                                  NO. 07-10-00421-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                   AUGUST 19, 2011


                      FRISCO DEWAYNE TUCKER, APPELLANT

                                              v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 43RD DISTRICT COURT OF PARKER COUNTY;

             NO. CR09-0704; HONORABLE DON CHRESTMAN, JUDGE


Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.


                               MEMORANDUM OPINION

      Appellant Frisco Dewayne Tucker entered an open plea of guilty to robbery1 and

the trial court sentenced him to fifteen years in prison. Through one issue, appellant

asserts the trial court erred by failing to grant a mistrial based on the claimed improper

argument of the prosecutor. We will affirm.




      1
        Tex. Penal Code Ann. § 29.02(a)(2) (West 2003). Robbery is a second-degree
felony carrying a punishment range of confinement for any term of not more than 20
years or less than 2 years. Tex. Penal Code Ann. § 12.33(a) (West Supp. 2011).
Punishment may also include a fine of not more than $10,000. Id. at § 12.33(b).
                                       Background


        Appellant does not challenge the sufficiency of the evidence so we will discuss

only those facts necessary to our disposition of this appeal. Appellant entered a bank

and presented the teller a handwritten note stating this “is a bank robbery” and

demanding money. The teller responded by handing appellant approximately $1,700

cash.


        Appellant left the bank and a search by law enforcement ensued.            After a

surveillance video from the bank was released to the media, a Crime Stopper’s tip

identified appellant as a possible suspect. A fingerprint on the note matched appellant’s

and officers obtained a warrant to search his apartment. There they located clothing

like that worn by the bank robber. During the search, appellant arrived at the apartment

and was arrested pursuant to a warrant. Appellant provided officers a video statement

which was received in evidence at a pre-trial suppression hearing and at trial. Appellant

presented three witnesses in mitigation of punishment. Appellant did not testify but was

placed under oath and stated in open court he did not wish to testify.


        The following exchange occurred near the end of the State’s rebuttal argument

on punishment:


        Prosecutor: And then one thing just real briefly with regard to his age.
        Yes, he is young. No question. But a lot of other young people that say,
        “I’m sorry. I made a mistake. I’m sorry. I feel awful about it. I’m sorry, I
        was young and stupid,” or even “I had a drug problem and I’m sorry.” I
        have yet to hear one word of remorse or apology from this defendant
        either on that video or from one of these other witnesses--


                                             2
      Defense Counsel: I’m going to object, Your Honor, commenting on the
      defendant’s failure to testify in the case.

      Prosecutor: And Judge, I certainly didn’t mean to give that indication. If I
      did, I withdraw that. But--

      The Court:    All right.   The objection is sustained.     I will consider it
      withdrawn.

      Prosecutor: Judge, what I’m saying to you is that we heard from two
      people who were close to him who talked about talking about that with
      him, about the robbery with him. We heard from him on the video for two
      hours, and there was no remorse and there was no apology for any--

      Defense Counsel:     Judge, I’m going--

      Prosecutor: Judge--

      Defense Counsel: --to have to object at this time also for the same
      reasons. This is another comment on failure to testify. It’s in violation of
      the previous order of the court on previous objection. And it’s going to
      trigger the requirement for a mistrial. In addition, other people cannot offer
      remorse of the defendant. That’s not admissible evidence.

      The Court: I’ve already sustained the objection.          I’m not going to
      consider it. I’m going to consider it withdrawn.

      Defense Counsel:     And the mistrial is denied?

      The Court:    Denied.

      Defense Counsel:     Thank you, Your Honor.

      Prosecutor: Judge, my point is we listened to that tape. And you can’t
      hear it on that tape because it’s not there. And that’s something I think the
      court needs to consider.

      The Court:    All right. Thank you. All right. Please stand.

The court then imposed sentence on appellant. Appellant now appeals.




                                            3
                                         Analysis


       Through one issue, appellant asserts the trial court reversibly erred by denying

his motion for mistrial.


       We turn first to the State’s argument that appellant’s issue was not preserved for

our review. As noted, after the trial court’s denial of appellant’s motion for mistrial, the

prosecutor continued:


       “Judge, my point is we listened to that tape. And you can’t hear it on that
       tape because it’s not there. And that’s something I think the court needs
       to consider.”

Although the argument reiterated the prosecutor’s claim appellant failed to express

remorse in his recorded statement, no further objection was made.


       To preserve error to an improper jury argument, a party must pursue an objection

to an adverse ruling.      Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996).

Preservation also requires a party object to each occurrence of improper argument.

Dickerson v. State, 866 S.W.2d 696, 699 (Tex.App.--Houston [1st Dist.] 1993, pet.

refused) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991)). We

agree with the State that by not renewing his objection when the prosecutor again

referred to a claimed absence of expressed remorse in appellant’s statement, appellant

forfeited his appellate complaint.    Dickerson, 866 S.W.2d at 699; Tex. R. App. P.

33.1(a).


       Moreover, even if we are mistaken in our holding regarding preservation, there

are other reasons we would not reverse the court’s judgment for failure to grant a

                                             4
mistrial. “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. Thus, a trial

court may properly exercise its discretion to declare a mistrial if an impartial verdict

cannot be reached, or if a verdict of conviction could be reached but would have to be

reversed on appeal due to an obvious procedural error.” Ladd v. State, 3 S.W.3d 547,

567 (Tex.Crim.App. 1999). “[T]he question of whether a mistrial should have been

granted involves most, if not all, of the same considerations that attend a harm analysis.

. . .   In effect, the trial court conducts an appellate function: determining whether

improper conduct is so harmful that the case must be redone.” Hawkins v. State, 135

S.W.3d 72, 77 (Tex.Crim.App. 2004).          To determine if the trial court abused its

discretion in denying a motion for mistrial, we balance three factors: (1) the severity of

the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the

punishment assessed absent the misconduct (likelihood of the same punishment being

assessed). Id.


        Severity of the misconduct. The prosecutor pointed to the failure of appellant to

express remorse or apology during his video statement or to elicit testimony of such

from his witnesses. But the trial court was not required to consider the prosecutor’s

argument as referring to appellant’s failure to testify at trial. Rather, the court could

have regarded his assertion to concern the content of a piece of evidence, appellant’s

statement, and the testimony of his witnesses. See Wolfe v. State, 917 S.W.2d 270,

280 (Tex.Crim.App. 1996) (citing Lopez v. State, 170 Tex. Crim. 208, 339 S.W.2d 906,

910-911 (Tex.Crim.App. 1960) (“A reference to the defendant ‘not telling everything’

where the prosecutor was discussing a written statement made by the defendant has
                                             5
been held not to be a comment on the failure to testify but a reference to the written

statement”). Further, it is not improper for the prosecutor to comment on a defendant’s

failure to produce testimony from witnesses other than the defendant. See Wolfe, 917

S.W.2d at 279 (“A prosecutor cannot comment on the lack of evidence presented where

that comment necessarily refers to the defendant’s failure to testify, but language that

can reasonably be construed as a failure to present evidence other than the defendant’s

testimony is not a comment on the failure to testify”).


       Curative measures. This was a bench trial. It was once presumed in bench trials

that the trial court did not consider improper argument. Juarez v. State, 439 S.W.2d

346, 347 (Tex.Crim.App. 1969). Even if we may no longer engage in that presumption,

cf. Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992) (presumption that

court in bench trial did not consider improper evidence abolished as issue now

subsumed in harm analysis), the trial court sustained appellant’s objection, considered

the prosecutor’s statement withdrawn, and afforded it no consideration. On this record,

even assuming some impropriety of argument, the remedial measures of the trial court

were sufficient to ameliorate any harm.2




       2
          The error in commenting on a defendant’s refusal to testify arises from the Fifth
Amendment right of an accused to remain silent. Sheffield v. State, No. 06-07-0116-
CV, 2008 Tex. App. Lexis 3617, at *16-*18 (Tex.App.--Texarkana May 21, 2008, no
pet.) (mem. op. not designated for publication) (citing Griffin v. California, 380 U.S. 609,
613, 85 S.Ct. 1229, 14 L.Ed. 2d 106 (1965)); see U.S. Const. amend. V; Tex. Code
Crim. Proc. Ann. art. 38.08 (West 2005). In a jury trial, only the most blatant comments
on the failure of a defendant to testify are incurable by instruction. Moore v. State, 999
S.W.2d 385, 405-06 (Tex.Crim.App. 1999) (quoting Dinkins v. State, 894 S.W.2d 330,
356 (Tex.Crim.App. 1995)). Here there was no jury to instruct, but we have no doubt
the trial court was well aware of the constitutional and statutory protection from self-
                                             6
       Effect on punishment.     Appellant plead guilty to bank robbery.       Punishment

evidence showed he had prior convictions for burglary of a vehicle, larceny (in

Oklahoma), and credit card abuse. There was also evidence that appellant threatened

to “kill” and “beat to death” an officer attempting to execute a warrant for his arrest.

Appellant’s punishment was within the range authorized by statute, and was not at the

high end of the range.     Appellant has not demonstrated from the record how the

prosecutor’s argument affected his punishment.


       We see no abuse of discretion in the trial court’s denial of appellant’s motion for a

mistrial. For these reasons, appellant’s sole issue is overruled, and the judgment of the

trial court is affirmed.




                                                        James T. Campbell
                                                             Justice



Do not publish.




incrimination. And the comments of the prosecutor, even if improper, are hardly blatant
transgressions of appellant’s right to remain silent.
                                             7
