The State must go forward with independent evidence that the defendant is the same person named in the previous conviction. Id.; Howard v. State, 896 S.W.2d 401, 405 (Tex. App. — Amarillo 1995, pet. ref'd); Rosales v. State, 867 S.W.2d 70, 72 (Tex. App. — El Paso 1993, no pet.). Without evidence linking the defendant to the prior conviction, evidence of the prior conviction is simply not relevant.
The State must present independent evidence that the defendant is the person named in the prior conviction. Id.; Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, pet. ref(d); Rosales v. State, 867 S.W.2d 70, 72-73 (Tex.App.-El Paso 1993, no pet.). The Texas Court of Criminal Appeals recently reaffirmed that there are a number of ways for the State to prove a prior conviction.
Appellant contends that this argument was an uninvited accusation of improper conduct on his part. As we noted in Howard v. State, 896 S.W.2d 401 (Tex.App.-Amarillo 1995, pet. ref'd), it is important to differentiate between comments which facially appear aimed at defense counsel but actually strike at his argument. Id. at 405.
It is proper for a prosecutor to attack the defense's argument rather than defense counsel. See Howard v. State, 896 S.W.2d 401, 405 (Tex. App.-Amarillo 1995, pet. ref'd); see also Davis v. State, 268 S.W.3d 683, 713 (Tex. App.-Fort Worth 2008, pet. ref'd) (prosecutor's reference to defensive theories as "machinations drawn up by the defense attorney" was proper response to defensive theory, not personal attack on defense counsel); Tilbury v. State, 890 S.W.2d 219, 224 (Tex. App.-Fort Worth 1994, no pet.)
Comments that facially appear aimed at defense counsel but actually strike at his argument may be appropriate because the State may properly respond when the defense invites the argument. See Howard v. State, 896 S.W.2d 401, 405 (Tex. App.—Amarillo 1995, pet. ref'd). As such, because Appellant invited the State's argument, the trial court properly overruled this objection.
Comments that facially appear aimed at defense counsel but actually strike at his argument may be appropriate because the State may properly respond when the defense invites argument. See Swarb v. State, 125 S.W.3d 672, 686 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Howard v. State, 896 S.W.2d 401, 405 (Tex. App.—Amarillo 1995, writ ref'd); Ford v. State, No. 05-04-00253-CR, 2005 WL 957917, at *6 (Tex. App.—Dallas April 27, 2005, no pet.) (not designated for publication). The State in this case did not allude to or imply any improper behavior on the part of defense counsel—it attacked appellant's credibility and his argument on self-defense.
The brevity of the comment, the de minimis derogatory content (if any), and the direct relationship to the appellant's arguments make the jury argument made by the State in this case permissible. See Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, pet. ref'd). Accordingly, we hold that the trial court did not err in overruling appellant's objection.
If such evidence is lacking but the court nevertheless admits the prior conviction, the defendant must object.Howard v. State, 896 S.W.2d 401, 405-06 (Tex.App.-Amarillo 1995, pet. ref'd) (citations omitted). Following a discussion about the pen packet, the trial judge commented to the prosecutor, "show me a judgment and sentence, please, and then we will get on with it. If you don't have a judgment and sentence, the rest of it is not relevant." A recess was taken, after which the trial court considered the case of State v. Carter, 712 So.2d 701 (La.Ct.App. 1998). The court observed that this case "sets out the requirements under Louisiana law for establishing the existence of Defendant's prior criminal record for enhancement purposes; and I find that the State's Exhibit 5 meets the requirements of Louisiana law, of which I am taking judicial notice. The defendant's objection is overruled, and we will proceed." The prosecutor then read to the jury the Repeat Offender Notice, containing the felony manslaughter conviction. The Louisiana felony conviction enhanced White's punishment range in this case from that for a second-degree felony (two to twenty years) to that for
Similarly, it is proper for a prosecutor to attack the defense's argument rather than the defense counsel. Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, pet. ref'd); see also Tilbury v. State, 890 S.W.2d 219, 224 (Tex.App.-Fort Worth 1994, no pet.) (statements regarding defense of necessity and "smoke and mirrors" not improper because statements did not directly accuse defense counsel of lying or encouraging defendant to lie; rather, statements were argument that defendant had tailored his story to fit his defenses). As we view the argument in light of the evidence, the prosecutor's argument shows that, when appellant learned what defenses were possible, he tailored his testimony to fit those defenses.
A comment that facially appears aimed at defense counsel but actually strikes at his argument may be appropriate because a State may properly respond when the defense invites argument. Swarb v. State, 125 S.W.3d 672, 686 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, writ ref'd). In this case, the prosecution's argument was not directed at defense counsel, but at defense counsel's argument.