David Ashley Hewitt v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 14, 2023
• Docket: 05-22-00350-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed February 14, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00350-CR

DAVID ASHLEY HEWITT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 073248

MEMORANDUM OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Garcia Appellant was convicted of evading arrest or detention with a deadly weapon

and the jury assessed punishment, enhanced, at thirty-five years in prison. In a single

issue, appellant argues the trial court erred in denying his motion for a mistrial when

the State repeated allegedly improper jury argument at the guilt/innocence phase.1

We affirm the trial court’s judgment.

1 The State did not file a brief. Background

Appellant was operating a motorcycle when Denton police officers attempted

to stop him. Appellant did not stop and a chase ensued. Appellant was eventually

apprehended when his motorcycle ran out of gas.

During closing argument, the State argued:

You saw it. It was -- it was a fleeing that took place for over 85 -- about 85 miles. I don’t see how that element can be disputed. Who the defendant knew were police officers. Well, you saw the lights, you heard the sirens. I don’t see how the argument can be made – and you've heard no evidence that the defendant did not know that they were police officers.

Defense counsel objected, stating “Objection, Your Honor. He is referring to

the -- a lack of my client’s testimony.” The judge sustained the objection and

instructed the jury to disregard the statement. Defense counsel moved for a mistral,

and the judge denied the motion.

The State continued: “Did you hear any evidence or has the defense made the

argument that [appellant] didn’t know? Would any -- would an ordinary and prudent

person know.” The following exchange then occurred:

DEFENSE COUNSEL: “Your Honor, again, same objection.”

THE COURT: “I’ll say, Counsel, you need to move on. I'm going to ask you to disregard any of these last statements by - ”

STATE “Anyone in this situation, police officer’s behind you, lights and sirens are activated, there's multiple police officers around you, would know that it’s a police officer. That element has been satisfied.”

–2– Analysis

Appellant now argues the trial court erred in denying his motion for a mistrial

because the State “persisted in the inappropriate argument after the jury was told to

disregard his statement.” According to appellant, the instruction was insufficient

because the argument was repeated.

To preserve error on improper jury argument, a defendant must object to the

prosecutor’s argument and obtain an adverse ruling. See Archie v. State, 221 S.W.3d

695, 699 (Tex. Crim. App. 2007). Generally, this requires a timely and specific

objection, a request for an instruction to disregard the improper argument, and a

motion for mistrial. See id; see also TEX. R. APP. P. 33.1(a) (to preserve complaint

for appellate review, party must have presented specific and timely request, motion,

or objection to trial court). Moreover, an instruction to disregard will ordinarily cure

the harm from almost any improper question, answer, or argument because we

presume the jury will follow an instruction to disregard. See Orvalle v. State, 13

S.W.3d 774, 783 (Tex. Crim. App. 2000).

Although appellant objected and the trial court instructed the jury to disregard

the statements the first two times the argument was made, there was no objection to

the third argument. Appellant argues the improper argument persisted, but the

argument had been made only once when he moved for a mistrial. At that point, the

trial court could not have granted a mistrial based on repetition of the argument.

–3– Accordingly, we conclude the issue has not been preserved for our review. See TEX.

R. APP. P. 33.1.

Appellant’s issue is resolved against him and the trial court’s judgment is

affirmed.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 220350F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAVID ASHLEY HEWITT, On Appeal from the 59th Judicial Appellant District Court, Grayson County, Texas No. 05-22-00350-CR V. Trial Court Cause No. 073248. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Reichek and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered February 14, 2023

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