David T. McGary AKA David Sanders v. State ( 2008 )

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Do not publish.
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