Don Allen Cooper v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-90-179-CR

DON ALLEN COOPER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 90-709-C

O P I N I O N

Appellant, who was convicted of aggravated assault on a peace officer, complains that the court erred when it denied his motion for a continuance. He also asserts that the prosecutor's final argument was improper. We will affirm.

On Friday, October 5, 1990, Appellant sought a one-day continuance to obtain pertinent medical records from the Veteran's Hospital in Waco, where he had been treated on several occasions. The court denied the motion, and the two-day trial commenced on Monday, October 8. Point one is that the court erred when it denied the motion for a continuance.

The denial of a motion for a continuance will not be disturbed unless there was an abuse of discretion. Taylor v. State, 612 S.W.2d 566, 570 (Tex. Crim. App. [Panel Op.] 1981). Based on the record as a whole, and especially in light of the fact that Appellant sought a one-day continuance when the trial lasted two days and, therefore, had an additional day to obtain the records the court did not abuse its discretion when it denied the motion. See Bahena v. State, 560 S.W.2d 956, 959 (Tex. Crim. App. 1978). Point one is overruled.

During the final argument at the guilt-innocence phase, the following occurred:

[PROSECUTOR]: . . . Folks, in this case the Grand Jury has done their job. They have indicted --

[APPELLANT'S ATTORNEY]: Objection, your Honor--

COURT: And I sustain the objection, and instruct the jury they will disregard the last statement of Counsel for the State for any purpose whatsoever.

[APPELLANT'S ATTORNEY]: Move for a mistrial, your Honor, that's--

COURT: I overrule the Motion for Mistrial.

Appellant alleges in point two that this argument was manifestly improper and clearly erroneous and that the court erred when it refused to grant a mistrial.

The state has wide latitude in argument, and error does not result unless the argument is extreme or manifestly improper, violates a mandatory statute, or injects new and harmful facts. Bell v. State, 724 S.W.2d 780, 803 (Tex. Crim. App. 1986). Furthermore, an instruction to disregard the statement generally cures any error. Johnson v. State, 583 S.W.2d 399, 408 (Tex. Crim. App. [Panel Op.] 1979).

Here, the court included the following instruction in its charge:

All persons are presumed to be innocent and no person can be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined or indicted for, or otherwise charged with the offense, gives rise to no inference of guilt at his trial.

The indictment filed in this case by the State is not evidence of guilt or innocence. It is a mere accusation, and cannot be considered by you as evidence in determining the innocence or guilt of the defendant in this case.

The prosecutor's argument was clearly improper. See Davis v. State, 257 S.W. 1099, 1100 (Tex. Crim. App. 1924). Based on the record as a whole, and particularly because of the court's prompt instruction to disregard and the instruction in the charge, any error was harmless. See, e.g., Harris v. State, 475 S.W.2d 922, 923 (Tex. Crim. App. 1972); Tex. R. App. P. 81(b)(2). We overruled point two.

Affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed October 23, 1991

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