                                 NO. 12-09-00264-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CLAUDE RAY TURNER,                                '            APPEAL FROM THE 241ST
APPELLANT

V.                                                '            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          '            SMITH COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Claude Ray Turner appeals his conviction for possession of a controlled substance with
intent to deliver. In one issue, Appellant argues the trial court erred by allowing the State to make
an improper jury argument during its closing argument. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with possession of a controlled substance with intent
to deliver. Appellant pleaded not guilty. Appellant’s case was tried before a jury. The jury
found Appellant guilty of the charged offense. After finding two enhancement paragraphs to be
true, the jury assessed Appellant’s punishment at life imprisonment. This appeal followed.


                                  IMPROPER JURY ARGUMENT
       In his sole issue, Appellant asserts that the trial court erred by allowing the State to make an
improper jury argument during its closing argument.           According to Appellant, the State’s
improper argument involved injecting facts not in evidence into the case. Specifically, Appellant
complains that the State’s argument injected into the case that a witness to the drug transaction
which resulted in Appellant’s arrest was searched by police, that the police did not find drugs in the
witness’s possession, and that the police did not arrest the witness.
Standard of Review and Applicable Law
       We review a claim of improper jury argument for an abuse of discretion. See Horace v.
State, No. 05-08-01069-CR, 2010 WL 670129, at *5 (Tex. App.—Dallas Feb. 26, 2010, no pet.)
(not designated for publication). A trial court does not abuse its discretion when its decision is
within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g). Further, the trial court’s decision will be upheld on appeal if it is
correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.
Crim. App. 1990). This principle holds true even where the trial court has given an erroneous
legal reason for its decision. Id.
       Proper jury argument includes four areas: (1) summation of the evidence presented at trial,
(2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s
argument, or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim.
App. 2000). ―[A] prosecutor may not use closing argument to get evidence before the jury which
is outside the record and prejudicial to the accused.‖ Borjan v. State, 787 S.W.2d 53, 57 (Tex.
Crim. App. 1990). ―[D]efense argument which goes outside the record will permit prosecutorial
argument outside the record in response.‖ Garrison v. State, 528 S.W.2d 837, 840 (Tex. Crim.
App. 1975). However, the State may not exceed the limits of the defendant’s invitation. See id.
at 840-42.
       Improper jury argument is nonconstitutional error. State v. Dudley, 223 S.W.3d 717, 728
(Tex. App.–Tyler 2007, no pet.). Such error is subject to a harm analysis under rule 44.2(b) of the
Texas Rules of Appellate Procedure. TEX. R. APP. P. 44.2(b). Under rule 44.2(b), error ―that
does not affect substantial rights must be disregarded.‖ Id. Any resultant harm from improper
jury argument is cured if the same facts are referenced by other, unchallenged argument to the jury.
See Lucero v. State, 246 S.W.3d 86, 102 (Tex. Crim. App. 2008).
       A defendant’s ―right‖ not to be subjected to improper jury argument ―is one of those rights
that is forfeited by a failure to insist upon it.‖ See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.
Crim. App. 1996). Error involving forfeitable rights is governed by Texas Rule of Appellate
                                                  2
Procedure 33.1. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (unanimous
opinion). Rule 33.1 reads, in pertinent part, as follows:


       As a prerequisite to presenting a complaint for appellate review, the record must show that:

       (1) the complaint was made to the trial court by a timely request, objection, or motion that:

                  (A) stated the grounds for the ruling that the complaining party sought from the
                  trial court with sufficient specificity to make the trial court aware of the
                  complaint, unless the specific grounds were apparent from the context; and

                  (B) complied with the requirements of the [Texas Rules of Evidence] or the Texas
                  Rules of Civil or Appellate Procedure; and

       (2) the trial court:

                  (A) ruled on the request, objection, or motion, either expressly or implicitly; or

                  (B) refused to rule on the request, objection, or motion, and the complaining party
                  objected to the refusal.


TEX. R. APP. P. 33.1(a). Error involving forfeitable rights is not preserved for appellate review
unless the requirements of rule 33.1 are met. Mendez, 138 S.W.3d at 342.
Discussion
       Appellant complains that the State improperly injected into the case the fact that, when
searched, the witness, known as Curtis, was not found to be in possession of drugs. However,
Appellant failed to object to the State’s subsequent reference to the fact that Curtis was not in
possession of any drugs at the time of the search. Thus, any harm from this portion of the State’s
jury argument was cured by the subsequent reference.1 See Lucero, 246 S.W.3d at 102; see also
TEX. R. APP. P. 44.2(b).
       Appellant also complains that the State improperly injected into the case the fact that Curtis
was not arrested by the police. However, Appellant did not object to this argument, and therefore
has failed to preserve this complaint for appellate review. See TEX. R. APP. P. 33.1(a); Cockrell,
933 S.W.2d at 89.



       1
           We do not address whether any argument by the State was improper.

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                                                    DISPOSITION
         For the foregoing reasons, we overrule Appellant’s sole issue and affirm the trial court’s
judgment.




                                                                  SAM GRIFFITH
                                                                     Justice




Opinion delivered June 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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