David Sheppard THOMAS, Appellant, v. The STATE of Texas, Appellee, 629 S.W.2d 112

GUITTARD, Chief Justice. Appellant was convicted by a jury of aggravated robbery. His punishment was assessed at thirty-three years. On this appeal he complains that the police improperly induced him to sign a confession and that the prosecutor’s argument at the punishment phase was improper and prejudicial. We hold that the confession was properly admitted and that the argument was not so clearly improper as to require reversal. Consequently, we affirm. 1. Admissibility of Confession. The robbery occurred in the daytime at a liquor store. The manager, Herman Watson, was the principal witness.

Watson was behind the cash register when he saw a pickup truck stop near the store. Two men got out and entered the store. One of them, whom Watson later identified as appellant, pointed a handgun at Watson and demanded money. Watson resisted, a brief struggle ensued, and appellant fired the gun. The bullet went through the counter and struck Watson in the hand as he fell or dropped behind the counter. Other evidence shows that appellant ran out of the store and was pursued by several persons who had heard the shot.

Two blocks away the pursuers overtook appellant and pointed him out to an officer, who had arrived at the scene. The gun was found in a nearby field. The officer arrested appellant and took him to the police station. There Watson identified appellant, first in a display of several photographs, and afterward in person. Appellant then made an oral confession, which was later reduced to writing and signed by him. The trial court held a separate hearing on the admissibility of the confession, as required by

article 38.22 of the Code of Criminal Procedure (Vernon 1979), and heard testimony from the officer and also from the defendant. The court found that the confession was voluntary and admitted it in evidence. After judgment, but before the record was filed in this court, the trial court filed written findings and conclusions, which are sufficient to meet the requirements for admissibility of confession as stated in

article 38.22(6). See King v. State, 585 S.W.2d 720, 722 (Tex.Cr.App.1979); Foreman v. State, 505 S.W.2d 564, 566 (Tex.Cr.App.1974). On appeal, appellant contends that the state did not discharge its burden of showing that the confession was voluntary. He relies on his own testimony, which was contrary to that of the officers with respect to warnings and coercive representations. He also contends that the confession was illegally obtained in that Watson’s identification of him at the police station was the result of improper suggestion, since appellant was the only suspect in the room when Watson identified him.

We conclude that the evidence supports the court’s finding that the confession was voluntary. The court was at liberty to believe the testimony of the officers rather than that of appellant. Moon v. State, 607 S.W.2d 569, 570 (Tex.Cr.App.1980); Myre v. State, 545 S.W.2d 820, 824 (Tex.Cr.App.1977). We find no impropriety in Watson’s identification at the police station because Watson first identified appellant in a display of photographs which appellant does not attack as being improperly suggestive. After such an identification a subsequent identification of the accused in court would not be improper.

See Walker v. State, 588 S.W.2d 920 (Tex.Cr.App.1979); Lindsey v. State, 488 S.W.2d 80 (Tex.Cr.App.1972). Since such an identification in court would have been proper, the confession was not tainted by Watson’s identification of him in person when he was in custody. The admissibility of a confession is not affected by the fact that it may have been induced by confronting the witness with legal evidence of his guilt. The situation would have been different if the accused had been induced to confess by seeing or hearing evidence obtained illegally, as in Fahy v.

Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Appellant also asserts that the confession was not voluntary because he was not immediately taken before a magistrate. This contention is overruled because there is ample evidence that he made a voluntary statement after being promptly warned of all his rights. Thus no causal relation between this delay and the confession is shown. Myre v. State, 545 S.W.2d 820, 824-25 (Tex.Cr.App.1977); Shadrick v. State, 491 S.W.2d 681, 684 (Tex.Cr.App.1973). 2. Comment on Appellant’s Lack of Contrition.

In the punishment phase of the trial, appellant called his wife and sister as character witnesses. In argument to the jury, the prosecutor stated that the jury had not heard any evidence from the witnesses or from appellant’s attorney that appellant was sorry for what he had done, and that if he were sorry, the jury would have heard about it from these witnesses. The record shows that the prosecutor pointed to appellant as he made this remark. Appellant contends that the prosecutor’s remark, together with the gesture, had the effect of an improper comment on appellant’s failure to testify.

No complaint was made in the trial court or here that the remark was prejudicial to appellant’s right to plead not guilty. We conclude that the argument may reasonably be construed as a reference to the failure of the character witnesses to give evidence of appellant’s contrition rather than on the appellant’s failure to testify. The prosecutor’s gesture toward appellant could reasonably be understood by the jury as referring to the person whose lack of contrition was being discussed rather than as necessarily implying that appellant had failed to take the stand.

A prosecutor’s argument is not an improper reference to the defendant’s failure to testify unless it must necessarily be so considered when viewed from the standpoint of the jury. McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App.1978); Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974). In McMahon, supra, similar arguments were held not to be comments on the defendant’s failure to testify, even though the prosecutor’s reference to other witnesses was not as explicit as here. Consequently, we hold that the argument in question was not improper. 3. Argument Outside of Record.

Appellant complains that the court erroneously overruled his objection to certain statements made by the prosecutor during the punishment phase of the trial. These statements, he contends, injected evidence outside the record which prejudiced the minds of the jury and influenced them to fix his punishment at thirty-three years. We conclude that the prosecutor’s argument, considered as a whole, was within the permissible limits of a plea for law enforcement, and that no prejudicial new facts were presented to the jury.

The main point of the prosecutor’s argument was that a lengthy sentence would deter other potential robbers from using deadly weapons. He suggested that the jury knew and that it was common knowledge that there were others in the community who thought like the defendant and who would not hesitate to use a gun to get what they wanted and that these persons would learn about the sentence when they meet in places like the county jail or the Texas Department of Corrections. The prosecutor encouraged the jury to use the sentence to deter these persons from committing similar robberies.

Although some of these remarks may have gone beyond the facts in the record, any plea that a heavy sentence will deter others from committing similar crimes necessarily goes beyond the facts of the case because it invites the jury to consider the motivation of persons unknown under circumstances not in evidence. Nevertheless, such arguments have been repeatedly approved by the Court of Criminal Appeals. Bolding v. State, 493 S.W.2d 181 (Tex.Cr.App.1973); Bowman v. State, 446 S.W.2d 320 (Tex.Cr.App.1969). Here the prosecutor did not assume to speak from any special knowledge.

He expressly appealed to the jury to consider facts known to them as matters of common knowledge and to draw reasonable inferences from those facts. The jury could evaluate the argument on that basis and give it such weight as it might be worth. In pleading for a lengthy sentence, the prosecutor reminded the jury that there were other aggravated robbers in Dallas. He noted, however, that most aggravated robbers do not shoot their victims. This comment was an obvious reference to evidence showing that appellant not only exhibited the weapon but also fired it when the complaining witness resisted.

For a robbery committed by using or exhibiting a deadly weapon, the jury could have assessed any term of years from five to ninety-nine. Tex.Penal Code Ann. § 12.32 (Vernon Supp. 1980-1981). Firing a weapon during the commission of a robbery is a more aggravating circumstance than merely exhibiting a weapon. Consequently, the prosecutor could properly argue that the appellant should be punished more severely than other aggravated robbers who merely exhibit weapons during the commission of the offense but refrain from using them.

The remark that most robbers do not shoot their victims was a generalization that could have added no substantial force to the argument in view of the facts before the jury. The prosecutor also argued that the sentence suggested by defense counsel was too short, and that some persons, including defense attorneys, did not want to punish anyone for anything. He asked, “How many bodies are we going to have to line up on the jury rail?” This rhetorical question is obviously a figure of speech.

The statement concerning defense attorneys hardly can be considered as injecting new facts that might have influenced the jury to increase the sentence. Any intelligent juror knows that defense counsel will always plead for a light sentence because he has a duty to do so. Consequently, these remarks cannot reasonably be taken as denying appellant a fair trial. Under the circumstances shown the sentence of thirty-three years cannot be considered excessive. The proof establishes unequivocally that appellant committed a robbery of the most aggravated kind.

He used a deadly weapon to threaten another’s life and take another’s property, and he fired the weapon when he met resistance. No mitigating circumstances were shown. No hope of rehabilitation was offered. A previous conviction and probated sentence for burglary had failed to deter him from further crimes. Unless a prosecutor’s argument is extreme or manifestly improper or injects new and harmful facts, no reversal is required. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978). We hold that the argument complained of here was not of that character. Affirmed.