                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00241-CR
                             NO. 02-11-00242-CR
                             NO. 02-11-00249-CR


DAVID DANIEL DUFF, JR.                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                        MEMORANDUM OPINION1

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                                  I. Introduction

      In five points, Appellant David Daniel Duff, Jr. appeals his convictions for

aggravated assault of a family member with a deadly weapon and aggravated

assault with a deadly weapon. We affirm.



      1
      See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      After twenty-two years of marriage to Duff, Samantha Duff—a fifth grade

teacher in the Army Reserves—moved out and filed for divorce. Around a month

later, Duff drove up behind Samantha and her cousin Sherry Fritz and then drove

around them, blocked Samantha‘s car, and pulled up so that both drivers‘

windows were next to each other. Samantha, who was driving, called 911 when

she saw Duff. When she saw Duff‘s gun, she ―ducked and floored it.‖ Duff drove

his Jeep into Samantha‘s car, slamming Samantha‘s car into a pipe fence on the

side of the road, and as the women tried to flee the crash scene, he shot

Samantha in each leg.2 While Samantha was bleeding on the ground, Duff held

her by her hair and pointed the gun at her head. Fritz heard Duff scream at

Samantha, ―Look what you made me do. This is your fault,‖ while Samantha

pleaded for him to think of their two sons.

      Duff pleaded guilty to the three counts of aggravated assault arising from

the incident—one count each for Samantha (CR11-0015) and Fritz (CR11-0017)

for the car collision and one count for shooting Samantha. At the conclusion of

the punishment trial, with regard to the vehicle-related aggravated assaults, the

jury assessed twenty years‘ confinement in CR11-0015 and ten years‘



      2
       After Fritz escaped Samantha‘s wrecked vehicle, she called 911 from
behind a nearby house. The trial court admitted the recordings of Samantha‘s
and Fritz‘s 911 calls and allowed them to be published to the jury.

                                         2
confinement in CR11-0017; it assessed sixty years‘ confinement for the shooting.

The trial court entered judgment accordingly, making deadly weapon findings as

to all three offenses and setting the punishment for each to run concurrently.

These appeals followed.

                                  III. Discussion

      Duff argues that the trial court erred by overruling his objections, denying

his motion for mistrial, and refusing to withdraw two of his guilty pleas.

A. Withdrawal of Guilty Pleas

      With regard to his second and third points, Duff argues that the trial court

abused its discretion by not withdrawing his guilty pleas in CR11-0015 and

CR11-0017 because the evidence showed that he was not guilty of these

offenses.3

      When a guilty plea is before a jury, the accused may withdraw his plea at

any time before the jury retires. Abrego v. State, 977 S.W.2d 835, 837 (Tex.

App.—Fort Worth 1998, pet. ref‘d) (citing McWherter v. State, 571 S.W.2d 312,

313 (Tex. Crim. App. 1978)). However, when a defendant moves to set aside his



      3
        Although Duff complains that the evidence showed that Samantha and
Fritz suffered no pain from the collision and that his vehicle was not shown to be
a deadly weapon, the record reflects that Fritz‘s airbag did not deploy and her
face required five stitches and that when asked whether she sustained any other
injuries besides the gunshot wounds to her legs, Samantha said that she had
multiple bruises on her legs ―and a seat belt bruise.‖ Samantha‘s airbag
deployed in the collision.

                                          3
guilty plea but also asks the court to instruct the jury to acquit him, the motion is

insufficient to apprise the trial court that the defendant wants to place his guilt in

issue for the jury to determine. Fairfield v. State, 610 S.W.2d 771, 779–80 (Tex.

Crim. App. [Panel Op.] 1981). And the defendant must timely seek to withdraw a

guilty plea; if he fails to do so, he may not complain for the first time on appeal

that the trial court did not do it for him. Mendez v. State, 138 S.W.3d 334, 350

(Tex. Crim. App. 2004); see also Salinas v. State, 282 S.W.3d 923, 924 (Tex.

App.—Fort Worth 2009, pet. ref‘d) (observing that in Mendez, the court of

criminal appeals relieved the trial court of the duty to sua sponte withdraw a guilty

plea when evidence of innocence is introduced during a jury trial on punishment).

      After resting his case, Duff‘s counsel stated, ―I‘m going to move to

withdraw my client‘s guilty plea as to CR11-0015 only, and further move for an

instructed verdict of not guilty, based upon the fact that there is no evidence to

support the allegations as to CR11-0015 only.‖ [Emphasis added.]

      Duff moved to withdraw his guilty plea in CR11-0015 prior to the jury‘s

retiring. However, he also moved for a directed verdict at the same time, which

rendered his motion to withdraw his guilty plea insufficient to apprise the trial

court that he wanted to place his guilt in issue for the jury to determine. See

Fairfield, 610 S.W.2d at 779–80. And because Duff did not move to withdraw his

guilty plea in CR11-0017, he failed to preserve this complaint. See Tex. R. App.



                                          4
P. 33.1; Mendez, 138 S.W.3d at 350; Salinas, 282 S.W.3d at 924. Therefore, we

overrule Duff‘s second and third points.

B. Comments

      In his first point, Duff complains that the trial judge erred by overruling his

objection to the State‘s closing argument and then making a comment on the

evidence.

      Initially in closing arguments, the State argued that the jury should focus

on what Duff had done, which was ―violent, terrifying, and could have been

deadly,‖ not what was wrong with him or why he did it, that Duff deserved the

maximum sentence, and that the public should be protected from him. Duff then

responded by arguing that while he knew what he had done was wrong and had

pleaded guilty, because of his deep depression caused in part by his diabetes

and the childhood shooting of his best friend, he needed help and locking him

away was not the right answer.4        He also brought up that he had applied

tourniquets to Samantha‘s legs to stop the bleeding after he shot her.




      4
        Dr. Peter Oropeza, a clinical psychologist, found that Duff suffered from
major depressive disorder, recurrent severe, but was competent to stand trial.
When Duff was fourteen, he had accidentally discharged a firearm, killing his
best friend, and Dr. Oropeza said that this contributed to the beginning of Duff‘s
mental problems. Duff was on antidepressants and had reported to Dr. Oropeza
that at the time of the offenses here, he had been doubling his dosage. Duff had
received inpatient mental health treatment on two separate occasions; he also
suffered from insulin-dependent diabetes, which contributed to his seizures.

                                           5
      During the State‘s rebuttal, the prosecutor responded by stating that she

did not doubt that Duff had depression but did not care and that ―the State

believes that his mental illness and accompanying instability is an aggravating

factor that makes him worse.‖ She argued that the jury had heard Duff blame

Samantha for the shooting on the 911 tape, that ―this was not a cry for help‖ by

Duff, and that Samantha had had to beg Duff, who had a gun to her head, to

think about the effect killing her would have on their children ―to get this whack-

job off the edge and calm down.‖ She then stated,

            Let me tell you something. If you want to give any thought to
      the minimum, there‘s nothing I can say that will matter, so you knock
      yourself out on that one. But one thing that the defendant’s sister
      did not tell you on the stand, the one thing that you did not hear from
      Todd Dixon in his conversations with the defendant after the offense,
      were the words, “Oh my God, I’m so sorry. I can’t believe I did this.‖
      [Emphasis added.]

After Duff objected, the trial judge stated, ―By the testimony from other witnesses,

that‘s a reasonable inference from—and so you‘re overruled.‖ Duff did not object

to the trial judge‘s statement.

      The prosecutor then resumed by arguing that Duff‘s sister had testified

about the impact that shooting his friend had had on Duff but not about Duff

getting any sort of long-term treatment, which Dr. Oropeza had testified that Duff

needed, and asked the jury to give Samantha and Fritz ―a life free from fear of

this defendant‖ by taking Duff ―off the streets for as long as you possibly can.‖



                                         6
The jury charge for each offense included an instruction on the defendant‘s right

not to testify.

       We first note that forfeiture for lack of an objection applies to most

comments made by a trial judge. See Tex. R. App. P. 33.1; Sharp v. State, 707

S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988); see

also Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986), cert. denied,

481 U.S. 1065 (1987); Burton v. State, No. 02-11-00144-CR, 2012 WL 1034920,

at *4 (Tex. App.—Fort Worth Mar. 29, 2012, no pet.) (mem. op., not designated

for publication). Further, while a trial judge should not give any indication to the

jury of his or her own beliefs about the credibility or weight of the evidence and

improperly comments if he or she makes a statement that implies approval of the

State‘s argument, indicates any disbelief in the defense position, or diminishes

the credibility of the defense‘s approach to the case, none of that seems to have

happened here. See Kim v. State, 331 S.W.3d 156, 160 (Tex. App.—Houston

[14th Dist.] 2011, pet. ref‘d) (setting out what constitutes an improper comment).

To the contrary, the trial judge appeared to be thinking aloud when he began his

statement about a reasonable inference before overruling Duff‘s objection, and a

reasonable deduction from the evidence is one of the four general permissible




                                         7
areas for the State‘s jury argument.5 See Felder v. State, 848 S.W.2d 85, 94–95

(Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993). Because Duff has not

shown that fundamental error occurred when the trial judge began his remark

before overruling Duff‘s objection, Duff forfeited his complaint about that remark

by failing to object. See Sharp, 707 S.W.2d at 619; Morgan v. State, 365 S.W.3d

706, 711 (Tex. App.—Texarkana 2012, no pet.) (noting that neutral, substantially

correct statement of law did not prevent a fair and impartial trial and therefore, if

error, did not constitute fundamental error, such that failure to object forfeited the

complaint); cf. Wyatt v. State, No. 03-10-00012-CR, 2012 WL 512654, at *8–9

(Tex. App.—Austin Feb. 16, 2012, no pet.) (mem. op., not designated for

publication) (noting that while Texas courts have indicated that improper

comments may represent fundamental error when they taint the presumption of

innocence or undermine the jury‘s impartiality, trial judge‘s comments indicating

that defense counsel was broaching a topic previously placed off-limits and




      5
         While an improper comment creates reversible error if it is either
reasonably calculated to benefit the State or to prejudice the defendant‘s right to
a fair and impartial trial, ―reasonably calculated‖ implies that the jury understands
the comment to either endorse the State‘s position or undercut appellant‘s
arguments. Kim, 331 S.W.3d at 161. On the record here, although Duff argues
that the trial judge left his required impartial stance and placed the stamp of
approval on the State with his unfinished remark, it does not appear that the trial
judge‘s remark was improper, reasonably calculated to benefit the State, or
reasonably calculated to prejudice Duff‘s right to a fair and impartial punishment
trial, even if Duff had objected to it.

                                          8
characterizing defense witness‘s testimony as a diatribe did not rise to the level

of fundamental error). We overrule this portion of Duff‘s first point.

      With regard to the prosecutor‘s objected-to comment, the code of criminal

procedure provides that a defendant‘s failure to testify on his own behalf may not

be held against him and that counsel may not allude to his failure to testify. Tex.

Code Crim. Proc. Ann. art. 38.08 (West 2005). To determine if a prosecutor‘s

comment violated article 38.08 and constituted an impermissible reference to an

accused‘s failure to testify, we must decide whether the language used was

manifestly intended or was of such a character that the jury naturally and

necessarily would have considered it to be a comment on the defendant‘s failure

to testify. Id.; see Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App.

2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied,

528 U.S. 1026 (1999). The offending language must be viewed from the jury‘s

standpoint, and the implication that the comment referred to the accused‘s failure

to testify must be clear. Bustamante, 48 S.W.3d at 765. A mere indirect or

implied allusion to the defendant‘s failure to testify does not violate the accused‘s

right to remain silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App.

2004); Patrick v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995), cert.

denied, 517 U.S. 1106 (1996).

      Further, while a prosecutor‘s comment about a defendant‘s failure to testify

violates the federal and state constitutions, a closing argument that refers to the

                                          9
failure of a defendant‘s witnesses to testify about the defendant‘s remorse does

not impermissibly comment on the defendant‘s failure to testify. Cooper v. State,

959 S.W.2d 682, 686 (Tex. App.—Austin 1997, pet. ref‘d) (―[T]he State‘s

reference to the defendant‘s failure to introduce evidence of remorse through

other witnesses may be erroneous for other reasons but does not constitute a

comment on the defendant‘s failure to testify.‖); see also Jennings v. State, No.

02-08-00145-CR, 2009 WL 1564961, at *5 (Tex. App.—Fort Worth June 4, 2009,

pet. ref‘d) (mem. op., not designated for publication).       A remark that ―you

would‘ve heard about it from his witnesses‖ if the defendant were shameful or

remorseful, while a misstatement of the law, is not a comment on the defendant‘s

failure to testify. Thomas v. State, 638 S.W.2d 481, 485 (Tex. Crim. App. 1982).

The remark merely ―indict[s] others than appellant individually‖ for the lack of

such evidence.    Id.   And if there is evidence in the record that supports a

comment regarding the defendant‘s failure to show remorse, the comment is a

proper summation of the evidence. Howard v. State, 153 S.W.3d 382, 385–86

(Tex. Crim. App. 2004), cert. denied, 546 U.S. 1214 (2006).

      Here, during the State‘s case in the punishment trial, Todd Dixon, Duff‘s

former neighbor, testified that when he visited Duff four times at the county jail,

Duff did not seem to be concerned about Samantha or feel ―like he did anything

that was that bad.‖ During Duff‘s case, Duff‘s sister, Dana Jackson, testified

about the shooting incident when Duff was fourteen, during which Duff killed his

                                        10
friend when the firearm he was showing off discharged. Jackson testified that

there was ―a lot of pain and grief and everything over it,‖ that Duff had seen a

psychologist about it, and that Duff had been depressed over it, changing from a

happy and outgoing person to a very sad and withdrawn one.6 The prosecutor

argued that neither of these witnesses had testified that Duff had shown remorse

for his offenses here. Because the prosecutor‘s comment referred only to these

witnesses‘ failure to testify about Duff‘s remorse, the prosecutor did not

impermissibly comment on Duff‘s failure to testify. See Cooper, 959 S.W.2d at

686. Accordingly, we overrule the remainder of Duff‘s first point.

C. Testimony

       In his fourth point, Duff claims that the trial court abused its discretion by

denying his motion for mistrial with regard to Samantha‘s statement that she had

had a hard time sleeping until she ―realized that he was going to stay in jail until

the trial.‖

       We review the denial of a motion for mistrial for an abuse of discretion.

Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).               Only in

extreme circumstances, when the prejudice caused by the improper argument is

incurable, i.e., ―so prejudicial that expenditure of further time and expense would



       6
      Jackson also testified that she and Duff had been taught as children to
never point a gun ―at anything you didn‘t want to kill. You don‘t point guns at
people, loaded or unloaded.‖

                                         11
be wasteful and futile,‖ will a mistrial be required. Id. at 77; see Simpson v.

State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905

(2004). In determining whether a trial court abused its discretion by denying a

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.      Hawkins, 135 S.W.3d at 77; Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh‘g), cert. denied, 526 U.S.

1070 (1999).    Generally, a trial court‘s instruction to disregard will cure any

prejudice created by the prosecutor‘s comments. Simpson, 119 S.W.3d at 272.

      Here, the trial court denied Duff‘s motion and instructed the jury to

disregard Samantha‘s comment.7 We presume that the jury followed the trial




      7
       Specifically, the trial judge gave the following admonishment to the jury:

             Ladies and gentlemen, just before the recess, there was some
      brief testimony that came out about bond status. At this time, I am
      ordering y‘all to disregard that testimony. The status of somebody‘s
      bond, how they have a bond, whether they have a bond, why they
      may or may not be on bond is nothing for you to worry about.
      There‘s 100 different reasons why somebody is on bond or is not on
      bond. And they range from simple things to complicated things.

            So for all of those reasons, it‘s not proper for you to consider
      and hear about. That‘s why I‘m ordering you to disregard that
      testimony. Do all of you understand my order?

After all of the jurors agreed that they understood the trial judge‘s order, the trial
judge asked, ―Can all of you abide by that order?‖ The jury agreed again. Then
the trial judge asked, ―Do you promise and affirm that you will disregard that
                                         12
court‘s instruction, curing any prejudice, particularly when other evidence

admitted during trial also revealed that Duff was in jail pending trial. See id.; see

also Beheler v. State, 3. S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet.

ref‘d) (―Any error in admitting the evidence is cured where the same evidence

comes in elsewhere without objection.‖).        Specifically, Samantha‘s medical

records, which were admitted without objection, contain the following statement:

      Mom states pt‘s husband, David, is currently in jail on $250,000 bail.
      Family states they are obtaining protective orders and are working
      w/ the police. Mom states pt and family are now on a list to be
      notified in the event pt’s husband does make bail and get[s] out of
      jail. [Emphasis added.]

Further, Dr. Oropeza testified during his direct examination in Duff‘s case that

among other materials he used in evaluating Duff were his conversations with the

Parker County jail officers that held Duff in custody.8 And nothing in the record

indicates that the jury would have, absent the alleged misconduct, sentenced

Duff to any less time for the violent crimes to which he had pleaded guilty.9 We

overrule Duff‘s fourth point.



testimony and later not use it for any purpose whatsoever?‖ The jurors again
said, ―Yes.‖
      8
       We note that although Duff secured a running objection to Dixon‘s
testimony that he had visited Duff at the county jail four times after Duff‘s arrest,
Duff does not complain on appeal about this objection.
      9
       To the contrary, during Duff‘s case, Dr. Oropeza agreed during cross-
examination that, without appropriate psychological treatment, there would be
nothing to stop Duff from committing similar offenses or worse acts against
                                      13
D. Limiting Cross-Examination

      In his fifth point, Duff contends that the trial court abused its discretion by

denying him permission to cross-examine Samantha on the reasons for her 1991

military discharge.10

      Samantha testified that her second enlistment, in November 2003, had

been because Duff had lost his job and been classified as disabled due to his

seizures; however, two weeks before she graduated from basic and medic

training, she received a hardship discharge—an honorable discharge—because

of Duff‘s mental health issues. During Duff‘s offer of proof outside the jury‘s

presence, Samantha testified that she had enlisted and been previously

discharged in 1991, for misconduct, which was documented as a suicide attempt

and which she explained as ―a personality disorder because [she] was

emotionally distraught because [Duff] kept telling [her] that he was going to take

[their older son] and [she] would never see him again.‖ The 1991 discharge

precluded her from re-enlisting for at least two years.



Samantha, and Samantha stated that if Duff received probation, she would
―immediately volunteer for deployment to go to Afghanistan‖ because she would
―be safer there than [she is] here with him.‖
      10
          On appeal, Duff complains that the trial court‘s failure to permit him to
impeach Samantha violates the state and federal constitutions and the code of
criminal procedure. However, because Duff made only a general objection at
trial, he has failed to preserve these specific complaints for our review. See Tex.
R. App. P. 33.1; Mendez, 138 S.W.3d at 342.

                                         14
      The trial court denied Duff‘s request to question Samantha about her 1991

military discharge despite Duff‘s assertion that it was relevant to her credibility.

The trial judge informed Duff‘s counsel that he could ask Samantha ―limited

purpose‖ questions about her military record, such as, ―‗Isn‘t it true that you have

been previously discharged, and you have since reenlisted with the military,‘‖ and

―‗Isn‘t it true that you were discharged for personal problems, not military

problems,‘ something to that extent,‖ but not ―into a suicide or multiple personality

disorders or whatever you were talking about.‖ The trial judge stated that he

would allow Duff‘s counsel to ask Samantha whether she received a general

discharge, ―neither honorable nor dishonorable.‖       Before the jury, Samantha

testified that her first enlistment was in February 1991 and that she received a

general discharge, neither honorable nor dishonorable, in March 1991.

      We review a trial court‘s decision to limit cross-examination of a witness

regarding credibility for an abuse of discretion. Walker v. State, 300 S.W.3d 836,

843–44 (Tex. App—Fort Worth 2009, pet. ref‘d); Pope v. State, 161 S.W.3d 114,

123 (Tex. App.—Fort Worth 2004), aff’d, 207 S.W.3d 352 (Tex. Crim. App. 2006),

cert. denied, 549 U.S. 1350 (2007); see also Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1984) (op. on reh‘g) (setting out abuse of discretion

standard).

      The rules of evidence prohibit the use of specific acts to impeach a

witness. See Tex. R. Evid. 608(b). To support his complaint, Duff relies on

                                         15
Cunningham v. State, in which the State impeached the defendant with the

conviction of a crime under rule of evidence 609. 815 S.W.2d 313, 319 (Tex.

App.—Dallas 1991, no pet.). Generally, under rule 609, evidence of a conviction

is not admissible if more than ten years has elapsed since the date of conviction.

See Tex. R. Evid. 609(b). Here, in contrast, Duff sought to impeach Samantha

regarding a suicide attempt twenty years earlier, which had led to a general

discharge, not to a criminal conviction; therefore, Cunningham is inapposite. Cf.

815 S.W.2d at 319.

      Duff also refers us to Winegarner v. State, in which the court of criminal

appeals stated that rule 403 ―gives the trial court considerable latitude to assess

the courtroom dynamics, to judge the tone and tenor of the witness‘ testimony

and its impact upon the jury, and to conduct the necessary balancing.‖ 235

S.W.3d 787, 791 (Tex. Crim. App. 2007). But absent authority explaining how a

suicide attempt twenty years ago would affect the complainant‘s credibility during

trial, Duff has failed to show how the trial court‘s decision here constituted an

abuse of discretion. Therefore, we overrule Duff‘s fifth point.




                                         16
                                 IV. Conclusion

      Having overruled all of Duff‘s points, we affirm the trial court‘s judgment.



                                                    BOB MCCOY
                                                    JUSTICE


PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 11, 2013




                                         17
