                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-193-CR


DAVID LYNN LUTTRELL                                              APPELLANT

                                       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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     A jury convicted Appellant David Lynn Luttrell of felony driving while

intoxicated (DWI), found that he had used or exhibited a deadly weapon during

the commission of the offense, found the repeat offender allegation true, and

assessed Appellant’s punishment at eighteen years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. The trial




     1
         … See Tex. R. App. P. 47.4.
court sentenced him accordingly. In four issues, Appellant complains about the

State’s jury argument and the jury charge. Because we hold that the trial court

did not err, we affirm the trial court’s judgment.

      In his first issue, Appellant contends that the trial court erred by allowing

the State to comment on his failure to testify. 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. 2

      The code of criminal procedure provides that a defendant’s failure to

testify on the defendant’s own behalf may not be held against the defendant

and that counsel may not allude to the defendant’s failure to testify.3         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




      2
      … 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).
      3
          … Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).

                                        2
comment on the defendant’s failure to testify.4 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. 5 A mere indirect or

implied allusion to the defendant’s failure to testify does not violate the

accused’s right to remain silent.6

      During closing argument at the guilt phase, the prosecutor argued, “The

total refusal — that’s what we call it when you don’t do any tests, no field

sobriety tests, no breath tests. Did you see [Appellant] that night? He’s hoping

you will give him a free pass.” Defense counsel objected; the objection was

overruled. The State repeated, “He is hoping you’ll give him a free pass,” and

defense counsel repeated his objection, which was overruled. The prosecutor

then went on,

      You see, luckily we have all those things before he refused those
      tests, but the fact he refused those tests, I am going to ask you to
      hold that against him as well because if you pull someone over for
      DWI, they get out of the car and they don’t cooperate with police,


      4
      … 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).
      5
      … Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223,
225 (Tex. Crim. App. 1992).
      6
       … 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).

                                       3
      they say, “I am not going to do any of your tests, I am not going
      to give a breath test,” what kind of message does that send?

           Everybody that does that, I guess we couldn’t arrest them for
      DWI. Just refuse everything. Think about that.


      Appellant complains that the prosecutor’s repeated statement—“He’s

hoping you’ll give him a free pass”—is either a direct comment because only

Appellant could testify about his subjective hopes and desires or an indirect

comment because it covered a subject that could only be controverted by

Appellant’s direct testimony. But having reviewed the context in which the

statement was made, we agree with the State that the prosecutor was alluding

not to Appellant’s failure to testify but to his failure to take the field sobriety

tests and breath tests. The fact that Appellant had refused the tests was in

evidence, and the prosecutor could therefore properly comment on that refusal

in closing argument. We overrule Appellant’s first issue.

      In his second issue, Appellant contends that the trial court erred by

allowing the State to inject harmful facts into the case during closing argument

at the punishment phase. The prosecutor argued, “So in April of 2006 [sic],7

he gets arrested for [DWI].     He bonds out again while he’s on bond —.”



      7
       … Appellant and the State both point out that this was a misstatement
by the prosecutor and should have been the year 2000, not 2006, the year of
the commission of the offense before this court.

                                        4
Defense counsel objected that the argument was outside the record because

there was no testimony that Appellant was out on bond.              The trial court

overruled the objection. The prosecutor continued,

         And while on bond, he picks up another DWI in December of 2006
         [sic].8 That’s No. 5. In all these years he’s been on probation, he’s
         had opportunity after opportunity after opportunity. He’s been
         provided counseling, he’s been provided therapy over and over and
         over and over. [Emphasis added.]

Defense counsel objected that the prosecutor was arguing outside the record,

and the trial court sustained the objection, instructed the jury to disregard the

prosecutor’s last remark, and denied Appellant’s motion for mistrial. Because

Appellant did not renew his objection regarding bond evidence after the

prosecutor stated, “And while on bond, he picks up another DWI in December

of 2006 [sic],” 9 he is not entitled to reversal.10 We overrule Appellant’s second

issue.

         In Appellant’s third issue, he complains that the trial court erred by

overruling his motion for mistrial after the prosecutor argued, as set out above,


         8
             … See note 7 supra.
         9
             … See note 7 supra.
         10
        … See Lucero v. State, 246 S.W.3d 86, 102 (Tex. Crim. App.)
(“[Lucero] failed to object to the State’s subsequent jury arguments that
‘there’s no evidence of remorse’ and that [he] ‘shows little remorse.’ [Lucero],
therefore, is not entitled to a reversal due to the State’s earlier objected-to
reference to [his] lack of remorse.”), cert. denied, 129 S. Ct. 80 (2008).

                                          5
that “[h]e’s been provided counseling, he’s been provided therapy over and over

and over and over.” 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. 11 Only in

extreme circumstances, when the prejudice caused by the improper argument

is incurable, that is, “so prejudicial that expenditure of further time and expense

would be wasteful and futile,” will a mistrial be required.12       In determining

whether the trial court abused its discretion in denying the 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.13

      The evidence showes that Appellant’s community supervision for his April

and December 2000 DWI offenses was revoked because he failed to report to

an intensive day treatment program aftercare, and the order granting

community supervision for his 1984 DWI conviction in Ellis County provides

that he was ordered to attend a DWI education program approved by Ellis


      11
           … Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
      12
       … Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.
App. 2003), cert. denied, 542 U.S. 905 (2004).
      13
       … 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).

                                         6
County community supervision officers. Given that there was some evidence

of treatment opportunities; that the trial court gave a prompt instruction to

disregard the comment, which we presume the jury followed; 14 and that

Appellant, who has five past DWI convictions, received an eighteen-year

sentence, not the twenty-year maximum sentence urged by the State, we

cannot say that the trial court abused its discretion by denying Appellant’s

motion for mistrial. We overrule his third issue.

      In his fourth issue, Appellant contends that the trial court erred by failing

to require the jury to find beyond a reasonable doubt that he “knew that a

deadly weapon would be used or exhibited,” despite the inclusion of that

language in the deadly weapon allegation in the indictment. We note that the

quoted language was part of the law of parties’ charge on the deadly weapon

in the indictment.15 But no evidence that Appellant was guilty as a party was

admitted during trial; Appellant was the only one in the car. The jury charge



      14
       … See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App.
2000), cert. denied, 532 U.S. 944 (2001).
      15
        … See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(g)(a)(2) (Vernon
Supp. 2008) (“The provisions of Section 3 of this article do not apply . . . to a
defendant when it is shown that a deadly weapon as defined in Section 1.07,
Penal Code, was used or exhibited during the commission of a felony offense
or during immediate flight therefrom, and that the defendant used or exhibited
the deadly weapon or was a party to the offense and knew that a deadly
weapon would be used or exhibited.”) (emphasis added).

                                        7
properly does not include a charge on the law of parties regarding Appellant’s

guilt of DWI; the law of parties is inapplicable to this case. Accordingly, the

deadly weapon charge given was proper. 16      We overrule Appellant’s fourth

issue.

         Having overruled Appellant’s four issues, we affirm the trial court’s

judgment.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE


PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

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

DELIVERED: March 26, 2009




         16
        … See id. art. 36.14 (Vernon 2007) (providing that the jury charge shall
set forth law applicable to the case); Wesbrook, 29 S.W.3d at 122 (holding no
abuse of discretion for trial court not to submit renunciation instruction when
no evidence of renunciation admitted).

                                        8
