Opinion
No. 05-05-01524-CR
March 9, 2007.
On Appeal from the 86th Judicial District Court Kaufman County, Texas, Trial Court Cause No. 20955.
Before Justices, BRIDGES, FITZGERALD, and LANG.
OPINION
Timothy Dewayne Cobb appeals the trial court's judgment convicting him of knowingly manufacturing methamphetamine in an amount of four grams or more, but less than two hundred grams. Cobb pleaded guilty, and the jury assessed his punishment at thirty years of imprisonment. Cobb raises four issues arguing the trial court erred when it: (1) overruled his Batson objection; (2) denied his motion to suppress; (3) failed to admonish him pursuant to article 26.13 of the Texas Code of Criminal Procedure; and (4) overruled his objection to the prosecutor's misstatement regarding the evidence during the hearing on punishment. We conclude the trial court did not err when it overruled Cobb's Batson objection. Also, we conclude the trial court did not err when it denied Cobb's motion to suppress. Further, we conclude the trial court properly admonished Cobb pursuant to article 26.13. Although the trial court erred when it denied Cobb's objection to the prosecutor's misstatement of the evidence, we conclude the error was harmless. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2001, at 12:45 a.m., Officer Monty Posey received a tip from a confidential informant that Cobb was manufacturing methamphetamine in a storage building at his father's residence, located at 9551 R and R Circle, Kemp, Texas. Officer Posey had received similar information regarding a methamphetamine lab at that location and knew the property belonged to Darrell Cobb, Cobb's father, and that Cobb lived there off and on with his father's consent. Officer Posey drove to the location, which was an hour away. At 2:10 a.m., when he arrived at 9551 R and R Circle, he observed the taillights of a vehicle going up the driveway and lights on in the shed. As he drove past the entrance to the property, he smelled the distinct odor of anhydrous ammonia, which is used in the manufacture of methamphetamine. Officer Posey left the location and telephoned his supervisor to request backup. The other officers arrived at 3:43 a.m. At 4:05 a.m., the officers returned to the property. When Officer Posey pulled his vehicle up to the shed, the shed door opened and Cobb and Mark Chacon backed out of the shed. When the doors of the shed were opened, Officer Posey smelled hydrogen chloride gas and saw a methamphetamine lab cooking. Cobb and Chacon were backing out of the shed because they were at the "powdering out" stage in the manufacture of methamphetamine, which is when hydrogen chloride gas is introduced into the solution, creating toxic fumes. Cobb and Chacon were immediately arrested. Officer Posey knocked on the door of the house. Darrell Cobb answered the door, and Officer Posey identified himself, told him what was in the shed, and asked if he could search it. Darrell Cobb indicated it was his shed and he had control of it. He consented to the search and signed the consent form at 4:08 a.m. The officers made a quick search of the shed, but they could not remain in the shed because of the fumes. They secured the area, waiting for the fumes to clear and for the drug lab employees to arrive and dismantle the evidence. While waiting for the drug lab employees to arrive, Officer Posey went back to the house and obtained Darrell Cobb's consent to search the house at 4:45 a.m. Cobb pleaded guilty before a jury to manufacturing methamphetamine in an amount of four grams or more, but less than two hundred grams. The jury found him guilty and assessed his punishment at thirty years of imprisonment.II. PEREMPTORY CHALLENGES TO THE JURY PANEL
In his first issue, Cobb argues the trial court erred when it overruled his Batson objection. He argues the State violated Batson in the use of its peremptory strikes against prospective jurors nos. 10, 13, and 20. The State responds that the prosecutor provided race-neutral reasons for striking the prospective jurors and Cobb did not rebut those reasons or show they were a pretext.A. Standard of Review
When reviewing a Batson challenge, an appellate court examines the record in the light most favorable to the trial court's ruling and reverses only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002); Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996); Bausley v. State, 997 S.W.2d 313, 315 (Tex.App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake. Bausley, 997 S.W.2d at 315. If the record, including the voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence supports the trial court's ruling, then the ruling is not clearly erroneous. Id.B. Applicable Law
To challenge the State's use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race or gender neutral explanation for striking the prospective juror in question. Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. This step requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)). An explanation is neutral in this context if the State bases it on something other than the prospective juror's race or gender. See Hernandez v. New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race or gender neutral. See id. at 360. If the State provides a race or gender neutral explanation for its strikes, the defendant may rebut the State's explanation or show that the explanation was merely a sham or pretext. See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id. At this third step, the persuasiveness of the justification becomes relevant. See Purkett, 514 U.S. at 768. A valid, neutral basis for exercising a peremptory challenge may include the following: (1) appearance; (2) occupation; (3) hostile body language, including crossed or folded arms; (4) failure to make eye contact; (5) no development of a back and forth relationship; and (6) age. See, e.g., Purkett, 514 U.S. at 768-69 (unkept, long hair, mustache, and beard); United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988) (lack of eye contact, demeanor, and age); Alexander v. State, 866 S.W.2d 1, 8 (Tex.Crim.App. 1993) (en banc) (arms folded); Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App. 1993) (en banc) (age); Davis v. State, 822 S.W.2d 207, 211 (Tex.App.-Dallas 1991, pet. ref'd) (occupation); Ealoms v. State, 983 S.W.2d 853, 856 (Tex.App.-Waco 1998, pet. ref'd) (appearance and age); Anderson v. State, 758 S.W.2d 676, 680 (Tex.App.-Fort Worth 1988, pet. ref'd) (lack of eye contact, occupation, and no development of back and forth relationship).C. Application of the Law to the Facts
Following voir dire and the State's peremptory strikes, Cobb's counsel objected, arguing the State used peremptory strikes on the only black venire members, prospective jurors nos. 10, 13, and 20. The State responded with race neutral reasons for striking the prospective jurors. With respect to prospective juror no. 10, a black woman, the prosecutor based his objection on the prospective juror's appearance, occupation, and age. Specifically, the prosecutor stated:As far as number ten, she was stricken, she had pinkish highlights in her hair, which indicated to me that she might be of a more liberal bent, less likely to be harsh on punishment. . .
Also, Your Honor, she's a truck driver. We recently had a murder case in which there was a hung jury and the one juror that held out for not guilty was a truck driver.
* * * * * * *
Also, Your Honor, juror number ten was fairly young in comparison to a lot of the other jurors.With respect to prospective juror no. 13, a black man, the prosecutor based his objection on the prospective juror's lack of eye contact, hostile body language, and the failure to develop a back and forth relationship. Specifically, the prosecutor stated:
[Prospective juror no. 13] had his arms crossed during my entire voir dire examination. He would not make eye contact with me. When [defense counsel] was going through his voir dire, [prospective juror no. 13] appeared to be very open toward him. He was nodding his head anytime [defense counsel] tried to emphasis [sic] a particular point. He seemed to be far more attuned in favor of the defense than the prosecution.
Also, Your Honor, he didn't take any opportunity to speak up much, which always concerns me.With respect to prospective juror no. 20, a black woman, the prosecutor based his objection on the prospective juror's occupation, liberal bent, and possible relationship to a political candidate. Specifically, the prosecutor stated:
Twenty. Your Honor, I was a little reluctant to strike twenty because she responded to [defense counsel's] question regarding the reason for punishment was punishment in and of itself, which in my mind makes me think she would be a good [S]tate's juror; however, she works at the state hospital in Terrell. In my experience that tends-people that work there tend to be a little more liberal, little less [S]tate oriented.
Also, my concern was that she might be related to Brenda Prince, and because of my close relationship with Kenneth Shane which is widely known, I was concerned that politics might enter into the mix and cause her to be negative toward me. But it had nothing to do with her race.The trial court noted that "Brenda Denson Prince was a candidate for county commissioner running against Ken Shane and [sic] ended up in a contested election suit that did get bitter." The State's responses were race-neutral reasons for exercising a peremptory strike. See, e.g., Purkett, 514 U.S. at 768-69 (hair); Terrazas-Carrasco, 861 F.2d at 94 (lack of eye contact, demeanor, and age); Alexander, 866 S.W.2d at 8 (arms folded); Chambers, 866 S.W.2d at 24 (age); Davis, 822 S.W.2d at 211 (occupation); Ealoms, 983 S.W.2d at 856 (appearance and age); Anderson, 758 S.W.2d at 680 (lack of eye contact, occupation, and no development of back and forth relationship). Once the State offered race-neutral explanations for its strikes, the burden shifted to Cobb to show the State's explanation was a sham or pretext. To rebut the State's explanation, Cobb argued prospective juror nos. 10 and 20 stated the reason for punishment was punishment itself and prospective juror no. 13 stated the reason for punishment was deterrence. Cobb did not call any witnesses or dispute the State's reasons regarding: (1) prospective juror no. 10's appearance and occupation; (2) prospective juror no. 13's lack of eye contact, hostile body language, and the failure to develop a back and forth relationship; and (3) prospective juror no. 20's occupation, liberal bent because of her employment at a mental health hospital, and possible relationship to a political candidate. The trial court noted the State also struck prospective juror no. 10 because of her age, which was twenty-six years old. The trial court pointed out the State also struck prospective juror no. 6, who was twenty-six years old, and prospective juror no. 20, who was twenty-seven years old. In response to the trial court's comment, Cobb argued one of the prospective jurors who was not stricken was twenty-eight years old. The trial court denied Cobb's Batson objection. After examining the record, we conclude the trial court's failure to find the State violated Batson in the use of its peremptory strikes against prospective juror nos. 10, 13, and 20 was not clearly erroneous. Cobb's first issue is decided against him.
III. MOTION TO SUPPRESS
In his second issue, Cobb argues the trial court erred when it denied his motion to suppress. He argues an anonymous tip and the smell of anhydrous ammonia did not give the officers probable cause to believe Cobb possessed methamphetamine. He also argues there were no exigent circumstances. The State responds that the officer was permitted to make a warrantless entry and search because he had probable cause and exigent circumstances existed.A. Standard of Review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Smith v. State, 176 S.W.3d 907, 913 (Tex.App.-Dallas 2005, pet. ref'd); Randolph, 152 S.W.3d at 769. A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Randolph, 152 S.W.3d at 769. When a trial court rules on a motion to suppress evidence, its application of the law of search and seizure is reviewed de novo. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000); Randolph, 152 S.W.3d at 769. However, an appellate court will not revisit a trial court's determination that a homeowner gave consent as that finding is based solely on the credibility and weight of the witness's testimony. See Jones v. State, 944 S.W.2d 642, 650 (Tex.Crim.App. 1996); Franco v. State, 25 S.W.3d 26, 31 (Tex.App.-El Paso 2000, pet. ref'd). The appellate court will address whether the consent given by the homeowner was effective against the defendant. See Franco, 25 S.W.3d at 31. If a trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. Ross, 32 S.W.3d at 855-56; Randolph, 152 S.W.3d at 769.B. Applicable Law
The Fourth Amendment recognizes a valid warrantless entry and search of a premises when the police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of the evidence obtained. Georgia v. Randolph, 126 S.Ct. 1515, 1518 (2006). Permission to search may also be given by a third party who possesses common authority over or other sufficient relationship to the premises or effects to be searched. United States v. Matlock, 415 U.S. 164, 171 (1974). A third party may properly consent to a search when the third party has equal control over and equal use of the premises to be searched. Id. at 171 n. 7; Becknell v. State, 720 S.W.2d 526, 528 (Tex.Crim.App. 1986). However, if the defendant was physically present and expressly refused to consent to the search, a warrantless search based on another resident's consent is not reasonable as to the defendant. See Randolph, 126 S.Ct. at 1526.C. Application of the Law to the Facts
In this appeal, the parties argue whether the officers had probable cause and whether there were exigent circumstances that would permit the officers to search the shed and house without a warrant. However, during the hearing on the motion to suppress, it was the State's position that the officer did not need probable cause and exigent circumstances or a warrant because Darrell Cobb, father of Cobb and owner of the premises, consented to the search. We will sustain the trial court's decision on the motion to suppress if it is correct on any theory of law applicable to the case. See Ross, 32 S.W.3d at 855-56; Randolph, 152 S.W.3d at 769. During the hearing on the motion to suppress, Officer Posey testified Darrell Cobb orally consented and signed the consent forms, permitting him to search the shed and house without a warrant. Although Darrell Cobb stated that he only signed the consent form because he believed the officers had already searched the shed and the officers did not tell him he had the right to refuse, he acknowledged he consented to the search and signed the consent forms. We will not revisit the trial court's determination that Darrell Cobb consented to the search because that finding was based solely on the credibility and weight of the witnesses' testimony. See Franco, 25 S.W.3d at 31. On appeal, Cobb does not: (1) dispute that his father had authority over the shed and house; (2) argue he expressly refused to give the officers his consent to search; or (3) claim the officers removed him for the purpose of avoiding a possible objection to the search. Accordingly, we conclude the trial court did not err when it denied Cobb's motion to suppress. Cobb's second issue is decided against him.IV. ADMONISHMENTS
In his third issue, Cobb argues the trial court erred when it failed to admonish him pursuant to article 26.13 of the Texas Code of Criminal Procedure. He contends the trial court did not inquire about his mental competency or whether he was freely and voluntarily pleading guilty. The State responds that, although the trial court did not specifically inquire into Cobb's competency and the voluntariness of his plea, it is apparent Cobb was competent and he freely and voluntarily pleaded guilty.A. Applicable Law
A guilty plea shall not be accepted by the trial court unless it appears the defendant is mentally competent and the plea is free and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2005). However, it is not necessary for the trial court to specifically ask a defendant whether his plea is being entered freely and voluntarily. See Manoy v. State, 7 S.W.3d 771, 777 (Tex.App.-Tyler 1999, no pet.). If the trial court properly admonished the defendant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998) (per curiam). Then, the burden shifts to the defendant to show he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. Id. When considering the voluntariness of a guilty plea, an appellate court must examine the entire record. Id. Also, unless an issue is made of the defendant's present insanity or mental competency at the time of the plea, the trial court need not inquire into the defendant's mental competency, and it is not error for the trial court to accept the defendant's guilty plea. Id.; Hall v. State, 935 S.W.2d 852, 855 (Tex.App.-San Antonio 1996, no pet.); Sims v. State, 783 S.W.2d 786, 788 (Tex.App.-Houston [1st Dist.] 1990, no pet.) (citing Kuyava v. State, 538 S.W.2d 627, 628 (Tex.Crim.App. 1976)).B. Application of the Law to the Facts
After Cobb indicated he wanted to plead guilty before the jury, the trial court admonished him. Cobb does not argue the trial court failed to give him any of the admonishments required pursuant to article 26.13(a). See Tex. Code Crim. Proc. Ann. art. 26.13(a). Although the trial court did not specifically ask Cobb if he was freely and voluntarily pleading guilty, the trial court ascertained that Cobb had discussed his guilty plea with his counsel and was satisfied with his representation. Also, Cobb testified he understood that: (1) "the minimum sentence would be five years, maximum would be ninety-nine years which is [the] equivalent of life, plus. . . . not more than a ten-thousand-dollar fine"; (2) if he had not been convicted of a previous felony, then he was eligible for probation; (3) he had a right to have a jury determine his guilt or innocence and, by pleading guilty, he was giving up his right to a jury; (4) if he did not plead guilty he had the right to subpoena witnesses to testify on his behalf, but if he pleaded guilty he had the right to subpoena witnesses only during the hearing on punishment; (5) by pleading guilty he was giving up his right to appeal from the decision in the guilt or innocence phase of the trial; and (6) during the hearing on punishment, the State can introduce "a lot of evidence as to how the incident occurred, much of the same type of evidence that would have been introduced in the guilt or innocence phase" and the State had "a right to introduce evidence other than just pure punishment evidence." After admonishing Cobb, the trial court asked Cobb if he still wished to plead guilty and Cobb answered "yes." Further, the trial court asked Cobb if he was pleading guilty for any reason other than his guilt and Cobb answered "no." After the trial court admonished Cobb, defense counsel questioned him. In response to defense counsel's questions, Cobb indicated it was his wish to plead guilty, he understood the jury would be instructed to find him guilty, and he was waiving his right to appeal the guilt or innocence phase of the trial. The State cross-examined Cobb and ascertained that he understood he was charged with manufacturing methamphetamine and was admitting that offense. Also, the portion of the stipulation of evidence signed by Cobb's counsel states, "This stipulation of evidence was signed by [Cobb] in my presence and I believe that this document was executed by [Cobb] knowingly and voluntarily and only after I fully explained it and its consequences with them [sic]." With regard to Cobb's mental competency, Cobb did not argue in the trial court and does not argue on appeal that he was mentally incompetent when he pleaded guilty. Further, the trial court had the opportunity to converse with and observe Cobb. The portion of the stipulation of evidence signed by Cobb's counsel states, "I believe that [Cobb] is competent to stand trial." Accordingly, we conclude the trial court did not err when it failed specifically to ask Cobb whether he was freely and voluntarily pleading guilty and to inquire into his mental competency. Cobb's third issue is decided against him.V. PROSECUTOR'S MISSTATEMENT
In his fourth issue, Cobb argues the trial court erred when it overruled his objection to the prosecutor's misstatement of the evidence during argument on punishment. He contends the State argued outside of the evidence regarding the number of violations a person could have before his probation is revoked. The State contends the prosecutor was responding to Cobb's request for probation and jury argument that the trial court could confine him for not less than five years if he violated his probation. Also, the State responds that the prosecutor was clarifying his argument after the trial court sustained Cobb's first objection.A. Applicable Law
Jury argument is proper in the following areas: (1) the summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's arguments; and (4) pleas for law enforcement. See, e.g., Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996) (en banc). Counsel is generally given wide latitude in drawing inferences from the evidence as long as they are reasonable, fair, legitimate, and offered in good faith. See, e.g., id. However, it has long been established that it is improper to refer to facts that are neither in evidence, nor inferable from the evidence. See Borjan v. State, 787 S.W.2d 53, 57 (Tex.Crim.App. 1990) (en banc). Usually, arguments referencing matters that are not in evidence and which may not be inferred from the evidence are "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." See id. It is improper for a prosecutor to infer that probation is never revoked when certain conditions are violated. See Carnathan v. State, 478 S.W.2d 490, 493-94 (Tex.Crim.App. 1972), overruled on other grounds by Blake v. State, 971 S.W.2d 451, 456 n. 19 (Tex.Crim.App. 1998). Also, it is improper for a prosecutor to argue probation is the equivalent of excusing an offender. See Morris v. State, 755 S.W.2d 505, 508-09 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).B. Application of the Law to the Facts
Ben Carmona, director of the Kaufman County Adult Probation Department testified at the hearing on punishment. The State questioned Mr. Carmona about revocation of probation. With regard to revocation of probation due to a probationer's failure to report, the following occurred:STATE: But if somebody doesn't report one month, you're not going to revoke them, are you?
MR. CARMONA: Well, it all depends on the case itself. Each case is individual, with separate elements.
STATE: Have there been instances where there have been multiple months that people haven't reported that y'all haven't revoked them?
MR. CARMONA: There probably has been.
With regard to revocation of probation as a result of a probationer's failure to pay a fine, the following occurred:
STATE: So, if someone fails to make a fine payment, Mr. Carmona, you're not necessarily going to revoke them, are you?
MR. CARMONA: Not necessarily.
STATE: In fact, there are instances in which people have gone months and even years without paying on their fine without being revoked.
MR. CARMONA: Well, those people probably absconded and we didn't know where they were.
STATE: Are you telling the jury that there's no instance where people who are reporting have failed to pay their fine for months at a time without being revoked?
MR. CARMONA: No.
STATE: That happens, doesn't it?
MR. CARMONA: Yes.
STATE: In fact they can go in some instances years without paying their fine and not be revoked.
MR. CARMONA: Well, probably, yes.
During argument, the State commented that Cobb could violate his probation without it being revoked. Specifically, the following occurred:
STATE: Now it was tried to be explained to you that if Mr. Cobb violated any condition of his probation that he would be revoked. You know that's not true. Mr. Carmona testified that he could commit as many as fifty violations and still not be revoked.
DEFENSE: Your Honor, he never said anything about fifty violations.
COURT: Sustained.
DEFENSE: Ask [sic] jury disregard that.
COURT: Instruct [sic] jury to disregard the last comment.
DEFENSE: Move for mistrial.
COURT: Denied.
STATE: Mr. Carmona said that someone could fail to report for months or years. Fail to pay their fines for months or years. Now you can count that up. Each one of those is a separate violation according to Mr. Carmona. One year is twelve times. One year of not reporting and one year of not paying is twenty-four violations. Two years of that is forty-eight violations. I rounded it off to fifty. I'm sorry.
DEFENSE: Judge, again, I believe that's a misstatement of the evidence. Mr. Carmona never said —
STATE: He said months or years, Your Honor.
DEFENSE: He said-
COURT: Ladies and gentlemen of the jury, the evidence is what you heard from the witness stand. What is said in argument is not evidence. It is what you heard and what you recall and not what's being said in argument.
Go ahead.
DEFENSE: May I have a ruling, Judge?
COURT: Overruled.
STATE: Now, you also heard that even if this man uses illegal drugs while he's on probation, he may not get revoked. He could get caught up to three times and still not be revoked. He's not going to be held to the standard that y'all want him held to. Please do not even consider probation.
Cobb does not appeal the trial court's denial of his motion for mistrial relating to the prosecutor's first remark regarding the ineffectiveness of probation. Also, Cobb did not object to the prosecutor's third remark regarding the ineffectiveness of probation. Cobb appeals only the trial court's overruling of his objection to the prosecutor's second remark.
The prosecutor's second remark was outside of the record. Mr. Carmona stated there had probably been cases where a probationer had failed to report for months or where a probationer failed to pay his fines for years before his probation was revoked. He also stated the point in time when probation is revoked is case specific. The prosecutor's remark improperly implied the Kaufman County Probation Department allows offenders to violate the conditions of their probation repeatedly for months or years before it will seek revocation of probation. See Carnathan, 478 S.W.2d 493-94; Morris, 755 S.W.2d at 508-09. Also, the prosecutor's remark improperly implied that, if put on probation, Cobb would violate the conditions of his probation and he might be permitted to do so for two years before his probation would be revoked. Accordingly, we conclude the trial court erred when it overruled Cobb's objection to the prosecutor's improper argument.