Anthony Lerma v. State

Opinion issued March 13, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00348-CR __________ ANTHONY LERMA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1091720 MEMORANDUM OPINION A jury found appellant, Anthony Lerma, guilty of burglary of a habitation, and, after having found true the enhancement allegations of felony convictions for injury to a child and burglary of a habitation, the trial court assessed punishment at 42 years in prison. In his sole point of error, appellant contends that the trial court erred in failing to grant a mistrial after improper jury argument. We affirm. Background On November 5, 2006, appellant was found in the home of Fern Casio. Officers were called to Casio’s home by a neighbor. When they arrived, they saw a broken window, and they called for a special security unit to come to the scene and clear the building. When the special unit arrived at the scene, the officer announced that he was releasing the dog into the residence. As the dog began barking, appellant surrendered himself and came out of the Casio’s home through the broken window. Appellant was then placed under arrest and searched. Officers found jewelry in his pants pocket, which belonged to Casio. When Casio returned home, she found that her house was ransacked. Casio also found a monogrammed flask containing alcohol. The initials on the flask were “A” and “L.” Improper Jury Argument In his sole point of error, appellant contends that the trial court erred in failing to grant a mistrial after improper jury argument in the guilt-innocence phase. Standard of Review We review a trial court’s ruling denying a mistrial under an abuse-of-discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Alfaro v. State, 224 S.W.3d 426, 430 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Alfaro, 224 S.W.3d at 430. The Law The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). In general, proper jury argument must encompass one of the following areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel’s argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). To determine whether a party’s argument properly falls within one of these categories, we must consider the argument in light of the entire record. Cole, 194 S.W.3d at 544. To constitute reversible error, the contested jury argument must be extreme or manifestly improper, or it must inject new and harmful facts into evidence. Id. In most cases, if error occurs, an instruction to disregard will cure any error committed. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). Analysis During closing argument at the guilt-innocence stage, the prosecutor made the following argument: We have a couple that you heard testify, and it’s kind of sad to me the fact that this couple – you know, it’s Sunday morning. They get up to go enjoy their day. They go to a museum. They go to the dog park. They just think it’s a regular day. And they come home a little while later, and their house has been completely ransacked. I mean, it’s obvious that the person who is in there is not there to do anything else other than to rob them of what they’ve got, what they believe is valuable so that they can take it. It’s pretty sad that they have to go through something like this. You heard them talk about how they moved out immediately the next day. That’s how disturbing it was. I want you to think about how you would feel if this happened to you. Appellant objected and moved for a mistrial on the grounds that the State was “putting the jurors in the place of the victims.” The trial court sustained appellant’s objection and instructed the jury to disregard the last comment, but denied the motion for mistrial. Appellant contends that the State’s comments were so prejudicial that an instruction to disregard was incapable of curing the harm. The argument complained of, however, did not inject any new or harmful facts into evidence. The jury heard testimony describing how appellant was found at Casio’s home and how jewelry belonging to Casio was found in appellant’s pocket after he surrendered to the arresting officers. The jury also heard testimony from the victims describing how they felt when they found their home “ransacked” after returning from their Sunday morning walk. Given the record as a whole, the contested argument was not so extreme as to require reversal, and, given the timely instruction to the jury to disregard the prosecutor’s statement, we presume the instruction was sufficient to cure any harm. See Brandley v. State, 691 S.W.2d 699, 713 (Tex. Crim. App. 1985); Klock v. State, 177 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). We overrule appellant’s sole point of error. Conclusion We affirm the trial court’s judgment. George C. Hanks, Jr. Justice Panel consists of Justices Nuchia, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).