Johnson v. State

Court of Appeals of Texas

Johnson v. State

889 S.W.2d 12, 1994 Tex. App. LEXIS 3009, 1994 WL 685790

CourtCourt of Appeals of Texas

DecidedSeptember 28, 1994

DocketNo. 04-94-00046-CR

StatusPublished

Cited by3 cases

This text of 889 S.W.2d 12 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. State, 889 S.W.2d 12, 1994 Tex. App. LEXIS 3009, 1994 WL 685790 (Tex. Ct. App. 1994).

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Opinion

HARDBERGER, Justice.

A jury convicted the defendant of robbery by threat as a repeat offender. The court sentenced him to twenty-five years in prison. On appeal, he complains that the prosecutor repeatedly urged the jury to return a quick verdict of guilty, citing United States v. De La Rosa, 911 F.2d 985 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991).

In De La Rosa, the Fifth Circuit disapproved of urging a quick verdict as a tactic to obtain a guilty verdict that the jury might not otherwise reach. We also disapprove. There, as in the present case, the defendant did not object at trial to the argument complained of on appeal. The Fifth Circuit applied the federal plain error doctrine. Id. at 992.

To preserve jury argument error for appellate review, the defendant must object, request an instruction, and move for mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993). Any impropriety in the argument is waived by failure to make a proper and timely objection. Romo v. State, 631 S.W.2d 504, 505 (Tex.Crim.App.1982). Under our state standards of review, curable error is not fundamental, and is waived by failure to object and ask for an appropriate instruction at trial. See, e.g., Adams v. State, 813 S.W.2d 698, 699 (Tex.App.—Houston 1991, pet ref'd).

Instructing the jury to take whatever time was necessary to consider the evidence would have cured the error. However, the appellant waived his objection by failing to make an objection. Accordingly, we overrule the point of error and affirm the judgment of the trial court.

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HARDBERGER, Justice.

A jury convicted the defendant of robbery by threat as a repeat offender. The court sentenced him to twenty-five years in prison. On appeal, he complains that the prosecutor repeatedly urged the jury to return a quick verdict of guilty, citing United States v. De La Rosa, 911 F.2d 985 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991).

In De La Rosa, the Fifth Circuit disapproved of urging a quick verdict as a tactic to obtain a guilty verdict that the jury might not otherwise reach. We also disapprove. There, as in the present case, the defendant did not object at trial to the argument complained of on appeal. The Fifth Circuit applied the federal plain error doctrine. Id. at 992.

To preserve jury argument error for appellate review, the defendant must object, request an instruction, and move for mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993). Any impropriety in the argument is waived by failure to make a proper and timely objection. Romo v. State, 631 S.W.2d 504, 505 (Tex.Crim.App.1982). Under our state standards of review, curable error is not fundamental, and is waived by failure to object and ask for an appropriate instruction at trial. See, e.g., Adams v. State, 813 S.W.2d 698, 699 (Tex.App.—Houston 1991, pet ref'd).

Instructing the jury to take whatever time was necessary to consider the evidence would have cured the error. However, the appellant waived his objection by failing to make an objection. Accordingly, we overrule the point of error and affirm the judgment of the trial court.

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889 S.W.2d 12, 1994 Tex. App. LEXIS 3009, 1994 WL 685790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-texapp-1994.

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