TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00232-CR
Raul Javier Reyes, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 8239, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of burglary of a habitation and assessed punishment at imprisonment for fifty years. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 30.02, 1973 Tex. Gen. Laws 883, 926 (Tex. Penal Code Ann. § 30.02, since amended). We will affirm.
Appellant's first two points of error complain of the prosecutor's argument to the jury at the guilt/innocence stage. Appellant contends the prosecutor improperly referred to punishment and suggested that he had additional prejudicial information regarding appellant that the jury had not heard. The argument at issue was:
I told you from the very beginning that the state was going to press very hard and we are going to press very hard because after this I fully anticipate we will be going into the punishment proceeding.
MR. MARANO [defense counsel]: I'm going to object, Your Honor. I don't think it's appropriate to talk about punishment.
THE COURT: Be overruled. Go ahead.
MR. HAWKINS: And I'm talking about my anticipations and, of course, I could be wrong and so, but that we will get to the punishment phase and there I told you that there's two steps. That evidence is not admissible here that will be admissible there. And so I --
MR. MARANO: -- I'm going to object to evidence that was not brought up at trial being brought up in closing argument.
THE COURT: This is not evidence. This is summation by counsel. You will remember the evidence as you heard it from the witness stand.
It is improper for a prosecutor to invite jurors to speculate about extraneous offenses or other matters not in evidence. Monkhouse v. State, 861 S.W.2d 473, 478 (Tex. App.--Texarkana 1993, no pet.). Further, a prosecutor should not ask jurors to consider punishment, rather than the facts, in determining the offense for which a defendant should be convicted. McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1976). We believe the prosecutor's argument in this cause violated neither of these strictures. The prosecutor did not ask the jury to convict appellant on the basis of other offenses not in evidence. Neither did he suggest that the jury should disregard its obligation to consider appellant's guilt or innocence fairly. The bifurcated nature of a criminal trial had been explained during voir dire and the prosecutor's remarks did no more than restate facts already known to the jurors.
We are further satisfied that any error was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). Only three witnesses testified at the guilt/innocence stage. Two, the complainant and a police officer, testified to the fact of the burglary. A second officer testified regarding appellant's arrest and confession. A copy of the confession was also in evidence. Under the circumstances, any error in the prosecutor's argument did not contribute to the verdict of guilt. Points of error one and two are overruled.
Next, appellant contends the prosector's opening statement at the punishment stage urged the jury to assess punishment for criminal conduct other than the offense for which appellant had been convicted. The challenged remark was, "[T]he state in this case believes that punishment in this case is -- isn't just affixed on just this one offense. It's on a lifetime of conduct and behavior from this individual . . . ."
Appellant failed to object, thus waiving any error. Tex. R. App. P. 52(a). In addition, the prosecutor's statement must be considered in the context of his opening statement as a whole. In it, he briefly described the evidence to be introduced, which included proof of two previous burglary convictions and testimony describing appellant's bad reputation. Evidence of other criminal conduct by the accused may be considered in assessing punishment. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1996). Point of error three is overruled.
Finally, appellant contends the district court erroneously permitted the State to adduce testimony at the guilt/innocence stage regarding appellant's commission of extraneous offenses. We have examined each instance complained of and find that appellant either did not object or that his objection did not comport with the complaint on appeal. Tex. R. App. P. 52(a). No error is presented. Point of error four is overruled.
The judgment of conviction is affirmed.
Before Chief Justice Carroll, Justices Jones and B. A. Smith
Affirmed
Filed: January 24, 1996
Do Not Publish
CG Times"> I told you from the very beginning that the state was going to press very hard and we are going to press very hard because after this I fully anticipate we will be going into the punishment proceeding.
MR. MARANO [defense counsel]: I'm going to object, Your Honor. I don't think it's appropriate to talk about punishment.
THE COURT: Be overruled. Go ahead.
MR. HAWKINS: And I'm talking about my anticipations and, of course, I could be wrong and so, but that we will get to the punishment phase and there I told you that there's two steps. That evidence is not admissible here that will be admissible there. And so I --
MR. MARANO: -- I'm going to object to evidence that was not brought up at trial being brought up in closing argument.
THE COURT: This is not evidence. This is summation by counsel. You will remember the evidence as you heard it from the witness stand.
It is improper for a prosecutor to invite jurors to speculate about extraneous offenses or other matters not in evidence. Monkhouse v. State, 861 S.W.2d 473, 478 (Tex. App.--Texarkana 1993, no pet.). Further, a prosecutor should not ask jurors to consider punishment, rather than the facts, in determining the offense for which a defendant should be convicted. McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1976). We believe the prosecutor's argument in this cause violated neither of these strictures. The prosecutor did not ask the jury to convict appellant on the basis of other offenses not in evidence. Neither did he suggest that the jury should disregard its obligation to consider appellant's guilt or innocence fairly. The bifurcated nature of a criminal trial had been explained during voir dire and the prosecutor's remarks did no more than restate facts already known to the jurors.
We are further satisfied that any error was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). Only three witnesses testified at the guilt/innocence stage. Two, the complainant and a