Tobon, Santiago Coloca v. State ( 2004 )

Affirmed and Memorandum Opinion filed March 16, 2004

Affirmed and Memorandum Opinion filed March 16, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00578-CR

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SANTIAGO COLOCA TOBON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 732,472

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M E M O R A N D U M O P I N I O N

Santiago Coloca Tobon appeals a conviction for first degree murder^[1] on the ground that the trial court erroneously overruled his objection to the prosecutor=s improper jury argument that injected new and harmful facts before the jury during the punishment phase.  We affirm.

Proper jury argument includes, among other things, answering opposing counsel=s argument.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).  In addition, the prosecution may argue outside the record in responding to the defense having done so.  See Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim. App. 1996).

In this case, before the prosecutor made the complained of argument, defense counsel argued that appellant should be given probation because, among other things: (1) during the years since 1979 while appellant had been in this country, he had never been incarcerated; (2) AFrom >96 to now, he has not had any problems with the law.  He has obeyed the law and stayed out of trouble@; and (3) AWe=re talking about an individual that made a horrible mistake seven years ago.  Before that time he had had no problems.  After that time he has had no problems with the law.@

The prosecutor thereafter made the following argument:

PROSECUTOR:        He fled, and the good Lord knows we don=t know where he was. He can tell you wherever he wants you to believe that he was, but we don=t know anything about him.  We don=t know where he was.  We don=t know if he was in Mexico, Columbia, United States.  We don=t know.  And there is no way to tell if he has been in any kind of trouble in any other country.  It=s a sad reality about our criminal justice system. We=d never know if he=s been in prison for murder before.  If it didn=t happen here, we=re not going to know about it.  If it happened in another jurisdiction, with the nation-wide AFIS SystemB.

DEFENSE COUNSEL:         Your Honor, I=m going to object to counsel testifying about something that is not in evidence

.

THE COURT:            That will be overruled.  It=s response to the argument.  You may continue.

(emphasis added).

Appellant contends that the prosecutor=s foregoing argument improperly invited the jury to assess appellant=s punishment by speculating on facts outside the record that he had other convictions.  However, because defense counsel had also argued outside the record that appellant had never otherwise been in trouble with the law, the prosecutor=s argument in response thereto was not improper.  Therefore, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 16, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury found appellant guilty and sentenced him to twenty years confinement.