 475 (1996).

The State s argument was also a proper response to Appellant s assertion that the gaps in the State s evidence caused for improper speculation. Proper jury argument includes an answer to argument of opposing counsel. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Accordingly, we find that the argument was not an improper comment of Appellant s failure to testify and we overrule Appellant s sole issue on appeal.

Having overruled Appellant s sole issue on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

February 24, 2005

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

Larsen, J., not participating

(Do Not Publish)