Larry Eugene Owen, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 22, 2015
• Docket: 05-14-00349-CR
• Status: Published

Opinion

Affirmed and Opinion Filed January 22, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00349-CR

LARRY EUGENE OWEN, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 29123

OPINION Before Justices Lang, Brown, and Whitehill Opinion by Justice Whitehill Appellant pled guilty to driving while intoxicated and true to two prior DWI convictions

and the jury assessed punishment at eight years’ imprisonment. In a single issue on appeal,

appellant complains that the State engaged in improper jury argument. Concluding appellant’s

argument is without merit, we affirm the trial court’s judgment.

During the punishment phase of trial, the prosecutor argued, in pertinent part:

So, you don’t have to be too much of a mathematician to figure out a quarter of the sentence, whatever you give him back there, is going to be the minimum he has to do before he is eligible for parole.

So at some point folks he’s got to be supervised by a parole officer in the State of Texas, okay? That’s up to you how long he’s on parole. Because if you sentence him to 10 years, the max, he’ll be on parole for that full 10.

Appellant asserts the State’s argument was improper because it mischaracterized the law

and encouraged the jury to consider the effect of parole. The State does not dispute that the argument was improper, but asserts that the error was not preserved, or alternatively, there was

no harm.

To preserve an improper jury argument complaint, the defendant must: (1) object; (2)

request an instruction to disregard; and (3) move for mistrial. See Harris v. State, 784 S.W.2d 5,

12 n. 4 (Tex. Crim. App. 1989). Even if the argument is egregious and an instruction to disregard

would not cure the harm caused by the improper argument, the error is not preserved if the

defendant did not object. See Valencia v. State, 946 S.W.2d 81, 82–83 (Tex. Crim. App. 1997)

(op. on reh’g); see also, Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002) (stating

failure to object forfeits claim that prosecutor’s comments about parole are incorrect or

misleading).

Here, appellant did not lodge any objections when the State made the complained-of

argument. Furthermore, appellant never requested an instruction that the jury disregard the

allegedly improper argument and he did not move for a mistrial. Because appellant did not object

to the argument, the alleged error was not preserved for review. Appellant’s issue is overruled.

The trial court’s judgment is affirmed.

/Bill Whitehill/ Do Not Publish BILL WHITEHILL TEX. R. APP. P. 47 JUSTICE 140349F.U05

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

LARRY EUGENE OWEN, JR., Appellant On Appeal from the 196th Judicial District Court, Hunt County, Texas No. 05-14-00349-CR V. Trial Court Cause No. 29123. Opinion delivered by Justice Whitehill. THE STATE OF TEXAS, Appellee Justices Lang and Brown participating.

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

Judgment entered January 22, 2015.

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