




SMALL V. STATE

















COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH



NOS. 2-02-501-CR

        2-02-502-CR

        2-02-503-CR



NAVORRIS DIONNE SMALL	APPELLANT



V.



THE STATE OF TEXAS	STATE



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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY



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MEMORANDUM OPINION
(footnote: 1)


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Appellant Navorris Dionne Small appeals from his convictions for aggravated robbery and possession of a controlled substance.  In a single point on appeal, appellant complains about the following jury argument by the State:

[PROSECUTOR]:  She [appellant’s counsel] wants to talk about fingerprints.  Did she bring you anybody to refute what Teague talked about?



[DEFENSE COUNSEL]:  Objection, burden of proof is not on the defendant. . . .



. . . . 



[PROSECUTOR]:  Anybody to come in here and refute that?  You know, I talked to you in voir dire about subpeona power and all that.  We would have loved to hear from these people.  We could have brought you everybody in the Starbucks Restaurant that night.  She had ample opportunity.  We’d be here until next week.  We brought you pieces to a puzzle.



Since appellant objected and received a ruling, he preserved this issue for review.  
See 
Tex. R. App. P.
 33.1
; Cockrell v. State
, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), 
cert. denied
, 520 U.S. 1173 (1997); 
Coggeshall v. State
, 961 S.W.2d 639, 642 (Tex. App.—Fort Worth 1998, pet. ref’d)
.  Under case law, the State may “comment on an accused’s failure to produce testimony from sources other than himself when it is relevant to a disputed issue.”  
See Harris v. State
, Nos. 2-02-409-CR, 2-02-410-CR, 2003 WL 22725590, at *8 (Tex. App.—Fort Worth Nov. 20, 2003, pet. filed).  Additionally, the State may comment on the defendant’s subpeona power “if it refers to the defendant’s failure to produce evidence from other sources.”  
Id
.  Therefore, we conclude and hold that this argument is permissible.  We overrule appellant’s point and affirm the trial court’s judgment.



PER CURIAM

PANEL F:	LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH

Tex. R. App. P.
 47.2(b)



DELIVERED:  January 22, 2004

FOOTNOTES
1:See
 
Tex. R. App. P.
 47.4.


