                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-030-CR


RICHARD BRIAN DEVEREAUX                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION 1

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     Appellant Richard Brian Devereaux pleaded guilty to felony driving while

intoxicated, and a jury assessed his punishment, enhanced to habitual felony

punishment status, at ninety-nine years’ confinement. See Tex. Penal Code

Ann. § 12.42(d) (Vernon Supp. 2009), § 49.04 (Vernon 2003), § 49.09(b)(2)

(Vernon Supp. 2009). In one point, Devereaux complains that the State made




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          See Tex. R. App. P. 47.4.
impermissible closing arguments that were so egregious they could not be cured

by objection and a court instruction. We will affirm.

      Devereaux complains about the following statements made by the State

during its final argument at punishment:

      [State]: So the next thing that you have -- so if you con -- consider
      the crime itself, it’s not that bad in a vacuum, a couple of things,
      he lied to the officer, he refused a breath test, had to get him -- had
      to get his blood work and had to be able to get the evidence that
      he was intoxicated. I promise you he wouldn’t -- he probably
      wouldn’t be in here pleading guilty if we hadn’t had that. Okay.

            But the fact is --

      [Defense counsel]: Judge, I’m going to object to him speculating
      and -- and also making references to what my client should or
      shouldn’t have done during this trial.

      The Court: Sustained.

      [State]: The -- I guess from defense counsel’s argument is, you’re
      supposed to go back there and now doubt whether he was really
      guilty of driving while intoxicated. Okay. He was guilty, just like
      he’s guilty of these other things. And so the crime itself, you take
      it in -- you don’t take it in a vacuum. You consider the crime, the
      criminal, the man and the community effect.

             Let’s talk about the criminal for a second, okay, and that’s
      what he is. Because, remember, I talked to you about consider
      what’s in evidence. If you go back there and you say one good
      thing about this defendant, you know what, you’re going to be
      making it up because it’s not in evidence. There’s not one good
      thing. You -- you would think, you know, if -- if a -- if anyone was
      on trial for their life with a life sentence hanging over their head,
      you would hope that there would be somebody that could come in
      and take one good thing --

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      [Defense counsel]: Judge, I’m going to object to him making
      anything related to what -- what we’ve got going in terms of
      evidence.

      The Court: Well, this is argument. I’ll allow the argument.

      [State]: If somebody could have come in here and said one good
      thing -- where is this wife to come in and say one good thing?
      Where is a pastor, where’s a father, a mother, a sister, a brother,
      a friend, somebody that could come in and tell you one reason why
      you should give this person anything less than a maximum
      sentence in this case? The fact they’re not here means there’s
      nothing in evidence to that effect. And you cannot consider
      anything but what is in evidence.

      Regarding the first objection, which the trial court sustained, Devereaux

contends that the State argued and speculated about his motive for pleading

guilty.   Regarding the second objection, which the trial court implicitly

overruled, Devereaux contends that the State commented on his failure to call

defense witnesses even though he had elected not to testify or to present any

evidence and that the argument shifted the burden of proof to him. Devereaux

argues that the State’s comments did not fall within any of the categories of

permissible argument, and, citing Montoya v. State, 744 S.W.2d 15, 37 (Tex.

Crim. App. 1987), he contends that the arguments “were so prejudicial in their

[e]ffect as to be incurable by any instruction designed to withdraw the negative

impressions produced on the minds of the jurors.”




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      In   general,   to   preserve   error   for   improper   jury   argument,   a

contemporaneous objection must be made and an adverse ruling obtained. Tex.

R. App. P. 33.1(a) (stating that to preserve error, party must object and trial

court must explicitly or implicitly make an adverse ruling or refuse to rule on the

objection); Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992), cert.

denied, 509 U.S. 927 (1993). If the trial court sustains the objection, the

defendant must then request an instruction to disregard and, if granted, move

for a mistrial. Cooks, 844 S.W.2d at 727–28; see Young v. State, 137 S.W.3d

65, 69 (Tex. Crim. App. 2004).         If a defendant fails to object to a jury

argument or fails to pursue an adverse ruling on his objection to a jury

argument, he forfeits his right to complain about the jury argument on appeal.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied,

520 U.S. 1173 (1997).

      Here, Devereaux received all the relief he requested when the trial court

sustained his first objection. Because he did not pursue his complaint to an

adverse ruling by requesting an instruction to disregard and moving for a

mistrial if the trial court granted the instruction to disregard, Devereaux failed

to preserve for appellate review his argument regarding the first objection

asserted to the State’s final argument. See id. (expressly overruling Montoya

and holding that a defendant’s failure to pursue to an adverse ruling his

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objection to a jury argument forfeits his right to complain about the argument

on appeal); Robertson v. State, 245 S.W.3d 545, 547 (Tex. App.—Tyler 2007,

pet. ref’d).

      Turning to Devereaux’s argument concerning the second objection,

assuming he preserved error, 2 the State’s argument did not impermissibly shift

the burden of proof to Devereaux or reference his failure to testify. Instead, the

argument was a permissible comment on Devereaux’s failure to present

evidence on his behalf or of his good character.       See Pope v. State, 207

S.W.3d 352, 365 & nn.51–52 (Tex. Crim. App. 2006), cert. denied, 549 U.S.

1350 (2007) (reasoning that “a party may always comment on the fact that the

opponent failed to call an available witness and then argue ‘Don’t you know,

if Mr. X had anything favorable to say, my opponent would have called him’”);

Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (reasoning that

State’s argument was a permissible comment on appellant’s failure to produce

witnesses and evidence because it did not fault the appellant for exercising his




      2
        A defendant must object each time an impermissible argument is
made, or else the complaint is forfeited. Helleson v. State, 5 S.W.3d 393, 396
(Tex. App.—Fort Worth 1999, pet. ref’d); Giles v. State, No. 14-98-00966-CR,
2000 WL 1289332, at *2 (Tex. App.—Houston [14th Dist.] Sept. 14, 2000,
no pet.). After the trial court overruled Devereaux’s objection, he did not assert
any objection when the State continued the same argument that he had just
objected to.

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right not to testify); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App.

1995), cert. denied, 517 U.S. 1106 (1996) (reasoning that if State’s language

can reasonably be construed to refer to appellant’s failure to produce evidence

other than his own testimony, the comment is not improper); Shaw v. State,

826 S.W.2d 763, 767 (Tex. App.—Fort Worth 1992, pet. ref’d) (“In the

punishment phase of a noncapital case, the prosecutor may comment on the

failure of an accused to present any witnesses or evidence at all on his behalf

or to call certain particularized competent and material witnesses to testify

about character, or other relevant matters.”); see also Mosley v. State, 686

S.W.2d 180, 183–84 (Tex. Crim. App. 1985). We overrule Devereaux’s point

and affirm the trial court’s judgment.


                                             PER CURIAM

PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.

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

DELIVERED: November 25, 2009




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