                            NUMBER 13-09-00193-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JEFFRY HERZOG A/K/A JEFF HERZOG,                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
             Memorandum Opinion by Chief Justice Valdez

      A jury convicted appellant, Jeffry Herzog a/k/a Jeff Herzog, of the offense of

intoxication manslaughter, a second-degree felony. See TEX . PENAL CODE ANN . § 49.08

(Vernon Supp. 2009). The jury assessed punishment at eleven years’ imprisonment in the

Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000
fine. By three issues, Herzog contends that the prosecutor engaged in misconduct during

the punishment phase of trial. We affirm.1

                                             I. APPLICABLE LAW

        On appeal, Herzog’s complaints center on the prosecutor’s conduct during the

punishment phase of trial. We review allegations of prosecutorial misconduct on a

case-by-case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988). The

review is not limited to only the facts of each case, but also the probable effect on the

jurors’ minds. Hodge v. State, 488 S.W.2d 779, 781-82 (Tex. Crim. App. 1973). To

preserve error in cases of prosecutorial misconduct, the defendant must (1) make a timely

and specific objection, (2) request an instruction that the jury disregard the matter

improperly placed before it, and (3) move for a mistrial. Cockrell v. State, 933 S.W.2d 73,

89 (Tex. Crim. App. 1996). “The essential requirement is a timely, specific request that the

trial court refuses.” Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (citing TEX .

R. APP. P. 33.1(a)).

                                                 II. ANALYSIS

        By his first and second issues, Herzog contends that the trial court erred in not sua

sponte declaring a mistrial during the State’s closing argument at the punishment phase

of trial. Specifically, Herzog asserts that the State engaged in improper jury argument by

“ask[ing] the members of the jury to place themselves in the shoes of the victim” and

representing itself as the victim’s attorney. During its closing statement, the State argued:

                 And so when you sit and you ponder this case, I want you to put

        1
            Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.
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       yourself in [the victim’s mother’s] shoes at 5:00 o’clock in the morning trying
       to figure out where your baby is, hearing that somehow she’s been in an
       accident. You can’t figure it out. And because it’s appropriate at this time[,]
       I’m going to tell you something. There’s anger in this room, anger because
       the State has an obligation to represent her victims zealously, the same right
       a defendant has to have his case represented zealously. The State of Texas
       through her District Attorney’s office represents all of her victims zealously.

       In most circumstances, a party raising a complaint on appeal must have made a

timely and specific objection in the trial court and the court must have ruled on the

objection. See TEX . R. APP. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim.

App. 2004). “Except for complaints involving systemic (or absolute) requirements, or rights

that are waivable only, . . . all other complaints, whether constitutional, statutory, or

otherwise, are forfeited by failure to comply with [r]ule 33.1(a).” Mendez, 138 S.W.3d at

342. Herzog voiced no objection to the above statements and fails to cite any authority to

support his contention that the trial court had an absolute duty to declare a mistrial.

Accordingly, we reject Herzog’s argument that the trial court had a duty to take action by

declaring a mistrial sua sponte. See id. Because Herzog did not make a timely objection

to the prosecutor’s statements, error by the State, if any, was not preserved. See TEX . R.

APP. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (en banc)

(per curiam) (concluding that a prosecutorial misconduct complaint was not preserved for

review due to appellant’s failure to object at the earliest possible moment); see also Lozano

v. State, No. 13-08-00180-CR, 2010 WL 411753, at *1 (Tex. App.–Corpus Christi Feb. 4,

2010, no pet.) (mem. op., not designated for publication) (same). We overrule Herzog’s

first and second issues.

       By his third issue, Herzog contends that the prosecutor engaged in misconduct by

“ask[ing] the jury to speculate on the existence of facts outside the record.” During his
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closing argument at the punishment phase of trial, defense counsel stated:

      But the first thing I want to bring up is Jeff Herzog. There was some
      discussion concerning his criminal history, some discussion which was kind
      of alluded to. He had a DWI charge in San Patricio County eight or so years
      ago that was dismissed for insufficient evidence. Now, there’s a reason
      cases are dismissed for insufficient evidence, and that’s because the
      evidence is insufficient. So please keep that in mind. Do not be misled by
      that. He also had an evading charge that was tried by a jury, and I know
      because I was the lawyer. He was acquitted by a jury of that charge, found
      not guilty. So don’t be misled by any of that, please.

             Now, he’s filled out an application for probation. He’s never had a
      felony conviction. And I say that to you just simply because I want you to
      understand the whole story.

      During its closing argument, the State responded to Herzog’s argument that he had

never been convicted of a felony. Herzog asserts that the State’s response was improper

and points us to the following argument and colloquy:

      [The State]:        . . . The range of punishment is what it is in this state.
                          It’s anywhere from probation, two to 20 years, a
                          $10,000 fine. And I don’t know what motion that
                          Defense Counsel talked about, but there’s no evidence
                          before you that he’s never been convicted of a felony in
                          the state of Texas. There was his testimony that he
                          had never been arrested or put in jail, but that got blown
                          out of the water.

      [Defense Counsel]: Could we approach, Judge?

      The Court:          The jury heard the evidence. No. Sit down.

      [Defense Counsel]: Your Honor—

      The Court:          The jury—don’t.

      [Defense Counsel]: He has never been convicted of a felony—

      The Court:          I said sit down.


                                             4
      [Defense Counsel]: —ever.
      The Court:         Ask the jury out, please.

      The Bailiff:         All rise for the jury.

      The Court:           Get up here.

      [Defense Counsel]: Sorry, Judge.

      The Court:           Be quiet.

             (Jury exits courtroom.)

      The Court:           You know better that once I said that’s enough, sit
                           down, you don’t talk anymore. You know what to do
                           after that. You do that one more time, I will put you in
                           jail. Do I make myself clear?

      [Defense Counsel]: I understand that, Judge.

      On appeal, Herzog contends that “[t]he clear implication of this argument was that

[the State] wanted the jury to speculate and consider that defendant had been convicted

of a felony in the past.” However, as previously stated, in order to raise a complaint on

appeal, a party must make a timely and specific objection in the trial court and the court

must rule on the objection. See TEX . R. APP. P. 33.1(a); Mendez, 138 S.W.3d at 341.

When the State engaged in the alleged misconduct, defense counsel asked to approach

the bench; however, he failed to state an objection upon which the trial court could rule.

Accordingly, we cannot conclude that the above interjection by defense counsel is

sufficient to preserve error. See TEX . R. APP. P. 33.1(a); see also Fowler v. State, 863

S.W.2d 187, 189 (Tex. App.–Houston [14th Dist.] 1993, writ ref’d) (holding that defense

counsel’s request to “approach the bench” did not constitute an objection sufficient to



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preserve complaint on appeal). We overrule Herzog’s third issue.

                                     III. CONCLUSION

        Having overruled all of Herzog’s issues on appeal, we affirm the judgment of the

trial court.

                                                ________________________
                                                ROGELIO VALDEZ
                                                Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
5th day of August, 2010.




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