Phillip Carrera v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-01-00791-CR
Phillip A. CARRERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District, Bexar County, Texas
Trial Court No. 2001-CR-1670
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: January 29, 2003

AFFIRMED

Defendant Phillip A. Carrera was convicted of aggravated robbery. He was sentenced to twenty-five years' imprisonment and fined five thousand dollars. In one issue on appeal, Carrera argues that the trial court abused its discretion by denying his motion for mistrial, which was based on improper jury argument. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Texas Rule of Appellate Procedure 47.1 for the following reasons:

In his sole point of error, Carrera argues that during closing arguments of the guilt phase of the trial, the prosecutor improperly called upon the jury to consider his punishment. Carrera contends that although the trial court issued an instruction to disregard the statement, the harm was not cured and his motion for mistrial should have been granted. We review a denial of a motion for mistrial under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999).

Permissible jury argument must fall into the following categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to the argument of opposing counsel; and (4) a plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). Even when an argument exceeds the permissible bounds of these areas, the error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the defendant into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Generally, an instruction to disregard will cure the error. Id.

Here, the record reflects that after the prosecutor made the objectionable remark the trial court issued an instruction to disregard the statement, and no further statements regarding Carrera's punishment were made during closing arguments. We conclude that the district court's instruction was sufficient to cure any error and that the trial court did not abuse its discretion by overruling Carrera's motion for mistrial. Accordingly, we overrule Carrera's sole point of error.

Based on the foregoing reasons, we affirm the trial court's judgment.

Paul W. Green, Justice

DO NOT PUBLISH