                HZZ- IS
              NO.   PD-0422-15
                                                ORIGINAL
   COURT OF APPEALS NO.   03-14-00236-CR



                 IN THE
   COURT OF CRIMINAL APPEALS OF TEXAS



                                               RECEIVED IN
           KEVIN TODD HARDIN,              COURT OF CRIMINAL APPEALS
                    Appellant/Petitioner
                                                 MAY 04 2015

                                              Abel Acosta, Clem
           THE STATE OF TEXAS,
                    Appellee/Respondent

                                                     FILED IN
On appeal from the Third Court of AppealsC0URT0FCR,MINAL APPEALS
              Austin, Texas                         .,„,, _ „ nn^
                                                    NAY 04 2G15

    PETITION FOR DISCRETIONARY REVIEW            Abel Acosta, Clerk



                          KEVIN TODD HARDIN
                          PETITIONER
                          TDCJ No. 01920319
                          Mark W. Michael Unit
                          2664 FM 2054
                          Tennessee Colony, Texas 75886
                         TABLE OF CONTENTS

                                             Page

Index of Authorities                           ii

Statement Regarding Oral Argument               1

Statement of the Case                           1

Statement of Procedural History                 2

Question Presented for Review                   2

Argument                                        2

Prayer                                .         9

Certificate of Service                         10

Appendix

     Court of Appeals' Memorandum Opinion
                         INDEX OF AUTHORITIES

CASES                                                            Page
Clark v. State, 643 S.W.2d 723 (Tex.Crim.App. 1982)          ?      7
Hardin v. State, No. 03-14-00236-CR (Tex.App.-Austin 2015)..        2
Harwood v. State, 961 S.W.2d 531 (Tex.App.-San Antonio 1997)       6
Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App. 2004)           5,6,8
Helleson v. State, 5 S.W.3d 393 (Tex.App.-Fort Worth 1999)          7
King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997)                 5
Martinez v. State, 17 S.W.3d 677 (Tex.Crim.App. 2000)              5
Mosley v. State, 983 S.W.2d 249 (Tes.Crim.App. 1998)               5


STATUTES

TEX. CODE CRIM. PROC. art. 37.07 § 4(c)..                          6

TEX. PEN. CODE § 12.42                                             8

TEX. PEN. CODE § 38.04(b)(2)(A)                                  1,8


TEXAS RULES OF APPELLATE PROCEDURE

TEX. R. APP. P. 44.2(b)                                          5,9




                                  li
                              PD-0422-15


               COURT OF APPEALS NO.      03-14-00236-CR



                                IN THE
                COURT OF CRIMINAL APPEALS OF TEXAS




                        KEVIN TODD HARDIN,
                                Appellant/Petitioner




                       THE STATE OF TEXAS,
                                Appellee/Respondent



            On appeal from the Third Court of Appeals
                          Austin, Texas



                PETITION FOR DISCRETIONARY REVIEW




TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     KEVIN TODD HARDIN, Appellant/Petitioner, petitions the Court

to review the decision affirming his judgment and sentence in

case number 03-14-00236-CR.

                STATEMENT REGARDING ORAL ARGUMENT

     Petitioner believes that oral argument would assist the

Court in discerning the applicable case law and the pertinent

facts. Petitioner, therefore,, requests oral argument.

                      STATEMENT OF THE CASE

     This case involves a prosecution for evading arrest with a

vehicle, a third-degree felony. TEX. PENAL CODE § 38.04(b)(2)(A).
Kevin Todd Hardin, Petitioner, was indicted and charged with one
count of evading arrest or detention with a motor vehicle. CR1:4.

The indictment contained two additional allegations that Mr. Hardin

had been previously convicted of two other felonies.

     Petitioner elected a jury for guilt-innocence and punishment

in the event he was found guilty. The jury found Mr. Hardin guilty
and assessed punishment at 99 years' imprisonment. CR1:56.

     Mr. Hardin timely filed a notice of appeal. CR1:59. The Court

of Appeals for the Third District affirmed Petitioner's conviction

and sentence.

                 STATEMENT OF PROCEDURAL HISTORY

     The Court of Appeals for the Third District of Texas issued

a memorandum opinion on March 25, 2015. The Court affirmed Mr.

Hardin's judgment and sentence. Hardin v. State, No. 03-14-00236-CR
(Tex. App.-Austin March 25, 2015).
     Mr. Hardin filed a motion to extend the time for filing his

petition for discretionary review and a motion to suspend Rule

9.3(b) of the Texas Rules of Appellate Procedure on April 7, 2015.
                  QUESTION PRESENTED FOR REVIEW

     Did the trial court err by overruling Kevin Todd Hardin's

objection to improper jury argument by the State regarding parole
and good time credit?

                            ARGUMENT


     This case presents a non-constitutional question ripe for

review. In overruling Petitioner Kevin Todd Hardin's only point,

which concerns improper jury argument, the Third Court of Appeals

issued a decision that conflicts with decisions of other courts

                                2
of appeals and has decided an important question of state law in
a way that conflicts with the applicable decisions of the Court
of Criminal Appeals. See TEX. RULES APP. PROC. Rule 66.3(a) and
(c).

                         Factual Background

       Petitioner was charged with Evading Arrest or Detention with
a Motor Vehicle, enhanced with two prior felony convictions. CR1:4.
This charge arose from an incident that occurred on April 21, 2013
in Granite Shoals, Texas where Petitioner was identified by police
as the person driving a vehicle which failed to stop for a traffic
violation. RR3:16-18. Petitioner entered a plea of "not guilty" to
the charge and "not true" to the enhancements. RR3:7; RR4:7-8. Pet
itioner was convicted by the jury. RR3:62; CR1:48. At the conclu
sion of the punishment phase of the trial, the attorney for the
State made two arguments to the jury - one before Petitioner argued
and one after Petitioner argued. RR4:49, 57.

       In his initial closing argument to the jury, State's Counsel
argued:

       "...of some interest in this is this offense is a quarter-
time offense, which means that when your actual time served [at
this time Petitioner's counsel objected to this line of argument
as 'going into parole' which was overruled, with the court opining
that it 'thinks' that State's Counsel is only arguing the jury in
structions] .. .which means - and I'm just using 40 because it makes
it really'easy for me to do the math - if you sentence him to 40

[at this time Petitioner's counsel again objected arguing that
this line of argument is 'improper closing argument' which was
                                 3
also explicitly overruled by the trial court]...[t]ake 40 years...
[s]ince it's a quarter-time offense he is eligible for parole when
he has served 10 years, but that's not ten years...[t]hat's actual
time and good time...[a]nd if he gets one-for-one that would be
five years actual time, five years good time, so he would be el

igible for parole on 40 years in five...[i]f you give him 60 it's
15 and it becomes seven-and-a-half...also, everything over 60
years is treated as 60, so it's all 15." RR4:49-52.

     In his concluding closing argument to the jury, the State's

Counsel argued that "...99 years does one thing really interest
ing...! know even if you put 99 on there...he will be eligible
for parole potentially in eight years...99 years sends him a mes

sage... I ask that you give him 99 years." RR4:57-59.

     The jury assessed a sentence of 99 years. RR4:60; CRl:56.

The Court of Appeals for the Third District of Texas overruled

Petitioner's sole point of error and this proceeding follows.
                  Improper Jury Argument Issue

     In overruling the improper jury argument issue raised by Mr.

Hardin, the Third Court of Appeals construed the reversible error

standard for non-constitutional error in an unjustifiably liberal

manner (from the State's point of view). Tacitly conceding that
the prosecutor's comments were improper, the Court of Appeals fo
cused its attention on whether Petitioner's substantial rights.were

affected. The Court somewhat remarkably found that the prosecutor's

improper comments,, which likely increased Petitioner's sentence,
were harmless and did not affect his substantial rights.
     A.    Standard of Review

     Improper jury argument is non-constitutional error subject

to harm analysis. Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App.

2004); See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.
1998) (overruled on other grounds); Tex.R.App.Pro. 44.2(b). To
determine harm, the appellate court determines whether the improper

argument affect a substantial right. See Tex.R.App.Pro. 44.2(b);
Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). A
substantial right is affected when the error had a substantial and

injurious effect or influence on the jury's verdict. King v. State,
953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The appellate court bal
ances three factors in making a determination of harm where im

proper jury argument is at issue: (1) the severity of the miscon
duct - its prejudicial effect; (2) the measures adopted to cure

the misconduct; and (3) the certainty of the punishment assessed
absent the misconduct - the likelihood of the same punishment being

assessed absent the error. See Hawkins, 135 S.W.3d at 77. Where

improper jury argument at the punishment phase of a trial results

in harm, the sentence should be vacated and the case remanded to

the trial court for a new punishment hearing. See Hawkins, 135

S.W.3d    72.

     B. Argument

     The trial court erred by overruling Petitioner's objections

to improper jury argument by the State in the punishment phase of

his trial. RR4:49-50. During his closing argument, at the punish

ment phase of Petitioner's jury trial, counsel for the State cal

culated for the jury Petitioner's parole eligibility for the instant
offense, which he referred to as a "quarter-time offense," using
a formula that he told the jury "makes it really easy for me to

do the math." RR4:49-50. Counsel went so far as to argue that Peti

tioner would receive "one-for-one" good time credit. Id. at 50. Ad

ditionally, State's counsel informed the jury of how the parole

laws and good-time credit were applied to Petitioner in the past

as an indication of how they would be applied to Petitioner in

this case. Id. at 50. This error was compounded by State's counsel

asking the jury to assess a sentence of 99 years and informing the

jury that Petitioner would be eligible for parole in only eight

years (a number that requires the application of a specific good-
time credit to this Petitioner). Id. at 57-59.

     State's counsel not only invited the jury to calculate the

application of parole laws and good-time credit to this particular

Petitioner, counsel performed the calculation for the jury. At no

time did State's counsel make any concessions or arguments to am

eliorate this improper jury argument. Additionally, and perhaps

most importantly, the trial court not only failed to take any cor

rective action to instruct the jury to disregard this improper arg

ument, it gave the calculation of the application of the parole

laws and award of good-time credit for Petitioner its imprimatur

by expressly overruling both of Petitioner's objections. RR4:49-50.

     A jury is permitted to consider the existence of parole law.

See Tex. Code Crim. Proc. art. 37.07 § 4(c). However, the jury is
prohibited from considering how parole law and good-time may be

applied to the particular citizen before them. Hawkins, 135 S.W.3d

at 84; Harwood v. State, 961 S.W.2d 531, 544 (Tex.App.-San Antonio

                                6
1997, no pet.). It is improper for the prosecution to ask the jury
to consider how long the defendant would be required to serve in

order to satisfy any punishment imposed. Clark v. State, 643 S.W.2d

723, 724 (Tex.Crim.App. 1982). Refernces to how long a defendant
has served for previous sentences is an invitation for the jury to

consider parole in its calculation of an appropriate punishment.

See Helleson v. State, 5 S.W.3d 393, 398 (Tex.App.-Fort Worth 1999,
pet. ref'd). Here the jury argument by the State went beyond the
permissible purpose of considering eligibility for parole, crossing

over the line into an impermissible request to consider how the

parole law and good-time credit would be applied to the particular

defendant before the jury in the future.

     The prejudicial effect of the improper jury argument by the

State is manifest in the 99 year sentence imposed on Petitioner by

the jury. The State made an explicit and lengthy argument to the

jury for a 99 year sentence. While making this detailed argument

for why the jury should assess 99 years, the State argued that 99

years would in fact be an 8 year sentence. First,   the State made

the argument to the jury for 99 years in the context of its earlier

calculation of good-time credit and the previous application of

parole law to Petitioner. Next, the State verbalized "99 years"

to the jury numerous times in its closing argument. And finally,

the State argued that a sentence of 99 years would in reality be

an 8 year sentence (a number that necessarily requires the appli
cation of specific good-time credit to Petitioner). It is no sur
prise that in the context of this detailed and lengthy improper

argument, the jury complied with the request of the State and

                                7
assessed punishment at 99 years.                 It would be incredulous to argue

that the prejudicial effect of the improper jury argument by the

State    is   not   severe.

        In the case at bar, the jury was properly instructed in the

punishment charge regarding the existence of parole law and good-

time credit. CRl:52.However, neither the trial court nor State's

counsel took any curative measures to ameliorate the error. More

over, the jury assessed the maximum punishment requested by the

State - 99 years in prison. Proper jury instructions are but one

factor to be considered in determining harm. See Hawkins, 135 S.W.3d

at 84. Given the record as a whole, the jury instructions did lit

tle, if anything, to cure the harmful effect of the improper jury

argument.

        Petitioner was        sentenced as       a habitual   offender   for   the of

fense of Evading Arrest. Tex. Pen. Code § 38.04(b)(2)(A). The range
of punishment available to the jury was 25-99 years or life in

prison. Tex. Pen. Code § 12.42. Petitioner was sentenced to the

maximum allowed by law, and perhaps more importantly, the exact

sentence the State asked the jury to assess in the context of an

improper jury argument about what sentence should be assessed.

Petitioner's brother testified about Petitioner being a generally

good person when he is not in the throes.of drug addiction and

that Petitioner has not had any drug rehabilitation. RR4:25-26,

31. There was testimony at trial that Petitioner is not a violent

person. RR4:17-18. Petitioner's mother also testified that Peti
tioner is not a violent person, has never received treatment for

his drug addictions, and that he has a supportive family. RR4:35-

                                             8
37. A balancing of the facts available to the jury in assessing

punishment shows that there is significant doubt that the same

sentence - 99 years - would have been assessed by the jury absent

the improper jury argument and the trial court overruling Peti

tioner's objections to that improper argument.

     When all of the factors in assessing harm, as outlined above,

are considered and balanced, the trial court's error in overruling
Petitioner's objections to the improper jury argument by the State

regarding the application of parole law and good-time credit, can

not be   said to be harmless   -   that   it did not have a   substantial

effect on the jury's verdict. Therefore, This Court should vacate

Petitioner's sentence and remand this case to            the trial court for

a new punishment trial. Tex. R. App. Proc. 44.2(b).
     In short, the Third Court of Appeals' loose construction of
Rule 44.2(b) of the Texas Rules of Appellate Procedure greatly
expands the scope of what constitutes harmless error beyond that

permitted by the plain language of the rule. As a result, Mr. Har

din respectfully suggests that some guidance from the Court of

Criminal Appeals is needed.

                                   PRAYER

     For the reasons herein alleged, Petitioner Kevin Todd Hardin

prays that this Court grant this petition and, upon reviewing the

judgment entered below, reverse this cause and remand this case

for a new punishment trial.

                                            Respectfully submitted,


                                            KEVIN TODD   HARDIN
                                            PETITIONER
                                      TDCJ No. 01920319
                                      Mark W. Michael Unit
                                      2664 FM 2054
                                      Tennessee Colony, Texas 75886



                     CERTIFICATE OF   SERVICE

     I hereby certify that a true and correct copy of the fore

going petition has been served by placing same in the United States

Mail, postage prepaid, addressed to: Burnet County District Attorn

ey's Office, P.O. Box 725, Llano, Texas 78643 and State Prosecut
ing Attorney, P.O. Box 13046, Austin, Texas 78711-3046, on this

the 28-VW day of A^n \     2015.



                                      KEVIN TODD HARDIN
                                      PETITIONER




                               10
             APPENDIX

Court of Appeals' Memorandum Opinion
       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                        JUDGMENT RENDERED MARCH 25,2015



                                     NO. 03-14-00236-CR




                                Kevin Todd Hardin, Appellant



                                 The State of Texas, Appellee




           APPEAL FROM 424TH DISTRICT COURT OF BURNET COUNTY
         BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND FIELD
                       AFFIRMED -- OPINION BY JUSTICE FIELD




This is an appeal from the judgment of conviction rendered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment. Therefore, the Court affirms the trial court's judgment of conviction.

Because appellant is indigent and unable to pay costs, no adjudication of costs is made.
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00236-CR




                                 Kevin Todd Hardin, Appellant

                                                  v.



                                   The State of Texas, Appellee



    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
          NO. 41725, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                             MEMORANDUM                  OPINION



               A jury found appellant Kevin Todd Hardin guilty of evading arrest with a vehicle, a

third-degree felony. See Tex. Penal Code § 38.04(b)(2)(A). After finding that Hardin had previously

been convicted of two other felonies, the jury assessed punishment at 99 years' imprisonment, and

the trial court renderedjudgment on the jury's verdict. See id. § 12.42(d). In his sole point of error

on appeal, Hardin argues that the trial court erred by overruling his objections to comments the

prosecutor made during closing argument. We will affirm the trial court's judgment of conviction.


                                         BACKGROUND


               During the punishment phase of trial, Hardin pleaded not true to two enhancement

allegations. The State presented testimony and evidence ofHardin's prior convictions, and Hardin

called two character witnesses. During the State's closing argument, the following exchange occurred:
       [State:] Now, of some interest in this is this offense is a quarter-time offense, which
       means that when your actual time served—

       [Defense:] Objection, Your Honor. He's going into parole.

       [The Court:] He's just arguing what the instructions say, Mr. Watson, I think.

       [State:] Yes. It's a quarter-time offense, which means—and I'mjust using 40 because
       it make its [sic] really easy for me to do the math. If you sentence him for forty—

       [Defense:] I'll just object that it's not proper. It's in the instruction. The jury just
       doesn't need—they can read the instructions themselves. They don't need him talking
       about it. We just believe it's an improper closing argument.

       [The Court:] I'll overrule your objection.

       [State:] Take 40 years. Since it's a quarter-time offense he is eligible for parole
       when he has served ten years, but that's not ten years. That's actual time and good
       time. And if he gets one-for-one that would be five years actual time, five years
       good time, so he could be eligible for parole on 40 years in five. If you give him 60
       it's 15 and it becomes seven-and-a-half. So when we're talking about the various
       punishments it's a quarter-time offense. He was on parole when this happened. As
       you tell by looking at, I think it's State's 11, he got a seven-year sentence and he
       was actually out on the street within, what, three, and two-and-a-half. Now, also
       everything over 60 years is treated as 60, so it's all 15.


               The prosecutor went on to discuss Hardin's prior convictions and told the jury, "[T]he

State is asking for the max." The juryfound the enhancement allegations true and assessed punishment

at 99 years. The trial court rendered judgment on the jury's verdict, and Hardin now appeals.


                                          DISCUSSION


Standard ofreview

               We review a trial court's ruling on an objection to improper jury argument for an

abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,
pet. refd) (citing Davis v. State, 329 S.W.3d 798,825 (Tex. Crim. App. 2010)). A trial court abuses

its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules

and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). "[Pjroper

jury argument generally falls within one of four general areas: (1) summation of the evidence;

(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and

(4) plea for law enforcement." Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).


Analysis

               In his sole point of error, Hardin argues that the prosecutor's comments were

improper because the comments encouraged the jury to consider parole law in calculating

Hardin's sentence.


               As required by statute, the trial court instructed the jury that it could "consider the

existence of the parole law and good conduct time" but could not "consider the manner in which

the parole law maybe applied to this particular [defendant." See Tex. Code Crim. Proc. art. 37.07,

§ 4(b).1 We have interpreted these instructions to allowthejury to considerthe defendant's eligibility

for parole but not whether or when the defendant will actually be released on parole. Branch v.

State, 335 S.W.3d 893, 907 (Tex. App.—Austin 2011, pet. refd) ("Branch contends that the

prosecutor's statements were improper. We agree .... Here, the prosecutor did not state that

Branch would be eligible for parole in a certain number ofyears, but rather stated that Branch would




       1 Article 37.07, section 4(b) governed the jury charge in this case because the offense was
punishable as a first-degree felony and a prior conviction was alleged for enhancement under Texas
Penal Code section 12.42(d).
be out ofprison in that amount oftime."); see Taylor v. State, 233 S.W.3d 356,360 (Tex. Crim. App.

2007) (Womack, J., concurring) (quoting Byrd v. State, 192 S.W.3d 69, 77 (Tex. App.—Houston

[14th Dist.] 2006, pet. refd) (Frost, J., concurring)) ("[T]he jury may base its assessment of

punishment in part on consideration of a sentenced defendant's parole eligibihty under the formula

contained in the instruction; however, a jury may not base its assessment ofpunishment on speculation

as to when, if ever, the defendant may be released on parole after becoming eligible for parole.");

Waters v. State, 330 S.W.3d 368,373-74 (Tex. App.—Fort Worth 2010, pet. refd) (adopting Judge

Womack's concurrence). A prosecutor may properly discuss parole eligibility during jury argument

because in doing so a prosecutor is merely explaining and clarifying the jury charge. See Taylor,

233 S.W.3d at 359; Branch, 335 S.W.3d at 907 (noting that "the State may attempt to clarify the

meaning of the jury instructions pertaining to parole law and good-conduct time").

               Much of the prosecutor's argument in this case was proper because it referred to

Hardin's parole eligibility and was in accordance with the court's instructions. "It was not improper

for the prosecutor to accurately restate the law given in the jury charge nor was it improper for the

prosecutor to ask the jury to take the existence ofthat law into account when assessing punishment."

Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004). It was also not improper for the

prosecutor to discuss the lengths of hypothetical sentences and to refer to Hardin specifically by

using the pronouns "he" and "him" instead of referring to a hypothetical defendant. See Taylor,

233 S.W.3d at 360.


               Hardin, however, also contends that it was improper for the prosecutor to argue that

Hardin "was on parole when this happened" and that Hardin "got a seven-year sentence and he was
actually out on the street within, what, three, and two-and-a-half." According to Hardin, these

comments imply that the length of time Hardin actually served for a previous offense was relevant

to determining the length of time Hardin may actually serve for the current offense. We agree.

               Although the State had properly introduced evidence of prior convictions, the

prosecutor was not entitled to use that evidence to argue that Hardin would actually be paroled

before he had served the entire sentence assessed by the jury. See Clarkv. State, 643 S.W.2d 723,

725 (Tex. Crim. App. 1982) ("Although the State is correct in noting that the prison records were

in evidence, the records were introduced solely for the purpose of establishing appellant's prior

record. The records were not and could not be introduced for the purpose of showing the jury how

the parole laws operate . . . ."); see also Henderson v. State, No. 11-10-00182-CR, 2012 WL

2151483, at *3 (Tex. App.—Eastland June 14, 2012, pet. refd) (mem. op., not designated for

publication) ("The State's references to how long Appellant had served for his previous sentence

were an invitation for the jury to consider parole in its calculation of appropriate punishment.").

Here, the prosecutor implicitly asked the jury to consider not only when Hardin would become

eligible for parole but also when Hardin might actually be released on parole. See Branch, 335 S.W.3d

at 907. By implying that the jury should increase Hardin's sentence because Hardin would soon be

"actually out on the street," the prosecutor was impermissibly asking the jury to consider how parole

law would be applied to Hardin in particular. See Tex. Code Crim. Proc. art. 37.07, § 4(b) ("You

are not to consider the manner in which the parole law may be applied to this particular defendant.");

Hawkins, 135 S.W.3d at 84 ("[T]he jury is simply prohibited from considering how parole law and

good time would be applied to a particular defendant.").
               Having concluded that the prosecutor's comments were improper, we now consider

whether these comments constitute reversible error. The improper use of parole law during jury

argument is non-constitutional error that "must be disregarded" if it "does not affect substantial

rights." Tex. R. App. P. 44.2(b); Perez v. State, 994 S.W.2d 233,237 (Tex. App.—Waco 1999, no

pet.); see Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) ("[M]ost comments that

fall outside the areas ofpermissible argument will be considered to be error ofthe nonconstitutional

variety."). To determine whether Hardin's substantial rights were affected, "[w]e 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)." Hawkins, 135 S.W.3d at 77; see also Mosley v. State, 983 S.W.2d 249,259 (Tex.

Crim. App. 1998) (listing three harm-analysis factors); Perez, 994 S.W.2d at 237-38 (applying

Mosley factors).

               Under the first factor, the severity of the misconduct, we note that the improper

comments were not offhand and isolated; they were part of the prosecutor's overall argument that

the jury should impose the maximum sentence possible. The prosecutor mentioned parole again

twice in his rebuttal argument: "He's on parole for burglary and what's he doing out there? He runs

from the cops." "I know even if you put 99 on there... [h]e will [be] eligible for parole potentially

in eight years, but he's out there at 4:00 in the morning scouting, scoping out for another burglary."

On the other hand, most ofthe prosecutor's parole argument focused on when Hardin would become

eligible; his improper comments concerning when Hardin might actually be released were brief.
                  Under the second factor, curative measures, the trial court overruled Hardin's

objections and gave no limiting instruction to the jury. The only curative measure appearing in the

record was the trial court's instructions to the jury on punishment, which accurately quoted the

language on parole law mandated by Texas Code ofCriminal Procedure article 37.07, section 4(b).

We generally presume that a jury will follow the trial court's instructions. Gamboa v. State,

296 S.W.3d 574, 580 (Tex. Crim. App. 2009).

                  Under the third factor, the certainty ofthe punishment assessed, we conclude that the

jury would Ukely have given Hardin the same punishment even if the prosecutor had not made the

improper comments. The State introduced evidence of more than ten prior convictions and argued

that Hardin had a "career" ofcrime. In addition, the jury viewed a video showing part ofthe lengthy

and dangerous vehicle chase that Hardin initiated and heard evidence that one of the officers

sustained minor injuries while pursuing Hardin on foot. Finally, even ifthe prosecutor had not made

the improper comments, the jury would still have been able to consider parole law in its deliberations

based on the trial court's instructions and the proper portions of the prosecutor's argument.

                  Balancing these three factors, we conclude that the prosecutor's improper comments

were harmless and did not affect Hardin's substantial rights. We therefore overrule Hardin's sole

point of error.


                                            CONCLUSION


                  Having overruled Hardin's sole point oferror, we affirm the judgment ofconviction.
        I     »




                                                                      Scott K. Field, Justice

                         ."Before"Chief Justice Rose, Justices Goodwin and Field

                         Affirmed


                         Filed: March 25, 2015

                         Do Not Publish




,.4»j. "tv.       ^mt*
