Darrell Dewon Turk v. The State of Texas--Appeal from 262nd District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00743-CR, 04-02-00744-CR
Darrell Dewon TURK,
Appellant
v.
The STATE of Texas,
Appellee
From the 262nd District Court, Harris County, Texas
Trial Court Nos. 896819, 896820
Honorable Jon N. Hughes, 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 14, 2004

AFFIRMED

Following a jury trial, appellant Darrell Dewon Turk was found guilty of two counts of aggravated robbery. He was sentenced to 25 years' imprisonment for each count. Turk now appeals his convictions in a single issue.

Because the issue in this appeal involves the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reason:

In his only issue, Turk contends the trial court erred in failing to grant his motion for mistrial following what he asserts is an improper jury argument made by the State. Proper jury argument must fall within one of four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to opposing counsel's argument; or (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Aschbacher v. State, 61 S.W.3d 532, 539-40 (Tex. App.--San Antonio 2001, pet. ref'd). Error exists when facts not supported by the record are injected into the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Guidry, 9 S.W.3d at 154. The remarks must have been a willful and calculated effort on the part of the State to deprive the appellant of a fair and impartial trial. Wesbroook, 29 S.W.3d at 115. In most instances, an instruction to disregard the remarks will cure the error. Id.

The appellate court reviews a trial court's 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). A mistrial should be granted only when an objectionable event is so emotionally inflammatory that a curative instruction is unlikely to prevent the jury from being unfairly prejudicial against the defendant. See Wesbrook, 29 S.W.3d at 115.

Turk specifically cites two instances of allegedly improper argument. Both occurred during the punishment phase of trial. First, during closing arguments, the State made remarks regarding Turk's veracity, stating, "The kind of person that you are dealing with here is someone who has no qualms about raising his hand and taking the oath. . .and tell[ing] every lie he could think of as long as he believes that it would help him." The State went on to describe Turk as ". . .someone who would bring these poor innocent kids down here to try to encourage sympathy from you." Turk's attorney objected, and the trial court sustained the objection. The court then gave an instruction to disregard to the jury upon Turk's request, but denied his subsequent motion for mistrial.

Although it was improper for the State to comment on Turk's veracity, the prosecutor's comments were immediately followed by an objection and an instruction to disregard. We must presume the jury complied with this instruction. Wesbrook, 29 S.W.3d at 116; Weatherby v. State, 61 S.W.3d 733, 737 (Tex. App.--Fort Worth 2001, pet. ref'd). (1) As stated above, only offensive or flagrant error warrants reversal when there has been an instruction to disregard, and, in the case at hand, this comment was not so flagrant that the instruction to disregard was ineffective. Wesbrook, 29 S.W.3d at 116.

In the second cited instance of allegedly improper argument, the State included the following statement in its closing, describing Turk as "[a] criminal defendant who has four prior felony convictions, a criminal defendant who commits a horrible crime like this, a first degree felony, the only thing more serious than this crime under our law is capital murder

. . ." Again, the trial court sustained Turk's objection.

In spite of his timely objection, Turk has failed to preserve error with regard to this statement. In order to preserve error for improper jury argument, the appellant must (1) object on specific grounds; (2) request an instruction that the jury disregard the comment, and (3) move for a mistrial. Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989). Although Turk did object to the prosecutor's argument, he failed to request an instruction to disregard or move for a mistrial following his objection. He has, therefore, waived any error with regard to this statement.

Because the first complained of statement was cured by the trial court's instruction to disregard, the trial court did not err in failing to grant Turk's motion for mistrial. In addition, Turk has waived any complaint with regard to the prosecutor's second statement. We overrule Turk's sole issue and affirm the judgments of the trial court.

Paul W. Green, Justice

Do Not Publish

1. The record supports this presumption. In spite of the State's request that Turk be sentenced to life in prison, the jury sentenced him to twenty-five years for each count of aggravated robbery. Under Texas Penal Code 29.03, the range of punishment for the offense of aggravated robbery is five to ninety-nine years. Tex. Pen. Code Ann. 12.32, 29.03 (Vernon 2003). Under the enhancement statutes, however, if the jury found the allegations set forth in each of the two enhancement paragraphs included in the charge to be true, the minimum sentence allowed is twenty-five years for each count. See Tex. Penal Code Ann. 12.42(d) (Vernon 2003).