                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00112-CR


KELLY WINN                                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
               TRIAL COURT NO. CR-2010-06698-D

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                        MEMORANDUM OPINION 1

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      In a single issue, Kelly Winn contends that his conviction for driving while

intoxicated (DWI) should be reversed because of allegedly improper jury

argument by the State. We affirm.



      1
       See Tex. R. App. P. 47.4. This case was originally submitted on January
31, 2013. On June 10, 2014, the court, on its own motion, ordered the appeal to
be resubmitted on July 1, 2014; assigned this case to a new panel; and assigned
the undersigned to author the opinion.
                                    Background Facts

      Appellant ran a stop sign and caused a traffic accident. The Frisco Police

Department dispatched Sergeant Ryan Moore and Officer Jesse David Moon to

the scene of the accident. When they arrived, they noticed that appellant was

acting strangely, had “glassed over” eyes, slurred his speech, was groggy, and

had trouble following directions. Appellant admitted he had drunk four or five

beers.     The officers asked him to get out of the car and participate in three

standard field sobriety tests; appellant failed all three.      Officer Moon then

arrested appellant for DWI.

         At appellant’s trial, his counsel objected four times during the rebuttal

portion of the State’s closing argument:

         [State]: . . . [Defense counsel] has done a good job of pointing out
         exactly what his job is today. Our job, we have the burden of proof.
         We put evidence before you and we show you beyond a reasonable
         doubt that someone is guilty of an offense. [Defense counsel’s] job,
         because he does not have a burden of proof, because under the
         Constitution his client doesn’t have to do anything but show up in
         court today, his job is to poke little holes wherever he can.

         [Defense]: Objection; striking at my client over my shoulder, Judge.

         [Trial court]: I’d sustain that objection.

         [Defense]: Ask that the jury disregard that statement from the
         Prosecutor.

         [Trial court]: Disregard that statement.

         [Defense]: Move for a mistrial, Judge.

         [Trial court]: That’d be denied.



                                              2
....

[State]: I’m glad you’re going to disregard that last statement I made
because the statements of Counsel—page 4, if you wouldn’t mind.
Page 4 of your jury charge, bottom of the page, second paragraph
from the bottom. Nothing that I or [defense counsel] or any of the
other lawyers . . . anything we say is not evidence. When somebody
says, “Well, that would kill a horse; a horse wouldn’t be on its feet,”
that’s not evidence. You didn’t hear any evidence of that.

[Defense]: Objection, Your Honor. The jury can make a reasonable
deduction from the evidence they hear.

[Trial court]: I’ll overrule that, but I would tell the jury they can make a
reasonable deduction from the evidence.

[Defense]: Thank you, Your Honor.

[State]: Is that reasonable? No. You didn’t hear anything about
horses and how much alcohol it takes to choke a horse. You didn’t
hear any evidence saying that someone with this high a breath test
has to be comatose, something [defense counsel] said in opening
and he gave you no evidence of.

[Defense]: Actually, Judge, I would object to that. Ms. Fondren
actually testified a person could be in a coma state, not
necessarily—

[State]: Object to a speaking objection, Your Honor.

[Trial court]: I’ll sustain the objection to a speaking objection, but I’ll
tell the jury to remember the evidence they heard from witnesses
and on the videotape and not necessarily—what the attorneys say is
not necessarily evidence, so please follow those rules.

       You may continue.

....

[State]: Ladies and gentlemen, we have a man who drank too
much, we have a man who got on the road, who got on your roads,
a man who went out on one of the busiest roads in that—



                                     3
      [Defense]:       Objection; personalizing argument to the jury, Your
      Honor.

      [Trial court]: I’ll sustain that objection.

      [Defense]: Ask the jury to disregard that last statement of Counsel.

      [Trial court]:    I’ll tell the jury to disregard that last statement of
      Counsel.

      [Defense]: And, Your Honor . . . because personalizing the
      argument to the jury is an egregious error that I can’t unring, I’m
      going to ask for my second mistrial of this Prosecutor’s closing
      statement.

      [Trial court]: And I’ll deny that.

      After finding appellant guilty of DWI, the judge assessed his punishment at

360 days’ confinement, probated for twenty-four months, and a fine of $3,000.

                                       Analysis

      Appellant contends on appeal that the trial court abused its discretion by

denying his motions for mistrial, either because of each individual improper

argument or because of all of the improper arguments as a whole over a short

period of time. Although appellant complains of all four arguments on appeal, he

only asked for a mistrial twice: after the first argument about defense counsel’s

lack of a burden of proof and after the fourth argument that counsel characterized

as “personalizing the argument to the jury.” Because counsel never asked for a

mistrial based on the cumulative effect of all four arguments, we will not address

that argument on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Marchbanks v.

State, 341 S.W.3d 559, 564 (Tex App.––Fort Worth 2011, no pet.).



                                            4
      We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Whitney

v. State, 396 S.W.3d 696, 703 (Tex. App.––Fort Worth 2013, pet. ref’d) (mem.

op.). When the refusal to grant a mistrial follows an objection for improper jury

argument, we balance three factors to determine whether the trial court abused

its discretion: (1) the severity of the misconduct (prejudicial effect), (2) curative

measures, and (3) the certainty of conviction absent the misconduct. Hawkins,

135 S.W.3d at 77; Whitney, 396 S.W.3d at 703. Only when the prejudice caused

by the improper argument is incurable––“so prejudicial that expenditure of further

time and expense would be wasteful and futile”––will a mistrial be required.

Hawkins, 135 S.W.3d at 77; Whitney, 396 S.W.3d at 703–04. In most cases, an

instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d

103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001); Whitney,

396 S.W.3d at 704.

      Even if the State’s argument did improperly strike over counsel’s

shoulder, 2 it was not egregious in that it pointed out that the State had the burden

of proof while the defense did not. The trial court instructed the jury to disregard

the statement. See, e.g., Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim.

App.), cert. denied, 513 U.S. 1060 (1994); Whitney, 396 S.W.3d at 706.


      2
      See Whitney, 396 S.W.3d at 704–05 (collecting cases and noting that an
argument which strikes over counsel’s shoulder is one that refers to defense
counsel personally and “explicitly impugns defense counsel’s character”).


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Additionally, the certainty of appellant’s conviction absent the argument is high;

there was ample evidence of appellant’s guilt, including––in addition to the

officer’s observations and appellant’s performance on the field sobriety tests––

that breath samples taken afterward showed his blood alcohol content to be over

.3.   Accordingly, we conclude and hold that the trial court did not abuse its

discretion by denying appellant’s first motion for a mistrial.   Likewise, for the

same reasons, we conclude and hold that the trial court did not abuse its

discretion by denying the second motion for mistrial: any impropriety was not

severe, the trial court gave a curative instruction, and the evidence supporting

appellant’s guilt was more than sufficient.

       To the extent appellant complains about the trial court’s overruling his

objections to the other two arguments––about the jury’s ability to make

reasonable deductions from the evidence––we conclude and hold that the trial

court did not abuse its discretion.      These arguments were in response to

appellant’s trial counsel’s closing argument that the breath test results were

impossible because “a horse doesn’t have enough tolerance to have 18 shots of

80-proof liquor and be standing.” 3 Responses to arguments of opposing counsel

are proper. See, e.g., Brown v. State, 270 S.W.3d 564, 570–71 (Tex. Crim. App.




       3
       Defense counsel had explicitly stated during his opening that the officers
were surprised by the breath test results because “a person with a .32 breath test
should be in a coma.”


                                         6
2008), cert. denied, 556 U.S. 1211 (2009). We therefore overrule appellant’s

sole issue.

                                   Conclusion

      Having determined that the trial court’s rulings on the complained-of jury

arguments do not constitute reversible error, we affirm the trial court’s judgment.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

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

DELIVERED: August 7, 2014




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