                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-09-00322-CR

JOHN ALLAN LEWIS,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2009-552-C2


                          MEMORANDUM OPINION


      A jury found John Allan Lewis guilty of felony driving while intoxicated, see TEX.

PENAL CODE ANN. §§ 49.04(a), 49.09(b) (Vernon 2011), and assessed his punishment,

enhanced by a previous felony conviction, at sixteen years’ imprisonment and a $10,000

fine. This appeal ensued. We will affirm.

      In his first issue, Lewis contends that the trial court erred in giving the parole law

instruction required by article 37.07, section 4(a) of the Code of Criminal Procedure in

the punishment charge.     Lewis complains that the instruction language concerning
“good conduct time” is misleading because it improperly implies that a person may be

released from prison early without any parole solely due to accruing good conduct

time.

        Because Lewis did not object to the charge on this basis, error will not result in

reversal of his conviction in the absence of “egregioius harm.” Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). In examining the record for

egregious harm, we consider the entire jury charge, the state of the evidence, the final

arguments of the parties, and any other relevant information revealed by the record of

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006).

        There is a presumption that the jury followed the charge’s instructions. See

Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002); Hooper v. State, 255 S.W.3d

262, 271 (Tex. App.—Waco 2008, pet. ref’d). Thus, we presume that the jury followed

the trial court’s instructions and did not consider parole: “However, you are not to

consider the extent to which good conduct time may be awarded to or forfeited by this

particular Defendant. You are not to consider the manner in which the parole law may

be applied to this particular Defendant.”      See Hooper, 255 S.W.3d at 271.        Absent

evidence or indications to the contrary, this presumption prevails. Id. at 271-72.



Lewis v. State                                                                        Page 2
        Lewis has not demonstrated a reasonable likelihood that the jury was, in fact,

misled or that it assessed a higher sentence based upon any misconstruction of the

parole law charge. Nothing in the record suggests that the jury discussed, considered

or tried to apply (despite the judicial admonition not to apply) what they were told

about good conduct time and parole. Neither the prosecutor nor defense attorney

discussed good conduct time or parole in argument or urged the jury to assess a greater

(or lesser) sentence based upon good conduct time or parole. The jury did not send out

any notes indicating or expressing confusion about the possible application of good

conduct time or parole to Lewis. The jury did not assess the maximum sentence for the

offense. See Luquis, 72 S.W.3d at 366-68; Hooper, 255 S.W.3d at 272.

        Thus, assuming without deciding that the trial court erred, we conclude that any

alleged error did not result in egregious harm. We overrule Lewis’s first issue.

        In his second issue, Lewis contends that the trial court erred by instructing the

jurors in the punishment charge that they should not let “sympathy” affect their

deliberations or verdict. We have previously decided this issue against Lewis’s position

and see no occasion to revisit our ruling. See Wilson v. State, 267 S.W.3d 215, 219-20

(Tex. App.—Waco 2008, pet. ref’d) (citing Saffle v. Parks, 494 U.S. 484, 489, 110 S.Ct. 1257,

1260-61, 108 L.Ed.2d 415 (1990) (holding that jurors need not “be allowed to base the

sentencing decision upon the sympathy they feel for the defendant after hearing his

mitigating evidence”)). We overrule Lewis’s second issue.




Lewis v. State                                                                         Page 3
        In his third issue, Lewis contends that the trial court erred by refusing to grant a

mistrial after the prosecutor improperly commented on Lewis’s failure to testify during

the State’s closing argument in the punishment phase of trial. The argument at issue is:

               [PROSECUTOR]: He’s lucky that this isn’t his second DWI felony.
        The third offense can be a felony. This is his fourth offense. He’s lucky
        the last time his last third offense was not a felony. He was able -- he got a
        break there. He got a break in that he got three misdemeanors. Now --
        now it’s time. Now he’s got to answer for this, ladies and gentlemen.
        He’s shown absolutely no acceptance of responsibility here. He’s
        absolutely shown no remorse.

             [DEFENSE COUNSEL]: Your Honor, we’d object to that.                  It’s
        commenting on his not testifying in this trial, Judge.

                 THE COURT: Sustained.

             [DEFENSE COUNSEL]: We’d ask that the jury disregard that last
        comment.

              THE COURT: I’ll instruct the jury to disregard the last comment of
        counsel and not to consider it for any purpose in reaching a verdict in this
        matter.

                 [DEFENSE COUNSEL]: And we’d move for a mistrial, Judge.

                 THE COURT: That’s denied.

                 [DEFENSE COUNSEL]: Thank you, Your Honor.

        Jury argument is limited to: (1) summations of the evidence; (2) reasonable

deductions from the evidence; (3) answers to argument of opposing counsel; and (4) a

plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). “A

comment on an accused’s failure to testify violates the accused’s state and federal

constitutional privileges against self-incrimination.” Smith v. State, 65 S.W.3d 332, 339




Lewis v. State                                                                           Page 4
(Tex. App.—Waco 2001, no pet.); see also TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon

2005).

         The State argues that the prosecutor’s statements cannot be fairly read to be a

comment on Lewis’s failure to testify; however, we will assume without deciding that

the prosecutor improperly commented on Lewis’s failure to testify and will proceed to a

mistrial analysis.

         The denial of a motion for mistrial, which is appropriate for “highly
         prejudicial and incurable errors,” is reviewed under an abuse of discretion
         standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)
         (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)); Ladd v.
         State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

            [T]he question of whether a mistrial should have been granted
            involves most, if not all, of the same considerations that attend a
            harm analysis. A mistrial is the trial court’s remedy for improper
            conduct that is “so prejudicial that expenditure of further time and
            expense would be wasteful and futile.” In effect, the trial court
            conducts an appellate function: determining whether improper
            conduct is so harmful that the case must be redone. Of course, the
            harm analysis is conducted in light of the trial court’s curative
            instruction. Only in extreme circumstances, where the prejudice is
            incurable, will a mistrial be required.

         Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, the
         appropriate test for evaluating whether the trial court abused its
         discretion in overruling a motion for mistrial is a tailored version of the
         test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex. Crim.
         App. 1998), a harm analysis case. See Hawkins, 135 S.W.3d at 77. The
         Mosley factors that we consider in determining whether the trial court
         abused its discretion in denying a mistrial during the punishment phase
         are: (1) the prejudicial effect, (2) curative measures, and (3) the likelihood
         of the same punishment being assessed. Hawkins, 135 S.W.3d at 77; see
         Mosley, 983 S.W.2d at 259.

Abbott v. State, 196 S.W.3d 334, 347 (Tex. App.—Waco 2006, pet. ref’d).



Lewis v. State                                                                            Page 5
         Considering the Mosley factors, we cannot say that the trial court abused its

discretion in denying the motion for mistrial. Any prejudicial effect of the prosecutor’s

remark was not incurable because the comment was indirect and not flagrantly

improper. The trial court’s instruction to disregard was the proper curative measure in

this instance, see Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000), and the

law generally presumes that instructions to disregard and other cautionary instructions

will be duly obeyed by the jury. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App.

2011).    Finally, Lewis was facing a sentence of twenty years’ imprisonment and a

$10,000 fine for this felony DWI. Punishment evidence included Lewis’s numerous

prior convictions: a felony conviction for possession of a controlled substance

(methamphetamine) and three misdemeanor convictions for DWI. The likelihood of the

same punishment being assessed without the State’s comment is very high.                See

Hawkins, 135 S.W.3d at 85. We overrule Lewis’s third issue.

         Having overruled all Lewis’s issues, we affirm the trial court’s judgment.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2011
Do not publish
[CR25]




Lewis v. State                                                                        Page 6
