Frank Dillard Proctor, Jr. v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-154-CR

FRANK DILLARD PROCTOR, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-181-C

O P I N I O N

A jury convicted Frank Dillard Proctor of aggravated robbery, assessed punishment of forty years in prison, and found that he used a deadly weapon to commit the offense. In a single point he contends that the court committed reversible error when it refused to grant a mistrial after the state made an improper jury argument during the punishment phase of the trial. We affirm.

In closing argument during the punishment phase of Proctor's trial, the prosecutor made the following argument:

Your decision you make today will be an important one, because it will be saying to these people, these criminals like him, we are taking our country back over, and we are not going to play these games with you. The Court's instructions that you will have with you in the jury room, tell you that you must not take into account what the Board of Pardons and Paroles might do with any given case, because that is within the jurisdiction of the Governor, the executive branch, but I would also like to note that what we see is a trend here, that he was sentenced to eight years in the penitentiary on 8-2-90, and 11-12-91, he was at

Proctor objected. The court sustained the objection and instructed the jury to disregard the last statement by the prosecutor for any purpose. It then denied Proctor's motion for a mistrial.

Proctor contends that the prosecutor asked the jury to increase his sentence to compensate for the effects of the parole law. There are generally four areas of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. E.g., Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990). The state cannot ask the jury to consider the parole laws in assessing a defendant's punishment. Rose v. State, 752 S.W.2d 529, 532 (Tex. Crim. App. 1987).

Following objectionable argument, an instruction by the court to disregard the comment will usually obviate any harm, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Kinnamon, 791 S.W.2d at 89. Moreover, for an improper argument to rise to a level mandating a mistrial, the argument must be "extreme or manifestly improper, or inject new and harmful facts into evidence." Id.

The dates referred to by the prosecutor reflect facts that were already in evidence at the time of the closing argument. Furthermore, that the prosecutor was unable to complete his statement by virtue of Proctor's objection is compelling to this court. See Harris v. State, 784 S.W.2d 5, 13 (Tex. Crim. App. 1989). We are of the opinion that the remarks made by the prosecutor were not so inflammatory that the court erred in overruling the motion for a mistrial. We overrule the point and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 28, 1993

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