ANGELO NESBITT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed September 26, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01039-CR
............................
ANGELO NESBITT, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the 204th District Court
Dallas County, Texas
Trial Court Cause No. F88-78731-NQ
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice McClung
 
        Angelo Nesbitt appeals his conviction of aggravated robbery for which the jury assessed punishment at 75 years' confinement. Nesbitt complains that the trial court erred in allowing the introduction of an extraneous offense, in allowing the prosecutor to argue facts outside the record to the jury, and in allowing the prosecutor to inject personal beliefs into her argument. We affirm the trial court's judgment.
        Nesbitt and his accomplice entered a coin and jewelry store where they robbed the owner of $11,123 worth of jewelry. In the process, they shot the store owner twice and his assistant four times. Nesbitt and his accomplice laughed as they left the store.
        In his first point of error, Nesbitt contends that the court improperly allowed evidence of an extraneous offense to be introduced. This alleged extraneous offense was contained in Nesbitt's statement to the police:
 
        I, Angelo and a companion was holding a conversation pertaining a way so I can make some fast money and being not too inconvenient . . . . I told him I see a lot of people making fast money selling drugs and that I would like to sell drugs also.
 
        In deciding upon the admissibility of an extraneous offense, the court must evaluate the offense in light of the six exceptions to the general rule that such offenses are inadmissible. An extraneous offense is admissible: (1) to show the context in which the criminal act occurred--the "res gestae"; (2) to prove identity where the State lacks direct evidence on this issue; (3) to prove scienter, where intent or guilty knowledge is an essential element of the State's case and cannot be inferred from the act itself; (4) to prove malice or state of mind, when malice is an essential element of the State's case and cannot be inferred from the criminal act; (5) to show motive; (6) to refute a defensive theory raised by the accused. Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).
        In this instance, we do not need to reach the exceptions set out in Albrecht because the misconduct must first rise to the level of an offense before it can be an extraneous offense. An offense is defined as "an infraction of the law." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1566 (1981). Nesbitt's statement was not an offense because it merely conveyed an interest in selling drugs. With regard to the possession and sale of drugs, a person commits an offense if he knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance. Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.03 et. seq. (Vernon 1989). By making the above mentioned statement, Nesbitt did not violate this statute. Because there is no offense in this instance, there can be no extraneous offense. We overrule point of error number one.
        Nesbitt's next point of error concerns closing arguments made by the State during the guilt/innocence phase of trial. During closing argument Nesbitt's counsel stated:
 
        What about the final occurrence that you saw during this trial? You will remember that when they tried to introduce that jewelry--I believe it was a watch and a ring and it was gaudy jewelry--well, that is not in evidence because the judge sustained our objection. Why did they try to show you that jewelry? Don't you know that if jewelry had come from the jewelry store, certainly they would have had a witness come up here and testify and say "Yes, this jewelry that was found on Mr. Nesbitt when he was arrested came from the store . . . ."
 
On rebuttal the State countered with the following argument:
 
        [Prosecutor]:         With regard to the jewelry that the state offered into evidence and was later withdrawn from evidence, the only point I want to make is that I did not offer that jewelry into evidence to show you that was jewelry that was taken from this coin shop. That was not my intention at that time.
 
 
        [Defense Counsel]:        Judge, I will object to the personal reasons as to why he did something.
 
        [The Court]:    Overruled.
 
        [Prosecutor]:         I am not going to tell you why I did offer that jewelry into evidence, and the reason I am not going to do so is because the judge said it is withdrawn from evidence and you are not to consider it. Now, if you want to come back and ask me after the trial why I did that, I will be glad to tell you . . . .
 
Nesbitt argues that the prosecutor was improperly allowed to argue facts outside the record. An objection on appeal must comport with objection made at trial. If the objection at trial is different than the argument on appeal, nothing is preserved for review. Cravens v. State, 687 S.W.2d 748, 752 (Tex. Crim. App. 1985). At trial, Nesbitt objected to the prosecutor's injecting "personal reasons" into her argument. On appeal, Nesbitt claims that the prosecutor argued facts outside the record. Because his objection on appeal is different from the objection below, Nesbitt has failed to preserve any error.
        If we assume, but do not so hold, that the error was preserved, the prosecutor's argument was permissible. Proper jury argument must fall within four general areas: summation of the evidence; reasonable deduction from the evidence; answer to argument of opposing counsel; and pleas for law enforcement. Franklin v. State, 693 S.W.2d 420, 429 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986); Todd v. State, 598 S.W.2d 286, 296-97 (Tex. Crim. App. 1980). The remarks made by Nesbitt's counsel placed the subject matter before the jury. The prosecutor was therefore entitled to answer the comments made by opposing counsel. We conclude that no improper jury argument was made. See Holloway v. State, 525 S.W.2d 165, 170 (Tex. Crim. App. 1975). Point of error two is overruled.
        In his next point Nesbitt complains that the prosecutor injected personal beliefs into her arguments when she said, "If you come back with anything less than life, he is going to be sitting over there saying, `Man, I sold them a bill of goods, and they bought it hook, line and sinker.'" No objection to this statement was made at trial. A failure to object in a timely and specific manner waives error in the admission of evidence. Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App.), cert denied, __U.S.__, 109 S. Ct. 328 (1988). We overrule point of error number three.
        Finally, Nesbitt claims that on the following two occasions the trial court allowed the prosecutor to argue facts outside the record:
 
 
        But the long and short of it is, he went out there and he had murder in his heart and he did everything he could to kill that man and he walked out of there thinking that he had killed him.
 
* * *
        Ladies and gentlemen, this man did everything possible to kill that man. It is only by virtue of the grace of God that we are not standing here arguing a capital murder case where the only two punishment would be life imprisonment or death.
 
 
        In both instances, Nesbitt's objections were sustained and the trial court instructed the jury to disregard the statements. An instruction to disregard jury argument is ordinarily sufficient to cure any error. Taylor v. State, 550 S.W.2d 695, 697 (Tex. Crim. App. 1977). The Texas Court of Criminal Appeals has reviewed extreme cases where a corrective instruction would not suffice, regardless of whether the error was preserved. Bray v. State, 478 S.W.2d 89, 90 (Tex. Crim. App. 1972). In order for the prosecutor's argument to mandate reversal as "incurable," it must be clearly calculated to inflame the minds of the jury and be of such a character as to suggest the impossibility of withdrawing the impression made by the argument. Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979). Here, we conclude the trial court's instruction was sufficient to remove any harm injected. The State's argument does not amount to incurable error requiring reversal. We overrule the fourth point of error.
        We affirm the judgment of the trial court.
 
 
                                                          
                                                          PAT McCLUNG
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
881039F.U05
 
 
 
File Date[09-26-89]
File Name[881039]