Lee Anthony Pescaia v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00042-CR

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LEE ANTHONY PESCAIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31013-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Lee Anthony Pescaia appeals his conviction for possession of a firearm by a felon. Pescaia pled guilty and elected to have punishment assessed by a jury. The jury assessed punishment at eight years' imprisonment. The trial court sentenced Pescaia consistent with the jury's assessment. Pescaia appeals, alleging the trial court erred in overruling his objection to improper comments relating to parole law made by the State during closing argument. We affirm.

While on patrol in Gregg County, Douglas Morgan, an officer with the White Oak Police Department, pulled Pescaia over after observing Pescaia's vehicle swerve several times into the opposite lane of traffic and that Pescaia's vehicle's brake light was out. Officer Morgan discovered two rifles on the passenger seat of the pickup and a pistol on the console. Pescaia pled guilty and stipulated that he had previously been convicted of felony possession of a controlled substance and that he possessed a firearm before the fifth anniversary of his release from confinement. The State introduced evidence of the prior conviction for possession of a controlled substance. The State also introduced evidence that Pescaia had been convicted twice of driving while intoxicated and for another possession of a controlled substance. In addition, Pescaia had received deferred adjudication for possession of marihuana. Since possession of a firearm by a felon is a third degree felony, Pescaia was subject to imprisonment of not less than two years or more than ten years.

As his sole issue on appeal, Pescaia contends the trial court erred by overruling his objection to comments made by the State during closing argument. The State argued to the jury that Pescaia would only have to serve a quarter of his sentence, and Pescaia objected to the State's comments. The relevant record is as follows:

[Prosecutor]: . . . One quarter of eligibility. In your jury charge, what does it say? Actual time plus good conduct time. So, my gosh, if I get ten years, actual time plus good time, a -- quarter of that time, that's 2.5 years, even if I make the maximum, ten years.

[Defense Counsel]: Judge, I'm going to object to any argument on parole law. The Charge clearly says do not use it as it applies to this defendant.

THE COURT: The jury will be governed by what is stated in the Charge. You may continue.

[Prosecutor]: You read the Court's Charge. You read the Court's Charge. He wants two years. Leniency may fit the crime, but leniency doesn't fit Lee Pescaia.

Pescaia characterizes this exchange as overruling his objection to the State's comments and asserts the trial court's comments are sufficient to preserve error. We disagree.

The Texas Court of Criminal Appeals has held that "before a defendant will be permitted to complain on appeal about an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999); see Dean v. State, 995 S.W.2d 846, 850 (Tex. App. Waco 1999, pet. ref'd). Generally, in order to preserve a complaint for appellate review, the record must show (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint and (2) that the trial court ruled adversely. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). If the objection is sustained, counsel must then ask for an instruction to disregard. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App. Texarkana 2001, pet. ref'd). If the instruction is given, counsel must then move for a mistrial. Nethery, 692 S.W.2d at 701; Schumacher, 72 S.W.3d at 47. If counsel does not pursue the objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). While Pescaia is correct in claiming that he was not required to move for a mistrial if the objection was overruled, we do not believe the trial court made an adverse ruling in this case.

Rule 33.1 of the Texas Rules of Appellate Procedure requires the trial court to have "ruled on the request, objection, or motion, either expressly or implicitly." Tex. R. App. P. 33.1(a)(2). Since the trial court did not expressly rule on the objection, we must determine whether the trial court implicitly ruled on the objection. See State v. Kelley, 20 S.W.3d 147, 153 n.3 (Tex. App. Texarkana 2000, no pet.). An implicit ruling may be sufficient to preserve error. // In Washington v. State, the First Court of Appeals held that error related to alleged improper jury argument was not preserved when the trial court, in response to an objection, admonished counsel to "stay within the record." 16 S.W.3d 70, 73 (Tex. App. Houston [1st Dist.] 2000, pet. ref'd). Similarly, in this case, the trial court stated that "[t]he jury will be governed by what is stated in the Charge. You may continue." Counsel's objection referred to a portion of the jury charge that directed the jury not to apply the parole law to Pescaia. The court then admonished the jury to be governed by the jury charge. With no further objection or request, it was reasonable to conclude that the trial court's action satisfied the objection. Further, the trial court did not take any subsequent actions that would indicate an adverse ruling. // We find the trial court's response in the present case did not constitute an adverse ruling on the defense objection. Because Pescaia did not pursue his objection to an adverse ruling, error was not preserved for appellate review. We overrule Pescaia's sole point of error.

For the reasons stated, we affirm.

Jack Carter

Justice

Date Submitted: September 30, 2004

Date Decided: October 21, 2004

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