Scotty Layne Harrison v. The State of Texas--Appeal from 283rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-02-064-CR

SCOTTY LAYNE HARRISON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 283rd District Court

Dallas County, Texas

Trial Court # F00-71949

O P I N I O N

Scotty Layne Harrison appeals his conviction by a jury of the offense of sexual assault. After hearing evidence of prior convictions, the jury assessed his punishment at life imprisonment in the Texas Department of Corrections, Institutional Division. In three points, Harrison urges that the trial court erred by allowing improper jury argument by the State. We affirm.

Harrison's complaints regard the following jury argument by the State:

Now, you can assume one thing and one thing only from their pitiful attempt at a story here, is that he had sex with her that day. Otherwise, they wouldn't be talking about some three-way. See what they're trying to do to you? They're trying to say, well, there was sex that day, everything she said happened, it just got rough and now she is mad about it. I mean, that is what they're trying to get you to believe. Don't fall for that because there is no evidence of it.

If there was three-way sex, you can bet your life Tony West would have been here because that is who they believe. That is their story, remember? Came from the defense. You had sex with defendant and Tony West, didn't you, Ms. Jones? No, I didn't. Where is Tony West? They brought in all the meth girls. Where is Tony West? Where is Tony West to corroborate their story? Can't do it. Can't corroborate it. Where is Brenda Latham? Where is Brenda Latham to corroborate Dana or Patricia Herron about this conversation with Christina Jones about the three-way in the first place? Where is she? She is the business owner. If they can find these meth girls, they surely can get her. Where is she? They're not going to bring her in here. Because what did Patricia Herron say? She thought the defendant was wrong.

Christina Jones was sexually assaulted by this the man and that man alone, just as she told you. And there is not one single thing to dispute that that is credible evidence.

At this point, counsel for Harrison objected to the argument as placing the burden upon the defendant to testify and objecting to the argument as a comment on the defendant's failure to testify. In points one and two, Harrison complains of the portion of the argument that states, "If there was three-way sex, you can bet your life Tony West would have been here because that is who they believe. ... Where is Tony West? ... Where is Tony West? ... Where is Tony West to corroborate their story? ... Where is Brenda Latham? ... Where is she? ... " Harrison urges that these statements implied that he had the burden of proving that his defensive theory was true and that they are outside the record. Harrison made no objection to this portion of the argument. If he contends that the objection that he made much later was directed to this portion of the argument on the basis he now argues on appeal, the objection was untimely and does not conform to the objection he makes on appeal. Consequently, we hold that nothing was preserved for review with respect to this portion of the argument. See Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App. 1994) (objection to error in argument must be timely), overruled on other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001); Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994) (error not preserved because defendant s trial objection does not comport with issue raised on appeal). We overrule points one and two.

In point three, Harrison complains of the State's argument that "Christina Jones was sexually assaulted by this the man and that man alone, just as she told you. And there is not one single thing to dispute that that is credible evidence." After Harrison objected to this argument on the basis that it was a comment on his failure to testify, the trial court sustained the objection to the extent that it was such a comment, instructed the jury to disregard any comment regarding Harrison's failure to testify, and overruled Harrison s motion for mistrial. We must view any allegedly improper statement from the standpoint of the jury and decide whether the language was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. McGee v. State, 852 S.W.2d 551, 559 (Tex. App. Tyler 1992, writ ref'd).

In the context of the argument, the prosecutor's comments can be reasonably construed to refer to Harrison's failure to call certain witnesses to corroborate his defense and not a comment on Harrison's failure to testify. We hold that the trial court did not err in overruling Harrison's motion for mistrial because the argument was not a comment on Harrison s failure to testify, and, even if it were, the trial court's immediate instruction to disregard cured any error. Jackson v. State, 745 S.W.2d 4, 15 (Tex. Crim. App. 1988). We overrule point three.

The judgment is affirmed.

JOHN G. HILL

Senior Justice

Before Chief Justice Davis,

Justice Vance, and

Senior Justice Hill (Sitting by Assignment)

Affirmed

Opinion delivered and filed November 20, 2002

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