IN THE
TENTH COURT OF APPEALS
NO. 10-91-032-CR
ALFREDO GOMEZ CONTRERAS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court # 27815
CONCURRING OPINION
Appellant complains in point two about the prosecutor telling the jury during the argument on punishment, "This isn't a case where you have a fourteen-year-old child maybe she's a little promiscuous." His objection, that the statement was "improper argument altogether due to the fact we could not go back into the sexual promiscuity of the child," was overruled. The prosecutor then stated, "This isn't the case where we have a little fourteen-year-old child who is promiscuous and a little sixteen-year-old boy maybe things get a little hot and she tells on him. . . . Here you have a grown man and a little ten-year-old girl." The majority agrees with Appellant's contention that this argument was improper because the state should not be allowed to argue for an increased sentence by directing the jury's attention to a lack of evidence that the state knows would not be properly admissible by the defendant. Although finding error, they nevertheless find it was harmless and affirm the judgment.
I concur in the affirmance but disagree with the finding of error. An accurate summary of the evidence is proper jury argument. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The prosecutor was entitled to summarize and state what is obvious from the evidence: "This isn't a case where you have a fourteen-year-old child maybe she's a little promiscuous. . . . This isn't the case where we have a little fourteen-year-old child who is promiscuous and a little sixteen-year-old boy maybe things get a little hot and she tells on him. . . . Here you have a grown man and a little ten-year-old girl." This was an indisputably accurate statement of the evidence. Moreover, it was a plea for law enforcement, which is also proper jury argument. See id.
Finally, Rule 412(e) of the Rules of Criminal Evidence, which limits the right of a defendant to introduce evidence of the prior sexual conduct of a child under fourteen years of age, does not prohibit the state from commenting on the victim's sexual innocence. See Tex. R. Crim. Evid. 412(e). Appellant does not claim to have evidence of the victim's promiscuity that he was prevented from introducing. Thus, the very basis of the majority ruling—that the state should not be allowed to comment on the victim's sexual innocence when the defendant has evidence of promiscuity he cannot introduce—does not appear in the record.
Apparently, the majority enacts an absolute rule: The state can never comment on the victim's sexual innocence if the child is under fourteen, regardless of whether the defendant has any evidence of promiscuity. Extended to its logical limit, the prohibition would keep the state from commenting on the sexual innocence of a two-year-old victim of aggravated sexual assault.
For these reasons, I believe the court correctly overruled the objection and, thus, no error occurred. Without error, the harm analysis is unwarranted. See Tex. R. App. P. 81(b)(2).
BOB L. THOMAS
Chief Justice
Opinion delivered and filed January 8, 1992
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