Opinion
No. 13-03-00417-CR
Memorandum Opinion Delivered and Filed: August 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 377th District Court of Victoria County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
MEMORANDUM OPINION
A jury found, appellant, Charles Robert Scalf, guilty of the offense of possession of more than five pounds but less than fifty pounds of marihuana. After finding the enhancement paragraphs in the indictment to be true, the jury assessed appellant's punishment at life imprisonment. The trial court has certified that this "is not a plea-bargain case, and the defendant has the right to appeal." See TEX. R. APP. P. 25.2(a)(2). As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See TEX. R. APP. P. 47.4. In a single issue, appellant contends the State made an improper reference to his failure to testify during closing argument at the guilt/innocence phase of his trial, in violation of both federal and state law. Specifically, appellant complains of the following argument made by the prosecutor:
All kinds of responses, speculation, as to, why would the defendant do this or that? Look, only one person knows what went on in the defendant's mind.
Your instructions are, "You must not consider, discuss, nor relate any matters not in evidence before you." There is no evidence as to what the defendant had in his mind.To be permissible, the State's jury argument must fall within one of the following four general areas: (1) summation of the evidence presented at trial; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). A comment on a defendant's failure to testify violates the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. Moore v. State, 849 S.W.2d 350, 351 (Tex.Crim.App. 1993); Rosillo v. State, 953 S.W.2d 808, 817-18 (Tex. App.-Corpus Christi 1997, pet. ref'd). To violate a defendant's constitutional and statutory rights against self-incrimination, the challenged argument, viewed from the jury's perspective, "must be manifestly intended to be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify." Fuentes v. State, 991 S.W.2d 267, 275 (Tex.Crim.App. 1999). The facts and circumstances of each case must be analyzed to determine whether the language directs the jury to the defendant's failure to testify. Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Crim.App. 1984). Before we may consider the merit of appellant's issue, we must determine if he preserved this issue for our review. The record before us shows that appellant did not object to the prosecutor's argument. In Romo v. State, 631 S.W.2d 504, 505 (Tex.Crim.App. 1982), the court of criminal appeals held that a defendant could complain for the first time on appeal about an unobjected-to, erroneous jury argument that could not have been cured by an instruction to disregard. In Montoya v. State, 744 S.W.2d 15, 37 (Tex.Crim.App. 1987), the court also held that a defendant's failure to pursue to an adverse ruling his objection to a jury argument did not constitute a waiver where an instruction to disregard could not have cured the erroneous jury argument. However, Romo and Montoya were expressly overruled by Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Now, to preserve improper jury argument for appellate review, a defendant must object and pursue the objection to an adverse ruling, otherwise he forfeits his right to complain about the argument on appeal. Id.; Flores v. State, 871 S.W.2d 714, 722 (Tex.Crim.App. 1993); see also Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002). Because appellant failed to object after the complained-of argument was made, we hold appellant failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a). Appellant's sole issue is overruled. The judgment of the trial court is affirmed.
See TEX. HEALTH SAFETY CODE ANN. § 481.121(a), (b)(4) (Vernon 2003).