                                         NO. 07-02-0201-CR

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL E

                                           MARCH 3, 2003

                                  ______________________________


                           WILLIAM LAWRENCE DALLY, APPELLANT

                                                    V.

                                  THE STATE OF TEXAS, APPELLEE

                            _________________________________

             FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                     NO. 8756; HONORABLE WILLIAM D. SMITH, JUDGE

                              _______________________________

Before JOHNSON, C.J., and REAVIS, J. and BOYD, S.J.1


                                      MEMORANDUM OPINION2


      Upon a plea of not guilty, appellant William Lawrence Dally was convicted by a jury

of possession of methamphetamine in an amount less than one gram and sentenced to


      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

      2
          TEX. R. APP. P. 47.1.
two years confinement and a $10,000 fine. Presenting only one point of error, appellant

contends the trial court erred in denying his motion for a mistrial because of the

prosecutor’s improper jury argument during the punishment phase of the trial. Based upon

the rationale expressed herein, we affirm.


       The underlying facts of appellant’s offense are not in dispute and thus will not be

detailed here. During closing argument of the punishment phase of trial, while referencing

appellant’s prior convictions which had been admitted into evidence, the prosecutor made

the following remarks:


       [Prosecutor]: In 1999, the offense of Enticing a Child. The jury gave him 180
       days on that. Enticing a Child, don’t know what would have happened if it
       had gone past enticing a child, would stop at that point, but there it is –


       [Defense Counsel]: Your Honor, I will object to that. There is no evidence
       of what happened and he is alluding to the fact maybe something happened.


The trial court sustained the objection, and instructed the jury to disregard. Thereafter, the

prosecutor resumed his argument:


       [Prosecutor]: Well let me state it a different way. Enticing a child – it
       doesn’t state what he was enticing a child to do. He was found guilty of
       enticing a child. Rehabilitation –


Defense counsel commenced two objections, but for reasons not shown in the record, did

not complete them; however, the trial court overruled the incomplete objections and the


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prosecutor finished his argument.       After the jury retired to deliberate punishment,

appellant’s counsel then presented a motion for mistrial based on improper jury argument,

i.e., facts not in evidence, and the motion was denied.


       The trial court has discretion to grant or deny a motion for mistrial. Lewis v. State,

911 S.W.2d 1, 7 (Tex.Cr.App. 1995). Accordingly, we will not substitute our judgment for

that of the trial court but decide whether the trial court’s decision constitutes an abuse of

discretion. Stults v. State, 23 S.W.3d 198, 206 (Tex.App--Houston [14th Dist.] 2000, no

pet.). The purpose of closing argument is to facilitate the jury's proper analysis of the

evidence presented at trial so that it may arrive at a just and reasonable conclusion based

on the admitted evidence alone. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Cr.App.

[Panel Op.] 1980); Taylor v. State, 911 S.W.2d 906, 911 (Tex.App.–Fort Worth 1995, pet.

ref'd). To be permissible, 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 opposing counsel's argument; or (4) plea for law enforcement. Cantu v. State,

939 S.W.2d 627, 633 (Tex.Cr.App. 1997), cert. denied, 522 U.S. 944, 118 S.Ct. 557, 139

L. Ed.2d 399 (1997).


       Improper jury argument constitutes reversible error only if, in the light of the entire

record, the argument is extreme or manifestly improper, violates a mandatory statute, or

injects into the trial new facts which are harmful to the accused. Felder v. State, 848

S.W.2d 85, 95 (Tex.Cr.App. 1992), cert. denied, 510 U.S. 829, 126 L.Ed.2d 62, 114 S.Ct.

                                              3
95 (1993). From our review of the record, we conclude the prosecutor was engaging in

permissible evidence summation because appellant’s prior conviction for Enticing a Child

had been admitted into evidence. Thus, the trial court did not abuse its discretion in

denying appellant’s motion for mistrial. Appellant’s sole point is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice

Do not publish.




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