JESSE JAMES JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 27, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00004-CR
............................
 
JESSE JAMES JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
 
.................................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-95226-UQ
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OPINION PER CURIAM
Before Chief Justice Enoch and Justices Stewart and Kinkeade
 
        A jury found Jesse James Johnson guilty of possession of the controlled substance cocaine and assessed punishment, enhanced by two prior convictions, at thirty-five years' confinement. In his sole point of error, appellant contends that the prosecution engaged in improper jury argument. Finding no reversible error, we affirm the trial court's judgment.
        Appellant contends that the following argument constituted reversible error:
    Folks, this is a very simple, straightforward case. Don't make it any harder on yourselves than it is. The fact that it was a brief trial, don't let that cause you to start wondering [sic] off on some foreign tangents. The evidence is straightforward. The officer was a very credible officer. I will ask you to go back there and talk over the evidence if you want to -- it shouldn't take you very long at all -- and render the only right verdict in this case, a verdict of guilty, so then we can progress to the next and most important phase of this trial, that being the punishment phase.
 
    DEFENSE COUNSEL: Your Honor, I will object to that argument as being improper.
    
    COURT: Sustained.
 
    DEFENSE COUNSEL: I will ask the jury to be instructed to disregard that.
 
    COURT: Disregard his argument about the punishment phase of the trial.
 
    DEFENSE COUNSEL: I will ask for a mistrial.
 
    COURT: Denied.
[Emphasis added].
        The court of criminal appeals has held that a similar argument was "a totally improper line of argument to pursue at the guilt/innocence stage." Cherry v. State, 507 S.W.2d 549, 549 (Tex. Crim. App. 1974). The error in Cherry was compounded because the trial court overruled defendant's objection and because the improper remark was the last statement made to the jury before they retired to deliberate. Id.
        In the case at bar, the trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's statement concerning the punishment phase. Thus, this case is distinguishable from Cherry. It is well settled that any injury from improper jury argument is obviated when the trial court instructs the jury to disregard, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985); Brown v. State, 692 S.W.2d 497, 502 (Tex. Crim. App. 1985); Blansett v. State, 556 S.W.2d 322, 328 (Tex. Crim. App. 1977).
        In McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1976), the court of criminal appeals indicated that this general rule applies to cases where the prosecutor improperly argues punishment issues during the guilt/innocence stage. In McClure, the instructions did not remove all possible harm because the prosecutor continued to press the impermissible argument despite the trial court's instructions. We are not faced with that situation here. The prosecutor in the instant case immediately moved to a different argument after the trial court sustained appellant's objection and instructed the jury to disregard. We hold that any prejudicial effect of the prosecutor's statement could be, and was, removed by the trial court's prompt instruction to disregard.
        We note further that the court of criminal appeals has held that an argument similar to the one at bar was harmless in light of the overwhelming evidence of guilt and in light of the fact that the remark, when viewed in the context of the argument, merely emphasized the overwhelming nature of the evidence. Mann v. State, 718 S.W.2d 741, 745 (Tex. Crim. App. 1986). When viewed in context, the prosecutor's statement in this case was not a request that the jury ignore its duties to decide guilt or innocence, but rather it emphasized the straightforward nature of the evidence presented. See Mann, 718 S.W.2d at 744-45; Alto v. State, 739 S.W.2d 614, 619 (Tex. App. -- Houston [14th Dist.] 1987, no pet.). We conclude, beyond a reasonable doubt, that the error made no contribution
to appellant's conviction or punishment. Tex. R. App. P. 81(b)(2). We overrule appellant's point of error and affirm the judgment of the trial court.
                                                          PER CURIAM
Do Not Publish
Tex. R. App. P. 90
        
 
 
File Date[11-27-89]
File Name[890004F]