Trevino v. State

761 S.W.2d 562, 1988 Tex. App. LEXIS 3134, 1988 WL 135361
Court of Appeals of Texas·Decided November 30, 1988·No. Nos. 04-87-00333-CR thru 04-87-00339-CR·Published·Cited by 3 cases

Opinion

OPINION

CANTU, Justice.

The previous opinion delivered on November 16, 1988 is withdrawn and the following substituted therefor.

This is an appeal from convictions of theft (knowingly receiving stolen property). TEX.PENAL CODE ANN. § 31.03(a), (b)(2) (Vernon Supp.1988). Appellant Mary Trevino- was charged with theft in five separate indictments and with engaging in organized criminal activity in another indictment. Her husband, appellant Juan Trevino, was charged with theft in two separate indictments. All causes were consolidated and a single jury trial was conducted. Both appellants were found guilty of all charges against them. The trial court granted a motion in arrest of judgment on the organized criminal activity charge. The court sentenced appellants to seven years’ imprisonment.

In September of 1986, five burglaries were committed in Del Rio, Texas by four young burglars working together. On September 7, they burglarized the home of Antonio Gonzales and stole guns, jewelry and cameras. On September 8, they stole televisions and jewelry from the home of Maxine Crossley. On September 12, they burglarized the home of Genaro Martinez and stole a Fisher entertainment center, jewelry, telephones and a telephone answering machine. On September 23, they burglarized a school campus and stole an Apple computer. Finally, on September 24, they stole guns, jewelry and a VCR from the home of Earl Tarbet.

While investigating these thefts, police observed the burglars delivering the stolen property to the home of appellants. A search warrant was executed on appellants’ residence and more than 166 items were seized. The four burglars pled guilty and agreed to testify against the appellants. The burglars claimed they sold the stolen property from each burglary to the Trevi-nos after informing them that the property was stolen.

Appellants appeal each conviction separately and assign three points of error in each appeal. We address all convictions in one opinion. The first point of error in each appeal challenges the sufficiency of the evidence to support each conviction. The second and third points of error are identical in each of the seven appeals. We will address the common points of error first.

I. Closing Jury Argument

Appellants’ third point of error in each appeal alleges error in the trial court’s overruling of their objection to the prosecutor’s closing argument at trial. Appellants allege that the prosecutor’s argument injected new and harmful facts into evidence. The specific argument complained of is as follows:

I wish that I had a good friend, Carl Rolfe, minister over here at the Methodist church, to come over here and tell you oh, yes, I was over at Juan and Mary Trevino’s house on the night of September 24th. I heard them; they were talking about receiving stolen property. In fact, I heard Juan talk to Silvester Diaz about whose home you broke into to get this. You know, that would be great evidence if I could get it, but you and I know that is not possible because Carl Rolfe is not a person that would even be there. He’s a good, honest man. Good, honest people aren’t at the Trevino’s home when they are receiving stolen property.

Appellants’ objection in response to the foregoing argument was:

[Defense Attorney]: Your Honor, we’ll object to that statement that good, [565]*565honest people are not in the Trevinos’ home, and ask that the jury be asked to disregard that gratuitous insult.

The objection clearly complained of the insulting character of the argument. It was not directed at the claimed injection of new and harmful facts into evidence now brought forth on appeal.

Claimed error on appeal must comport with the objection voiced at trial. Failure to bring forward the same claimed error presents nothing for review. Graham v. State, 546 S.W.2d 605, 608 (Tex.Crim.App.1977).

Nevertheless, the record shows that such argument was not manifestly improper.

The Texas Court of Criminal Appeals has established guidelines for permissible jury arguments. The areas of argument allowed are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). Appellants allege that the argument pertaining to Carl Rolfe does not fall within these permissible areas of argument, and that the argument was the first mention of this person in the record. They further argue that there was no evidence that Rolfe really existed, that he was a minister, that he was a “good, honest inan,” or that he would not visit the Trevino home.

In support of their position, appellants cite McKenzie v. State, 617 S.W.2d 211, 218-21 (Tex.Crim.App.1981). We find the facts of McKenzie distinguishable from the instant case. The appellant in McKenzie had been convicted of indecency with a child, when at the punishment phase the prosecutor noted that the appellant had not presented any character witnesses. He suggested to the jury that the appellant should have called his minister to say he was welcome in church; his old college classmate to say they were still friends, his employer to say he was welcome back at work, a neighbor to say he was still welcome in the neighborhood; and finally “a parent ... to say they’d make a little girl available to molest.” The Court of Criminal Appeals found that these comments were outside the record, uninvited, and made solely for the purpose of branding the appellant as an outcast. Id. The court found that the prosecutor’s argument in McKenzie was an injection of personal opinion which was manifestly improper, harmful and prejudicial. Id. at 221; see also Vineyard v. State, 96 Tex.Crim. 401, 257 S.W. 548, 550 (1922).

In the present case, however, the prosecutor’s arguments were directed not at which witnesses appellants should have called, but instead at which witness the prosecutor would like to have called. In context, the prosecutor was not attempting to portray appellants as social outcasts, but was attempting to reply to appellants’ previous jury argument that appellants had shown lack of knowledge that the property was stolen by demonstrating that they had had visitors in their home on September 24.

The argument in the present case was not made for the same purpose as that in the McKenzie case, and was not manifestly improper.

The trial judge found that the argument, in context, was reasonable when he responded to appellants’ objection as follows:

THE COURT: No, I think you have got to take the whole thing in context, taking it in context. Overruled.

We find that the argument made by the prosecutor was invited by appellants’ argument. According to the invited argument doctrine, when the defense argument goes outside the record, the prosecution may go outside the record to respond to that argument. See Walker v. State, 664 S.W.2d 338, 340 (Tex.Crim.App.1984) (en banc); Johnson v. State,

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Trevino v. State, 761 S.W.2d 562, 1988 Tex. App. LEXIS 3134, 1988 WL 135361 (Tex. Ct. App. 1988).

761 S.W.2d 562 (Trevino v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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