After the jury found appellant guilty of the offense of murder, (1) the trial court assessed punishment at confinement for fifty years. Appellant challenges the prosecutor's statements made during the State's closing arguments, asserting that he: (1) directly referred to the trial court's beliefs about the case, and (2) struck at appellant over the shoulder of his counsel. We will affirm.
Viewing the evidence in the light most favorable to the jury's verdict, it was shown that appellant ran over the victim with a car, dragged the victim along the pavement, and then backed up and ran over him again.
Appellant directs our attention to the prosecutor's argument concerning why the judge did not include anything in the charge about motive, self defense and insanity. Appellant suggests that these arguments were made in such a way as to indicate the judge's personal beliefs. Appellant did not object to any of these arguments. Historically, courts have allowed appellants to complain for the first time on appeal where an instruction to disregard could not have cured the erroneous jury argument. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (reviewing how law has evolved with respect to unobjected to arguments). "However, these holdings have been undermined by the enactment of Texas Rule of Appellate Procedure 52(a) and the [Court of Criminal Appeal's] more recent decision in Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993)." Id. Consequently,
Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.
Id.
Appellant contends that the thrust of the prosecutor's ensuing argument constituted a statement that the judge did not believe there was any evidence to support jury instructions regarding the voluntariness of the confession. The following portion of the prosecutor's argument forms the basis of appellant's complaint:
[Prosecutor]: Let's turn now to paragraph seven, in which the issue is submitted to you about whether Mr. Sanchez was induced by persuasion to make the oral or written confession when Sergeant Pedraza told the defendant that the defendant was going to have to trust and going to have to have faith in Sergeant Pedraza, and that Sergeant Pedraza was there to help him.
Now this -- again, this instruction is here because Judge Lynch really is a scholar of the law, and he knows that even if there is the tiniest --
[Defense Counsel]: Objection, Your Honor. It's an improper argument, referring to the Court's reasoning and the purpose of the law. Counsel can discuss the law, but not argue that it has a limited application in this case.
THE COURT: All right. Restate your argument, [prosecutor].
[Prosecutor]: No matter where this evidence comes from, no matter how incredible a source, that kind of charge, that instruction has to go in there, or there will be a risk of an appeal --
[Defense Counsel]: Objection, Your Honor; counsel referring to appeal, implying that perhaps the judgment of this jury wouldn't be a final judgment, therefore lessening the seriousness of the deliberations.
THE COURT: All right. Sustained as to the last comment.
[Defense Counsel]: I would ask the jury be instructed to disregard that argument, Judge.
THE COURT: The jury will disregard the last comment of the prosecutor and not consider it for any purpose.
[Defense Counsel]: And I ask for a mistrial.
THE COURT: Denied.
Appellant complains that the trial court failed to sustain his objection relative to the trial court's belief. The trial court's statement did not constitute an adverse ruling. Consequently, nothing was preserved for review. See Cockrell, 933 S.W.2d at 89. After the prosecutor restated his argument, the trial court sustained appellant's objection and directed the jury to disregard. Harm caused by an improper argument can generally be cured by an "instruction to disregard, unless the remark is so inflammatory that its prejudicial effect cannot be effectively removed." Caldwell v. State, 818 S.W.2d 790, 801 (Tex. Crim. App. 1991). The complained of argument was not so objectionable that it could not be cured by the trial court's instruction. Appellant's first point of error is overruled.
In his second point of error, appellant asserts that he was denied a fair trial when the prosecutor struck at appellant over the shoulder of counsel. Appellant first challenges the following arguments made by the prosecutor:
I hope it is as obvious to you as it is to me that what is happening here is that Mr. Sanchez, who has committed a senseless, violent, vicious act, is simply trying to weasel out of the truth, now that he is having to face the consequences. I hope it is as obvious to you all as it is to me that this is simply an old criminal defense tactic in which they find someone else to put on trial--
Appellant's objection that the prosecutor was striking at appellant over the shoulder of counsel was sustained, and the jury was instructed to disregard. Motion for mistrial was overruled. Unlike Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975), cited by appellant, the prosecutor was not accusing defense counsel of not arguing the facts. See Anderson, 525 S.W.2d at 22. Nor does it rise to the level of improper argument in Bray v. State, 478 S.W.2d 89 (Tex. Crim. App. 1972), where the prosecutor, clearly alluding to defense counsel, argued, "I am grateful that I don't have to make my living that way." Bray, 478 S.W.2d at 89. In a recent Court of Criminal Appeals decision the prosecutor argued that the defense wanted to direct the jury from the main road of truth. See Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998). Unlike the instant cause, the trial court in Mosley overruled defense counsel's objection. The Mosley court stated that the comments were "milder" than in the cases where the defense counsel is accused of manufacturing evidence or trying to contrast the ethical obligations of prosecutors and defense counsel. Id. Accordingly, we hold that the trial court's instruction to disregard in the instant case cured any error in the prosecutor's argument.
Appellant also complains of the following argument by the prosecutor:
There is a famous criminal defense lawyer named Percy Foreman who wrote a book for criminal defense lawyers. He said they should never allow their client to be put on trial; they should find someone else to put on trial -- put the police on trial; put the victim on trial. And if the case has societal implications, they should put the community at large on trial.
No objection was made to the foregoing argument. Thus, nothing is before us for review. Appellant's second point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Jones, Kidd and Davis*
Affirmed
Filed: August 26, 1999
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. See Tex. Penal Code Ann. § 19.02 (West 1994).
tained appellant's objection and directed the jury to disregard. Harm caused by an improper argument can generally be cured by an "instruction to disregard, unless the remark is so inflammatory that its prejudicial effect cannot be effectively removed." Caldwell v. State, 818 S.W.2d 790, 801 (Tex. Crim. App. 1991). The complained of argument was not so objectionable that it could not be cured by the trial court's instruction. Appellant's first point of error is overruled.
In his second point of error, appellant asserts that he was denied a fair trial when the prosecutor struck at appellant over the shoulder of counsel. Appellant first challenges the following arguments made by the prosecutor:
I hope it is as obvious to you as it is to me that what is happening here is that Mr. Sanchez, who has committed a senseless, violent, vicious act, is simply trying to weasel out of the truth, now that he is having to face the consequences. I hope it is as obvious to you all as it is to me that this is simply an old criminal defense tactic in which they find someone else to put on trial--
Appellant's objection that the prosecutor was striking at appellant over the shoulder of counsel was sustained, and the jury was instructed to disregard. Motion for mistrial was overruled. Unlike Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975), cited by appellant, the prosecutor was not accusing defense counsel of not arguing the facts. See Anderson, 525 S.W.2d at 22. Nor does it rise to the level of improper argument in Bray v. State, 478 S.W.2d 89 (Tex. Crim. App. 1972), where the prosecutor, clearly alluding to defense counsel, argued, "I am grateful that I don't have to make my living that way." Bray, 478 S.W.2d at 89. In a recent Court of Criminal Appeals decision the prosecutor argued that the defense wanted to direct the jury from the main road of truth. See Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998). Unlike the instant cause, the trial court in Mosley overruled defense counsel's objection. The Mosley court stated that the comments were "milder" than in the cases where the defense counsel is accused of manufacturing evidence or trying to contrast the ethical obligations of prosecutors and defense counsel. Id. Accordingly, we hold that the trial court's instruction to disregard in the instant case cured any error in the prosecutor's argument.
Appellant also complains of the following argument by the prosecutor:
There is a famous criminal defense lawyer na