Opinion issued November 13, 2018




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00114-CR
                            ———————————
                     EDWARD DEAN GOMEZ, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 10th Judicial District
                          Galveston County, Texas
                       Trial Court Case No. 17CR0158




                        MEMORANDUM OPINION

      A jury found appellant, Edward Dean Gomez, guilty of evading arrest or

detention with a motor vehicle and assessed his punishment at seven years’

confinement in the Texas Department of Criminal Justice. In his sole point of error,
appellant contends that the trial court erred in allowing the prosecutor to make

improper arguments before the jury during closing arguments. We affirm.

                                   Background

      On the night of January 15, 2016, Sheriff’s Deputy Kelcie Miller attempted to

stop appellant for speeding southbound on FM 2004 in Galveston County, Texas.

At the time, appellant was driving a tow truck with an automobile in tow. When

appellant did not stop, Deputy Miller activated the emergency lights, and later, the

siren, on her patrol car and pursued appellant for more than sixteen minutes. As the

pursuit continued, Deputy Miller informed dispatch that she did not know her exact

location but that they were crossing into Brazoria County. Police in Brazoria County

set up a roadblock with multiple cars and laid down spike strips on the road.

Appellant crossed the spike strips but continued driving for another mile before

finally coming to a stop.

      Once he was stopped, appellant got out of his truck and threw himself to the

ground. Officers approached appellant with their guns drawn, and appellant began

pointing and yelling at the officers. Appellant got up and tried to run away but the

officers tackled him and took him into custody. Officers subsequently discovered

that appellant had a female passenger in his tow truck, whom Deputy Miller


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described as very scared. The State offered into evidence, and the trial court

admitted without objection, Deputy Miller’s in-car video of the pursuit and officers’

subsequent apprehension of appellant.

      Appellant testified that he owns a wrecker service in Hitchcock, Texas, and is

a licensed wrecker driver. He testified that he was sitting at a Valero gas station in

his truck when a woman came into the station with a flat tire. Although she had no

money, appellant offered to tow her car.

      Appellant testified that on his way to Freeport he periodically checked his

mirrors and eventually saw a pair of headlights behind him. He testified that he did

not see any police lights until Deputy Miller turned on her emergency lights at the

Galveston/Brazoria county line, and that he did not hear a siren until he was

approximately one mile into Brazoria County. He testified that when he heard the

siren, he was not sure if he was being pulled over or if the officer was responding to

another call. Appellant testified that he never realized that Deputy Miller was trying

to pull him over. According to appellant, Deputy Miller was at least one and half

miles behind his tow truck.

      Appellant testified that he pulled over because the spikes had flattened his

tires and his customer was in danger, not because he realized the deputy was trying


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to stop him. When asked why he got on the ground after he left his truck, he stated

that he had a previous incident with a Hitchcock police officer and that he believed

Hitchcock officers are corrupt. Appellant admitted that he had no history of hearing

problems. Appellant testified that he was previously diagnosed as paranoid

schizophrenic, although he did not take any medication for the condition.

                                 Improper Jury Argument

      In his sole point of error, appellant contends that the trial court erred in

allowing the State to make an improper jury argument. Specifically, appellant

alleges that the trial court allowed the prosecutor to give an opinion based on his

expertise, and that such opinion constituted improper jury argument.

A. Standard of Review and Applicable Law

      “As a prerequisite to presenting a complaint for appellate review, the record

must show that . . . the trial court[] ruled on the request, objection, or motion[.]” TEX.

R. APP. P. 33.1(a). “A court’s ruling on a complaint or objection can be impliedly

rather than expressly made.” Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App.

1995) (en banc); see also TEX. R. APP. P. 33.1(a) (stating that trial court’s ruling may

be made “either expressly or implicitly”). A trial court is only deemed to have ruled

implicitly when “its actions or other statements otherwise unquestionably indicate a


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ruling.” Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006) (quoting

Rey, 897 S.W.2d at 336).

      To preserve error with respect to an appellate claim of improper jury

argument, appellant must urge his objection until he obtains an adverse ruling. See

Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); see also TEX. R.

APP. P. 33.1(a); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In

pursuing its objection to an adverse ruling, counsel must (1) object to the

complained-of statements, (2) request a curative instruction, if the error can be cured

by an instruction to disregard, and (3) even if the error cannot be cured by an

instruction to disregard, make a motion for a new trial. See Cockrell v. State, 933

S.W.2d 73, 88–89 (Tex. Crim. App. 1996); see also Acosta v. State, 411 S.W.3d 76,

95 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Counsel “must object each time

an improper argument is made, or [appellant] waives [his] complaint, regardless of

how egregious the argument.” Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—

Houston [14th Dist.] 2010, pet. granted), aff’d on other grounds, 390 S.W.3d 341

(Tex. Crim. App. 2013).

      A trial court’s ruling on an objection to improper jury argument is reviewed

for abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.


                                          5
2004); Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,

pet. ref’d). “To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to the argument of opposing counsel; and

(4) plea for law enforcement.” Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim.

App. 2007); Dukes v. State, 486 S.W.3d 170, 183 (Tex. App.—Houston [1st Dist.]

2016, no pet.).

      An argument which exceeds the permissible bounds of the four approved

areas of argument constitutes reversible error only if an analysis of the record as a

whole shows the argument is extreme or manifestly improper, violates a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding. See

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc). For

reversal to be warranted, the remarks must have constituted a willful and calculated

effort to deprive appellant of a fair and impartial trial. See id. A reviewing court

must consider a challenge to the State’s closing argument in the context of the entire

record, including the complete arguments of both parties, to determine whether the

contested statements fall within the scope of these four categories. See Klock v.

State, 177 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing


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Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet.

ref’d)). In most instances, an instruction to disregard the remarks will cure the error.

See id.

B. Discussion

      At trial, appellant stated that he did not stop because he was unaware that

Deputy Miller was attempting to pull him over. Appellant’s trial counsel argued that

this was because appellant was mentally ill and interpreted the deputy’s actions

differently than others might. During closing arguments, the prosecutor made the

following remarks:

      Here’s what happened. He thought that that was Hitchcock PD that was
      behind him. He’s got some kind of beef with them and he wasn’t pulling
      over. He said, “Huh-uh.” He said, “I’m just going to keep on going.”
      He said, “There’s no way I’m pulling over.” That’s what happened. Had
      no intention of pulling over. He thought -- in my opinion, he thought
      that if he got to Brazoria County, they were going to stop pursuing
      because he knows –

At that point, trial counsel objected in the following manner:

      Judge, I’m going to object to the prosecution putting his opinion in
      there. We’re not allowed to give our personal opinions on this case. It’s
      just the facts of the case that matter.

The trial court responded:




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      All right. The jury will be guided by your collective memory and the
      evidence that is presented before you. It is closing arguments. You can
      make reasonable interpretations from that.

      Trial counsel did not object to the trial court’s response, request a ruling, or

request an instruction to disregard or make a motion for a new trial. The prosecutor

went on to argue:

      So, he knew that – because you heard him. He’s worked with officers
      before. He understands jurisdiction. He understands that once you get
      into Brazoria County, unless you’re in an active pursuit, the Galveston
      County Sheriffs don’t have jurisdiction in Brazoria County. He knew
      that. And thought that if he could get to Brazoria County, they were
      going to back off and they were going to go away.

Trial counsel made no further objection.

      Appellant failed to preserve error, and the complaint is not properly before us.

Trial counsel failed to pursue its objection to an adverse ruling and failed to object

to further presentation of the complained-of argument. The trial court’s statement

did not constitute a ruling in response to counsel’s objection. See Diamond v. State,

496 S.W.3d 124, 147–48 (Tex. App.—Houston [14th Dist.] 2016, pet ref’d) (noting

appellant failed to obtain ruling when trial court said, “All right. Ladies and

gentlemen, you’re going to be the judges of what was presented by the evidence and

the testimony.”); see also Doremus v. State, 530 S.W.3d 277, 282 (Tex. App.—

Houston [14th Dist.] 2017, pet. ref’d) (stating that there was no ruling when trial

                                           8
court responded, “All right. Bring the jury back.”); Mayberry v. State, 532 S.W.2d

80, 84 (Tex. Crim. App. 1975) (finding that trial court’s response—“Jury will recall

the evidence[.]”—was not ruling sufficient to preserve error). Neither the trial

court’s response to the objection, nor any action by the trial court, constituted a

ruling. See Montanez, 195 S.W.3d at 104.

      Trial counsel did not object to the trial court’s failure to rule, did not request

a curative instruction, and did not make a motion for a new trial. See Cockrell, 933

S.W.2d at 88-89; see also Acosta, 411 S.W.3d at 95. Trial counsel also failed to

object again when the prosecutor continued—using substantially more detailed and

pointed language—along the same line of argument immediately after trial counsel

objected. See Temple, 342 S.W.3d at 603. Appellant has therefore waived his sole

point of error.

                                     Conclusion

      We affirm the trial court’s judgment.



                                               Russell Lloyd
                                               Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

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