Opinion
No. 05-09-00137-CR
Opinion issued August 3, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-56430-RMT.
Before Justices MORRIS, MOSELEY, and LANG.
MEMORANDUM OPINION
A jury convicted Jose Carillo of murder and assessed punishment at eighty years' confinement and a $10,000 fine. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). The jury also found Carillo used a deadly weapon, a firearm. In a single issue, Carillo argues the State's improper argument at the punishment phase regarding parole law and how it would apply to him was harmful to him. For the reason set forth below, we affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. During the State's closing argument, the prosecutor said:
You give him 99 years, life without parole, if the defendant is sentenced to a term of imprisonment he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less.
There's no throwing away the key. He has an opportunity to walk out of that jail one day.Defense counsel objected on grounds of "improper argument." The trial court sustained the objection. Counsel requested an instruction to the jury. The trial court said, "The jury will disregard the last statement by the prosecutor and not consider it for any purpose." If counsel does not pursue an objection to an adverse ruling, error is not preserved. See Tex. R. App. P. 33.1. Anticipating the State's argument that he forfeited his right to complain about the jury argument on appeal by failing to pursue his objection to the argument to an adverse ruling, Carillo relies on Anderson v. State, 932 S.W.2d 502, 507 (Tex. Crim. App. 1996), to support his rejoinder that he comes within the exception to this preservation requirement if an instruction to disregard would not have cured the error. However, we agree with the State that Carillo's argument is foreclosed by the court of criminal appeals's decision in Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). In Cockrell, the court relied on then-current rule of appellate procedure 52(a) and Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), and held that the only pertinent question was whether the defendant objected and pursued the objection to an adverse ruling:
However, a defendant's "right" not to be subjected to incurable erroneous jury arguments is one of those rights that is forfeited by a failure to insist upon it. See Marin, 851 S.W.2d at 279; Campbell v. State, 900 S.W.2d 763, 774-77 (Tex. App.-Waco 1995, no pet.) (Thomas, C.J., concurring). Therefore, we hold a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Any prior cases to the contrary such as Montoya [v. State, 744 S.W.2d 15, 37 (Tex. Crim. App. 1987),] and Romo [v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. 1982),] are expressly overruled. Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.Cockrell, 933 S.W.2d at 89 (emphasis added). Here, Carillo's objection to the argument was sustained, and he received his requested instruction to disregard. Carillo has forfeited his right to complain about the jury argument on appeal because he failed to pursue his objection to an adverse ruling. See id. We resolve Carillo's single issue against him. We affirm the trial court's judgment.
See Tex. R. App. P. 33.1(a) (replacing former rule 52).