Keith Ontiveros v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KEITH ONTIVEROS,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00063-CR

Appeal from the

168th District Court

of El Paso County, Texas

(TC# 20030D03151)

O P I N I O N

This is an appeal from a conviction for the offense of robbery--enhanced by the allegation of a prior felony conviction. Appellant pleaded guilty to the jury and true to the enhancement allegation and the jury assessed punishment at twenty-five years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

The evidence adduced during the punishment stage revealed that Appellant entered a convenience store after ingesting cocaine and alcohol and pretended he had a gun under his shirt and demanded money from the clerk. The clerk handed over the money and Appellant left in a vehicle driven by another individual.

The State called Albert Hansen to the stand. Hansen worked at a convenience store that Appellant had robbed on September 30, 1993. Hansen testified that Appellant entered the store with two accomplices. Appellant showed a gun and demanded that Hansen hand over the money. When Hansen gave Appellant the money, Appellant stated, Now you re going to die. Appellant s gun was pointed at Hansen and he feared for his life. Hansen turned and he saw a muzzle flash from the first accomplice who had entered the store. The bullet severely injured two fingers on his hand and lodged in his cheek bone. The three then left the store. Hansen testified that while Appellant was not the shooter, he appeared to be the ringleader in the attack.

During the State s closing argument, the following exchange occurred:

STATE:He turned 17, the first time we get to look at his behavior. What s he doing? Committing crimes. He s carrying weapons, he s running with a gang, he goes out there, commits a robbery, blows a man s fingers off, shoots a man in the face--

DEFENSE:Objection, Your Honor. There is no evidence that he did any shooting.

COURT:Explain, please.

DEFENSE:That s improper, Your Honor.

COURT:All right. He s going to clarify.

STATE:The law of parties says a person is equally responsible when they re acting in concert with another person. If you go into a bank robbery and you go with someone to rob a bank, that person shoots and kills somebody, of course you re responsible, just as if you pulled the trigger. And even more so, you ve heard the testimony. This man told him, said, Now you re gong to die. He was directing it. He was directing for Mr. Hansen to get shot. And you know where that shot went.

DEFENSE:Objection, Your Honor. There was no evidence--first of all, we need to request the Court instruct the Jury to disregard the previous statement. And then the prosecutor is completely disregarding that and says he was directing. He said, no, they thought he was directing.

COURT:Thank you. Ladies and Gentlemen, you 12 together will recall what the evidence was. With regards to the statements made by Mr. Ferguson, I believe he has clarified. The statement was that acting in concert with others, those things happened.

DEFENSE:Request a mistrial, Your Honor.

COURT:Overruled.

II. DISCUSSION

In Appellant s sole issue, he contends that the counsel for the State utilized improper jury argument. Specifically, he asserts that the prosecutor argued outside the record.

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); Laca v. State, 893 S.W.2d 171, 184-85 (Tex. App.--El Paso 1995, pet. ref d). A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use the jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (citing Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983)).

In Green v. State, 698 S.W.2d 776 (Tex. App.--Fort Worth 1985, pet. ref d), the prosecutor made the following argument:

You see, when I was talking to you yesterday, I had the advantage over you twelve people because I knew at that time of the type of conduct that Orlando Craig Green was capable of--

WITHROW: Your Honor, I'm going to object to that argument, suggesting some special knowledge on the part of this prosecutor outside the record that they should consider.

THE COURT: No, they re not going to consider it. It s a subjective point. Overruled.

WITHROW: You re overruling my objection?

THE COURT: Overruled.

WITHROW: Thank you, Your Honor.

PROSECUTOR:--knew what he was capable of based on what I knew the evidence in this case was going to show, the evidence of April the 18th, 1984. (Emphasis ours).

Id. at 779-80.

The court stated that while counsel may draw reasonable deductions from the evidence, it is not permissible for counsel to inject their personal opinions into the argument, because that might convey to the jury that they have bases for their conclusions in addition to the evidence before the jury. Id. at 780. However, the court held that although the comment verged on being improper, the prosecutor limited the basis for his comments to the facts before the jury; therefore, the comment was not improper. Id.

We have a similar situation in the present case regarding arguing outside the record. While the initial comment seemingly misstated who was the actual shooter, the explanation which corrected the statement in light of the law of parties, ameliorated any impropriety in the argument. // Accordingly, 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

August 31, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)