David T. McGary AKA David Sanders v. State

• Court: Court of Appeals of Texas
• Decided: June 23, 2008
• Docket: 07-07-00503-CR
• Status: Published

Opinion

NO. 07-07-0503-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 23, 2008 ______________________________

DAVID MCGARY a/k/a DAVID SANDERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;

NO. 4006; HON. DAN MIKE BIRD, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant David McGary a/k/a David Sanders appeals from his conviction of

possession of a controlled substance (cocaine). His issue on appeal involves comments

made during the State’s closing argument. The first pertained to the prosecutor’s allusion

to a “three strikes and you’re out” rule. Though objections to the comments were twice

sustained and the jury instructed to disregard them, appellant believed that he was entitled to a mistrial. The second comment involved reference to punishment being assessed in

accordance with community desires. We affirm.

Regarding the “three strikes” comment and the need for a mistrial, appellant did not

request one. Thus, he waived any complaint he had about not receiving one. See

Thompson v. State, 12 S.W.3d 915, 920-21 (Tex. App.–Beaumont 2000, pet. ref’d)

(holding that a defendant must request a mistrial to preserve his complaint for review).

As for the purported reference to community desires when assessing punishment,

no objection was uttered. Thus, appellant also failed to preserve this complaint. See

Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (stating that to preserve error

regarding prosecutorial argument, a defendant must pursue his objections to an adverse

ruling).

Accordingly, we overrule the issue and affirm the judgment of the trial court.

Per Curiam

Do not publish.