                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-07-00349-CR

ROY RYAN RIOJAS,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                            From the 18th District Court
                              Johnson County, Texas
                               Trial Court No. F41227


                           MEMORANDUM OPINION


       Appellant Roy Ryan Riojas pleaded guilty to possession of marijuana in an

amount of five pounds or less but more than four ounces. He elected to have the jury

assess his punishment and was sentenced to one year’s imprisonment and a $5,000 fine.

A judgment was signed and entered accordingly, and Riojas appeals this judgment. In

his sole point, Riojas contends that the trial court erred in overruling his objection to the

State’s improper jury argument. We will affirm.

       Jury argument is limited to: (1) summations of the evidence; (2) reasonable
deductions from the evidence; (3) answers to argument of opposing counsel; and (4) a

plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999).

        Riojas complains of the following jury argument:

               You know, we’ve got that range of punishment that we talked
        about yesterday. Remember we talked about it and the Judge has
        repeated it for you several times in the Court’s charge. Not more than two
        years or less than 180 days, which is six months. Right? So, you’ve got --
        what is that -- an 18-month time span to chose [sic] from in there? So, you
        could pick anywhere from the 180, six months, one year, 18 months,
        which is a year and a half, all the way up to the two years.

                And that’s the first thing you need to do. You need to talk about
        that, where do we want in that range. And when you’re talking about
        that, remember that this is also -- this offense is a range as well, isn’t it?
        It’s a range of anywhere from four ounces to five pounds. What do we
        have in this case? 3.66 pounds. Much closer to the high end of the range
        than the lower end of the range, isn’t it? Maybe that’s a scale you use,
        maybe it’s not. It’s something to think about. You’re definitely toward
        the higher end of the range of the offense. You’re much closer to the five
        pounds than you are to four ounces. You’re over that mandatory
        probation break of one pound for sure. So, maybe that’s one way to help
        you look at it and decide. Do I get closer to this high end of the
        punishment range? Because we certainly are closer to the high end of the
        crime. That’s the first thing you do. You decide where on that scale you
        want to be in this case given the facts of the case, given the facts you’ve
        heard about the Defendant, all that you consider.

Defense counsel objected as follows:

        Your Honor, excuse me. I have to respectfully object to the line of
        argument. I would submit that it tries to defy all the Court’s instructions
        about any lot, chance or system of averages in which to judge this case on
        in assessing punishment and we would object on those grounds, which is
        found on page 3 of the Court’s instructions.

The relevant instruction states:

        Under the instructions herein given, it will not be proper for you, in
        determining the penalty to be assessed, to fix the same by lot, chance, any
        system of averages, or any other method than by a full, fair and free

Riojas v. State                                                                          Page 2
        exercise of the opinion of the individual jurors, under the evidence
        submitted to you.

The trial court overruled the objection.

        Riojas complains generally that the State suggested to the members of the jury

that they should decide Riojas’s punishment contrary to the instructions contained in

the charge. See Davis v. State, 506 S.W.2d 909, 911 (Tex. Crim. App. 1974) (statement of

law made during jury argument that was contrary to the court’s charge was error). We

disagree. The Legislature has determined that the range of punishment for the offense

of possession of marijuana depends on the amount of marijuana possessed by an

accused. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 2003). Accordingly,

the State suggested that the jury consider the amount of marijuana possessed by Riojas

in determining his punishment within the range of punishment for the offense to which

he pleaded guilty.        The State did not suggest that the jury determine Riojas’s

punishment by lot, chance or a system of averages.       Riojas has cited no authority

supporting a conclusion otherwise. We thus overrule Riojas’s sole point and affirm the

trial court’s judgment.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 1, 2009
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[CR25]

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