                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-083-CR
                                  NO. 2-07-084-CR


DERRICK DEMOND TERRELL                                              APPELLANT
A/K/A DERRICK TERRELL

                                              V.

THE STATE OF TEXAS                                                       STATE

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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                                     Introduction

      Appellant Derrick Demond Terrell appeals his conviction for possession

of controlled substances, cocaine and heroin, with intent to deliver over four

grams but less than 200 grams. In his sole issue, appellant argues that the trial




      1
          … See T EX. R. A PP. P. 47.4.
court erred by not declaring a mistrial when the prosecutor commented on

appellant’s failure to testify during trial. We affirm.

                               Background Facts

      Appellant and three other people were at 2912 Hanger Avenue in Fort

Worth, Texas, on June 22, 2006, when the Fort Worth Police Department

executed a search warrant. Under a chair cushion in one of the bedrooms,

police found a clear colored baggie that contained several individual baggies;

the individual baggies contained a white powdery substance and numerous

clear colored capsules which were composed of a brown powdery substance.

Appellant informed police that the baggies contained cocaine and heroin, and

he also admitted that the drugs belonged to him. The crime lab later confirmed

that the drugs were cocaine and heroin. Police also found $300.00 in cash on

appellant.

      Appellant was charged in two indictments with possession of controlled

substances, cocaine and heroine, of four grams or more but less than 200

grams with intent to deliver. During the closing arguments at trial, defense

counsel objected to statements made to the jury alluding to appellant’s failure

to testify. The trial court sustained defense counsel’s objections but denied the

motion for mistrial. The jury found appellant guilty of each charge and assessed




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punishment at sixty years’ confinement and a $5,000.00 fine. The trial court

sentenced appellant accordingly, and appellant timely filed this appeal.

                             Standard of Review

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973).

      Under the code of criminal procedure article 38.08, a defendant’s choice

not to testify on his own behalf shall not be taken as a circumstance against

him, and his failure to so testify shall not be alluded to or commented on by

counsel. T EX. C ODE C RIM. P ROC. A NN. art. 38.08 (Vernon 2005); Bustamante v.

State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); White v. State, 201

S.W.3d 233, 244 (Tex. App.—Fort Worth 2006, pet. ref’d). 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.   T EX. C ODE C RIM. P ROC. A NN. art. 38.08; see

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Bustamante, 48 S.W.3d at 765; 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; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App.

1992). 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).               In

contrast, a jury argument is proper if it falls into certain categories, including

responding to an argument by opposing counsel. Gaddis v. State, 753 S.W.2d

396, 398 (Tex. Crim. App. 1988); Hernandez v. State, 939 S.W.2d 692, 695

(Tex. App.—Fort Worth 1997, pet. ref’d).        For example, an argument that

constitutes either a direct or indirect comment on a defendant’s failure to testify

may be proper if it was invited by defense counsel’s argument. Long v. State,

823 S.W .2d 259, 269 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224

(1992); see Nethery v. State, 692 S.W.2d 686, 703 (Tex. Crim. App. 1985),

cert. denied, 474 U.S. 1110 (1986) (holding no reversible error where

prosecutor’s argument responds to defense argument regarding motive); see

also Vargas v. State, Nos. 05-01-00340-CR, 05-01-00341-CR, 2002 WL

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56293, at *1 (Tex. App.—Dallas Jan. 16, 2002, no pet.) (mem. op., not

designated for publication).

      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 abused its discretion in denying the mistrial. Hawkins v. State,

135 S.W.3d 72, 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 be wasteful and

futile,” will a mistrial be required. Id.; see also Simpson v. State, 119 S.W.3d

262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).             In

determining whether the trial court abused its discretion by denying the mistrial,

we balance three factors: (1) the severity of the misconduct (prejudicial effect);

(2) curative measures; and (3) the certainty of conviction 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, an instruction to disregard an impermissible argument cures

any prejudicial effect. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.

App. 2000), cert. denied, 532 U.S. 944 (2001).




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                                     Analysis

      Appellant argues that the prosecution improperly commented on his

failure to testify and that he was entitled to a mistrial. In the closing argument,

defense counsel focused on the State’s lack of evidence regarding the intent to

deliver aspect of the indictment. Defense counsel stated:

             Yes, Derrick gave a statement. He admitted that those drugs
      are his. There ain’t nothing in that statement that talks about no
      selling and no drugs.

            . . . . [I]t ain’t illegal to have a few hundred bucks on you.

            ....

            There are people that have varying degrees of drug habits.
      Good grief. Look at ESPN dot com to find some names for that.
      We don’t need to go into that. But there are people who use a
      small amount of drugs, and there might be people that need a
      whole bunch of drugs.

            ....

            So the real question that remains is what proof have these
      people brought you that Derrick was selling drugs, that he was
      possessing these drugs with the intent to sell, with the intent to
      deliver.

The prosecution, in response to defense counsel’s argument, stated:

            Defense Counsel says what this trial is really about is with
      intent to deliver. I disagree to a certain extent.

             She [defense counsel] said there is no evidence to support
      saying that this is with intent to deliver. Okay. W ell, first of all,
      let’s look at something. We’ll talk about Officer Williams in a

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      moment. Let’s look at the drugs. Defense counsel says, well,
      there are other people who are users who have a worser habit than
      others. What evidence have you heard that he uses? What
      evidence? None. The Judge tells you in that charge the only
      evidence comes from that witness stand. Who has got up there
      and said he’s a drug user or he’s an addict? Nobody. Not a single
      person.

At this point, defense counsel objected.

      Ms. Thornton:     Objection, Your Honor, on the Defendant’s right
                        not to testify.

      The Court:        Sustained.

      Ms. Thornton:     Your Honor, I move the Court to instruct the jury
                        to disregard Counsel’s comment.

      The Court:        The jury is instructed to disregard the last
                        comments of the prosecutor.

      Ms. Thornton:     Your Honor, pursuant to the Court of Criminal
                        appeals, I move for a mistrial respectfully.

      The Court:        Denied.

      Here, defense counsel argued that appellant was only a drug user and

addict and that he did not possess the drugs with intent to deliver. In response

to this assertion, the prosecution pointed out that the defense failed to present

any evidence that appellant was a drug addict and not a distributor.         The

prosecution’s argument that there was not any evidence that appellant was a

drug user was proper because it was not a comment on his failure to testify,

rather it was an answer to opposing counsel’s assertion that appellant was only

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a drug addict who did not intend to sell the drugs found at his house. See

Long, 823 S.W.2d at 269; Gaddis, 753 S.W.2d at 398. When assessing the

prejudicial effect of a statement and after reviewing the prosecutor’s comments

in context, especially defense counsel’s immediately preceding argument, the

argument at issue could have referred to appellant’s failure to call other

witnesses or produce testimony from sources other than himself. See Hawkins,

135 S.W.3d at 77; Wolfe v. State, 917 S.W.2d 270, 279 (Tex. Crim. App.

1996), cert. denied, 544 U.S. 1037 (2005); Strickland v. State, 193 S.W.3d

662, 669 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding prosecutor’s

comments were merely responsive to defense theory of the case and not a

comment on appellant’s decision not to testify); Harris v. State, 122 S.W.3d

871, 884 (Tex. App.—Fort Worth 2003, pet. ref’d).

      Moreover, the trial court cured any prejudice from the comment by

instructing the jury to disregard the prosecutor’s comment. Generally, a prompt

instruction to disregard will cure any prejudice associated with an improper

argument. Hawkins, 135 S.W.3d at 84; Wesbrook, 29 S.W.3d at 115.

      Finally, absent the prosecutor’s comment, the State still had a solid case.

Appellant admitted that the drugs were his and identified the substances as

cocaine and heroin. Additionally, the drugs were packaged in multiple baggies.

The fact that appellant had two types of drugs packaged in small amounts

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indicated that appellant’s intention was to distribute.      Appellant also had

$300.00 in cash on his person, and the officer’s testimony revealed that it is

common for people that deliver narcotics to carry large amounts of cash.

Accordingly, there was sufficient evidence to support appellant’s conviction

absent the prosecutor’s comment. See Hawkins, 135 S.W.3d at 77.

      In summary, nothing in the record suggests that this is an “extreme

circumstance” where the prejudice from an allegedly improper argument was

incurable. See id. Thus, we hold that the instruction to disregard by the trial

judge cured the prejudice, if any, and that the trial court did not abuse its

discretion by denying appellant’s motion for a mistrial. Id.; see also Strickland,

193 S.W.3d at 669. Therefore, we overrule appellant’s sole issue.

                                   Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.




                                                  TERRIE LIVINGSTON
                                                  JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 21, 2008

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