Opinion
05-22-00350-CR
02-14-2023
DAVID ASHLEY HEWITT, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 073248
Before Justices Reichek, Nowell, and Garcia
MEMORANDUM OPINION
DENNISE GARCIA, JUSTICE
Appellant was convicted of evading arrest or detention with a deadly weapon and the jury assessed punishment, enhanced, at thirty-five years in prison. In a single issue, appellant argues the trial court erred in denying his motion for a mistrial when the State repeated allegedly improper jury argument at the guilt/innocence phase.We affirm the trial court's judgment.
The State did not file a brief.
Background
Appellant was operating a motorcycle when Denton police officers attempted to stop him. Appellant did not stop and a chase ensued. Appellant was eventually apprehended when his motorcycle ran out of gas.
During closing argument, the State argued:
You saw it. It was -- it was a fleeing that took place for over 85 -- about 85 miles. I don't see how that element can be disputed. Who the defendant knew were police officers. Well, you saw the lights, you heard the sirens. I don't see how the argument can be made - and you've heard no evidence that the defendant did not know that they were police officers.
Defense counsel objected, stating "Objection, Your Honor. He is referring to the -- a lack of my client's testimony." The judge sustained the objection and instructed the jury to disregard the statement. Defense counsel moved for a mistral, and the judge denied the motion.
The State continued: "Did you hear any evidence or has the defense made the argument that [appellant] didn't know? Would any -- would an ordinary and prudent person know." The following exchange then occurred:
DEFENSE COUNSEL: "Your Honor, again, same objection."
THE COURT: "I'll say, Counsel, you need to move on. I'm going to ask you to disregard any of these last statements by - "
STATE "Anyone in this situation, police officer's behind you, lights and sirens are activated, there's multiple police officers around you, would know that it's a police officer. That element has been satisfied."
Analysis
Appellant now argues the trial court erred in denying his motion for a mistrial because the State "persisted in the inappropriate argument after the jury was told to disregard his statement." According to appellant, the instruction was insufficient because the argument was repeated.
To preserve error on improper jury argument, a defendant must object to the prosecutor's argument and obtain an adverse ruling. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Generally, this requires a timely and specific objection, a request for an instruction to disregard the improper argument, and a motion for mistrial. See id; see also Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, party must have presented specific and timely request, motion, or objection to trial court). Moreover, an instruction to disregard will ordinarily cure the harm from almost any improper question, answer, or argument because we presume the jury will follow an instruction to disregard. See Orvalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
Although appellant objected and the trial court instructed the jury to disregard the statements the first two times the argument was made, there was no objection to the third argument. Appellant argues the improper argument persisted, but the argument had been made only once when he moved for a mistrial. At that point, the trial court could not have granted a mistrial based on repetition of the argument. Accordingly, we conclude the issue has not been preserved for our review. See Tex.R.App.P. 33.1.
Appellant's issue is resolved against him and the trial court's judgment is affirmed.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered.