Rodriquez v. State, 48304
Decision Date | 02 April 1975 |
Docket Number | No. 48304,48304 |
Citation | 520 S.W.2d 778 |
Parties | Richard O. RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Marvin O. Teague (On appeal only), Charles M. Pribilski, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Gregory Laughlin, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for sale of heroin. Punishment was assessed by the jury at sixty-five years.
The record reflects that Agent Salinas of the Bureau of Narcotics and Dangerous Drugs testified that he purchased one ounce of heroin from appellant on March 16, 1972.
Among the grounds of error advanced by appellant, it is urged that the trial court erred in overruling his objection to an argument by the prosecutor at the punishment stage of the trial that was outside the record and injected inflammatory and prejudicial evidence before the jury.
In his plea for probation, the appellant argued:
The record reflects that the following occurred during the argument of the prosecutor:
'THE COURT: Overruled.'
The State points to the fact that no motion was made for a mistrial. It was not necessary for appellant to move for a mistrial to preserve his contention for appellate review in light of the adverse ruling made by the court to his objection. See Gipson v. State, Tex.Cr.App., 503 S.W.2d 796; Newman v. State, Tex.Cr.App., 501 S.W.2d 94.
The State urges that the complained-of argument was invited by appellant's argument that he was not a big drug dealer. The record supports appellant's argument that he worked at two jobs. The argument that 'we have kinda negated' that appellant was 'a big drug dealer' in that he found it 'necessary to work two jobs' was a permissible inference from the evidence. While appellant's argument invited the prosecution to speak of the amount of heroin involved in the sale and mention any other evidence in the record from which an inference might be drawn that appellant was a 'big drug dealer,' it did not invite a response unsupported by...
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