Porter v. State, 59095
Decision Date | 16 July 1980 |
Docket Number | No. 59095,No. 2,59095,2 |
Citation | 601 S.W.2d 721 |
Parties | Lorenzo Charles PORTER, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Edward Gay, Dallas, for appellant.
Henry Wade, Dist. Atty., Maridell J. Templeton, David C. Schick and Stewart C. Robinson Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
Porter was convicted of aggravated robbery. The jury, upon finding that Porter had previously been convicted of a felony, assessed punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(c), at life.
Appellant contends the court erred in permitting the prosecutor to allude to Porter's failure to testify.
Porter entered a plea of "not guilty" before the jury. After the State presented its case in chief, Porter pled guilty to robbery before the court and requested a charge upon the lesser included offense of robbery. No plea or admission of guilt was made before the jury.
At his closing argument, appellant's counsel went outside the record in admitting Porter's guilt of the lesser offense:
What we are saying is Lorenzo Porter obviously was the man who committed the robbery or he wouldn't come into court wearing the same shirt. He is wearing the same rather distinctive type shirt if he intended to come in here and deny having committed the robbery. He is not saying that, and I'm not saying that.
We are just here to decide one issue, one very simple single issue, and that is, was this robbery committed with a firearm as it has been defined to you by Judge Lindsey, and he tells you exactly what a firearm is. Any device designed or made or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance, or any device readily convertible to that use. A firearm, for our purposes here today, is a pistol that is a real actual pistol that can fire a bullet. A pistol that can send a projectile through a barrel.
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