Medina Jr., Joe Angel v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 23, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01198-CR

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JOE ANGEL MEDINA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris  County, Texas

Trial Court Cause No. 905,033

M E M O R A N D U M O P I N I O N

Appellant, Joe Angel Medina, Jr., was found guilty by a jury of aggravated assault and sentenced by the court to six years= confinement. In his sole point of error, appellant alleges the trial court erred in failing to instruct the jury to disregard alleged improper prosecutorial jury arguments. We affirm.

Appellant was involved in an altercation with his wife, brother, and brother=s girlfriend in the parking lot of an extended-stay hotel. The complainant, Kirk Puffer, and Ernest Boykins were residing in the hotel on the day of the incident. While in his room, Puffer looked out of the window and saw appellant=s brother, Ralph Medina, hit appellant=s wife. Puffer and Boykins immediately went down to the parking lot to make sure appellant=s wife was alright. According to Puffer and Boykins, after they confronted appellant and Ralph, appellant became angry, drew a gun, pointed it at Puffer, and threatened to shoot him if he did not leave. The police arrived shortly thereafter and arrested appellant and Ralph. Appellant and his wife testified that Ralph was actually the person who drew the gun on Puffer. Ralph, however, did not testify because, as appellant=s attorney argued, Ralph was unavailable as a witness because if called, he would invoke his Fifth Amendment rights. The trial court agreed and would not permit appellant=s counsel to call Ralph as a witness.[1] During closing arguments, the prosecutor contended appellant was casting blame on Ralph Medina, a person he failed to call as a defense witness. Appellant immediately objected and the trial court sustained the objection. Appellant, however, did not request an instruction for the jury to disregard the comments until after the close of the prosecutor=s arguments. The trial court denied the requested instruction.

In his sole issue on appeal, appellant contends the trial court erred in failing to instruct the jury to disregard the prosecutor=s comments made during closing arguments. In order to preserve a complaint for review, the party must show that he timely objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89, 96 (Tex. Crim. App. 1996). A[A] defendant=s failure to object to a jury argument or a defendant=s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.@ Id. When complaining about improper jury argument, the proper method of pursuing an objection to an adverse ruling is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986) overruled on other grounds, Watson v. State, 762 S.W.2d 591, 599 (Tex. Crim. App. 1988). If the trial court sustains the objection, the party must request an instruction if an instruction to disregard could cure the prejudice from the improper argument. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). Thus, to preserve error, the objection must be pressed to the point of obtaining an adverse ruling, whether that is a ruling on the objection, the request that the jury be instructed to disregard, or the motion for mistrial. Campos v. State, 946 S.W.2d 414, 417 (Tex. App.CHouston [14th Dist.] 1997, no writ); Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.CAmarillo 2002, pet. ref=d); see also Cooks v. State, 844 S.W.2d 697, 727B28 (Tex. Crim. App. 1992).

The only issue in this appeal is whether appellant=s instruction to disregard was timely. An objection or request is timely if it is made at the earliest opportunity or as soon as the ground of objection or request becomes apparent. Boone v. State, 60 S.W.3d 231, 238 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d); Mosley v. State, 931 S.W.2d 670, 674 (Tex. App.CHouston [14th Dist.] 1996, writ ref=d). Therefore, an objection or requested instruction made at the end of argument is not timely. Moore v. State, 999 S.W.2d 385, 403 (Tex. Crim. App. 1999) (holding appellant waived any error by failing to object and waiting until conclusion of testimony to request an instruction to disregard); Cunningham v. State, 848 S.W.2d 898, 905 (Tex. App.CCorpus Christi 1993, writ ref=d) (holding that Aalthough appellant timely objected, he waited until argument was concluded to request an instruction to disregard. That request was not timely.@); see also Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001) (holding that because appellant did not request a limiting instruction contemporaneously with the admission of the evidence, the evidence was admitted for all purposes).

In this case, appellant timely objected, but did not request an instruction until the end of the prosecutor=s closing arguments. Appellant contends the jury was tainted by the objectionable statements because the trial court denied his request to instruct the jury to disregard; however, at the time the objection was sustained, the trial court granted appellant all the relief he requested. By failing to contemporaneously request an instruction, appellant has waived any error on appeal. We therefore overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed December 23, 2003.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] There is no evidence in the record that Ralph Medina personally invoked his Fifth Amendment rights. However, the trial court stated for the record that it was relying on the statement made by appellant=s counsel as to Ralph=s invocation of the Fifth Amendment.