Opinion
No. 05-06-01209-CR
Opinion Filed January 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-81845-04.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
Lewis Dewayne Carter appeals his conviction for indecency with a child. After finding appellant guilty, the jury assessed punishment at eighteen years' confinement. In two issues, appellant contends the trial court abused its discretion by denying his motions for mistrial after overruling his objections to certain (1) closing argument by the State, and (2) expert witness testimony. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court abused its discretion by denying his motion for mistrial after improper argument by the State. An appellant's trial objection must be timely and specific and it must comport with his objection on appeal, or error is waived. Tex. R. App. P. 33.1(a)(1)(A); Gallo v. State, 2007 WL 2781276, *8 (Tex.Crim.App. Sept. 26, 2007); Curiel v. State, 2007 WL 1119887, *7 (Tex.App.-Houston [1st Dist.] Apr. 12, 2007, pet. ref'd). On appeal, appellant contends the State's argument (1) that the "strength of any society is measured by how it protects its weakest members . . . and that's why you were sent here this week on behalf of your county," and (2) "How is it that child molesters go free?" were "plea[s] for sympathy from the jury." However, at trial appellant objected on the grounds that the first complained-of argument was "clearly improper" and the second was a "[p]lea for law enforcement at the guilt/innocence phase of the criminal trial [and was] improper." Appellant's first objection was general and his second does not comport with his complaint on appeal. Thus, appellant has failed to preserve error for our review. See Tex. R. App. P. 33.1(a)(1)(A); Gallo, 2007 WL 2781276 at *8; Curiel, 2007 WL 1119887 at *7. We overrule appellant's first issue. In his second issue, appellant contends the trial court abused its discretion by denying appellant's motion for mistrial after the prosecutor elicited certain testimony from Katherine Jenkins, the investigator from Collin County Child Protective Services who interviewed the complainant in this case. Specifically, appellant contends the trial court should have granted his motion for mistrial after Jenkins was asked if the fact that the complainant did not appear to be exaggerating was significant and she responded that "[i]t was significant to [Jenkins] because [Jenkins] felt like the [the complainant] was trying to tell me the truth." Appellant objected to this answer as nonresponsive and violating his motion in limine "as regards to testimony of witnesses." The trial court sustained his objection, instructed the jury to disregard, and denied appellant's request for a mistrial. We review the trial court's decision to deny a motion for mistrial under an abuse of discretion standard. Gallo, 2007 WL 2781276 at *15; Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). Ordinarily, a prompt instruction by the trial court to disregard will cure error associated with an improper question, answer, or argument. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). We presume the jury followed the trial court's instruction to disregard. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000). "Only offensive or flagrant error warrants reversal when there has been an instruction to disregard." Id. We agree with appellant that Jenkins's testimony was improper. See Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997); Yount v. State, 872 S.W.2d 706, 709 (Tex.Crim.App. 1993). However, the complained-of testimony was neither so offensive nor so flagrant that the trial court's immediate instruction to the jury to disregard could not have cured the error. In this case, Jenkins was permitted to testify regarding signs of exaggeration and that the complainant did not exhibit those signs. Thus, the jury was unlikely to be improperly influenced by Jenkins's conclusion that she was telling the truth. See Schutz v. State, 63 S.W.3d 442, 445-46 (Tex.Crim.App. 2001) ("[I]f an expert testified that manipulated children usually exhibit certain characteristics, then a jury could predict that the expert would probably testify that a particular child who did not exhibit those characteristics was not manipulated. So, . . . there is at least a reduced likelihood that an expert's improper testimony about his conclusion would influence the jury beyond the power of his proper testimony."). Consequently, we presume the instruction to disregard was sufficient to cure any harm that occurred. See Reynolds v. State, 227 S.W.3d 355, 367 (Tex.App.-Texarkana 2007, no pet.) (reaching alternative holding that after reviewing entire record, including instances when defense counsel inquired regarding child telling the truth, State's question regarding child's truthfulness was not so inflammatory as to defeat the presumption that jury followed instruction to disregard). Further, any error was cured by Detective Richard Gonzales's unobjected to testimony that he thought the victim was credible and by the complainant's grandmother's testimony that she believed complainant because she was an "honest person" and did not have a reason to lie. See Briones v. State, 12 S.W.3d 126, 130 (Tex.App.-Fort Worth 1999, no pet.) (trial court properly overruled motion for mistrial based on testimony regarding victim's credibility where same evidence introduced without objection); Marles v. State, 919 S.W.2d 669, 672 (Tex.App.-San Antonio 1996, pet. ref'd) (same). We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.
After defense counsel questioned the complainant's grandmother about a four day delay in contacting the police, the State asked her if she believed the complainant. Complainant's grandmother responded that she believed complainant because she was an honest person and did not have a reason to lie. The trial court overruled appellant's objection and appellant does not challenge that ruling on appeal. Thereafter, the complainant's grandmother testified without objection that she had never had any problems with the complainant lying.