                                     In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00239-CR
                            ____________________

                        TOMMY HOLCOMB, Appellant

                                       V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________        ______________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-06-07078-CR
________________________________________________________        _____________

                           MEMORANDUM OPINION

      In a single appellate issue, Tommy Holcomb argues that in final argument,

the prosecutor improperly commented on Holcomb’s failure to testify, which he

argues violated his right against self-incrimination. See U.S. Const. amend. V.

Because the trial court could reasonably have determined that the prosecutor’s

argument referenced trial testimony and answered defense counsel’s argument, we

affirm the trial court’s judgment.



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       A jury found Holcomb guilty of aggravated kidnapping. After Holcomb pled

“true” to the enhancement paragraphs, alleging that he had committed two prior

felonies, the trial court assessed a sixty year prison sentence. In a single issue,

Holcomb complains the trial court erred in allowing the prosecutor in final

argument, over his objection, to make the following statement:

              And even afterwards, after this has all happened, while this case
       was pending in the last year, he is calling her on the phone and he is
       saying, you know, “Why did you do this, Mary? Why did you get us
       into this? Why didn’t you go to the preacher and talk to the preacher
       about our problems instead of the police?” He is using her religious
       beliefs and manipulating her mind, using that against her.

              And he is blaming this on everyone but himself. It is Mary’s
       fault. It is the hospital’s fault. He wants to sue them because they
       shouldn’t have let him out because he was suicidal. He refuses at any
       point to stand up and apologize and say, “I’m sorry. You know, I
       never should have done that.” He never takes responsibility.

Holcomb contends this argument represents a comment by the prosecutor on his

exercise of the right not to testify.

       Holcomb acknowledges that an important part of his defense concerned his

claims that he was mentally ill and that his actions toward the person he was

charged with kidnapping were not intended as threatening. Holcomb suggests that

his actions showed he “was trying to commit ‘suicide by cop.’” Holcomb’s trial

attorney made arguments that are consistent with these themes during closing

argument.
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      In response to the arguments that Holcomb presented, the prosecutor asked

the jury to determine Holcomb’s intent from his actions and not merely his motive.

The prosecutor suggested that Holcomb’s conduct represented an effort to shift

blame to his victim he kidnapped. The State argues that the prosecutor’s comments

were based on the evidence and was in response to the arguments Holcomb raised

to the charge of kidnapping during his trial.

      Proper jury argument generally falls within one of four general areas: (1) a

summation of the evidence, (2) a reasonable deduction from the evidence, (3) an

answer to argument of opposing counsel, or (4) a plea for law enforcement. Brown

v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). In assessing whether the

State violated Holcomb’s Fifth Amendment right not to testify, we must view the

prosecutor’s argument from the jury’s standpoint and resolve any ambiguities in

the language in favor of it being a permissible argument. Randolph v. State, 353

S.W.3d 887, 891 (Tex. Crim. App. 2011). To be improper, the implication that the

State referred to the defendant’s right not to testify must be “clear and

necessary[.]” Id. If the argument “might reasonably be construed as merely an

implied or indirect allusion, there is no violation.” Id.

      In our opinion, the jury would not have perceived the State’s argument as

comment on Holcomb’s failure to testify. In light of the evidence and arguments

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made by Holcomb’s attorney in summation, the prosecutor’s arguments appear

designed to emphasize Holcomb’s pattern of blaming others for his problems. The

jury could have understood the prosecutor to have been referring to the testimony

regarding specific instances of conduct by Holcomb that occurred before the trial,

not to Holcomb’s failure to testify during the trial.

      We conclude the prosecutor’s argument represents a reasonable deduction

from the evidence, and it answered the argument of opposing counsel. Brown, 270

S.W.3d at 570. We further conclude that the prosecutor confined her arguments to

permissible areas. Id. We reject Holcomb’s claim that the language used by the

prosecutor “was manifestly intended or was of such a character that the jury would

necessarily and naturally take it as a comment on the defendant’s failure to testify.”

Randolph, 353 S.W.3d at 891. We hold that the trial court did not err in overruling

the appellant’s objection to the State’s closing argument. We overrule the issue and

affirm the trial court’s judgment.

      AFFIRMED.


                                               ________________________________
                                                         HOLLIS HORTON
                                                             Justice
Submitted on March 4, 2014
Opinion Delivered May 14, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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