                                  NO. 12-13-00130-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

RONALD CRAIG SMITH,                              §       APPEAL FROM THE 241ST
APPELLANT

V.                                               §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §       SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Ronald Craig Smith appeals his conviction for driving while intoxicated. In one issue,
Appellant challenges the jury argument. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with driving while intoxicated, a third degree
felony. The indictment also included allegations that Appellant had been convicted of two
previous felonies. Appellant pleaded ―not guilty,‖ and the case proceeded to a jury trial. At the
conclusion of the trial, the jury found Appellant guilty of driving while intoxicated as charged in
the indictment, and assessed his punishment at life imprisonment. This appeal followed.


                                        JURY ARGUMENT
       In his sole issue, Appellant argues that the trial court abused its discretion by allowing the
State to engage in an improper jury argument, i.e., urging the jury to apply parole eligibility to
him in rendering their verdict. He contends that he was egregiously harmed by the State’s jury
argument, and that this court should reverse the judgment as to punishment and remand the case
for a new trial. We disagree.
        As a prerequisite to presenting a complaint for appellate review, the record must show
that the complaint was made to the trial court by a timely request, objection, or motion that stated
the grounds for the ruling with sufficient specificity to make the trial court aware of the
complaint. See TEX. R. APP. P. 33.1(a)(1)(A). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or if the trial court refused to rule,
the complaining party must have objected to the refusal. See TEX. R. APP. P. 33.1(a)(2). In other
words, a defendant must both object and pursue the objection to an adverse ruling to preserve
error regarding an allegedly improper jury argument. Archie v. State, 221 S.W.3d 695, 699
(Tex. Crim. App. 2007). A defendant’s failure to object to a jury argument or pursue to an
adverse ruling on his objection to a jury argument forfeits his right to complain about the
argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
        Appellant complains that the State made improper jury arguments concerning Appellant’s
eligibility for parole as follows:


        STATE:       So when you look at – you know, if you go low and go, let’s just give him the
                     minimum, then what you’re looking at there is he will parole out at 6.25 years.

        DEFENSE: I’m going to object to that. He’s eligible. That’s the date he’s eligible.

        STATE:       I’m sorry. That’s correct.

        COURT:       You going to rephrase that?

        STATE:       Yes, Your Honor. [The defense attorney] is right. He will be parole eligible in 6.25
                     years. So that’s what the reality of the minimum is.


        Appellant argues further that two pages later in the record, the State continued to discuss
Appellant’s eligibility for parole as follows:


        STATE:       So, in essence, you could have somebody that could serve more than [fifteen] years
                     before they’re eligible for parole. They may not get it right away, but with good-
                     conduct time, if you’re really good, they may become eligible for parole before
                     doing a quarter of the time depending on how they calculate it.

        DEFENSE: Your Honor, I’m going to object. That’s without any consideration.

        COURT:       Without any consideration, [State], you got that?

        STATE:       Yes, Your Honor. So it is – this is something that can be fluid, all right? This is
                     something that can change. But you need to know about it.




                                                        2
       Appellant objected to both these statements. In the first argument, the State recognized
its misstatement after Appellant objected. Then, after being urged by the trial court, the State
corrected its statement regarding Appellant’s eligibility for parole. In the second argument, the
trial court corrected the State after Appellant’s objection. Again, the State recognized its mistake
and corrected it.     As to both arguments, the trial court effectively sustained Appellant’s
objections. If the trial court sustains the objection, the defendant must request an instruction to
disregard and move for a mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App.
1993); Washington v. State, 127 S.W.3d 111, 115-16 (Tex. App.—Houston [1st Dist.] 2003, no
pet.). Here, Appellant did not request an instruction or make any further objection. Because the
trial court granted Appellant all the relief he requested and he did not pursue the objection to an
adverse ruling, he has failed to preserve his complaints for our review. See Cook, 858 S.W2d at
473; Washington, 127 S.W.3d at 115-16.
       Additionally, Appellant argues that the State continued to discuss his eligibility for parole
in the following comment:


       STATE:       So a life sentence, what that is going to do right there, that’ll ensure that he doesn’t
                    become eligible for parole for [fifteen] by statute, unless there’s a change, all right?
                    So what you know is this: Under the law that’s charged to you today, is that you can
                    ensure and keep him from getting back out on the streets for about [fifteen] years
                    with a life sentence. That’s what a life sentence means with regards to parole law.


       Appellant pointed out that after the defense’s closing argument, the State made the
following improper jury argument regarding parole:


       STATE:       And let me make this clear with y’all. [The defense attorney] is right. No one can
                    guarantee you he’s going to get parole, but he’s guaranteed to be eligible for it,
                    okay? Guaranteed to be eligible in a quarter-time or [fifteen] years, whichever comes
                    first.



       Appellant did not object to either argument. Because Appellant did not object to either of
these statements, he has waived his complaints about them on appeal. See TEX. R. APP. P.
33.1(a)(1)(A).
       We overrule Appellant’s sole issue.




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                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.



                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered January 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           JANUARY 31, 2014


                                          NO. 12-13-00130-CR


                                      RONALD CRAIG SMITH,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0045-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        Brian Hoyle, Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
