                                 NO. 07-02-0099-CR
                                 NO. 07-02-0100-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                NOVEMBER 12, 2002

                        ______________________________


                           PEDRO MORENO, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

           FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

           NOS. 10, 105 AND 10,106; HONORABLE TOM NEELY, JUDGE

                        _______________________________

Before REAVIS and JOHNSON, JJ., and BOYD, SJ.1


      In this appeal of companion cases, appellant Pedro Moreno challenges his

conviction in each case of delivery of a controlled substance (cocaine) in an amount of

more than four grams but less than 200 grams. In our cause number 07-02-0099-CR, the



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      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2002).
jury assessed a sentence of five years confinement in the Institutional Division of the

Department of Criminal Justice, and in our cause number 07-02-0100-CR, it assessed a

sentence of 20 years in the same penal institution. For reasons we later recount, we affirm

the judgment of the trial court in each cause.


       In presenting his issues, appellant asks us to determine whether the trial court: 1)

erred in admitting “evidence envelopes” over his timely objection, and 2) in permitting

“multiple State’s comment on appellant’s failure to testify.” However, in presenting his first

issue, appellant failed to present any argument or supporting authority. That being so, any

error is waived. Garcia v. State, 887 S.W.2d 862, 871 (Tex.Crim.App. 1994), cert. denied,

514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). See also Tex. R. App. P. 38.1(h).

Appellant’s first issue is overruled.


       Appellant’s second issue complaints about the State’s alleged comments on his

failure to testify arise from two statements made by the State in both the guilt-innocence

and punishment stages of the trial. Because appellant first argues the punishment phase

statements, we will, likewise, consider them first. In that argument, the prosecutor argued

that in assessing punishment, the jury could consider appellant’s lack of remorse. The

record reveals that the trial court promptly sustained appellant’s objection to the argument

and instructed the jury to disregard it, but denied his mistrial motion.


       In arguing that reversal is required, appellant cites and relies upon Dickinson v.

State, 685 S.W.2d 320 (Tex.Crim.App. 1984). In that case, the court held that a “lack of



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remorse” argument required reversal because it amounted to a comment on the

defendant’s failure to testify. In doing so, it commented that “[s]uch error is rarely curable

by an instruction to the jury to disregard.” Id. at 323. However, there, the trial court had

overruled the objection. Thus, the court’s comment there was gratuitous, was dicta in the

case, and is not determinative here.


       Moreover, both before and after Dickinson, the Court of Criminal Appeals has

considered challenges to “lack of remorse” arguments in which an objection was sustained

and the jury instructed to disregard. In each such instance, the court found the instruction

sufficient to cure any error, and reversal was not required. See Bower v. State, 769

S.W.2d 887, 907 (Tex.Crim.App. 1989); Hawkins v. State, 660 S.W.2d 65, 79 (Tex.Crim.

App. 1983). Indeed, in Bower, the court specifically noted the Dickinson case, but

distinguished it because of the instruction to disregard given by the trial court in the case

it was considering. Id.


       In Barnum v. State, 7 S.W.3d 782 (Tex.App.--Amarillo 1999, pet. ref’d), we

discussed the distinguishing factors in determining whether a comment on a defendant’s

failure to testify required reversal. The argument we were considering in that case also

contained a reference to the defendant’s lack of remorse. In deciding that reversal was not

required, we noted the discussions by the Court of Criminal Appeals in which it

distinguished between a direct reference to a defendant’s failure to testify, which usually

cannot be cured by an instruction to the jury, and an indirect reference, which can be cured

by an instruction to disregard. The argument before us here falls within the category that


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can be cured by a prompt instruction to disregard. Thus, the trial court’s prompt instruction

to disregard was sufficient to cure any error.


       In his second argument under this issue, appellant contends that the several

statements here by the prosecutor that the evidence of guilt was undisputed amounted to

reversible comments on appellant’s failure to testify. However, a prosecutor’s argument

that incriminating evidence is uncontroverted only becomes an impermissible comment on

the defendant’s failure to testify if the defendant is the only person who can contradict the

State’s evidence. Goff v. State, 931 S.W.2d 537, 548 (Tex.Crim.App. 1996); Silva v. State,

989 S.W.2d 64, 66 (Tex.App.--San Antonio 1998, pet. ref’d).


       The specific evidence here that the prosecutor argued was uncontroverted was: 1)

testimony by the investigating officer, Randy Alsup, that appellant had sold him cocaine on

two occasions, 2) the chain of custody and laboratory results that the substance transferred

to Alsup was cocaine, and 3) Alsup’s testimony about his conduct in a bar while waiting for

appellant to arrive. At each of the sales and transfers of the drug, a confidential informant

was present. During the first sale, the informant was in the same room in which the

transaction took place. At the time of the second sale, the informant was seated in

appellant’s truck between appellant and Alsup. Indeed, the testimony was that appellant

actually passed the cocaine to Alsup over the informant’s lap. Thus, at all critical times,

there was another person who could have contradicted Alsup’s testimony.


       With regard to the chain of custody testimony, appellant could not have contradicted

it because he had no personal knowledge of those events. Thus, under this record, the

                                             4
argument that the evidence was undisputed was not a reversible comment on appellant’s

failure to testify.


        Likewise, the third statement by the prosecutor challenged by appellant arose from

his attempts to show through cross-examination that while awaiting appellant’s arrival at

the bar, Alsup drank alcoholic beverages. The relevant evidence was that appellant was

in the bar only long enough to get Alsup and the informant to go to appellant’s truck where

the sale took place. Thus, because appellant could have no knowledge as to what Alsup

did before his arrival at the bar, he could not have contradicted that testimony. The

informant was also present with Alsup at the bar prior to appellant’s arrival and could have

contradicted Alsup’s testimony if appropriate.


        In supporting his argument that reversal is required, appellant also cites and relies

upon Carrillo v. State, 821 S.W.2d 697, 699 (Tex.App.--Dallas 1991), pet. ref’d, 826

S.W.2d 955 (Tex.Crim.App. 1992). However, that case is also distinguishable. The

testimony to which the prosecutor in that case referred to as undisputed concerned an

event at which only the defendant and the testifying officer were present. Id. at 699.

Again, as we have noted, that is different from the evidence before us.


        Under the governing standards, the statements challenged by appellant were not

impermissible comments on his failure to testify. Appellant’s second issue is overruled.




                                              5
       In sum, because neither of appellant’s issues reveal reversible error, the judgment

of the trial court is affirmed.


                                                John T. Boyd
                                                Senior Justice

Do not publish.




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