Fedrick, Louie Dee v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmedand Opinion filed July 25, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00803-CR

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LOUIE DEE FEDRICK, Appellant

V.

THE STATE OF  TEXAS  ,Appellee

On Appeal from the 179th District Court

Harris  County, Texas

Trial Court Cause No. 875,124

O P I N I O N

  Appellant, Louie Dee Fedrick, appeals his robbery conviction and subsequent sentence of fifty years=confinement. In two points of error, appellant claims the trial court erred in (1) failing to conduct a Batson hearing, and in (2) denying his motion for mistrial on the grounds that the State improperly commented on appellant=s failure to testify. We affirm.

  On October 26, 2000, complainant Ghulam Cryana was working at a jewelry store in Almeda Mall when a man, later identified as appellant, entered the store. Cryana testified that after he showed appellant three gold necklaces from a locked glass cabinet, appellant pulled out a container and sprayed the contents into Cryana=s face. Appellant then ripped the gold chains from Cryana=s hand and fled from the store.

Edward Hinton, the Almeda Mall security manager, saw appellant run across the parking lot and enter another department store. Hinton confronted appellant and escorted him back to Cryana=s jewelry store. Cryana identified appellant as the man who stole the necklaces and sprayed him in the face. Appellant was arrested and the stolen necklaces were found in his pockets.

Appellant was charged with robbery, and the jury found him guilty. The trial court sentenced appellant to fifty years= confinement, enhanced by prior felony convictions, and imposed a $10,000 fine. This appeal followed.

In his first point of error, appellant complains that the trial court erred when it denied appellant=s request to conduct a Batson hearing following the State=s peremptory strikes. Appellant argues that he made a prima facie showing that the prosecutor struck venire members thirty-five and thirty-eight because they were black. The record shows that the last venire person seated on the jury panel was venire person number thirty. Appellant can show no harm by the prosecutor=s strike of venire persons thirty-five and thirty-eight because, mathematically, the two would never have been seated on the jury. See Rousseau v. State, 855 S.W.2d 666, 680 (Tex. Crim. App. 1993) (recognizing appellant can show no harm where the complained of venire person could not have been seated on the jury); Harrell v. State, 882 S.W.2d 65, 67 (Tex. App.BHouston [14th Dist.] 1994, pet. ref=d) (stating that an appellate court need not review the prosecutor=s reasons for striking jurors who were too far down the jury list to be chosen because appellant can show no harm). Appellant=s first point of error is overruled.

In his second point of error, appellant claims the trial court erred in denying his motion for mistrial on the grounds that the State improperly commented on appellant=s failure to testify. The State argues that appellant=s trial counsel first raised the issue of appellant=s failure to testify by making the following closing argument:

[The complaining witness, Cryana, is] really the only one who explained to the twelve of you what happened that day . . . And I think what=s important in this case is for the twelve of you because he=s the only one there who testified and knows of any of the facts about what happened during that incident . . . that the State claims is a robbery. That the defense claims is a theft case . . . .

The prosecutor objected, AJudge, I object to the Defense argument because it=s commenting on the defendant=s failure to testify.@ Appellant=s trial counsel, without objecting or requesting an instruction to disregard, continued closing argument.

A defendant must object and pursue the objection to an adverse ruling in order to complain on appeal about an erroneous jury argument or to complain on appeal that an instruction to disregard could not have cured an erroneous jury argument. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Even where argument is so inflammatory that an instruction to disregard would be without value, counsel must object and pursue an adverse ruling to preserve error on appeal. See Tex. R. App. P. 33.1(a) (stating that an appellant must make a timely objection); Campos v. State, 946 S.W.2d 414, 417 (Tex. App.BHouston [14th Dist.] 1997, no pet.) (recognizing that Cockrell overruled prior caselaw which held that counsel need not object to blatant and inflammatory argument). Here, appellant did not preserve error because he did not timely object and did not request an instruction to cure the error. Appellant waived his right to complain about the improper comment on appeal. See Cockrell, 933 S.W.2d at 89. Accordingly, appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed July 25, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).