Smith v. State

Full title: JASON LEON SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jun 15, 2004

No. 14-03-00875-CR (Tex. App. Jun. 15, 2004)

Opinion

No. 14-03-00875-CR

Memorandum Opinion filed June 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 934,620. Affirmed.

Panel consists of Justices FOWLER, EDELMAN, and ELLIOTT.³

3 The Honorable Brady Elliott, Judge of the 268th District Court of Fort Bend County, sitting by assignment pursuant to TEX. GOV=T CODE ANN. § 74.003(h) (Vernon Supp. 2004).

MEMORANDUM OPINION

RICHARD H. EDELMAN, Justice.

Jason Leon Smith appeals a conviction for burglary of a habitation¹ on the ground that the prosecutor's closing argument shifted the burden of proof and thereby violated his constitutional rights to due process and due course of law. We affirm. Appellant's two issues contend that the following portion of the State's closing argument improperly suggested that the defense was required to call witnesses and present evidence to prove appellant's innocence:

I want to clear up a couple things right off the bat. The State and the Defense have the exact same subpoena power. Anything I can bring you they can bring you. They want to bring 911 tapes they can do it, too. Witnesses they want they can do it, too.

We do not agree that this language can reasonably be interpreted as suggesting that the defendant had any burden of proof. In addition, this argument was properly in response to defense counsel's arguments,² suggesting that the State had 911 tapes or other relevant evidence that it had not shared with the jury:

They can bring 911 tapes in here. Did we hear that? That might shed a little more light on it. . . . 911 tapes could have backed him up. . . . They have 911 tapes. They could have a lot more that could clear this up. They haven't brought that to you so don't hold it against us because you have some unanswered questions.

Because appellant's two points of error thus afford no basis for relief, they are overruled, and the judgment of the trial court is affirmed.

1 A jury convicted appellant and sentenced him to 25 years confinement.

2 See, e.g., Jackson v. State 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (holding the State's argument to be in response to the defense arguments); McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999) (same).