                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-10-00146-CR


DUKE ALDON HAIR                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Duke Aldon Hair appeals his conviction for continuous sexual

abuse of a young child. See Tex. Penal Code Ann. § 21.02 (West 2011). The

evidence at trial showed that Appellant repeatedly molested his stepdaughter

from the time she was five years old until she turned twelve and outcried after the

abuse had escalated to sexual intercourse. Appellant complains that the trial


      1
       See Tex. R. App. P. 47.4.
court erred by refusing to grant a mistrial after the prosecutor referred to

Appellant during closing argument at the guilt-innocence phase as a ―sick, sorry

son of a gun‖ with ―nothing redeemable‖ about him. We affirm.

      The record shows that the trial court sustained Appellant’s objection to the

prosecutor’s remarks, promptly instructed the jury to disregard them, and then

overruled Appellant’s motion for mistrial. The record also shows that as soon as

the prosecutor resumed his closing argument, he apologized for his remarks and

then quickly concluded his summation without drawing further objection.

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion and ―must uphold the trial court’s ruling if it was within the zone of

reasonable disagreement.‖ Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.

App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Orr v.

State, 306 S.W.3d 380, 403 (Tex. App.—Fort Worth 2010, no pet.). Only in

extreme circumstances, where the prejudice is incurable, will a mistrial be

required. Archie, 221 S.W.3d at 699; Hawkins v. State, 135 S.W.3d 72, 77 (Tex.

Crim. App. 2004). A mistrial is appropriate only for a narrow class of highly

prejudicial and incurable errors and may be used to end trial proceedings when

the error is ―so prejudicial that expenditure of further time and expense would be

wasteful and futile.‖ Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d

547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000)).

      Although the trial court sustained Appellant’s objection, we hold that it was

within its discretion to deny Appellant’s motion for mistrial because the

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prosecutor’s remarks, while unquestionably disparaging, were nevertheless

supported by the record.2

      Proper jury argument by the State falls within one or more of the following

general areas: (1) summation of evidence; (2) reasonable deduction from the

evidence; (3) answer to argument of opposing counsel; and (4) plea for law

enforcement. 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).

      Citing Duran v. State, 172 Tex. Crim. 289, 356 S.W.2d 937 (1962),

Appellant asserts that ―[a] prosecutor should not refer to a defendant by any

name other than his given name or a nickname (supported by the record) and it

is not proper to refer to the defendant by a derogatory term designed to subject

the defendant to personal abuse.‖ Id. at 290, 356 S.W.2d at 937. At Duran’s trial

for misdemeanor possession of a firearm, it was undisputed that Duran had a

pistol and that he shot the decedent while being attacked by the decedent and

six or seven companions. Id. at 290, 356 S.W.2d at 937. The grand jury no-

billed Duran on a charge of murder but it indicted him for carrying the pistol. Id.


      2
       Although we do not, as a matter of law, hold that the remarks were
improper, we do not intend by this opinion to condone or encourage remarks
such as the prosecutor made here, even if supported by the record. We trust
that the representatives of the State require of themselves a higher level of
discourse in their arguments. The prosecutor’s prompt apology for the tenor and
content of his remarks suggest to us that he also may ordinarily hold himself to a
higher standard for we found no similar commentary in the record.


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During closing argument, the prosecutor told the jurors that it was their duty to

convict ―this punk.‖ Id. The court of criminal appeals held that the remark was

manifestly improper because the evidence showed that Duran had never been

convicted for a felony or a misdemeanor involving moral turpitude, and there was

no evidence suggesting any misconduct or law violation other than testimony

about his having carried a pistol and shot the decedent while being attacked. Id.

at 291, 356 S.W.2d at 938.

         Appellant also relies on three other cases.          Two of them were

distinguished by the third when it rejected an argument that referring to the

defendant as a ―parasite‖ required reversal. In that case, Williams, the court

wrote:

                Appellant cites Renn v. State, 495 S.W.2d 922 (Tex. Crim.
         App. 1973), and Stein v. State, 492 S.W.2d 548 (Tex. Crim. App.
         1973), as requiring reversal. We do not agree. These two cases
         involved repeated inflammatory remarks by the prosecution about
         each defendant. Renn (―hippie,‖ ―anti-Christ,‖ ―Swastika,‖ and
         ―Communist‖); Stein, (―hippie‖). In the instant case, the prosecutor
         only used the word ―parasite‖ once, and made no other derogatory
         characterizations of appellant. See Hoover v. State, 107 Tex. Cr. R.
         600, 298 S.W. 438, 441 (1927) (figurative language used by
         prosecutor in jury argument referring to the defendant as a ―worm‖
         and a ―serpent‖ was held harmless). Any harmful effect of this
         improper reference was cured by the trial court’s immediate
         instruction to the jury to disregard the comment. Smith v. State, 653
         S.W.2d 835, 841 (Tex. App.—Corpus Christi 1982, aff’d; pending on
         motion for rehearing). The fifth ground of error is overruled.

Williams v. State, 712 S.W.2d 835, 837–38 (Tex. App.––Corpus Christi 1986,

pet. granted), rev’d on other grounds, 736 S.W.2d 906 (Tex. Crim. App. 1987).




                                          4
      The State notes that more recent cases consistently have ―upheld the use

of derogatory characterizations of a defendant when they are supported by the

record.‖ (emphasis in State’s brief). We agree with the State and also believe

that these cases are consistent with reading Duran to hold that derogatory

characterizations of a defendant are improper when they are not supported by

the record. See Barnard v. State, 730 S.W.2d 703, 718 (Tex. Crim. App. 1987)

(prosecutor’s characterization of defendant as a ―mean person‖ reasonable

deduction from the evidence); McKay v. State, 707 S.W.2d 23, 36 (Tex. Crim.

App. 1985) (no error when prosecutor described defendant as ―moral vacuum‖);

Burns v. State, 556 S.W.2d 270, 285 (Tex. Crim. App. 1977) (evidence supported

reference to defendant as an ―animal‖); Belton v. State, 900 S.W.2d 886, 898

(Tex. App.—El Paso 1995, pet. ref’d) (reference to defendant as ―animal‖ was

reasonable deduction from the evidence); Williams v. State, No. 02-03-00313-

CR, 2005 WL 555250, at *4–5 (Tex. App.—Fort Worth Mar. 10, 2005, pet. ref’d)

(mem op., not designated for publication) (arguing defendant was ―plain bad‖ was

properly based upon evidence of brutal assault). See also Rivas v. State, No.

04-06-00375-CR, 2007 WL 1608550, at *6 (Tex. App.—San Antonio June 6,

2007) (mem op., not designated for publication) (referring to defendant as

―monster‖ where evidence showed that he repeatedly sexually assaulted his

seven-year-old stepdaughter), rev’d on other grounds, 275 S.W.3d 880 (Tex.

Crim. App. 2009); Resendez v. State, No. 14-99-01374-CR, 2001 WL 777861, at

*2 (Tex. App.—Houston [14th Dist.] July 12, 2001, pet. ref’d) (mem op., not

                                       5
designated for publication) (―monster‖ supported by repeated sexual assaults of

five or six year old relative); Ahmed v. State, No. 05-97-00874-CR, 1999 WL

669781, at *9 (Tex. App.—Dallas Aug. 30, 1999, pet. ref’d) (mem op., not

designated for publication) (characterizing defendant as ―sociopath‖ supported by

facts of crime, frequent school suspensions, and bad reputation).

      Here, Appellant complains of being referred to as ―a sick, sorry, son of a

gun‖ and ―nothing redeemable‖ about him. One definition of ―sick‖ is ―spiritually

or morally unsound or corrupt.‖ Webster’s Ninth New Collegiate Dictionary 1093

(1987). ―Sorry‖ inspires sorrow, pity, scorn, or ridicule, and is synonymous with

“contemptible.‖ Id. at 1126. ―Redeemable‖ includes capable of being released

from blame or debt. See id. at 986. The evidence showed that Appellant was a

child rapist and pedophile. He began molesting his stepdaughter when she was

around five years old, continued until she was around eight, started again when

she was approximately ten and continued molesting her ―[t]oo many times to

count,‖ until she turned twelve when he began having sexual intercourse with

her, telling her that she owed him and hitting her if she refused. The record

supports the prosecutor’s characterization of Appellant. There is no error here.

See Barnard, 730 S.W.2d at 718; McKay, 707 S.W.2d at 36; Burns, 556 S.W.2d

at 285.

      And even if there was error, the record shows that the trial court promptly

gave an instruction that cured it.




                                        6
            THE COURT:      ―Sick, sorry, son of a gun.‖  ―Nothing
      redeemable…‖ based on the record before the Court, you will
      disregard those statements. They’re not evidence. You won’t
      consider them.

            Does everyone understand that?

            SEVERAL JURY MEMBERS: Yes.

            MR. HENDERSON: We’d move for a mistrial, Your Honor.

            THE COURT: Can everyone follow that instruction, to decide
      the case on the facts and not on the attorneys’ arguments?

            SEVERAL JURY MEMBERS: Yes.

            THE COURT: All right. Then that motion for mistrial will be
      denied.

            MR. NICKOLS: I apologize.

             What we have to prove is two acts of sexual abuse outside the
      30 days, and we have April of 2008, we know it started then, and we
      know it went on a lot, all the time, until February of 2009. Those
      elements have been proven. You know that little girl is telling the
      truth by her demeanor. Go back there and find him guilty for what
      he’s done and make him pay.

      We presume that juries follow trial court’s instructions to disregard. See

Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). There is nothing

in the record to rebut the presumption that the jury followed the trial court’s

prompt instruction to disregard the remarks. The trial court’s careful and prompt

instruction to the jury to disregard the prosecutor’s remarks was sufficient to cure

any harm the remarks might have caused. See Galloway v. State, 716 S.W.2d

556, 557 (Tex. App.—Waco 1986, pet. ref’d). Accordingly, we hold that the trial




                                         7
court in this case did not abuse its discretion by denying Appellant’s motion for

mistrial, and we overrule Appellant’s sole point.

      Having overruled Appellant’s sole point on appeal, we affirm the trial

court’s judgment.



                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

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

DELIVERED: July 7, 2011




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