







Affirmed and Memorandum Opinion filed June 15, 2004








Affirmed and Memorandum Opinion filed June 15, 2004.
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-03-00875-CR
_______________
 
JASON LEON SMITH, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
_______________________________________________________
 
On
Appeal from the 177th District Court
Harris County, Texas
Trial
Court Cause No. 934,620
_______________________________________________________
 
M E M O R A N D U M  
O P I N I O N
 
Jason
Leon Smith appeals a conviction for burglary of a habitation[1]
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.
 
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered
and Memorandum Opinion filed June 15, 2004.
Panel consists of
Justices Fowler, Edelman, and Elliott.[3]
Do Not Publish C Tex.
R. App. P. 47.2(b).
 




[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).


[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).


