Opinion
No. 05-03-01634-CR
Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 4, Dallas County, Texas, Trial Court Cause No. F03-49056-HK. Affirm.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
MEMORANDUM OPINION
Charles Rainey Jones appeals his conviction for possession of cocaine in an amount of 4 grams or more, but less than 200 grams. After the jury found appellant guilty, it assessed punishment, enhanced by two prior felony convictions, at 99 years' confinement. In two issues, appellant complains of (1) charge error and (2) improper closing argument by the State. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends we must reverse his conviction because the trial court erred by failing to charge the jury on the parole law applicable to the case. Specifically, appellant contends the trial court should have included the language contained in section four, article 37.07 of the code of criminal procedure in its charge. The State agrees the trial court failed to give the appropriate charge but argues appellant was not egregiously harmed. Texas courts agree that the State, not the defendant, benefits from the parole law instructions. Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). The parole instructions inform the jury how good-conduct time combines with actual time served to determine parole eligibility. Id. The instruction was designed to increase jury sentences. Id. Here, the jury assessed punishment at 99 years' confinement. In doing so, the jury had before it not only the evidence of appellant's guilt but also appellant's stipulation that he had nine prior convictions, including murder, burglary, and possession of heroin and marijuana. Further, the jury was instructed not to discuss "how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Parole and are no concern of yours." Considering these circumstances, we fail to see how not giving a charge meant to increase the length of a sentence harms appellant in this case. See id. Appellant's first issue is without merit. In his second issue, appellant contends the trial court erred by denying his motion for mistrial after the State referred to him as a "little drug dealer." Again, we disagree. Mistrials should be granted only when an objectionable event is "so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." Sanders v. State, 25 S.W.3d 854, 858 (Tex.App.-Houston [14th Dist.] 2000) (citing Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996), pet. dism'd, 56 S.W.3d 52 (Tex.Crim.App. 2001). Because curative instructions are presumed sufficient to withdraw from jury consideration almost any argument that is objectionable, the offending argument must be extreme before a mistrial is warranted. See id. Here, immediately after the State characterized appellant as a "little drug dealer," appellant objected, the trial court sustained his objection, promptly instructed the jury to disregard the State's comment, and denied appellant's request for a mistrial. The State then said, "I stand by my statement." Appellant again objected, and after the trial court sustained appellant's objection sought a mistrial. Appellant did not request an instruction to disregard. Clearly, it is improper to invite the jury to speculate on the existence of evidence not presented, and such is the case here. See Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex.Crim.App. 2000). Further, we caution the State that after the trial court sustains an objection and instructs the jury to disregard it is unacceptable for the prosecutor to tell the jury that, "I stand by my statement." Nevertheless, there is nothing to suggest the improper argument was "so emotionally inflammatory" that jurors could not disregard the comment. See, e.g., Graves v. State, 513 S.W.2d 57, 61 (Tex.Crim.App. 1974) (argument classifying defendant as "dealer of narcotics" and argument about the "little white substance that causes so much death and destruction" cured by instruction); Brown v. State, 925 S.W.2d 1, 6-7 (Tex.App.-Tyler 1994) (instruction cured argument that "A first time drug dealer can get life. We don't have a first time drug dealer."), rev'd on other grounds by 913 S.w.2d 577 (Tex.Crim.App. 1996). Accordingly, a mistrial was not appropriate under the circumstances presented here. We resolve appellant's second issue against him. We affirm the trial court's judgment.
The State also contends that appellant forfeited his complaint when he stated at trial he had "no objection" to the charge. However, in Bluitt v. State, 137 S.W.3d 51 (Tex.Crim.App. 2004), the court of criminal appeals determined that an affirmative denial of an objection to a jury charge "shall be deemed equivalent to a failure to object" and any complaint should be reviewed for egregious harm. Id. at 53. Thus, we cannot agree with the State that appellant has forfeited his complaint.