Michael Anthony Fuller v. State ( 2002 )

Michael Anthony Fuller v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-98-019-CR

     MICHAEL ANTHONY FULLER,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,433

O P I N I O N

      Fuller was convicted of injury to an elderly person. He received a five-year probated sentence, with 90 days in jail. He raised two issues on appeal: (1) legally insufficient evidence, and (2) improper jury argument. We reversed for legally insufficient evidence, because the victim was identified during trial only as “Mr. Fuller” and “Buddy” and was never identified as “Olen M. Fuller” as alleged in the indictment and charged to the jury.

      The Court of Criminal Appeals held that, under Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex. Crim. App. 2001), this was an immaterial variance between the evidence and the indictment, and it reversed our judgment and remanded the cause to us for further proceedings. Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002).

      Our first opinion did not address the jury argument issue. The record shows that defense counsel, during closing argument, made a comment which, fairly interpreted, implied to the jury that defense counsel had made the decision that Fuller would not testify, which is why some details were not in evidence. The prosecutor objected that defense counsel was misleading the jury, because ultimately it is the defendant’s choice whether or not to testify. The defense objected that the prosecutor was commenting on Fuller’s not testifying. The judge gave an instruction to disregard the prosecutor’s comment and denied a motion for mistrial.

      The prosecutor’s closing statements cannot themselves be error. Rather, it is the trial court’s responses to defense counsel’s objections to improper statements that may be error. Chimney v. State, 6 S.W.3d 681, 703 (Tex. App.—Waco 1999, no pet.). (The threshold question is, of course, whether the statements were improper.) Usually three types of responses by the trial court, and therefore errors, are possible: (1) overruling an objection to the prosecutor’s improper statement; (2) granting the objection, but denying a request for an instruction to the jury to disregard the statement; and (3) granting the objection and instructing the jury to disregard, but denying a motion for a mistrial. Id.

      By giving the instruction to disregard, the trial court implicitly sustained defense counsel’s objection. Therefore, we review for whether the instruction to the jury was sufficient to cure the prejudicial effect of the prosecutor’s statement. Chimney v. State, 6 S.W.3d 681, 703 (Tex. App.—Waco 1999, no pet.). When it appears that the statement is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds, an instruction will not cure the prejudicial effect and there is error in not granting the motion. Grant v. State, 738 S.W.2d 309, 311 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (citing Kelley v. State, 677 S.W.2d 34, 36 (Tex. Crim. App. 1984) (regarding improper evidence)); e.g., Reed v. State, 991 S.W.2d 354, 363-64 (Tex. App.—Corpus Christi 1999, pet. ref’d) (In a single-victim, single-assault case, references by the prosecutor in closing argument about other possible victims of child-sexual assault were not cured by a jury instruction.).

      Under the circumstances in Fuller’s case, we find that the prosecutor’s statement was not “calculated to inflame the minds of the jury” or of “such a character as to suggest the impossibility of withdrawing the impression produced on their minds.” Grant, 738 S.W.2d at 311. Thus, we find the instruction was sufficient to cure any prejudicial effect of the prosecutor’s statement. Chimney, 6 S.W.3d at 703.

      We overrule the issue and affirm the judgment.

BILL VANCE

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed September 18, 2002

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