Opinion
No. 05-01-01766-CR.
Opinion Issued January 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-72426-KP. AFFIRMED.
Before Justices MORRIS, JAMES, and FITZGERALD.
OPINION
A jury convicted Lawrence Edward Bell of aggravated robbery. He raises three issues on appeal. In his first two issues, appellant contends the trial court erred in denying his request for a mistrial following an allegedly improper jury argument by the State. In his third issue, appellant contends he received ineffective assistance of counsel when his trial attorney failed to object to testimony by appellant's father. Because we conclude appellant's arguments are without merit, we affirm the trial court's judgment. The evidence at trial showed that appellant robbed a pawn shop. The store manager followed appellant outside and saw him leave in a red Nissan. The manager provided the car's license plate number to police, who traced the car to appellant's brother. Appellant's father testified the brother had sold the car to appellant but that "the papers" had not been transferred. In his first and second issues, appellant complains the trial court erred by denying his motion for mistrial. During jury argument in the guilt-innocence phase of trial, the prosecutor stated, "This is not a person we want on the streets of this city." Appellant's counsel objected that the statement was improper punishment argument, and the trial court sustained the objection and instructed the jury to disregard the statement. Appellant's counsel then moved for a mistrial, which the trial court denied. Appellant contends the trial court's instruction to disregard the statement was insufficient to cure the harm caused by the improper argument, and that the harm was so egregious as to deny him a fair trial. The areas of proper jury argument are (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to the argument of opposing counsel, and (4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim. App. 1996). If the argument exceeds the bounds of these areas, no reversible error occurs unless the argument violates a statute, injects new facts harmful to the accused, or is manifestly improper, harmful, and prejudicial to the accused's rights. Id. In determining whether comments by the prosecutor constitute reversible error, we view the argument in light of the facts adduced at trial and in the context of the entire argument. McGee v. State, 774 S.W.2d 229, 239 (Tex.Crim.App. 1989). We review a trial court's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Here, the prosecutor made a single, indirect reference to punishment by urging the jury to keep appellant off the streets. The trial court sustained appellant's objection to the argument and promptly instructed the jury to disregard the comment. Even if we assume the argument was improper, an instruction to disregard generally cures impermissible jury argument. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App. 1995). After reviewing the record and argument, we agree with the State that the instruction cured any harm in this case. See id. We conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's first and second issues. In his third issue, appellant complains he received ineffective assistance of counsel at trial. He argues his trial counsel erred by failing to object to his father's testimony about his use and ownership of the red Nissan because the testimony was not based on personal knowledge. Appellant also contends his trial counsel should have cross-examined his father. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim. App. 1999). Here, the record is silent with respect to why appellant's trial counsel failed to object to the father's testimony or cross-examine him. Because counsel's actions may have been part of his trial strategy, we conclude appellant has failed to rebut the presumption that counsel provided reasonable assistance. We overrule appellant's third issue. We affirm the trial court's judgment.