Ricardo Sierra v. State of Texas--Appeal from 187th Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-01-00455-CR
Ricardo SIERRA, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-5468
Honorable Raymond Angelini, Judge Presiding

Opinion by: Paul W. Green, Justice

Concurring opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 30, 2003

Although I concur in the majority's opinion affirming the conviction of Ricardo Sierra, I write separately because I believe the prosecutor's closing argument constitutes error. The prosecutor made reference to a well-publicized domestic violence event in San Antonio that resulted in the tragic shooting death of San Antonio Police Office Hector Garza. The majority contends this argument is a permissible plea for law enforcement. Slip Op. at 13. I respectfully disagree.

While a plea for law enforcement is a proper subject of jury argument, error occurs in jury argument when facts not in evidence are interjected. See Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988). Reference to other specific crimes and criminal activity is a classic example of improper jury argument. See Young v. State, 774 S.W.2d 66, 68-69 (Tex. App.--Beaumont 1989, no pet.)(holding that reversible error occurred when prosecutor's closing argument referred to "killing two million people at McDonald's" and to the killing of a postal worker in another state); Jackson v. State, 738 S.W.2d 349, 351 (Tex. App.--Beaumont 1987, no pet.)(holding harmless error occurred when prosecutor's closing argument warned that "[b]urglars come back and you know good and well, you read your papers, ... the next thing you know, they've gone again back into somebody else's house.").

We need not look to our sister courts for guidance on this issue, however. In Martinez v. State, 649 S.W.2d 728, 730 (Tex. App.--San Antonio 1983, pet. ref'd), this court ruled that a very similar argument constituted error. Martinez involved an aggravated robbery case in which the prosecutor argued in summation that "I don't have to sit here and tell you that we have a problem with robbery in San Antonio. And in Bexar County, Texas. Headlines on this morning paper 'clerk shot in head.'" Id. at 729. The argument before us is similar in that the case on trial was a domestic violence case involving a shooting, as was the case involving Officer Hector Garza. Clearly the reference to the shooting death of Officer Garza injected a matter outside the record. The prosecutor's argument was improper and Sierra's objection should have been sustained. Nonetheless, in view of the entire record, I would hold the error is harmless. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

Catherine Stone, Justice

DO NOT PUBLISH