ROBERT RAY GARZAFROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01219-CR
ROBERT RAY GARZAFROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER AND WHITTINGTON
OPINION BY JUSTICE STEWART
JULY 25, 1989
        Robert Ray Garza appeals from a conviction for aggravated sexual assault of a child. At trial, appellant entered a plea of guilty before the jury, and the jury assessed punishment at ninety-nine years confinement. In a single point of error, appellant contends that the trial court committed reversible error in overruling his objection to statements made by the State during its final argument in the punishment phase of the trial. We disagree and affirm.
        After the State presented its case, the defense called the appellant, who admitted the offense, said that he was sorry, and testified that he had been sexually abused as a child. Appellant admitted that he needed help and would welcome counseling.
        During the final argument in the punishment phase of the trial, the prosecution made the following argument:
 
        He told you from the stand, folks, that his primary concern was getting help and he would do it anywhere. He can get it in the Texas Department of Corrections if he wants help.
Appellant objected to the statement at trial on the basis that the prosecution was arguing outside the record. This objection was overruled by the trial court. Appellant argues that this argument is outside the record because there is no evidence that the Texas Department of Corrections has any programs or help to offer the appellant during his incarceration.
        To be within the permissible scope of jury argument, statements of counsel should fall within one of the following categories: 1) a summation of the evidence; 2) a reasonable deduction from the evidence; 3) an answer to the opposition's argument; and 4) a plea for law enforcement. Dunbar v. State, 551 S.W.2d 382, 384 (Tex. Crim. App. 1977). The State relies on a series of questions propounded to appellant on cross-examination by the prosecutor:
    Q    If you could get [help] in a locked facility, if the Texas Department of Corrections could provide you with counseling, that would still meet your goal, wouldn't it? You could still get counseling and you could still be kept from doing this to Kashona Bills; is that right?
 
    A    That's correct on the counseling part and keeping away from Kashona but the idea of being--coming from TDC, I wouldn't agree with that at all.
 
* * *
    Q    If [help's] available--if I told you that's available in the Texas Department of Corrections, you would seek that out, wouldn't you?
 
    A    Yes, I would.
        The State contends it is a reasonable deduction from the above testimony that counseling is available at the Texas Department of Corrections and, therefore, the argument at issue was proper. We disagree. All of the statements concerning the available help (counseling) at the Department of Corrections is hypothetical; there is no direct evidence in the record one way or the other on this issue.
        Next, the State maintains that the argument at issue was in answer to defense counsel's argument. Appellant's attorney made the following statements during his final argument to the jury:
 
 
        He said pleading guilty and getting up on the witness stand and admitting it to you he considers a first step to rehabilitation. I ask you to give him a minimal sentence, not more than ten years for this offense so that he can get some help, some counseling, and that he can rehabilitate himself so he can lead hopefully a normal life in the future.
The State argues that appellant's attorney was requesting that the jury give appellant a minimal sentence so that he could receive counseling in prison and rehabilitate himself. However, the jury could interpret this argument as requesting a minimal sentence so that appellant could seek help sooner after his release. We conclude that the prosecutor's statement cannot be justified either as a reasonable inference from the evidence nor as an answer to defense counsel's argument. Consequently, the trial court erred in overruling appellant's objection.
        However, not all improper argument calls for reversal of a conviction. Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985) (en banc). We will not reverse for improper argument except in extreme cases where, in light of the record as a whole, the language used is manifestly improper, harmful and prejudicial, or where some new and harmful fact is injected into the case. Mathews v. State, 635 S.W.2d 532, 539 (Tex. Crim. App. 1982); Ford v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. 1980).
        Assuming that the prosecutor's statement injected a new fact in the case that was harmful to appellant, it is necessary to determine its probable effect on the jury. Logan, 698 S.W.2d at 682. In light of the entire record, which included evidence of appellant's prior felony probation for aggravated assault and six misdemeanor convictions, of which three were, respectively, for possession of marijuana, driving while intoxicated and evading arrest, we conclude that the probable effect of the prosecutor's statement, standing alone, was not so harmful and prejudicial as to warrant reversal. Id. Appellant's point is overruled.
        The judgment of trial court is affirmed.
 
                                                  
                                                  ANNETTE STEWART
                                                  JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01219.F
 
 
File Date[01-02-89]
File Name[881219F]