Opinion issued July 24, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00836-CR
FERMIN LIRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 892888
MEMORANDUM OPINION
A jury found appellant, Fermin Lira, guilty of the felony offense of injury to a child, and, after finding that appellant had used a deadly weapon in the commission of the offense, assessed punishment at 40 years’ confinement.
In his sole point of error, appellant argues that he was deprived of his right to a fair trial when the State made manifestly improper comments during the punishment phase of trial.
We affirm.
Facts
In November of 2001, appellant was living with his girlfriend, Sandra Mendez, and Mendez’s two young children in a room attached to the home of his parents. On November 2, 2001, after coming home from work, appellant picked up Mendez’s two children from Maria Dominquez, who was caring for the children, and took them to his mother’s house. At around 9:00 p.m., appellant took the children to the attached room where he was living. At around 10:00 p.m., appellant told his mother that one of the children, two-year-old Cesar Castillo, had fallen. The family then called the police, but when no emergency vehicles arrived after about ten minutes, they took the child to the hospital. Cesar was not breathing when he arrived at the hospital, and hospital personnel were not able to revive him. He was pronounced dead at approximately 11:45 p.m.
While the hospital personnel were trying to revive Cesar, appellant left the hospital to pick up Mendez from work, and told her that Cesar had fallen off the bed and was hurt. Appellant later told the police that he was showing Cesar a karate kick and that he accidentally kicked him twice.
Dr. Dwayne A. Wolfe, a medical examiner for the Harris County Medical Examiner’s office, testified that there was evidence of extensive trauma to Cesar’s face, head, and neck. Dr. Wolfe also stated that Cesar had been struck by multiple blows and that there were at least 20 separate injuries on Cesar’s body. Dr. Wolfe further testified that two of the injuries occurred prior to the night of Cesar’s death.
The jury found appellant guilty of the felony offense of injury to a child. During the punishment phase of trial, the State made the following remark:
Probation is not a right. It’s a privilege. Male lions [sic] they come across a cub belonging to another male lion, they pounce on it, they eat it. This is an instinct they never lose. Ever. They cannot be rehabilitated to lose that instinct. Fermin. I don’t wish to compare him to such a noble animal as a lion, but they’re asking to let him lose [sic] on the street. There is a chance, however, slight, that it could happen again.
Appellant then objected, stating that, “that’s outside the record. There is no evidence of it.” The trial court sustained the objection and then instructed the jury to disregard the comment. Appellant’s subsequent request for a mistrial was denied.
Discussion
Appellant, in his sole point of error, argues that the State’s comments during the punishment phase of trial deprived him of his right to a fair trial. Appellant contends that the State’s comments were manifestly improper because there was no evidence suggesting that appellant would offend again, and because the State implied that appellant was less than an animal.
Proper closing arguments consist of the following: (1) summations of the evidence, (2) reasonable deductions from the evidence, (3) answers to argument of opposing counsel, and (4) pleas for law enforcement. Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Generally, the appropriate remedy for improper argument is an instruction to disregard. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). We will presume that the jury follows the trial court’s instruction to disregard. Waldo v. State, 746 S.W.2d 750, 752-53 (Tex. Crim. App. 1988). A prompt instruction to disregard will generally cure any harm caused by an improper jury argument. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). When there has been an instruction to disregard, only offensive or flagrant error warrants reversal, and such error “must have been a willful and calculated effort on the part of the State to deprive [the appellant] of a fair and impartial trial.” Westbrook, 29 S.W.3d at 115-16.
In this case, the trial court sustained appellant’s objection to the comment by the State, and instructed the jury to disregard the statement. Assuming, arguendo, that the State’s comment was improper, we hold that the comment in this case was not “flagrant error,” or a “willful and calculated effort on the part of the State” to deprive appellant of a fair trial. We presume that the jury followed the trial court’s instruction to disregard, and, accordingly, we hold that the trial court did not err in refusing to grant appellant’s motion for a mistrial. See Waldo, 746 S.W.2d at 752-53.
We overrule appellant’s sole point of error.Conclusion
We affirm the trial court’s judgment.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 42.2(b).