RICHARD EARL FOREMAN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 22, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01476-CR
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RICHARD EARL FOREMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F88-80230-PU
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OPINION PER CURIAM
Before Justices Howell, Baker, and Burnett
        Richard Earl Foreman appeals his conviction for burglary of a vehicle. Punishment was assessed at fifty-five years confinement.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. Appellate counsel asserts three arguable points of error: (1) The prosecutor commented on appellant's failure to testify, (2) the prosecutor injected her personal opinion regarding the credibility of one of the witnesses during final argument, and (3) the prosecutor referred indirectly to the law of parole. Appellant, in his pro se brief, asserts three points of error: (1) The prosecutor commented on appellant's failure to testify, (2) appellant was denied effective assistance of counsel at trial, and (3) appellant was denied effective assistance of counsel on appeal. We affirm the trial court's judgment.
        Complainant testified that he owned a Datsun 280Z and that on the night of March 2, 1988, he discovered that someone had stolen the T-tops to his Datsun 280Z. Complainant testified that he did not give anyone consent to take his T-tops.
        Elizabeth Ashley Brown testified that at approximately 11:30 p.m. on the night of March 2, 1988, she and a friend were walking toward a nightclub when they observed appellant inside a 280Z and that appellant was "undoing" the T-tops. She asked appellant what he thought he was doing; appellant answered that the car was his. Appellant then took the T-tops and got into an awaiting car driven by a black woman, and the car drove away. Elizabeth took down the license number of the vehicle. She testified that she was shown a photo lineup and that she selected appellant's photograph. She said that appellant may have had a partial beard on the night that she saw him and that appellant appeared cleanshaven now except for a mustache.
        Officer Mike Bowles testified that he was the investigator assigned the case and that by running a check on the license plate he determined that the car was rented by appellant's wife. After he spoke with appellant's wife on the telephone, both appellant and his wife came to see him. On this occasion, Officer Bowles took a photograph of appellant, and it was this photograph, along with five other photographs, that he presented to Elizabeth Brown.
        Appellant's wife testified that on March 2, 1988, she had a rented car and that around 10:30 p.m. that evening she saw a person named John Batiste driving the car and that appellant was in the car also. She then saw the car pull up and appellant exited the car and came in the apartment. Appellant's wife said that she, her sister, and appellant spent the night at the apartment. Appellant's wife said that John Batiste and appellant are about the same height, about the same size, wear the same haircut, and both "always wear sometimes" a cap. She stated that appellant has never worn a beard.
        Appellant's wife's sister testified that appellant and appellant's wife spent the night at her apartment and that she had never known appellant to wear a beard.
        In counsel's first point of error, he argues that the State improperly commented on appellant's failure to testify. The prosecutor may neither allude to nor comment on a defendant's failure to testify. Nickens v. State, 604 S.W.2d 101, 102 (Tex. Crim. App. 1980); Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). Appellant's pro se brief asserts the same point of error. The following exchange occurred at trial:
    THE STATE: You weren't able to tell Detective Bowles anything about how to find this man [who borrowed the rented car], were you?
 
    APPELLANT'S WIFE: No. [Appellant] did.
 
    THE STATE: We object to any self-serving statements made by this defendant unless he's willing to testify.
        
    THE COURT: Sustained.
 
    APPELLANT'S COUNSEL: We object to the prosecutor's objection as a statement to the jury on my client's failure to testify.
 
    THE COURT: Sustained.
 
    THE STATE: Was my objection sustained, Your Honor?
 
    THE COURT: It was.
 
    THE STATE: We ask the jury be instructed to disregard any comment made by this defendant.
 
    THE COURT: The jury will disregard the last part of the answer and not consider it.
 
The argument made is that by sustaining the State's objection and by instructing the jury to disregard the last portion of the wife's answer, the trial court magnified the harm.
        The proper method of pursuing an objection is to (1) make an objection, and if sustained, (2) request an instruction to disregard, and if sustained, (3) make a motion for a mistrial. Fuentes v. State, 664 S.W.2d 333, 336 (Tex. Crim. App. 1984). The above shows that the trial court sustained defense counsel's objection. However, counsel did not ask that the jury be instructed to disregard the testimony, nor did he move for a mistrial. Appellant must obtain an adverse ruling in order to preserve a matter for review. Since he failed to do so, the error is waived. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985). However, appellant argues because of the trial court's action, the trial court magnified the harm. It has also been held that the waiver is effective unless the statement was so inflammatory that its prejudicial effect could not have been cured by the instruction. See Parr v. State, 606 S.W.2d 928, 931 (Tex. Crim. App. 1980). The record shows that the trial court sustained the state's objection regarding the appellant's wife's use of appellant's self-serving statements on seven occasions. Because of the wife's repeated lapses into appellant's hearsay testimony and, more particularly, given the rapid series of objections and the instruction to disregard the quoted material, we hold that the statement was not so inflammatory that its prejudicial effect could not have been removed by an instruction to disregard. Bosley v. State, 69 Tex. Crim. 100, 153 S.W. 878, 880 (1913). Because the trial court properly sustained the State's objection and properly instructed the jury to disregard the self-serving hearsay statement, we further hold that the trial court's actions did not magnify the harm. Counsel's and appellant's first points of error are overruled.
        In appellant's second pro se point of error, he asserts that he was denied effective assistance of trial counsel because his attorney failed to preserve the above error by failing to ask for a curative instruction. When determining a claim of ineffective assistance of counsel at trial, appellate courts must determine whether counsel's performance was deficient and whether the deficient performance prejudiced the defendant's defense. Strickland v. Washington, 466 U.S. 668, 686 (1984); Curtis v. State, 754 S.W.2d 460, 463 (Tex. App.--Dallas 1988, pet. ref'd). This determination is made by reviewing the totality of the representation rather than isolated acts or omissions of trial counsel. The right to effective counsel does not mean errorless counsel. Curtis, 754 S.W.2d at 463. Even where counsel has failed to preserve error on some of his objections, this will not render his assistance ineffective where counsel's overall performance was sufficient. Williams v. State, 760 S.W.2d 292, 297 (Tex. App.--Texarkana 1988, pet. ref'd). The record shows that defense counsel filed numerous pretrial motions, cross-examined witnesses, and put witnesses on the stand on behalf of appellant. In the course of an entire trial, appellant makes but one complaint of trial counsel's performance. Although it is true that trial counsel failed to preserve error, given the fact that the charge of the court, which was the trial court's last word on the subject, specifically instructed the jury not to consider appellant's silence as a circumstance against him, we are not persuaded that but for this one complained-of error, the result of appellant's trial would have been different. See Curtis, 754 S.W.2d at 463-64. Appellant's second pro se point of error is overruled.
        In appellant's third pro se point of error, he contends that he was denied effective assistance of counsel on appeal because appellate counsel misread the statement of facts with regard to appellate counsel's first point of error. Appellate counsel read the statement of facts to mean that the trial court both sustained defense counsel's objection and instructed the jury to disregard the prosecutor's comment. Based upon this reading of the statement of facts, appellate counsel concluded that appellant had waived the error because trial counsel failed to move for a mistrial. The record shows that what actually happened was the trial court sustained defense counsel's objection, sustained the State's objection, and instructed the jury to disregard appellant's self-serving statement. This court has reviewed the relevant portion of the statement of facts, and in our view, under the record, the error was not so prejudicial as to require a reversal. We hold that appellate counsel's error did not prejudice appellant's case. Williams, 760 S.W.2d at 297-98. Appellant's third pro se point of error is overruled.
        Appellate counsel's second arguable point of error refers to the following argument made by the prosecutor during arguments on guilt or innocence:
    Who else do we bring you? We brought you Detective Bowles. Certainly his integrity has been insulted. His professional conduct has been insulted. [Defense counsel] wants to imply that Detective Bowles in order to make a case on an innocent man over here is going to come up here and tell you some story and drop the ball and just put this case on the defendant even tho[ugh] he's an innocent man.
    Ladies and gentlemen of the jury, I don't think you believe that. I know I don't believe that. Detective Bowles is --
 
    DEFENSE COUNSEL: We object to the prosecutor stating her own personal opinion.
 
    THE COURT: Sustained.
 
    DEFENSE COUNSEL: Request the jury be instructed to disregard.
 
    THE COURT: The jury will disregard the prosecutor's personal opinion and not consider it.
 
    DEFENSE COUNSEL: Make a motion for mistrial.
 
    THE COURT: Denied.
 
It is error to argue to the jury that they should believe a witness simply because the prosecutor or investigator does. Gardner v. State, 730 S.W.2d 675, 698 (Tex. Crim. App.), cert. denied, 108 S. Ct. 248 (1987). Normally any injury from an improper jury argument is obviated when the court instructs the jury to disregard the argument, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986). A review of Bowles's testimony shows that Bowles was the investigator who traced the rented car to appellant and his wife. Bowles also testified that he presented the photo lineup to Elizabeth Brown and that from the photos she identified appellant as the person who committed the theft. Because Bowles's testimony was not critical to the State's case, we hold that the injury was cured by the trial court's instruction to disregard. Appellate counsel's second arguable point of error is overruled.
        Appellate counsel's third arguable point of error is that the prosecutor improperly referred to the law of parole. Generally, the State may not refer to or mention the parole laws. See Franklin v. State, 693 S.W.2d 420, 429 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986). During the punishment phase of the trial, the prosecutor posed the following question to appellant's wife:
    THE STATE: Now, when did [appellant] get out of the penitentiary on that five-year sentence?
 
    DEFENSE COUNSEL: We object to that question.
 
    THE COURT: Sustained. Don't answer the last question.
 
    DEFENSE COUNSEL: We request the jury be instructed to disregard.
 
    THE COURT: The jury will disregard the last question and not consider it for any purpose.
 
    DEFENSE COUNSEL: Make a motion for mistrial.
 
    THE COURT: Your motion is denied.
Following these rulings by the trial court, the State continued its cross-examination of appellant's wife, and the record reflects the following transpired:
    THE STATE: He was sentenced to five years in 1985; is that correct?
 
    APPELLANT'S WIFE: Yes.
 
    THE STATE: Then in 1986 he picked up four new felony offenses: two forgeries, a burglary of a building, and a burglary of a vehicle; is that correct?
 
    APPELLANT'S WIFE: Yes.
        
        The record reflects that this evidence was admitted without objection. Appellant contends that the prosecutor's initial question was an improper reference to the parole law. Assuming that question was in fact an improper reference to the parole law, where the same evidence comes in elsewhere without objection, error, if any, is cured. We hold the error, if any, is harmless because defense counsel must object every time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Appellant's counsel's third arguable point of error is overruled.
        We affirm the trial court's judgment.
 
                                                          PER CURIAM
Do Not Publish
Tex. R. App. P. 90
881476F.U05
 
 
File Date[11-22-89]
File Name[881476F]