                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00261-CR

CUNNING MITCHELL MORGAN,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 11-06167-CRF-272


                         MEMORANDUM OPINION


      Cunning Mitchell Morgan appeals from his conviction for theft over $20,000 but

less than $100,000. TEX. PEN. CODE ANN. § 31.03 (West 2011). The jury found two

enhancement paragraphs to be true, and Morgan was sentenced to sixty years in prison.

In one issue, Morgan complains that the trial court erred by denying his motion for a

mistrial during closing argument based on improper jury argument by the State

regarding extraneous offenses for which there was no evidence. Because we find that

the trial court did not err by denying his motion, we affirm the judgment of the trial
court.

         Morgan was convicted of taking a Nissan Maxima from a used car dealership

and then refusing to pay for it. Due to a miscommunication at the dealership, Morgan

left the dealership with the Maxima upon the promise of returning with the full cash

balance of approximately $37,000 after he had signed the sales contract and left a check

for $500 until he could return with the balance. Morgan had provided documentation

to the dealership showing that he had been injured in an explosion and received a large

financial settlement. Morgan did not return with the balance due and made many

excuses in the following days as to why he could not pay and refused to return the

vehicle upon request. Morgan cancelled the $500 check and lied to law enforcement

about his whereabouts. Morgan told the officer that he would return the vehicle on a

certain date and did not. The vehicle was ultimately recovered a few blocks from his

residence after a warrant had been issued for his arrest approximately two weeks after

the date he had agreed to return the vehicle.

         During the guilt-innocence phase, extraneous offense evidence was admitted

regarding a Lexus that Morgan had allegedly fraudulently taken from a different

dealership using a false address and social security number and claimed that he was

receiving a settlement from a chemical explosion. The Lexus was returned during the

night some days later with several thousand dollars in damage.

         The jury found Morgan guilty of theft for taking the Maxima from the



Morgan v. State                                                                   Page 2
dealership, and Morgan has not raised any issues from the guilt-innocence phase of the

trial.   However, Morgan does complain of improper argument during the closing

argument of the State in the punishment phase of his trial related to potential offenses

for which Morgan had not been convicted and of which no evidence had been

presented, which he contends resulted in a greater sentence than he would have

received without the improper argument.

         In the State's closing argument, the complained-of exchange was as follows:

         STATE:                [Morgan] makes an argument that, hey, he's only
                               been to the pen twice. Those dates on the judgment
                               are all the same. Yeah, take a look at the dates the
                               offense was actually committed on each one of those
                               judgments. The system cannot keep up with all of the
                               offenses that Cunning Morgan is making or Thomas
                               or Clifford Robinson or B. D. Bivins.1

                               Because if you think that everything Mr. Morgan has
                               done is contained in the pen packs, use your common
                               sense. Think he's been convicted every time?

         MORGAN:               Judge, I object. He's trying to make an argument that
                               there's [sic] other crimes they have not present [sic] to
                               this jury and use that as evidence against him.

         TRIAL COURT:          Sustain the objection.

         MORGAN:               Ask the jury to disregard the comment.

         TRIAL COURT:          Disregard the last comment.

         MORGAN:               Move for a mistrial.


1The evidence during the punishment phase of the trial showed that these names were aliases of Morgan
during his previous crimes.

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       TRIAL COURT:         Denied.

       Initially we note that the State is afforded wide latitude in its jury argument and

may draw all reasonable, fair, and legitimate inferences from the evidence. Allridge v.

State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988). Nonetheless, the State may not

engage in jury argument that invites the jury to speculate whether the defendant has

committed other crimes not in evidence. See Villarreal v. State, 576 S.W.2d 51, 64 (Tex.

Crim. App. 1978) (en banc). The State concedes that the statement was improper.

       Because the trial court sustained Morgan's objection and instructed the jury to

disregard the prosecutor's statements, the only issue we must decide is whether the trial

court abused its discretion when it denied Morgan's motion for a mistrial. Archie v.

State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). "Only in extreme circumstances,

where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004). Whether a trial court should have granted a

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

Archie, 221 S.W.3d at 700. As a result, to determine whether a trial court abused its

discretion by denying a mistrial, we apply a tailored version of the Mosley test. Id.

(citing Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). Under the tailored

Mosley test, we are required to balance three 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 or punishment absent the misconduct.



Morgan v. State                                                                      Page 4
Id.; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

       We cannot conclude the argument was so extreme or manifestly improper as to

be beyond cure. The State's argument was otherwise not improper either before or after

the complained-of remark.       The trial court sustained Morgan's objection to the

argument and promptly instructed the jury to disregard the statement. With regard to

the certainty of the punishment assessed, we note that although Morgan was sentenced

well above the minimum sentence of 25 years, it was also below the maximum sentence

of life or 99 years. There was evidence in the record of seven prior felony convictions,

some for violent offenses and at the time of trial Morgan was under indictment for the

offense regarding the Lexus. In one of his prior convictions, he had attempted to steal a

Porsche and in the course of his theft, dragged a salesman approximately a mile. While

the salesman was holding onto the car, Morgan tried to throw him off and threatened to

kill him. Under the facts of this case and using the factors as set forth in Mosley, we

conclude the trial court's instruction sufficiently ameliorated any potential harm and the

trial court did not abuse its discretion by denying Morgan's motion for a mistrial.

Morgan's sole issue is overruled.

Conclusion

       Having found no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice


Morgan v. State                                                                       Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 22, 2014
Do not publish
[CRPM]




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