Opinion
No. 05-09-00294-CR
Opinion issued March 26, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 429th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-92824-07.
Before Justices FITZGERALD, MURPHY, and MYERS.
MEMORANDUM OPINION
Michael Glen Hamilton pleaded guilty to two counts of aggravated sexual assault of a child and three counts of indecency with a child. The jury assessed his punishment at life imprisonment for each of the aggravated assault charges and sentences of twenty, fifteen, and fifteen years for the indecency charges. In a single appellate issue, Hamilton complains the prosecutor's jury argument included comments that were improper and unduly prejudicial. The background of the case and the evidence adduced at trial are well known to the parties, so we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. We affirm the trial court's judgment. Hamilton initially pleaded not guilty to all charges. The jury was selected and trial began on February 10, 2009. After a recess because of illness, trial resumed. The State put on its case on February 17 and 18. It presented ten live witnesses, including the complainant who was twelve years old at the time of trial. Then, on February 19, the defense put on its case, and both parties rested and closed the evidence. The attorneys reviewed and approved the trial court's charge on guilt or innocence, and Hamilton was questioned on the record concerning his decision not to testify. The State presented its closing argument, but counsel for Hamilton, at the end of his closing, announced Hamilton would be changing his plea to guilty. The court directed the State to present its rebuttal argument, and the prosecutor began:
Well, isn't this the damndest thing. So sure the kid wouldn't be able to testify, and now she did, that he's changing his plea to guilty. How convenient. How convenient after we've done a whole entire trial, after that baby girl had to sit there, look him in the eye, having him staring her in the face, looking at everyone smugly, knowing that she's not going to be able to do it. Now that she's worked up the courage inside herself, he decides that it's too risky for him to plead not guilty, and now he wants to tell you that he did it.
This is a bunch of nonsense. If I were you I would be mad. I would be real mad. I'm mad.Counsel for Hamilton did not raise any objection during this argument. Hamilton was subsequently re-arraigned and admonished, and he entered his guilty plea in front of the jury. The next morning, counsel for Hamilton raised a number of objections to the proceedings the day before-including objections to the prosecutor's argument-and asked for a mistrial. The trial court overruled the objections and denied the request for a mistrial. On appeal, Hamilton complains the trial court erroneously overruled objections that: (1) the prosecutor's expression that she was mad and the jury should be mad was inflammatory, and (2) the prosecutor's argument that Hamilton wanted a jury trial just so he could make the complainant take the witness stand was inflammatory, an improper comment on Hamilton's exercise of his constitutional rights, and outside the record because there was no evidence of Hamilton's intent. As a prerequisite to presenting his complaint on appeal, the record must show Hamilton made that complaint to the trial court in a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a). We require objections to jury argument to be made promptly because, in most instances, an instruction to disregard improper remarks will cure the error. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Similarly, a motion for mistrial must be made as soon as the grounds for it become apparent. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Hamilton failed to object and move for a mistrial in a timely manner in this case. As a result he has failed to preserve any error for our review. We overrule his single issue. We affirm the trial court's judgment.