## NO. 12

- 13

- 00130

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RONALD CRAIG SMITH,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE §

§

§ APPEAL FROM THE 241ST

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Ronald Craig Smith appeals his conviction for driving while intoxicated. In one issue,

Appellant challenges the jury argum ent. We affirm.

B ACKGROUND

Appellant was charged by indictment with driving while intoxicated, a third degree

felony. The indictment also included allegations that A ppellant had been convicted of two

previous felonies. Appellant pleaded ―not guilty,‖ a nd the case proceeded to a jury trial. At the

conclusion of the trial, the jury found Appellant guilty of driving while intoxicated as charged in

the indictment, and assessed his punishment at life imprisonment. This appeal followed.

J URY A RGUMENT

In h is sole issue, Appellant argues that the trial court abused its discretion by allowing the

State to engage in an improper jury argument, i.e., urging the jury to apply parole eligibility to

him in rendering their verdict. He contends that he was egregiousl y harmed by the State’s jury

argument, and that this court should reverse the judgment as to punishment and remand the case

for a new trial. We disagree.2

As a prerequisite to presenting a complaint for appellate review, the record must show

that the com plaint was made to the trial court by a timely request, objection, or motion that stated

the grounds for the ruling with sufficient specificity to make the trial court aware of the

complaint. See T EX

. R. A PP

. P. 33.1(a)(1)(A). Further, the trial court mu st have ruled on the

request, objection, or motion, either expressly or implicitly, or if the trial court refused to rule,

the complaining party must have objected to the refusal. See T EX

. R. A PP

. P. 33.1(a)(2). In other

words, a defendant must both obje ct and pursue the objection to an adverse ruling to preserve

error regarding an allegedly improper jury argument. Archie v. State , 221 S.W.3d 695, 699

(Tex. Crim. App. 2007). A defendant’s failure to object to a jury argument or pursue to an

adverse ruli ng on his objection to a jury argument forfeits his right to complain about the

argument on appeal. Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

Appellant complains that the State made improper jury arguments concerning A ppellant’s

eligi bility for parole as follows:

STATE: So when you look at

– you know, if you go low and g o, let’s just give him the

minimum, then what you’re looking at there is he will parole out at 6.25 years.

DEFENSE: I’m going to object to that. He’s eligible. That’s the date he’s eligible.

STATE: I’m sorry. That’s correct.

COURT: You going to rephrase that?

STATE: Yes, Your Honor. [The defense attorney] is right. He will be parole eligible in 6.25

years. So that’s what the reality of the minimum is.

Appellant argues further that two pages later in the record, the State continued to discuss

Appellant’s eligibility for parole as follows:

STATE: So, in essence, you could have somebody that could serve more than [fifteen] years

before they’re eligible for parole. They may not get it right away, but with good

conduct time, if you’re really good, they may become eligible for parole before doing a quarter of the time depending on how they calculate it.

DEFENSE: Your Honor, I’m going to object. That’s without any cons ideration.

COURT: Without any consideration, [State], you got that?

STATE: Yes, Your Honor. So it is

– this is something that can be fluid, all right? This is

something that can change. But you need to know about it.3

Appellant objected to both these statements. In the first argument, the State recognized

its misstatement after Appellant objected. Then, after being urged by the trial court, the State

corrected its statement regarding Appellant’s eligibility for parole. In the second argument, the

tr ial court corrected the State after Appellant’s objection. Again, the State recognized its mistake

and corrected it. As to both arguments, the trial court effectively sustained Appellant’s

objections. If the trial court sustains the objection, the defend ant must request an instruction to

disregard and move for a mistrial. See Cook v. State , 858 S.W.2d 467, 473 (Tex. Crim. App.

1993); Washington v. State , 127 S.W.3d 111, 115

- 16 (Tex. App.

— Houston [1st Dist.] 2003, no

pet.). Here, Appellant did not request an instruction or make any further object ion

. Because the

trial court granted Appellant all the relief he requested and he did not pursue the objection to an

adverse ruling, he has failed to preserve his complaints for our review. See Cook , 858 S.W2d at

473; Washington , 127 S.W.3d at 115

- 16.

Additionally, Appellant argues that the State continued to discuss his eligibility for parole

in the following comment :

STATE: So a life sentence, what that is going to do right there, that’ll ensure that he doesn’t

become eligible for parole for [fifteen] by statute, unless there’s a change, all right? So what you know is this: Under the law that’s charged to you today, is that you can ensure and keep him from getting back out on the streets for about [fifteen] yea rs with a life sentence. That’s what a life sentence means with regards to parole law.

Appellant pointed out that after the defense’s closing argument, the State made the

following improper jury argument regarding parole:

STATE: And let me make this cl ear with y’all. [The defense attorney] is right. No one can

guarantee you he’s going to get parole, but he’s guaranteed to be eligible for it

, okay? Guaranteed to be eligible in a quarter

- time or [fifteen] years, whichever comes

first.

Appellant did not object to either argument. Because Appellant did not object to either of

these statements, he has waived his complaints about them on appeal. See T EX

. R. A PP

. P.

33.1(a)(1)(A).

We overrule Appellant’s sole issue.4 D ISPOSITION

Having overruled Appellant ’s sole issue, we affirm the judgment of the trial court.

B RIAN H OYLE
Justice

Opinion delivered January 31, 2014

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 31 , 2014

NO. 12

- 13

- 00130

- CR

RONALD CRAIG SMITH, Appellant

V. THE STATE OF TEXAS, Appellee

Appeal from the 241st District Court

of Smith County, Texas (Tr.Ct .No. 241

- 0045

- 13)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the ju dgment

of the court below be in all things affirmed , and that this decision be certified to the court

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.