Lawrence Henry Bennett v. The State of Texas--Appeal from 185th District Court of Harris County

NO. 10-89-148-CR

NO. 10-89-149-CR

NO. 10-89-150-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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LAWRENCE HENRY BENNETT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From the 185th Judicial District Court

Harris County, Texas

Trial Court #'s 511280, 511176 & 511177

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O P I N I O N

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Appellant was convicted for three felony offenses of robbery, each enhanced with one prior felony conviction. He was sentenced to thirty years in prison for each offense. We will affirm.

In Appellant's sole point of error he alleges that the prosecutor committed fundamental error when she struck at the Appellant over the shoulders of his counsel during her argument to the jury. The comments by the Prosecutor which Appellant complains of are as follows:

[PROSECUTOR]: May it please the Court. Folks, that was an argument of desperation. He has nothing to attack. You can't attack the identification. He has nothing to attack. You can't attack the identification of witnesses. So, what does he do?

He says, "A, They're white-washing for the police. The police bring them somebody and say, `Yeah, that was him.'"

You know that didn't happen. He doesn't get very far with that.

Then what does he do? He attacks me -- me. He puts the victims on trial and then puts me on trial for not bringing you everyone on H.P.D., whoever handled this man on the 20th day of September of 1988. I'm not going to do that. It's ridiculous. It's a waste of your time, and I'm not going to do it.

At trial Appellant failed to object to the comments by the Prosecutor which he now finds objectionable. Unless the comments by the Prosecutor are so prejudicial that no instruction could cure the harm, then the failure of Appellant to timely object waives any error. See Green v. State, 682 S.W.2d 271, 295 (Tex. Crim. App. 1984). We find beyond a reasonable doubt that, if error, any prejudice caused by the comments of the Prosecutor could have been cured by instructions from the court to disregard. See Tex. R. App. P. 81(b)(2). The judgment of the trial court is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed May 9, 1991

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