Garcia v. State, 41267
| Decision Date | 22 May 1968 |
| Docket Number | No. 41267,41267 |
| Citation | 428 S.W.2d 334 |
| Parties | Lucas GARCIA, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Glenn B. Lacy, San Antonio, for appellant.
James E. Barlow, Dist. Atty., Sparta Bitsis, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is statutory rape; the punishment, fifteen years.
Four grounds of error are presented by appellant, which complain of certain statements and conduct by state's counsel in his closing argument to the jury on the issue of guilt or innocence.
He first complains of that portion of counsel's argument wherein he stated:
The record reflects that appellant's objection to the argument was by the court sustained and the jury instructed not to regard 'the last remarks of Counsel.' Appellant did not move for a mistrial. Apparently he was satisfied with the court's ruling, and he is therefore in no position to complain. Riley v. State, Tex.Cr.App., 399 S.W.2d 805.
It should be observed, as pointed out in the state's brief, that appellant testified on his direct examination that he had been previously convicted of the offense of rape in the State of Wisconsin, and his counsel made reference to such conviction in his argument. The reference by state's counsel to appellant's conviction in Wisconsin was not only authorized by the evidence but also was invited by argument of appellant's counsel. The ground of error is overruled.
Appellant next complains of the argument of state's counsel when he referred to appellant as 'a convicted rapist already.'
No objection is shown to have been made by appellant to the argument; hence nothing is presented for review. Kemp v. State, Tex.Cr.App., 382 S.W.2d 933; Hasek v. State, Tex.Cr.App., 384 S.W.2d 722. Again we observe that such statement was supported by the evidence.
Complaint is next made to the action of the prosecutor, while discussing the question of penetration and the presence of spermatozoa in the vagina of the prosecutrix, in going to a blackboard in the courtroom and with a piece of...
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