Moreno v. State

Full title: AMADO MORENO, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Apr 14, 2011

No. 14-10-00316-CR (Tex. App. Apr. 14, 2011)

Opinion

No. 14-10-00316-CR

Opinion filed April 14, 2011. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 381st District Court Starr County, Texas, Trial Court Cause No. 09-CR-349.

Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER.

MEMORANDUM OPINION

KEM THOMPSON FROST, Justice.

Appellant Amado Moreno, Jr. appeals his conviction for aggravated kidnapping, claiming the trial court reversibly erred by overruling appellant's objections to the prosecution's closing argument and by failing to give a curative instruction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with the offense of aggravated kidnapping, to which he pleaded "not guilty." A jury found appellant guilty of the charged offense. In closing arguments at the punishment phase of trial, the State advocated for a prison sentence, rather than probation, as punishment, and urged the jury to consider the full range of punishment of five to ninety-nine years. In his own closing argument, appellant asked the jury to consider a probated sentence of five to ten years. In rebuttal, the prosecutor urged the jury to consider a sentence of twenty-five years. As relevant to this appeal, appellant asserts error based on the following statements made by the prosecutor:

[PROSECUTOR]: And I want to read something to you before you leave. It is also possible that the length of time for which the Defendant will be in prison might be reduced by the award of parole. I want you to remember that when you go back and give a number. Because his term of imprisonment will be reduced — may be —

[DEFENSE ATTORNEY]: Objection, Your Honor, that is not correct.

[PROSECUTOR]: Let me rephrase that.

[DEFENSE ATTORNEY]: We object to that, Your Honor. That is not correct.

[TRIAL COURT]: The Jury heard the Court's instruction of the law and that's the law. This is argument. Go ahead, sir.

[PROSECUTOR]: Let me rephrase that.

[DEFENSE ATTORNEY]: May I have a ruling, sir?

[TRIAL COURT]: It's overruled, sir.

[DEFENSE ATTORNEY]: Okay. I just needed to have a ruling for the record.

[PROSECUTOR]: Let me read that. It is also possible that the length of time for which the Defendant will be in prison might be reduced by the award of parole. I want you to remember that when you go back and think of the number 25.

The trial court noted, "[T]he punishment evidence is before you, the charge of the Court, as well as the argument of the attorneys," and excused the jury. Appellant sought to object to the prosecutor's last statement before the jury adjourned. The trial judge noted that he already had ruled and instructed appellant to wait until the jury was no longer present. Appellant voiced no objection to this procedure. Once the jury was no longer present, the trial court indicated that he previously had overruled the objection and then allowed appellant to make a bill of exceptions. As part of his bill, appellant noted that the prosecutor argued to the jury to consider parole in assessing appellant's sentence when the jury charge contained express instructions for the jury not to consider the extent to which parole may be awarded or forfeited in appellant's particular case. In response, the trial judge reiterated that he had advised the jury to consider the trial court's charge in deliberations. The jury assessed punishment at ten years' confinement and the trial court sentenced appellant accordingly.

ANALYSIS

In a single issue, appellant asserts the trial court reversibly erred by overruling his objections to the prosecutor's closing argument and by failing to give a curative instruction to the jury. Appellant complains of the prosecutor's two arguments to the jury to remember when determining appellant's sentence that the length of time for which appellant would be in prison might be reduced by the award of parole. Presuming for the sake of argument that appellant preserved error as to these two statements and that the prosecutor's comments were improper, we conclude any error was harmless. Improper jury argument is error of a non-constitutional dimension. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (applying Texas Rule of Appellate Procedure 44.2(b) to improper comments that fall outside of permissible argument). We conduct a harm analysis, balancing the following three factors: (1) the severity of the misconduct (the prejudicial effect); (2) the measures adopted to cure the misconduct; and, (3) the certainty of punishment assessed absent the misconduct (the likelihood of the same punishment being assessed). See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (applying balancing factors as set forth in Mosley to punishment proceedings in a non-capital case). The jury charge properly contained an instruction to the jury not to consider how good-conduct time and parole would be applied to appellant. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(c) (West 2006); Hawkins, 135 S.W.3d at 84 ("The law specifically provides that the jury may consider the existence of parole law and good time in making its punishment determination; the jury is simply prohibited from considering how parole law and good time would be applied to a particular defendant."). The trial court, in overruling appellant's objection, stated, "The Jury heard the Court's instruction of the law and that's the law. This is argument." Nothing in the record suggests that in assessing punishment the jury improperly speculated as to when, if ever, appellant would be released on parole. Absent any indication to the contrary, we presume the jury followed the trial court's written instructions regarding parole law and good-conduct time. See Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1988) (op. on reh'g); Clayton v. State, 767 S.W.2d 504, 506 (Tex. App.-Amarillo 1989, writ ref'd). As reflected in the record, the available range of punishment for the charged offense was five to ninety-nine years. See TEX. PENAL CODE ANN. §§ 20.04, 12.32 (West 2003). Although the State urged the jury to assess a prison sentence of twenty-five years, the jury assessed punishment at ten years' confinement. On this record, we cannot determine that any improper jury argument adversely contributed to the jury's assessment of punishment. In light of the record and in balancing the requisite factors, we conclude any error was harmless. We overrule appellant's sole issue on appeal. The trial court's judgment is affirmed.