HIRAM CHRISTIAN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 29, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01375-CR
............................
HIRAM CHRISTIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F88-84171-H
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O P I N I O N
Before Justices Howell, Baker and Burnett
Opinion By Justice Burnett
        Hiram Christian appeals his conviction for the offense of aggravated sexual assault. Punishment, enhanced by two prior convictions, was assessed at fifty years' confinement. In two points of error, Christian asserts that the trial court erred in overruling appellant's objections to the State's jury argument that he alleges 1) vouched for the credibility of certain testimony, and 2) was not supported by the evidence. We disagree and affirm the trial court's judgment.
        Complainant, Reginald Kelly, is a child who was thirteen years of age at the time of the assault. The record shows that appellant was a friend and guest of complainant's family. On the evening of June 21, 1988, appellant was alone in the family's apartment with complainant and complainant's younger brother, who both fell asleep on the floor. Appellant awakened complainant and asked him if he wanted to get into bed. Complainant got into bed and went back to sleep, but awoke when appellant began "feeling" him "all over" including his sexual organs. Appellant pulled down complainant's pants and penetrated complainant's anus with his penis. At this point, complainant's mother, Melva Lincoln, and her boyfriend, Rodney Holmes, walked into the apartment. Holmes went directly into the bathroom. Lincoln saw that appellant had complainant's pants down and also saw appellant jump up and zip his pants. Lincoln called the police and a Dallas police detective took complainant to Parkland Memorial Hospital, where Dr. Mark Erickstad examined him.
        In his first point of error, appellant complains of the following jury argument made by the State at the guilt-innocence phase of the trial:
 
            Neither Melva Lincoln nor Reginald Kelly had any axe to grind against this defendant. There's no reason to lie in that regard. Now, folks, why would someone put themselves through this if they were not telling you the truth? Why would Reginald Kelly have told his mother about this incident, why would he have told the police about this incident?
        Appellant's counsel objected to the argument, claiming that it constituted bolstering. The trial court overruled his objection. Appellant asserts that the trial court erred in overruling his objection because it is improper for a prosecutor to personally vouch for the credibility of his witnesses.
        Proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984).
        If a prosecutor's argument was invited by argument of defense counsel and was in reply thereto, no reversible error occurs. Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974).
        Prior to the time that the prosecutor made his argument, appellant's counsel had made the following argument:
 
            I want you to go back there in that jury room, and I hope that you'll look inside your hearts and look inside your souls and you'll consider why didn't Reginald tell Dr. Erickstad about the stroking of his penis. Ladies and gentlemen, it's because it never occurred.
 
            Now, Reginald remembers that. It's a very vivid event in his mind. And I suggest to you that would be a pretty eye catching, dramatic thing, to see somebody doing that.
 
            Now, why didn't his mother see that? Ladies and gentlemen, when you go back there in that jury room, please, before you consider that this defendant could be, possibly be guilty, will you resolve that in your minds, each and every one of you, why does Reginald see something so eye catching, so dramatic, that his mother never saw?
 
            Why is it that Reginald says that he was on his stomach, with Chris on top of him, but when his mother came in the door they were lying on their sides? He wasn't on top of Reginald. Because it never happened.
 
            Because nobody saw that except for Melva Lincoln -- except for Reginald, rather. Only Reginald saw that event happen because it took place in his imagination.
 
            I suggest to you, all this commotion was going on, with people caught between the beds and the walls and trying to zip their pants up and all this crazy stuff going on in this one room apartment, an efficiency apartment, Rodney just a couple of steps behind her and he didn't see anything? It's because there was nothing to see.
 
            Reginald told you that this was still happening at a time when his mother came in the door. Why didn't she see it? If he was on top of Reginald, then why didn't she see Chris on top of Reginald?
 
            Nothing actually happened except in that boy's imagination, in his mind, in his unconscious, in Reginald's sleep, during a dream.
        The prosecutor's argument was invited and was in reply to the argument of appellant's counsel and was not reversible error. Chapman v. State, 503 S.W.2d at 238.
        In his second point of error, appellant complains of the following jury argument made by the State at the punishment phase of the trial:
 
            Now, you know there's a lot of crime here in Dallas County and there's a lot of crime in the State of Texas. And I bet at one time or another each and every one of you has said I wish they would do something about it. And I know you've all heard of people being convicted of felonies, going down to the penitentiary, getting out and then committing new offenses and going right back out and committing a new crime.
        Appellant's counsel objected to the argument, claiming that it was outside the record and irrelevant. The trial court overruled his objection. Appellant asserts that the trial court erred in overruling his objection because there was no evidence in the record to support the prosecutor's argument regarding other persons committing offenses soon after release from the penitentiary.
        A plea for law enforcement is a proper area of jury argument. Decker v. State, 717 S.W.2d 903, 909 (Tex. Crim. App. 1983); Haynes v. State, 627 S.W.2d 710, 714 (Tex. Crim. App. 1982). We find that the prosecutor's argument is a proper plea for law enforcement. Hicks v. State, 545 S.W.2d 805, 810 (Tex. Crim. App. 1977); Knox v. State, 487 S.W.2d 322, 327 (Tex. Crim. App. 1972).
        The trial court's judgment is affirmed.
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881375.U05
 
 
 
File Date[11-29-89]
File Name[881375F]