                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-374-CR


LEROY CRUZ                                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Leroy Cruz pled guilty to two counts of online solicitation of a

minor, and the jury convicted him and assessed his punishment at two years’

confinement in a state jail facility on the first count and ten years’ confinement

in prison on the second count. The trial court sentenced him accordingly. In

two points, Appellant complains that the trial court erred by denying his




      1
           See Tex. R. App. P. 47.4.
requested jury instruction concerning parole eligibility for state jail felonies and

that the trial court abused its discretion by overruling his objection that the

State was arguing outside the record. Because we hold that the trial court did

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

         In his first point, Appellant complains that the trial court refused to

instruct the jury that there is no parole on a state jail felony. As the State

points out, in Best v. State, this court held that “[b]ecause the legislature has

not specified that juries be informed that parole . . . does not apply to state jail

felonies, . . . such an instruction is not required.” 2 We therefore hold that the

trial court did not err in refusing Appellant’s requested language or in sustaining

the State’s objection to the requested language. 3 We overrule Appellant’s first

point.

         In his second point, Appellant contends that the trial court violated his

federal and state constitutional rights to a fair trial by allowing the State to

argue evidence outside the record. To be permissible, the State’s jury argument

must fall within one of the following four general areas: (1) summation of the




         2
              118 S.W.3d 857, 866 (Tex. App.—Fort Worth 2003, no pet.).
         3
              See id.

                                         2
evidence; (2) reasonable deduction from the evidence; (3) answer to argument

of opposing counsel; or (4) plea for law enforcement. 4

      Absent an objection to jury argument at trial, nothing is presented for

review. 5 The objection must be timely and specific, and the defendant must

pursue the objection to an adverse ruling. 6 An objection is timely if it is made

as soon as the ground of objection becomes apparent. 7

      On the State’s cross-examination of Appellant at punishment, the

following dialogue occurred:

      Q     Define mistake. You’ve said that over and over and over
            again today that this was a mistake, it was your mistake; you
            made a mistake. What does mistake mean to you?

      A     My mistake was getting on the stupid Internet—

      Q     No, that’s not my question, sir. The word mistake, what
            does that word mean to you? I’m not talking about what you


      4
       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).
      5
       Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004);
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied,
520 U.S. 1173 (1997).
      6
       Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002);
Cockrell, 933 S.W.2d at 89; Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim.
App. 1981); see also Tex. R. App. P. 33.1(a)(1).
      7
       Thompson v. State, 691 S.W.2d 627, 634 (Tex. Crim. App.), cert.
denied, 474 U.S. 865 (1985).

                                       3
    did; I’m talking about what the word mistake means to you.
    What does it mean to you?

A   I did something wrong. I made a bad decision.

Q   Well, there’s a difference, isn’t there, Mr. Cruz, between a
    mistake, an accident, and doing something on purpose?
    Those are two different things, aren’t they?

A   An accident and doing something on purpose? Yes, it’s two
    different things.

Q   This was on purpose, wasn’t it?

A   That I did it on purpose?

Q   Yeah.

A   I’m not sure how to answer that because—I’m not sure if I
    did it on purpose or not, sir. I was driven.

Q   Okay. Let’s talk about that. You said a minute ago that this
    entire thing and that entire episode of you seeking out that
    child on 16 August of last year, your words, I think, were,
    that it was a culmination of a lot of things that were going on
    in your life, and you handled it badly. That’s what you said
    just a moment ago to your lawyer?

A   That’s correct.

Q   And when you said it’s a culmination of a lot of things, you
    describe those things, you’re talking about external things.
    What you’re saying to this jury is, What I did was a
    culmination of external stuff: Stress with my wife, stress
    with my church, and, you know, we lost our building, stress
    with my job, I’ve got these medical problems. Those were
    all the things you talked about, and you said a minute ago
    that’s what led you here, isn’t that right, that you handled
    those things badly?

                                4
A      That’s what led me to make bad decisions.

Q      Okay. Well, you’re 50 years old; is that right?

A      That’s correct.

Q      You were 49 at the time?

A      Yes, sir.

Q      We can agree, can we not, that it is not normal, under any
       circumstances, for a 50-year-old man to want sex with a
       15-year-old child, that’s not normal, under any circumstance?

A      I completely—I completely agree.

Q      We can agree, can we not, that there ain’t no set of external
       stresses or concerns or problems or marital difficulties that
       are going to plant in your heart a desire for sex with a child?
       That’s not going to happen, is it, Mr. Cruz?

A      I wasn’t planning on having sex with a child, sir.

....

Q      Okay. You’re telling this jury, you’re looking these 12 people
       in the eye right here and telling them you were going up to
       talk to a 15-year-old girl?

A      Yes.

Q      What were you going to talk to her about?

A      As bad of decisions I was making that day, I was probably
       going to talk sex.

Q      Like you had been on the Internet?

A      Yes, sir.

                                  5
Q      But you were just going to talk, you weren’t going to do
       anything? Is that really what you’re telling these people?

A      That’s what I’m telling them people . . . .

....

Q      It was going to be a short conversation, wasn’t it?

A      Yes, because I had to be at work.

....

Q      And so back to my question, sir: The desire to seek out a
       child for some form of sexual gratification, your marital
       situation didn’t put that in it, did it?

A      Well, no.

Q      You didn’t feel that because of your situation with your wife,
       did you?

A      No.

....

Q.     You did not feel that because of your troubles at church, did
       you?

A      Feel what?

Q      The desire to seek out a child to talk sex or to have sex, sir,
       the desire to discuss blow jobs and show yourself naked to
       a 15-year-old child, the desire to meet a 15-year-old child for
       a blow job for $50, the desire to do that wasn’t there
       because you were stressed out because of church, was it?
       That’s not true, is it?




                                  6
     [Defense Counsel]:       Your Honor, I’m going to object. That’s an
                              unintelligible question.    I don’t even
                              understand it.

     THE COURT:          Would you like to rephrase the question?

     Q [By Prosecutor]        Sir, the desire that drove you to Denton
                              that day was not due to anything external
                              in your life, was it?

     A     I made a poor decision because of a lot that was going on in
           my life, and my mind was clouded. I don’t think—I know—I
           would—I clearly wasn’t clear-minded to do something like
           that. I’ve never done anything like that. I made a bad
           decision.

     Q     You desired to seek that child out—Your desire to seek that
           child out was not caused by these external events and
           situations that you’ve talked about, was it?

     [Defense Counsel]:       Objection, it’s been asked.   It has been
                              answered.

     [Prosecutor]:       It has absolutely not been answered.

     THE COURT:          I would agree. Overruled.

     Q [By Prosecutor]        Those things did not cause you to have
                              that desire and come up here, did they,
                              sir?

     A     I don’t know how to answer you. I don’t know how to
           answer you. I’m being as honest as I can possibly be.

During the State’s closing argument, the following transpired:

     [Prosecutor:]       And then he comes in here, and he says, I’m
                         guilty. Well, he didn’t have a choice; he was



                                      7
                        caught. Have mercy on me; I did it, but let me
                        tell you why. All these external things.

                        And the one question that the guy refused to
                        answer when he was up on that witness stand,
                        Isn’t it true, sir, that your job, that your
                        marriage, that your church, all that stuff, those
                        external things that you talked about, those
                        things did not make you want to have sex with
                        a child, did they?

      [Defense Counsel]:       Objection, Your Honor, misstatement of
                               the evidence. He answered that question.

      Appellant did not get a ruling on his objection, so any complaint regarding

this portion of the prosecutor’s argument is forfeited. 8 The State’s argument

continued:

      [Prosecutor]:     You’re darn right he answered it. Remember
                        what he said? I don’t know how to answer that
                        question. I don’t know how to answer that
                        question. Those were the words that came out
                        of his mouth.

      [Defense Counsel]:       Objection, Your Honor, that was not his
                               answer, and he’s arguing outside the
                               evidence, and we object.

      THE COURT:        The objection is overruled.

      [Defense Counsel]:       Those were the words that came out of
                               his mouth. I’d ask it four, five times; he
                               wouldn’t answer it. Finally, when I finally



      8
       See Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,
341 (Tex. Crim. App. 2004).

                                       8
                            pinned him down, I don’t know how to
                            answer that question.

Based on the State’s cross-examination excerpted above, we hold that the

argument complained of was a proper summation of the evidence. We overrule

Appellant’s second point.

     Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MEIER, JJ.

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

DELIVERED: March 18, 2010




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