ROSS SKALL v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Bridges

Ross Skall appeals his burglary of a building conviction.   A jury convicted appellant and sentenced him to twenty years' confinement and a $5000 fine.   In a single issue, appellant argues the trial court erred when it overruled appellant's objection to certain arguments made by the prosecutor.   We affirm the trial court's judgment.

At the punishment hearing following appellant's burglary of a building conviction, the prosecutor made the following argument:  “Remember I told you, ‘When is enough enough?’   I mean, when do you give the max?   In ‘9l, we gave him a chance.   We didn't put him away forever.   He got out and kept doing it.   In '95, after 13 convictions, do we send him to the pen?   We put him on probation, gave him another chance.   And the greatest one of all is this, his burg building, burg hab—Burg hab, he was looking at 25 to life, folks. 25 to life.’'   Appellant's counsel objected that this argument was “completely outside the record.”   The trial judge asked if what the prosecutor was arguing was “in one of the exhibits.”   The prosecutor responded that it was in one of the exhibits, but appellant's counsel objected that it was “not the way he's stated it.”   The trial judge stated, “The jury will take the evidence from me—excuse me—remember the evidence for themselves and take the law from me” and overruled appellant's objection.   At the conclusion of the punishment hearing, the jury sentenced appellant to twenty years' confinement and a $5000 fine.   This appeal followed.

In a single issue, appellant complains the above argument at punishment “injected new and incorrect facts not found in the record into the jury argument.”   The approved general areas of argument 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.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000).   Once evidence of a prior conviction is introduced into evidence, a reasonable deduction may be made therefrom.   Bowman v. State, 782 S.W.2d 933, 936 (Tex.App.—Houston [14 th Dist.] 1989, pet. ref'd).   During final argument, counsel are allowed wide latitude in drawing inferences from the evidence, provided those inferences are reasonable, fair, legitimate, and offered in good faith.  Id.

The record contains a 2004 burglary of a habitation conviction, a second degree felony.   See Tex. Penal Code Ann. § 30.02(c)(2) (West 2011).   The burglary of a habitation conviction and a 1995 possession of a controlled substance conviction were used as enhancements in this case.   If it is shown on the trial of a felony that a defendant has been finally convicted of two felony offenses, the punishment range is twenty-five years to ninety-nine years, or life.  Tex. Penal Code Ann. § 12.42(d) (West Supp.2011).   The State in this case introduced twelve pen packets from prior convictions.   As the prosecutor argued, these prior convictions could have been used to enhance the punishment range in the 2004 burglary of a habitation case to twenty-five years to ninety-nine years, or life.   Under these circumstances, we conclude the prosecutor's argument in this case was a reasonable deduction from the evidence.   See Wesbrook, 29 S.W.3d at 115;  Bowman, 782 S.W.2d 933.   We overrule appellant's issue.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ROSS SKALL, Appellant

No. 05–11–00418–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 7 of Dallas County, Texas.  (Tr.Ct.No.F10–51328–Y).

Opinion delivered by Justice Bridges, Justices FitzGerald and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 6, 2012.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE

DAVID L. BRIDGES JUSTICE