COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-193-CR
DAVID LYNN LUTTRELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant David Lynn Luttrell of felony driving while
intoxicated (DWI), found that he had used or exhibited a deadly weapon during
the commission of the offense, found the repeat offender allegation true, and
assessed Appellant’s punishment at eighteen years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. The trial
1
… See Tex. R. App. P. 47.4.
court sentenced him accordingly. In four issues, Appellant complains about the
State’s jury argument and the jury charge. Because we hold that the trial court
did not err, we affirm the trial court’s judgment.
In his first issue, Appellant contends that the trial court erred by allowing
the State to comment on his failure to testify. 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 argument of opposing counsel; or (4) plea for law enforcement. 2
The code of criminal procedure provides that a defendant’s failure to
testify on the defendant’s own behalf may not be held against the defendant
and that counsel may not allude to the defendant’s failure to testify.3 To
determine if a prosecutor’s comment violated article 38.08 and constituted an
impermissible reference to an accused’s failure to testify, we must decide
whether the language used was manifestly intended or was of such a character
that the jury naturally and necessarily would have considered it to be a
2
… Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert.
denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.
Crim. App. 1973).
3
… Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).
2
comment on the defendant’s failure to testify.4 The offending language must
be viewed from the jury’s standpoint, and the implication that the comment
referred to the accused’s failure to testify must be clear. 5 A mere indirect or
implied allusion to the defendant’s failure to testify does not violate the
accused’s right to remain silent.6
During closing argument at the guilt phase, the prosecutor argued, “The
total refusal — that’s what we call it when you don’t do any tests, no field
sobriety tests, no breath tests. Did you see [Appellant] that night? He’s hoping
you will give him a free pass.” Defense counsel objected; the objection was
overruled. The State repeated, “He is hoping you’ll give him a free pass,” and
defense counsel repeated his objection, which was overruled. The prosecutor
then went on,
You see, luckily we have all those things before he refused those
tests, but the fact he refused those tests, I am going to ask you to
hold that against him as well because if you pull someone over for
DWI, they get out of the car and they don’t cooperate with police,
4
… Id.; see Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App.
2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied,
528 U.S. 1026 (1999).
5
… Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223,
225 (Tex. Crim. App. 1992).
6
… Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick
v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995), cert. denied, 517
U.S. 1106 (1996).
3
they say, “I am not going to do any of your tests, I am not going
to give a breath test,” what kind of message does that send?
Everybody that does that, I guess we couldn’t arrest them for
DWI. Just refuse everything. Think about that.
Appellant complains that the prosecutor’s repeated statement—“He’s
hoping you’ll give him a free pass”—is either a direct comment because only
Appellant could testify about his subjective hopes and desires or an indirect
comment because it covered a subject that could only be controverted by
Appellant’s direct testimony. But having reviewed the context in which the
statement was made, we agree with the State that the prosecutor was alluding
not to Appellant’s failure to testify but to his failure to take the field sobriety
tests and breath tests. The fact that Appellant had refused the tests was in
evidence, and the prosecutor could therefore properly comment on that refusal
in closing argument. We overrule Appellant’s first issue.
In his second issue, Appellant contends that the trial court erred by
allowing the State to inject harmful facts into the case during closing argument
at the punishment phase. The prosecutor argued, “So in April of 2006 [sic],7
he gets arrested for [DWI]. He bonds out again while he’s on bond —.”
7
… Appellant and the State both point out that this was a misstatement
by the prosecutor and should have been the year 2000, not 2006, the year of
the commission of the offense before this court.
4
Defense counsel objected that the argument was outside the record because
there was no testimony that Appellant was out on bond. The trial court
overruled the objection. The prosecutor continued,
And while on bond, he picks up another DWI in December of 2006
[sic].8 That’s No. 5. In all these years he’s been on probation, he’s
had opportunity after opportunity after opportunity. He’s been
provided counseling, he’s been provided therapy over and over and
over and over. [Emphasis added.]
Defense counsel objected that the prosecutor was arguing outside the record,
and the trial court sustained the objection, instructed the jury to disregard the
prosecutor’s last remark, and denied Appellant’s motion for mistrial. Because
Appellant did not renew his objection regarding bond evidence after the
prosecutor stated, “And while on bond, he picks up another DWI in December
of 2006 [sic],” 9 he is not entitled to reversal.10 We overrule Appellant’s second
issue.
In Appellant’s third issue, he complains that the trial court erred by
overruling his motion for mistrial after the prosecutor argued, as set out above,
8
… See note 7 supra.
9
… See note 7 supra.
10
… See Lucero v. State, 246 S.W.3d 86, 102 (Tex. Crim. App.)
(“[Lucero] failed to object to the State’s subsequent jury arguments that
‘there’s no evidence of remorse’ and that [he] ‘shows little remorse.’ [Lucero],
therefore, is not entitled to a reversal due to the State’s earlier objected-to
reference to [his] lack of remorse.”), cert. denied, 129 S. Ct. 80 (2008).
5
that “[h]e’s been provided counseling, he’s been provided therapy over and over
and over and over.” When the trial court sustains an objection and instructs
the jury to disregard but denies a defendant’s motion for a mistrial, the issue is
whether the trial court abused its discretion in denying the mistrial. 11 Only in
extreme circumstances, when the prejudice caused by the improper argument
is incurable, that is, “so prejudicial that expenditure of further time and expense
would be wasteful and futile,” will a mistrial be required.12 In determining
whether the trial court abused its discretion in denying the mistrial, we balance
three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative
measures, and (3) the certainty of the punishment assessed absent the
misconduct.13
The evidence showes that Appellant’s community supervision for his April
and December 2000 DWI offenses was revoked because he failed to report to
an intensive day treatment program aftercare, and the order granting
community supervision for his 1984 DWI conviction in Ellis County provides
that he was ordered to attend a DWI education program approved by Ellis
11
… Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
12
… Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.
App. 2003), cert. denied, 542 U.S. 905 (2004).
13
… Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
6
County community supervision officers. Given that there was some evidence
of treatment opportunities; that the trial court gave a prompt instruction to
disregard the comment, which we presume the jury followed; 14 and that
Appellant, who has five past DWI convictions, received an eighteen-year
sentence, not the twenty-year maximum sentence urged by the State, we
cannot say that the trial court abused its discretion by denying Appellant’s
motion for mistrial. We overrule his third issue.
In his fourth issue, Appellant contends that the trial court erred by failing
to require the jury to find beyond a reasonable doubt that he “knew that a
deadly weapon would be used or exhibited,” despite the inclusion of that
language in the deadly weapon allegation in the indictment. We note that the
quoted language was part of the law of parties’ charge on the deadly weapon
in the indictment.15 But no evidence that Appellant was guilty as a party was
admitted during trial; Appellant was the only one in the car. The jury charge
14
… See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App.
2000), cert. denied, 532 U.S. 944 (2001).
15
… See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(g)(a)(2) (Vernon
Supp. 2008) (“The provisions of Section 3 of this article do not apply . . . to a
defendant when it is shown that a deadly weapon as defined in Section 1.07,
Penal Code, was used or exhibited during the commission of a felony offense
or during immediate flight therefrom, and that the defendant used or exhibited
the deadly weapon or was a party to the offense and knew that a deadly
weapon would be used or exhibited.”) (emphasis added).
7
properly does not include a charge on the law of parties regarding Appellant’s
guilt of DWI; the law of parties is inapplicable to this case. Accordingly, the
deadly weapon charge given was proper. 16 We overrule Appellant’s fourth
issue.
Having overruled Appellant’s four issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2009
16
… See id. art. 36.14 (Vernon 2007) (providing that the jury charge shall
set forth law applicable to the case); Wesbrook, 29 S.W.3d at 122 (holding no
abuse of discretion for trial court not to submit renunciation instruction when
no evidence of renunciation admitted).
8