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Court of Appeals of Texas, Dallas.


No. 05-09-01021-CR

Decided: February 25, 2011

Before Justices Morris, Moseley, and Myers


Opinion By Justice Moseley

A jury convicted appellant Gabriel Bailon of the offense of aggravated robbery, found he used a deadly weapon, and assessed punishment, enhanced by a prior conviction, of thirty-five years' incarceration.   In a single issue, appellant challenges the trial court's ruling on certain argument at the punishment phase.   The background of the case and the evidence adduced at trial are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4.   We affirm.

At the punishment phase, the State proved that in 2000, appellant was convicted in Montana and sentenced to state prison for twenty years.   Appellant testified that he was paroled “into a halfway house” after serving eight years.   He left the halfway house after a few months and traveled to Texas.   As a result, he said he had an outstanding warrant from Montana for a felony-failure of a violent offender to provide notice of an address change.   Appellant testified that as soon as he was released from Texas, he expected to “be extradited back to Montana[,][t]o the sentence up there, because I still have 12 years on that sentence up there.”

During closing argument, appellant's counsel argued for a minimum sentence of fifteen years, with a range up to ninety-nine years or life:

The state mandates that 15, justice will not escape Mr. Bailon.   Fifteen years is a very long time.   And after he gets out of Texas, Montana has their hooks in him.   He will be headed out to Montana to do rest [sic] of the 12 years-

The State objected:

I will object, that is improper argument and speculation.   And the jury is not to be taking into account anything that Montana may or may not do, just as they are not to be taking into account what a parole board may do on this case.

The trial court sustained the objection.

In his sole issue on appeal, appellant argues that by sustaining the State's objection, the trial court improperly prohibited defense counsel from asking the jury to take into account appellant's pending charges in another state when assessing punishment, thus denying him his right to counsel guaranteed by the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution.

An improper denial of jury argument may constitute a denial of the right to counsel, but only if the argument is one the defendant is entitled to make.   See Arnold v. State, 68 S.W.3d 93, 102 (Tex.App.-Dallas 2001, pet. ref'd).   In other words, a defendant cannot be deprived of the effective assistance of counsel by actions of the trial court unless those actions prevented counsel from doing something he had the legal right to do.  Id. (citing Jackson v. State, 992 S.W.2d 469, 476 (Tex.Crim.App.1999) (per curiam)).

Proper jury argument is limited to:  (1) summarizing the evidence;  (2) making reasonable deductions from the evidence;  (3) answering counsel's argument;  and (4) making proper pleas for law enforcement.   See Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000).   An argument that misstates the law or is contrary to the court's charge is improper.  Id. In a felony case, the jury is not authorized to resort to or apply the parole law in determining the punishment to be assessed, and argument urging them to do so is highly improper.  Jones v. State, 522 S.W.2d 225, 226 (Tex.Crim.App.1975).

Appellant asserts that consideration of the outstanding sentence in Montana was relevant to the jury's assessment of punishment.   We agree the evidence that appellant was on parole was relevant to the issues to be addressed by the jury concerning punishment-and thus a proper subject of jury argument.   In contrast, appellant's testimony regarding extradition and time to be served in Montana was speculation, not facts or reasonable deductions from evidence.   Defense counsel's argument concerning these matters was improper.   See Jackson, 17 S.W.3d at 673.

Further, defense counsel's argument was also improper because it directed the jury to consider the matter of parole in connection with assessing appellant's sentence, a consideration prohibited by the jury charge.1  See Jones, 522 S.W.2d at 226;  see also Clark v. State, 643 S.W.2d 723, 724 (Tex.Crim.App. [Panel Op.] 1982) (argument that appellant “got a 20-year sentence and they put him in the federal penitentiary and they kept him there for three years and then they paroled him out” improper);  Jones v. State, 564 S.W.2d 718, 720 (Tex.Crim.App. [Panel Op.] 1978) (argument that jury “should, in deliberating as to punishment, discuss how long the defendants would be required to serve in order to satisfy the sentence imposed” improper;  stating, “The argument clearly was not a request for appropriate punishment based on the evidence.”).

Because the trial court properly sustained the State's objection to appellant's counsel's improper argument, no error is shown.   We resolve appellant's single issue against him.   We affirm the trial court's judgment.


FN1. The jury charge at the punishment phase instructed the jury that it was “not to consider the manner in which the parole law may be applied to this particular defendant.”.  FN1. The jury charge at the punishment phase instructed the jury that it was “not to consider the manner in which the parole law may be applied to this particular defendant.”


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