MARK ANTHONY WEAD v. THE STATE OF TEXAS--Appeal from County Criminal Court at Law No 14 of Harris County

NUMBER 13-00-015-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  BEDINBURG

MARK ANTHONY WEAD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from County Criminal Court at Law No. 14

of Harris County, Texas.

OPINION ON REMAND

Before Chief Justice Valdez and Justices Rodriguez and Baird[1]

Opinion on Remand by Justice Baird

Appellant was charged by information with the misdemeanor offense of assault. A jury convicted appellant of the charged offense. The trial court assessed punishment at confinement for one year and a fine of $4,000. On direct appeal, appellant raised ten issues. On our initial consideration of this appeal, we overruled issues eight, nine and ten, but sustained the third issue and reversed the judgment of the trial court. See Wead v. State, 94 S.W.3d 131 (Tex. App.BCorpus Christi 2002), rev=d, 129 S.W.3d 126 (Tex. Crim. App. 2004). However, our decision was subsequently reversed by the court of criminal appeals, and the case was remanded to this Court to address appellant's remaining issues. Wead v. State, 129 S.W.3d 126 (Tex. Crim. App. 2004). We affirm the judgment of the trial court.

I. Closing Argument

The first issue contends the prosecutor=s closing argument was improper. The State responds that this issue was not preserved for appellate review because there was no contemporaneous objection at trial. We agree. Our law is well settled; the failure to object to a jury argument forfeits the right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The first issue is overruled.

The second issue also concerns the allegedly improper closing argument. This error is interrelated to the third issue which we sustained on direct appeal; however, the court of criminal appeals found that we Aerred in even considering appellant's argument that the prosecutor's comment amounted to a comment on appellant's failure to testify, since appellant made no such argument in the trial court.@ Wead, 129 S.W.3d at 130. The court of criminal appeals further held the argument did not amount to a comment on appellant's failure to testify. Id. We are bound by these holdings. Consequently, the second issue is overruled.

II. Voir Dire

The fourth and fifth issues contend reversal is required due to improper comments made by the prosecutor and the trial judge, respectively, during voir dire. Appellant failed to object to either of the complained-of comments. The failure to object to prosecutor's statements during voir dire fails to preserve the issue for appellate review. Penry v. State, 903 S.W.2d 715, 741 (Tex. Crim. App. 1995). Accordingly, the fourth issue is overruled.

The fifth issue is couched in article 38.05 of the Texas Code of Criminal Procedure which provides: AA trial judge shall not at any stage of the proceeding prior to the return of the verdict make any comment calculated to convey to the jury the judge's opinion of the case.@ Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). However, an objection is required to preserve an article 38.05 argument for appellate review. Moore v. State, 907 S.W.2d 918, 922-23 (Tex. App.BHouston [1st Dist.] 1995, pet. ref'd). Because there was no objection, the fifth issue is overruled.

III. Presumption of Innocence

The sixth issue contends the prosecutor violated appellant=s presumption of innocence by commenting on the white arm band appellant was wearing during trial. The State responds that the objection lodged at trial does not comport with the argument now raised on appeal. The State further argues that the error, if any, was cured by the trial judge=s instruction to disregard any reference to appellant=s armband. Our law has long recognized a presumption that an instruction to the jury to disregard improperly admitted evidence or comments was efficacious unless consideration of the facts of the particular case "suggests the impossibility of withdrawing the impression produced on the minds of the jury." Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988) (quoting Hatcher v. State, 43 Tex. Crim. 237, 65 S.W. 97, 98 (1901)). There is nothing in the record before us to rebut this presumption or to suggest the impossibility of withdrawing the impression of appellant=s armband. Consequently, we presume the instruction to disregard cured any error. Accordingly, the sixth issue is overruled.

IV. Judicial Vindictiveness

The seventh issue contends the sentence imposed by the trial judge was the result of judicial vindictiveness. In support of this claim, appellant relies upon North Carolina v. Pearce, 395 U.S. 711 (1969), in which the United States Supreme Court held the Due Process Clause is violated when a defendant is punished for successfully exercising his constitutional or statutory rights. Id. at 724.

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

Id. The rule of law announced in Pearce applies Awhenever a judge imposes a more severe sentence upon a defendant after a new trial.@ Id. at 726. In the instant case, there has not been a Anew trial;@ this appeal arises from the first and only trial of the instant case. Therefore, there can be no showing that the trial judge was vindictive when imposing the complained of sentence. Accordingly, the seventh issue is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion on Remand delivered and filed this

the 21st day of July, 2005.

[1] Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas. See Tex. Gov=t Code Ann. ' 74.003 (Vernon 2005).