Opinion
No. 05-04-00236-CR
Opinion issued January 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-20406-Vmw. Affirmed.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MEMORANDUM OPINION
Elisandro Garcia appeals his conviction for aggravated robbery. After finding appellant guilty and that he had used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at twenty years' confinement and a $1,000 fine. In a single point of error, appellant claims the trial judge "committed reversible error" when she denied appellant's motions for mistrial. We affirm the trial court's judgment. During closing argument, appellant objected to three separate arguments and, each time, requested a mistrial which the trial judge denied. Although appellant now assigns these rulings as reversible error, we disagree. We review a trial judge's denial of a motion for mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 124 S. Ct. 2837 (2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 841 (Tex.App.-Dallas 2002, pet. ref'd). Mistrial is appropriate for "highly prejudicial and incurable errors" only. Simpson, 119 S.W.3d at 272 (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). First, appellant complains the trial judge abused her discretion when she denied his motion for mistrial following the prosecutor's statements, "Think about it. Is this the kind of person you want pulling up next to you at a red light next week?" and "Could you imagine if that was you, if you had to come rushing home because somebody robbed your home?" Although appellant objected to the comments and moved for a mistrial, in neither instance did he ask for an instruction to disregard. The failure to request an instruction to disregard waives error unless an argument is so inflammatory that its prejudicial effect could not have been alleviated by an instruction to disregard. Parr v. State, 606 S.W.2d 928, 931 (Tex.Crim.App. 1980); see McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App. 1998). After reviewing the two statements appellant complains of in this case, we cannot conclude the comments were so inflammatory that the prejudicial effect, if any, could not have been alleviated by instructions to disregard. Thus, we conclude appellant waived these complaints by failing to request an instruction. Next, appellant complains the trial judge erred in denying his motion for mistrial when he objected to the prosecutor's statement, "This guy is bad." In his appellate brief, appellant claims the phrase was improper because it places the jurors in the position of the victims. Because the statement appellant complains of does not place jurors in the position of the victims, we conclude his appellate complaint lacks merit. We overrule appellant's sole point of error. We affirm the trial court's judgment.