

Affirmed and Opinion filed March 10,
2011.
 
In
The
Fourteenth
Court of Appeals

NO. 14-10-00234-CR

Gregory Eugene
Baines, Appellant 
v.
The State of
Texas, Appellee 

On Appeal from
the County Criminal Court at Law No 6
Harris County, Texas
Trial Court
Cause No. 1618986

 
OPINION
Appellant, Gregory Eugene Baines (“appellant”), appeals
from his conviction for misdemeanor theft.  In his sole issue on appeal, appellant
complains that the trial court erred in overruling his objection to a portion
of the State’s final argument.  Appellant argues that the State improperly
commented on his failure to call two witnesses at trial.  We affirm.
 
Background
Appellant was charged with theft of property valued
at more than $500 but less than $1,500.  He pleaded not guilty and the case was
tried to a jury.  The jury found appellant guilty, and the trial judge assessed
his punishment at 120 days of confinement in the county jail.  
At trial, the State presented evidence that appellant
drove two people, Blunt and Farve, to a Target store located in Humble.  Once
inside the store, Blunt and Farve obtained a cart and a large stack of plastic
bags normally used for bagging merchandise after purchase.  While shopping, appellant
met up with Blunt and Farve a few times and eventually they all three ended up
in the children’s section.  Once there, Blunt and Farve “bagged” the
merchandise they had selected.  While Blunt and Farve were bagging the
merchandise, appellant was in the area looking around and being observant for
anyone watching.  The Target security officers watching this unfold on video
believed appellant to be the “lookout.”
After the merchandise was bagged, all three left the
store.  Appellant had abandoned his cart and did not leave with any
merchandise.  Blunt, however, took the bagged merchandise without paying for it. 
When approached by security on his way to the parking lot, Blunt fled to the vehicle
driven by appellant and hid in the rear floorboard.  Appellant and Farve,
meanwhile, went to separate locations in the parking lot, which were some
distance from the vehicle.  Eventually, the police found Blunt in the vehicle
and apprehended all three.  Appellant was charged with theft for his role as
the lookout.  
Issue on
Appeal
In his sole issue, appellant challenges the trial
court’s ruling on his objection to the prosecutor’s final jury argument.  During
the rebuttal portion of the State’s final argument, the following exchange
occurred: 
[The Prosecutor]:  And let’s notice something else.  There
were two other people that committed this crime
that could have gotten on the stand, gotten under oath and testified that, “We’re
sorry, we did it.  It wasn’t our friend here.  The one who drove us.”
But where is Mr. Blunt? 
Where is Ms. Farve?  He has the same subpoena power.  He could have called them
to testify in his defense.
[Defense Counsel]: 
Objection, Judge.  This is shifting the burden of proof to the defendant to
produce this evidence.
The Court:  Overruled.  You
may proceed.
[The Prosecutor]:  But you
didn’t see anyone in this witness chair.  Not Ms. Blunt—I mean Mr. Blunt nor
Ms. Farve.  And the reason is because they committed the crime with him.  So,
they couldn’t possibly truthfully testify that he is innocent that—because the
defendant is most certainly not.
Appellant argues that the State’s comments were not
reasonable deductions from the evidence and invited jurors to consider matters
outside of the record.  He also argues the comments improperly shifted the
burden of proof from the State to the defense to produce evidence from the two
witnesses.  For the reasons stated below, we disagree and overrule appellant’s
sole issue.
Standards of Review
Proper jury argument in criminal cases includes four general
areas: (1) summation of the evidence, (2) reasonable deduction from the
evidence, (3) answer to arguments of opposing counsel, and (4) plea for law
enforcement.  Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.
2008); Caron v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).  Error is found when facts not supported by the record
are injected in the argument, but such error is reversible only if the argument
is extreme or manifestly improper.  Brown, 270 S.W.3d at 570.  To
determine whether jury argument is improper, we assess the argument as a whole
and in context.  Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App.
2007).
A prosecutor may not use final argument to invite the
jury to speculate about matters that are outside of or unsupported by the
record.  See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App.
1990).  A prosecutor may, however, properly comment on a defendant’s failure to
produce evidence, as long as the remarks do not fault the defendant for failing
to testify.  See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App.
2000); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995).  We
look at the challenged language from the jury’s standpoint and determine
whether the comment “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.”  Bustamante v. State, 48 S.W.3d 761,
765 (Tex. Crim. App. 2001).  Reversal is not required where the language can be
reasonably construed as referring to a defendant’s failure to produce testimony
or evidence from sources other than himself.  Livingston v. State,
739 S.W.2d 311, 338 (Tex. Crim. App. 1987).
Appellant’s Argument that the Comments
Were Outside of the Record and Invited the Jury to Speculate
Appellant first argues that the trial court erred in
overruling his objection because the prosecutor’s comments went outside of the
record and asked jurors to speculate about evidence not introduced. 
Specifically, Appellant contends that the prosecutor went outside of the record
when he stated: “[t]here were two other people that committed this crime that
could have gotten on the stand, gotten under oath and testified that ‘we’re
sorry, we did it.  It wasn’t our friend here.”  Appellant did not preserve this
argument for our review.[1]

To preserve a complaint for appellate review, a party
must have presented to the trial court a timely request, objection, or motion
stating the specific grounds for the ruling desired.  Tex. R. App. P. 33.1(a). 
The contention on appeal must comport with the specific objection made at
trial.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Rothstein
v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008 pet.
ref’d) (“An objection stating one legal theory may not be used to support a
different legal theory on appeal.”).  Here, appellant objected only that the
comments shifted the burden of proof to the defense.  No mention was made of
comments outside of the record or an invitation to jurors to speculate about
the evidence that would have been presented by the two witnesses.  Because appellant
did not make this objection at trial, we cannot consider it on appeal.[2]  Wilson,
71 S.W.3d at 349; Rothstein, 267 S.W.3d at 373.
Appellant’s Argument that the Comments Improperly Shifted 
the Burden of Proof
Appellant next argues that the prosecutor improperly
shifted the burden of proof to the defense by the statement: “[h]e has the same
subpoena power.  He could have called them to testify in his defense.”  We
disagree.  
The State has the burden of proving the elements of
the offense beyond a reasonable doubt.  See Tex. Penal Code Ann. § 2.01
(Vernon 2003).  If a defendant raises a defensive theory, the defendant has the
burden of production with regard to the defensive theory.  See Zuliani
v. State, 97 S.W.3d 589, 594 & n.5 (Tex. Crim. App. 2003) (explaining
burdens of proof of defensive theories in factual sufficiency review).  The
State maintains the burden of persuasion with regard to the defensive theory
because it could cast doubt upon whether the State has met its burden of
proving the elements of the offense beyond a reasonable doubt.  See id;
see also Allen v. State, 253 S.W.3d 260, 267 n.24 (Tex. Crim. App. 2008) (“Although
the State has no burden of production of evidence on a defensive issue, once a
defense is raised it is the State’s burden to persuade the jury with
respect to that issue, since ‘a reasonable doubt on the issue requires that the
defendant be acquitted.’”) (quoting Tex. Penal Code § 2.03(d)).  
Part of appellant’s defense at trial was that he was
in the wrong place at the wrong time with the wrong people, and that his mere
presence with Blunt and Farve did not make him a party to the theft.  In sum, appellant’s
theory of defense was that he was not involved in the crime committed by Blunt
and Farve.  This defensive theory challenged elements of the theft offense—asserting
that he did not unlawfully appropriate property or intend to deprive the owner
of the property.  See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2010). 
The State did not have any burden to produce evidence of appellant’s defense (appellant
did), but it did maintain the burden to persuade the jury with respect to the issue. 
See Allen, 253 S.W.3d at 267 n.24; Zuliani, 97 S.W.3d at 594.  The
prosecutor’s comments, to the effect that appellant could have called those two
witnesses to support his defensive theory, went to the credibility of appellant’s
defense and did not shift the burden of proving the elements of the offense.  
In Caron v. State, this court recently
reviewed an objection made to the statement by a prosecutor that “[i]f there is
something out there that is going to exonerate you, you want to make it
known.”  Caron, 162 S.W.3d at 618.  We rejected the defendant’s argument
that the prosecutor improperly shifted the burden of proof to the defense and
reasoned:
The State’s jury argument did not shift the burden of
proof, but instead, summarized the state of the evidence and was a reasonable
deduction drawn from the evidence.  During the jury argument, the State may
comment on appellant’s failure to present evidence in his favor.
Id.  As in Caron,
the prosecutor’s comment in this case was a permissible remark about appellant’s
failure to produce evidence in his favor on his defense and did not shift the
burden of proof to appellant.
Appellant’s Argument that the Prosecutor Improperly Commented on
his Failure to Testify
Appellant also argues that the prosecutor improperly
commented on his failure to testify because the prosecutor’s comments required him
to personally rebut the claim and take the stand to tell the jury that he was
innocent.[3] 
Appellant, however, does not explain why a comment about the failure of Blunt
and Farve to testify would require him to take the stand and rebut the
argument.  A prosecutor does not improperly comment on a defendant’s failure to
testify where the language can reasonably be construed to refer to a
defendant’s failure to produce evidence other than his own testimony.  See Jackson,
17 S.W.3d at 674; Patrick, 906 S.W.2d at 491.  Here, the comment can
reasonably be construed as a reference to appellant’s failure to produce
evidence from two witnesses other than himself.  Thus, the comments were not
improper.  See id.
In Livingston v. State, the Court of Criminal
Appeals addressed an objection to comments that the defendant could have but
did not use “the power of subpoena” to bring in witnesses to explain how the
defendant’s pants became torn at work.  739 S.W.2d 311, 337 (Tex. Crim. App. 1987). 
The prosecutor further commented that, if he had been defense counsel, he would
have investigated the defendant’s alibi and brought in store employees to
testify.  Id.  The Court held that the remarks did not refer to a
particular aspect of the case that only the defendant’s testimony could
refute.  Id. at 338.  Instead, the prosecutor carefully limited his
remarks to the defendant’s failure to present testimony other than his own and
thus the comments were proper.  Id.; see also Sanders, 74 S.W.3d
at 173 (prosecutor could properly comment on defendant’s failure to bring
witness who could corroborate defendant’s proffered excuse).  
Likewise, the statements in this case commented on
the failure to produce evidence from the other two people shown on the security
video, who could have corroborated appellant’s argument that he was simply in
the wrong place at the wrong time.  The comments did not improperly comment on appellant’s
failure to testify.  See Livingston, 739 S.W.2d at 338; Sanders,
74 S.W.3d at 173. 
Appellant also cites this court’s decision in Brockenberry
v. State, 788 S.W.2d 103 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d),
in support of his claim.  Brockenberry is distinguishable.  In that
case, the prosecutor commented on the defendant’s failure to call character witnesses
during the guilt-innocence phase of the trial.  788 S.W.2d at 105.  Texas Rule
of Evidence 404(a) prevents the introduction of character evidence by the
prosecution unless it has first been raised by the defendant.  See Tex.
R. Evid. 404(a)(1).  Thus, we held the prosecutor’s reference to the
defendant’s failure to call character witnesses was the “functional equivalent
of the State injecting appellant’s character into the case,” which was
reversible error.  Brockenberry, 788 S.W.2d at 105.  There was no
such error made in this case.
Conclusion
Having determined that the trial court did not commit
error in overruling appellant’s objection to the prosecutor’s closing argument,
we overrule appellant’s issue on appeal.  The judgment of the trial court is
affirmed.                                                                              
                                                                        /s/        Martha
Hill Jamison
                                                                                    Justice
 
 
 
Panel
consists of Justices Brown, Boyce, and Jamison.
Publish — Tex. R. App. P. 47.2(b).




[1]
We note that the prosecutor’s comments were supported by the record.  Evidence
introduced at trial included the security video showing Blunt and Farve bagging
merchandise they had not paid for.  There was further testimony that all three
were arrested.


[2]
Even if appellant had preserved this argument, we would find no error.  During
final jury argument, appellant’s attorney argued that “you can be in the wrong
place at the wrong time” but “mere presence alone will not constitute one a
party to a crime.”  The prosecutor answered this argument by asking why
appellant did not call the two witnesses to support his claim that he was not
involved.  The prosecutor’s comments were within one of the four permissible
areas of jury argument because they were an answer to appellant’s counsel’s
argument.  See Brown, 270 S.W.3d at 570; Jackson, 17 S.W.3d at
674; see also Sanders v. State, 74 S.W.3d 171, 173 (Tex. App.—Texarkana
2002, pet. ref’d) (“The evidence introduced here suggested that Sanders’ excuse
to the parlor owner and to the officers was that another person was driving. 
It was thus permissible for the prosecutor to argue that if this excuse were
true, the defense would have called the person who could verify that excuse.”).


[3]
Although his brief does not expressly state that the prosecutor improperly
commented on his “failure to testify,” the cases appellant relies upon address
whether certain comments violated a defendant’s constitutional right not to
testify.  Thus, we construe his briefing as a claim that the prosecutor’s
comments were improper because they commented on his failure to testify. See
Tex. R. App. P. 38.9. 


