Benny Ochoa v. The State of Texas--Appeal from 167th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00494-CR
Benny Ochoa, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0952479, HONORABLE MIKE LYNCH, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of burglary of a habitation. Tex. Penal Code Ann. 30.02(a), (c) (West 1994). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty years.

In a single point of error, appellant complains of a statement made by the prosecutor during jury argument. The statement was:

 

When we said to focus in on the eyewitnesses, there was one eyewitness that was not subpoenaed, and I submit to you that the defense could have subpoenaed Margaret Sanchez. Where was she today? If Benny Ochoa was innocent of this crime, she would have been in here today telling you --

 

MR. STORK [defense counsel]: Judge, I'm going to object to any testimony that Mrs. Sanchez could have given that's outside the record.

 

MS. KOCUREK [prosecutor]: Your Honor, I have the right to comment on the witnesses they could have called.

 

MR. STORK: They could have called her too, Judge.

 

THE COURT: All right. Move on.

 

MS. KOCUREK: But notice that Margaret Sanchez is not here, and she could have come in here today.

 

As a general rule, a prosecutor may comment on the defendant's failure to call an available material witness. Montoya v. State, 744 S.W.2d 15, 36 (Tex. Crim. App. 1987). Appellant states, however, that Sanchez was under indictment for the same burglary and would have invoked her Fifth Amendment privilege not to testify. Therefore, appellant concludes that Sanchez was not an available witness and the prosecutor's comment was improper. See Hendricks v. State, 640 S.W.2d 932, 937 (Tex. Crim. App. 1982) (prosecutor may not comment on failure to call unavailable witness).

Appellant's contention does not comport with his trial objection, which he did not pursue to an adverse ruling in any event. Tex. R. App. P. 52(a). Moreover, while there is some evidence that Sanchez was under indictment for the same offense, there is no evidence that Sanchez would invoke her Fifth Amendment privilege if called to testify. Appellant assumes that she would have done so, but in the absence of probative evidence that Sanchez would refuse to testify there was no error in the prosecutor's comment. Carrillo v. State, 566 S.W.2d 902, 912-13 (Tex. Crim. App. 1978); Jones v. State, 715 S.W.2d 778, 780 (Tex. App.--Houston [14th Dist.] 1986, no pet.). The point of error is overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: March 27, 1996

Do Not Publish

ENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00494-CR
Benny Ochoa, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0952479, HONORABLE MIKE LYNCH, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of burglary of a habitation. Tex. Penal Code Ann. 30.02(a), (c) (West 1994). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty years.

In a single point of error, appellant complains of a statement made by the prosecutor during jury argument. The statement was:

 

When we said to focus in on the eyewitnesses, there was one eyewitness that was not subpoenaed, and I submit to you that the defense could have subpoenaed Margaret Sanchez. Where was she today? If Benny Ochoa was innocent of this crime, she would have been in here today telling you --

 

MR. STORK [defense counsel]: Judge, I'm going to object to any testimony that Mrs. Sanchez could have given that's outside the record.

 

MS. KOCUREK [prosecutor]: Your Honor, I have the right to comment on the witnesses they could have called.

 

MR. STORK: They could have called her too, Judge.

 

THE COURT: All right. Move on.

 

MS. KOCUREK: But notice that Margaret Sanchez is not here, and she could have come in here today.

 

As a general rule, a prosecutor may comment on the defendant's failure to call an available material witness. Montoya v. State, 744 S.W.2d 15, 36 (Tex. Crim. App. 1987). Appellant states, however, that Sanchez was under indictment for the same burglary and would have invoked her Fifth Amendment privilege not to testify. Therefore, appellant concludes that Sanchez was not an available witness and the prosecutor's comment was improper. See Hendricks v. State, 640 S.W.2d 932, 937 (Tex. Crim. App. 1982) (prosecutor may not comment on failure to call unavailable witness).

Appellant's contention does not comport with his trial objection, which he did not pursue to an adverse ruling in any event. Tex. R. App. P. 52(a). Moreover, while there is some evidence that Sanchez was under indictment for the same offense, there is no evidence that Sanchez would invoke her Fifth Amendment privilege if called to testify. Appellant assumes that she would have done so, but in the absence of probative evidence that Sanchez would refuse to testify there was no error in the prosecutor's comment. Carrillo v. State, 566 S.W.2d 902, 912-13 (Tex. Crim. App. 1978); Jones v. State, 715 S.W.2d 778, 780 (Tex. App.--Houston [14th Dist.] 1986, no pet.). The point of error is overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and Kidd