Opinion issued February 25, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00133-CR
                           ———————————
                   MERIA JAMES BRADLEY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1328927


                         MEMORANDUM OPINION

      Appellant Meria James Bradley was charged by indictment with possession

of more than four grams of cocaine with intent to deliver. The jury found Bradley

guilty of the lesser offense of simple possession, and the trial court assessed
punishment at 35 years’ imprisonment. 1      In his sole point of error, Bradley

contends that the trial court erred in permitting improper jury arguments by the

State in closing argument of the guilt-innocent phase. We affirm.

                                   Background

      After observing Bradley sell crack cocaine to known drug users and

conducting a controlled buy at the home, Officer Nash of the Houston Police

Department obtained a search warrant for the house at 7844 Sandy Street. When

they executed the search warrant and entered the home, police officers found

Bradley running to the back of the house. Bradley’s son was also present at the

house at the time.

      Officer Nash testified that Bradley told him that “everything” in the house

was his and that his son had nothing to do with anything illegal. Officer Nash told

Bradley to show him where everything was, and Bradley showed him marijuana

and crack cocaine located inside of a desk in the house. Police found a plate with a

razor blade, used for cutting crack cocaine, and individually-cut crack cocaine

rocks inside of the desk. The cocaine rocks altogether weighed 4.2 grams and

were sized for sale. Police also found numerous weapons and “over a hundred

documents,” such as mail and awards on the wall, bearing Bradley’s name.



1
      Bradley has prior convictions for aggravated robbery and tampering with
      identification numbers.
                                         2
      Bradley testified that he owned the home at 7844 Sandy, but that he lived

across the street and rented the home at 7844 Sandy to Alexander Guidroz.

Bradley testified that on the day he was arrested, he and his son had walked across

the street from their home to 7844 Sandy—carrying a briefcase containing

paperwork—to collect rent from Guidroz and give his son a car that was located at

7844 Sandy. According to Bradley, he and his son were sitting on the porch and

he was going through documents in the briefcase when the police arrived. And

Bradley claimed that he showed the police the hidden drugs only after Guidroz told

Bradley where the drugs were located.          Bradley testified that there were no

documents with his name in the house and that police actually found the

documents in his briefcase.

      During the State’s closing argument, Bradley complained about several of

the prosecutor’s comments. The jury found Bradley guilty of the lesser-included

offense of simple possession.

                                     Discussion

      In his sole point of error, Bradley contends that the State made improper

arguments to the jury during closing, and that he is entitled to a new trial.

A.    Applicable Law

      “The law provides for, and presumes, a fair trial free from improper

argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—


                                           3
Houston [1st Dist.] 2002, pet. ref’d) (citing Long v. State, 823 S.W.2d 259, 267

(Tex. Crim. App. 1991) (en banc)). The approved areas of jury argument are

(1) summation of the evidence, (2) reasonable deduction from the evidence,

(3) answer to the argument of opposing counsel, and (4) plea for law enforcement.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Andrade

v. State, 246 S.W.3d 217, 229–30 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref’d). A prosecutor may argue his opinion concerning a witness’s credibility or

the truth of witness’s testimony only if the opinion is based on reasonable

deductions from the evidence and does not constitute unsworn testimony. McKay

v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985) (en banc). Wide latitude is

allowed in drawing inferences from the evidence, so long as the inferences drawn

are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753

S.W.2d 396, 398 (Tex. Crim. App. 1988). In examining challenges to a jury

argument, a court considers the remark in the context in which it appears. Id.

      An argument exceeding the permissible bounds of the four approved areas of

argument constitutes reversible error only if an analysis of the record as a whole

shows the argument is extreme or manifestly improper, violates a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding.

Wesbrook, 29 S.W.3d at 115; see also Hawkins v. State, 135 S.W.3d 72, 79 (Tex.

Crim. App. 2004) (en banc). In assessing the harm of an improper argument, an


                                         4
appellate court considers three factors: “(1) severity of the misconduct (the

magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures

adopted to cure the misconduct (the efficacy of any cautionary instruction by the

judge); and (3) the certainty of conviction absent the misconduct (the strength of

the evidence supporting the conviction).” Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998) (en banc).

      A party may present on appeal a complaint that a jury argument was

improper only if the record shows that (1) he timely and properly objected to the

trial court and (2) the trial court (a) overruled the objection, either expressly or

implicitly, or (b) refused to rule on the objection, and the party objected to the

refusal. TEX. R. APP. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 510–11 (Tex.

Crim. App. 2001); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)

(en banc).   A trial court implicitly rules on a matter if “its actions or other

statements otherwise unquestionably indicate a ruling.” Gutierrez, 36 S.W.3d at

511 n.1.

      In cases where the trial court sustained the defense objection and granted the

requested instruction to disregard, the only adverse ruling to be reviewed is the

trial court’s denial of the motion for mistrial. Hawkins, 135 S.W.3d at 76–77. “A

mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that

expenditure of further time and expense would be wasteful and futile.’” Id. at 77


                                          5
(quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). A mistrial is

required only in extreme circumstances where the prejudice is incurable. Id.

(citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)). We

review the trial court’s refusal to grant a mistrial for an abuse of discretion. Id.

B.    Analysis

      Bradley complains about eight comments the prosecutor made during

closing argument. Bradley objected to some of them, and the trial court sustained

some of Bradley’s objections, but denied Bradley’s request for a mistrial. We

review the comments in turn.

      1.     Bradley failed to preserve error with regard to four of the
             complained-of comments.

             (a) “Stay in the record”

      To challenge a jury argument on appeal, a party must have timely objected

at trial, and obtained an adverse ruling from the trial court. TEX. R. APP. P. 33.1(a).

      Bradley first objected to the following comment:

      Now, according to the Defense, [there are] no documents inside that
      house that link Mr. Bradley to anything in there to show that he was in
      7844 because he lived at 7855 Sandy. What about his certificate
      that’s in there?

      Bradley’s counsel objected, “It was in the briefcase, your Honor. I object to

that.” The trial court said, “Stay in the record.”

      Bradley also objected when the prosecutor commented:


                                           6
      “In direct response to what Defense has been arguing about, all these
      exhibits, they have rights. He had the right to say, please, someone do
      fingerprints on these guns.”

      Bradley’s counsel responded, “Excuse me, Judge. I asked that yesterday.

He said—it’s improper.        I asked him yesterday to print the guns.            It’s a

misstatement. I asked him yesterday. They had all night to print the guns.” The

trial court said, “Stay in the record, please.”

      In response to both objections, the trial court instructed the prosecutor to

“stay in the record.” A judge’s instruction to stay within the record, in response to

an objection, does not constitute a ruling on the objection. Washington v. State, 16

S.W.3d 70, 73 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Because Bradley

did not obtain an adverse ruling on these two objections, he did not preserve his

challenges to these two comments. See TEX. R. APP. P. 33.1.

             (b) Request to mention CSI

      The State contends that Bradley’s complaint about the prosecutor’s comment

regarding CSI was not preserved for our review. We agree. The prosecutor said:

      What about his certificate that the officers said were in the house?
      The Defendant said it was in his briefcase. So, you know what that
      means? That means either Officer Nash or Robertson or even Officer
      Chapman took this certificate that the Defendant’s carrying around in
      his briefcase on December 1st, 2011, this certificate which was given
      to him on March 18th, 2003. He carries this in a briefcase. Carrying
      this certificate in a briefcase, these officers are going to take it out.
      And it’s laminated. They’re going to go inside the house. They’re
      going to tack it onto a wall because you can see it’s tacked to the wall.
      They’re going to put it on the wall the same certificates that you can
                                            7
      see on the entry point of the house just to say now we’ve got him.
      We’ve got something on him at this point in time. Talk about science
      fiction. “That’s better than ‘CSI.’” 2

      Bradley’s counsel interjected: “[Y]ou instructed me I couldn’t mention

‘CSI.’ He mentions ‘CSI.’ Can I get back up and talk about ‘CSI,’ Judge?” The

trial court responded, “no.” 3

      To preserve a complaint for appellate review, a party must make a timely

objection to the trial court stating “the grounds for the ruling . . . with sufficient

specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). Here,

Bradley did not object that the State’s reference to CSI was irrelevant, or otherwise

improper. Rather, he requested permission to mention CSI himself. Because

Bradley does not complain on appeal that the trial court denied his request to refer

to CSI, we conclude that his argument on appeal does not comport with his

objection at trial. Accordingly, he did not preserve this complaint. See TEX. R.

APP. P. 33.1(a)(1)(A)); Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston


2
      “CSI” was a reference to a television show. See The Honorable Donald E.
      Shelton, CSI: Criminal Scene Investigation, a popular television show. Juror
      Expectations for Scientific Evidence in Criminal Cases: Perceptions and Reality
      About the “CSI Effect” Myth, 27 T.M. COOLEY L. REV. 1–2 (2010) (citing BBC
      News (July 31, 2006) http:// news.bbc.co.Uk/2/hi/entertainment/5231334.stm; CSI
      Earth's No. 1 Show, N.Y. POST (June 17, 2008) available at http://
      www.nypost.com/p/entertainment/tv/item_WKDOqHHYXBgcnKFGWy2xa P).
3
      During direct examination of Bradley, Bradley’s counsel mentioned CSI twice.
      Both times the trial court sustained the State’s objections to relevance.
                                          8
[1st Dist.] 2007, pet. ref’d) (holding that argument raised on appeal must comport

with specific objection made at trial, or error is waived).

               (c) No request for instruction to disregard

      The State contends that Bradley also failed to preserve his objection when

the prosecutor commented that Bradley could have but did not call his wife and

son to testify in Bradley’s defense:

      [T]he wife and the Defendant’s son could easily disprove everything
      they’ve said. Because the wife could come in and say, “My husband
      lives with me. My husband of 30-plus years lives with me. Have live
      [sic] at 7855 Sandy. He does not live at 7844. Guidroz lives there.”

      He could have brought his son that was there that night who could
      have said, “I was sitting on the porch with my dad . . . We were just
      there to collect the check and get a car for being such a good person.”
      His son could miss one day from high school. I know hair is
      important. But his wife couldn’t miss one day from going to Sally
      Beauty Supply.

      Bradley’s counsel objected:

      Judge, I’m going to object to that. If his son was here, they wouldn’t
      give him an excuse that he was here and he would have been docked
      for that. He was here. I object to that. The State knows it.

      The State responded, “That’s outside the record.” The trial court said,

“Sustained.”

      If a trial judge sustains an objection to improper jury argument, the

defendant must request an instruction to disregard and move for a mistrial in order

to preserve error. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998).


                                           9
The failure to request such an instruction waives error unless an argument is so

inflammatory that its prejudicial effect could not have been alleviated by an

instruction to disregard. Id.; Parr v. State, 606 S.W.2d 928, 931 (Tex. Crim. App.

1980).

      Here, Bradley did not ask for an instruction to disregard, and the State’s

comment about Bradley’s son’s absence was not so inflammatory that the

prejudicial effect, if any, could not have been alleviated by an instruction to

disregard. See Baines v. State, 401 S.W.3d 104, 109 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (holding that prosecutor’s comments that appellant could have

called two witnesses to support his defensive theory “went to the credibility of

appellant’s defense and did not shift the burden of proving the elements of the

offense”); Harris v. State, 122 S.W.3d 871, 884 (Tex. App.—Fort Worth 2003, pet.

ref’d) (holding that prosecutor’s comment on appellant’s failure to produce

testimony from sources other than himself and “about the subpoena power of a

defendant is proper if it refers to the defendant’s failure to produce evidence from

other sources”).

      2.    Overruled Objections

      The trial court overruled Bradley’s objections to two of the prosecutor’s

comments.    Bradley contends on appeal that these comments were improper

because they were intended to shift the ultimate burden of proof to the defense and


                                        10
encourage the jury to consider matters outside the record.        We consider the

comments in turn.

            (a) Burden of Proof Objection

      Bradley contends that the prosecutor made a comment that improperly

shifted the burden of proof to Bradley. The prosecutor commented:

      Officer Nash gave you a very good scenario. If there’s a crime
      committed and no one is there to be a witness, they’re probably going
      to dust for prints to see if they can generate some type of profile. But
      if someone witnesses someone break inside their car, calls him and he
      arrives and sees the person breaking into the car, why do you need to
      have fingerprints? Why do you need to do a DNA swab? They knew
      who Mr. Bradley was. Why do you need to fingerprint? There’s no
      [need] to fingerprint. Furthermore, part of those rights that the
      Defense has, they can request this evidence be fingerprinted at any
      point in time.

      Bradley objected, “That’s just a burden of proof to the Defense. That’s

improper.” The trial court overruled his objection.

      Our review of the record reveals that the prosecutor’s comment about

Bradley’s failure to request fingerprinting was intended to rebut defense counsel’s

argument condemning the State’s failure to take fingerprints.       During closing

argument, Bradley’s counsel made numerous comments about the police officers’

failure to fingerprint items from the house and match them with Bradley’s

fingerprints. In this context, the prosecutor’s comment that Bradley could have

requested fingerprints was not improper because it was a response to the defense’s

claim that the State’s evidence was lacking. See Bible v. State, 162 S.W.3d 234,

                                        11
249 (Tex. Crim. App. 2005) (holding that prosecutor’s reference to absence of

documentary evidence did not constitute shifting of burden of proof); Jackson v.

State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (holding State may comment on

appellant’s failure to present evidence in his favor regarding DNA evidence when

argument was “merely a response to the defense’s assertions that the State’s

scientific evidence was lacking”); Caron v. State, 162 S.W.3d 614, 618 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (holding that during jury argument,

State may comment on appellant’s failure to present evidence in his favor); Doty v.

State, 820 S.W.2d 918, 923–24 (Tex. App.—Fort Worth 1991, pet. ref’d) (holding

that the State’s comment that if there was any evidence to support the defense’s

theory, “don’t you think that they might have brought it to you,” was a summation

of the evidence). Accordingly, we hold that the trial court did not err by overruling

Bradley’s objection to the prosecutor’s fingerprint comment.

             (b) Proper plea for law enforcement

      Bradley contends that the prosecutor continued to “stretch the limits of

permissible advocacy” in suggesting that the jury consider matters outside the

record, when the prosecutor commented:

      I’m about to give you this evidence. It’s your job now. Y’all are the
      conscience of this community. You decide what is allowed in this
      community. You decide is this the type of person you want roaming
      the streets[?] At some point in time, you’ll be able to talk about this
      trial. Your friends and family will ask you about this case and they
      will ask you what you did.
                                         12
         Bradley objected, “Improper breach [sic] of law enforcement. I object to it.”

The trial court overruled Bradley’s objection.

         When the State’s argument is designed to induce the jury to convict the

defendant because the community demands or expects such a result, the argument

is improper. Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984) (en

banc). However, the State may present pleas for law enforcement by reminding

jurors that they may be called upon by family and friends to explain both the case

and the verdict. Bell v. State, 724 S.W.2d 780, 801–02 (Tex. Crim. App. 1986) (en

banc).

         Here, the prosecutor’s comment did not pressure the jury to reach a

particular verdict based upon the demands or expectations of the community. On

the contrary, the prosecutor argued that the jury represented the community. The

complained-of comment properly asks the jury to act as the voice of the

community, and therefore, it constitutes a proper plea for law enforcement. See id.

(comment urging jury to “remember and think about how [friends and neighbors]

will ask you at the end of case when it’s all over” did not “assert or imply that the

community demands a conviction”); York v. State, 258 S.W.3d 712, 718 (Tex.

App.—Waco 2008, pet. ref’d) (comment asking jury “what it is that you want the

newspaper to say when you open up the newspaper tomorrow and you get to tell

your friends or family” about the result was proper plea for law enforcement);
                                           13
Harris v. State, 122 S.W.3d 871, 888 (Tex. App.—Fort Worth 2003, pet. ref’d)

(holding that prosecutor arguing that jury represented community and asking jury

to send message by its verdict was proper plea for law enforcement). Accordingly,

we hold that the trial court did not err by overruling Bradley’s objection to the

conscience of the community comment.

      3.     Sustained Objections and Denials of Mistrial

      Bradley objected to two of the prosecutor’s comments on the grounds that

they referenced the prosecutor’s personal opinions. The trial court sustained both

objections but denied Bradley’s motions for mistrial. Bradley argues that the

improper comments were “clearly harmful” and the court’s instructions to

disregard were insufficient to cure them.

      The prosecutor’s first motion for mistrial was made when the prosecutor

argued:

      And he’s carrying these documents in his briefcase. A briefcase that
      you’re carrying, my argument wasn’t that he couldn’t walk across the
      street? My argument is how much sense does it make if you live right
      across the street that you need to carry a briefcase to go collect rent?
      What sense in the world does that make?

      As the officer testified, these documents were found inside the home,
      not inside of a briefcase. See, the whole briefcase comes in because
      it’s another little fabrication to say if I could just pull one over on
      them and say it’s a briefcase, then these dirty crooked cops just
      opened up my briefcase, then decided we want to put this case on you.
      So, we’re going to throw your documents in the house and hang them
      up and start taking photos of them, wow, that makes sense in my head.
      I don’t think it makes sense in anybody else’s head.

                                            14
      Bradley’s counsel objected “to what the Prosecutor thinks,” and the trial

court sustained the objection. Bradley’s counsel asked the trial court to instruct the

jury to disregard the statement, and the trial court instructed the jury, “[d]isregard

that last statement and don’t consider it for any purpose.” Bradley moved for a

mistrial, which the trial court denied.

      The prosecutor again commented on his personal opinion when arguing:

      At this time here, you’re going to the back. You can ask for the
      evidence with the exception of the guns and the crack and the weed.
      And keep in mind the offense report does not come in, also. Outside
      of that, you can ask for the photos. If you want the specific other
      evidence, you can ask to inspect it. But it’s probably going to be in
      the presence of the bailiff. I don’t think it should take that long.

      Bradley’s counsel again objected “to what the Prosecutor thinks,” and the

trial court sustained the objection.      Bradley’s counsel asked that the jury be

instructed to disregard the statement. The trial court instructed the jury “Disregard

that last statement. Don’t consider it for any purpose.” Bradley moved for a

mistrial, which the trial court denied.

      When the trial court sustains an objection and instructs the jury to disregard

but denies a defendant’s motion for a mistrial, the issue is whether the trial court

erred in denying the mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.

App.—Fort Worth 1997, pet. ref’d) (op. on reh’g). We review a denial for mistrial

under an abuse of discretion standard. Hawkins, 135 S.W.3d at 77.


                                           15
      Generally, an instruction to disregard impermissible argument cures any

prejudicial effect. Wesbrook, 29 S.W.3d at 115. In assessing the curative effect of

the court’s instruction to disregard, the correct inquiry is whether, in light of the

record as a whole, the argument was extreme, manifestly improper, injected new

and harmful facts into the case, or violated a mandatory statutory provision and

was thus so inflammatory that the instruction to disregard was ineffective. Id. at

115–16. If the instruction cured any prejudicial effect caused by the improper

argument, a reviewing court should find that the trial court did not err. Faulkner,

940 S.W.2d at 312. We determine whether a trial court abused its discretion by

denying a mistrial by balancing the three Mosley factors: (1) the severity of the

misconduct or the magnitude of the prejudicial effect, (2) the measures adopted to

cure the misconduct, and (3) the certainty of conviction absent the misconduct.

Mosley, 983 S.W.2d at 259.

      Assuming arguendo that the prosecutor’s comments were improper, we

conclude that the trial court did not abuse its discretion by overruling Bradley’s

two motions for mistrial. Under the first Mosley factor, we evaluate the severity of

the misconduct. Id. “I don’t think it makes sense in anybody else’s head,” and “I

don’t think it should take that long,” although expressing the prosecutor’s opinions,

are not so extreme, manifestly improper, or prejudicial as to render them incurable




                                         16
by instruction. The complained-of comments were brief, constituted only a small

part of the State’s argument, and were not repeated.

      Under the second factor, we consider the measures adopted to cure the

misconduct. Id. The trial court promptly instructed the jury to disregard both

statements and to not consider them for any purpose. The law generally presumes

an instruction to disregard and other cautionary instructions will be obeyed by the

jury. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011). In cases

involving direct statements of personal belief as to the credibility of a witness,

instructions to disregard have been considered effective to cure any harm. See,

e.g., McDonald v. State, 148 S.W.3d 598, 603 (Tex. App.—Houston [14th Dist.]

2004) (instruction cured prosecutor’s statement that he thought victim was “very

believable”), aff’d on other grounds, 179 S.W.3d 571 (Tex. Crim. App. 2005);

Nauert v. State, 838 S.W.2d 328, 329–30 (Tex. App.—Austin 1992, pet. ref’d)

(instruction to disregard cured harm from prosecutor’s suggestion that jury should

believe witnesses because prosecutors and investigators believed her).

      Under the third factor, we consider the certainty of conviction without the

misconduct. See Mosley, 983 S.W.2d at 259. Officer Nash testified that he

observed Bradley selling drugs and that Bradley admitted to him that everything in

the house was his. Moreover, there was evidence that the police found numerous

documents with Bradley’s name in the house, refuting Bradley’s defense that he


                                        17
did not live there. And, it is undisputed that Bradley showed Officer Nash where

the drugs were located in the house. This is strong evidence of guilt.

      Balancing the Mosley factors, we hold that the prosecutor’s comments about

his personal opinions did not render ineffective the instructions to disregard, and

that the trial court did not abuse its discretion by denying Bradley’s motions for

mistrial.

      Accordingly, we overrule Bradley’s sole point of error.

                                    Conclusion

      We affirm the trial court’s judgment.



                                                          Rebeca Huddle
                                                          Justice


Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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