Dino Baiza v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00082-CR Dino Baiza, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. CR97-247, HONORABLE JACK ROBISON, JUDGE PRESIDING On November 30, 1998, appellant Dino Baiza pleaded guilty to aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (West 1994). A jury found him guilty and assessed punishment at confinement for seventy-seven years, a $10,000 fine, and $7,000 in restitution. In a single issue on appeal, appellant contends that he is entitled to reversal of the judgment because the State commented on his failure to testify at the punishment phase of trial. We overrule appellant's issue and affirm the trial court's judgment. Because appellant pleaded guilty, we will summarize the facts surrounding the offense only as needed to provide a context for the analysis of the alleged punishment-phase error. On August 2, 1997, appellant entered the Hunting Camp, a business establishment in New Braunfels, Texas owned by Mike Kivlin. Appellant shot Kivlin once in the head with a .22 caliber weapon and stole over thirty weapons, including semi-automatic pistols, from a glass case in the store. Kivlin survived the shooting but suffered severe and permanent injuries, including the loss of one eye. At the punishment phase of trial, appellant stipulated to the evidence and elected not to testify on his own behalf. In closing argument, appellant's counsel argued for a probated sentence and urged the jury to consider "everything," including appellant's lack of recollection of the crime due to a "drug stupor." The prosecutor objected that there was no evidence to support counsel's argument and asked that the jury be so instructed. The judge sustained the prosecutor's objection to counsel's statements and gave a curative instruction to the jury. Thereafter, appellant's counsel stated that appellant pleaded guilty because he was "convinced" by the evidence and repeated that appellant had no "independent recollection" of the underlying crime. In rebuttal argument, the prosecutor responded to counsel's assertion that appellant had no memory of the events of August 2, 1997 because appellant was in a "drug stupor" by stating: This is not about somebody with a pen knife on drugs. There is absolutely no evidence, and you--generally ladies and gentleman, I do not have the ability to comment upon a Defendant's silence because he has that right, and that charge is in the charge for you, but I do have the opportunity to respond to Defense counsel's argument. He's had the opportunity, if he wanted to, to get on that stand and tell you that he doesn't remember. You are required to base your decision only upon what you heard from that witness stand and not on something that you think the Defendant might have told his counsel. But in that regard you're not dealing with somebody that is drunk or high and has a pen knife and wants to replace his pay check. He's stealing 30 some odd guns, several of which are probably--one of which we know is in the hands of other criminals, and in so doing he shoots a man in the head. Not only does he shoot him in the head, ladies and gentlemen, that is a cowardly back shooter. Shoots him from behind. I submit to you the reason--when those witnesses drove up and he didn't shoot Mr. Kivlin again it's because he knew that he would have to look him in the eye, and he can't do it. (Emphasis added.) Appellant did not object to the prosecutor's comment at trial. Appellant subsequently filed a motion for a new trial in which he argued that the State impermissibly commented on his failure to testify. The district court denied appellant's motion for a new trial. If counsel makes an improper statement in argument, opposing counsel must object to the remark at the time it is made in order to avoid waiving error associated with the remark. See Tex. R. App. P. 33.1(a)(1); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Cardona v. State, 973 S.W.2d 412, 418 (Tex. App.--Austin 1998, no pet.). In the absence of an objection by appellant to a comment by the prosecutor on appellant's failure to testify, nothing is presented for review. See Nations v. State, 894 S.W.2d 480, 487 (Tex. App.--Austin 1995), vacated and remanded on other grounds, 930 S.W.2d 98 (Tex. Crim. App. 1996). Even if appellant had properly objected and pursued his objection to an adverse ruling at trial, the state's comment was invited by appellant's earlier argument and, as such, does not constitute reversible error. See Nethery v. State, 692 S.W.2d 686, 703 (Tex. Crim. App. 1985); Cavazos v. State, 904 S.W.2d 744, 747 (Tex. App.--Corpus Christi 1995, pet. ref'd). Appellant acknowledges that the complained-of remarks may have been invited but argues that the State's objection to appellant's improper comments and subsequent curative instruction waived any invitation. We do not need to consider this argument because even after the district court sustained the State's objection and issued a curative instruction to the jury, counsel again commented on appellant's lack of memory of the crime. Appellant also contends that the State exceeded the scope of the invitation "by incorporating the appellant's decision not to testify into its theory-of-the-case construct." According to appellant, the State theorized that appellant's failure to testify was consistent with his failure to look the victim in the eye as he shot him. In the complained-of remarks, the prosecutor asked the jurors to ignore defense counsel's argument about appellant's memory and instructed the jurors to base their decision on evidence they heard from the witness stand. Thus, the remarks did not exceed the scope of the invitation issued by appellant. Accordingly, appellant's issue is overruled. We affirm the judgment of the district court. Jan Patterson, Justice Before Justices Jones, Kidd and Patterson Affirmed Filed: October 7, 1999 Do Not Publish of recollection of the crime due to a "drug stupor." The prosecutor objected that there was no evidence to support counsel's argument and asked that the jury be so instructed. The judge sustained the prosecutor's objection to counsel's statements and gave a curative instruction to the jury. Thereafter, appellant's counsel stated that appellant pleaded guilty because he was "convinced" by the evidence and repeated that appellant had no "independent recollection" of the underlying crime. In rebuttal argument, the prosecutor responded to counsel's assertion that appellant had no memory of the events of August 2, 1997 because appellant was in a "drug stupor" by stating: This is not about somebody with a pen knife on drugs. There is absolutely no evidence, and you--generally ladies and gentleman, I do not have the ability to comment upon a Defendant's silence because he has that right, and that charge is in the charge for you, but I do have the opportunity to respond to Defense counsel's argument. He's had the opportunity, if he wanted to, to get on that stand and tell you that he doesn't remember. You are required to base your decision only upon what you heard from that witness stand and not on something that you think the Defendant might have told his counsel. But in that regard you're not dealing with somebody that is drunk or high and has a pen knife and wants to replace his pay check. He's stealing 30 some odd guns, several of which are probably--one of which we know is in the hands of other criminals, and in so doing he shoots a man in the head. Not only does he shoot him in the head, ladies and gentlemen, that is a cowardly back shooter. Shoots him from behind. I submit to you the reason--when those witnesses drove up and he didn't shoot Mr. Kivlin again it's because he knew that he would have to look him in the eye, and he can't do it. (Emphasis added.) Appellant did not object to the prosecutor's comment at trial. Appellant subsequently filed a motion for a new trial in which he argued that the State impermissibly commented on his failure to testify. The district court denied appe