Roderick Dion Barnes v. State ( 2009 )

Affirmed and Memorandum Opinion filed October 8, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-01116-CR

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RODERICK DION BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 45,865A

M E M O R A N D U M   O P I N I O N

After a guilty plea, appellant was convicted of the offense of aggravated assault with a deadly weapon.  The jury sentenced him to confinement for fourteen years in the Institutional Division of the Texas Department of Criminal Justice.  In his sole point of error, appellant claims the State=s argument during the punishment phase concerning parole law was reversible error.

The record reflects no objection was made to the State=s argument and appellant admits there was no objection.  Appellant concedes that generally failure to object results in waiver of any error in the State=s argument.  Appellant, however, asserts there is an exception when the argument is so prejudicial that an instruction to disregard would not cure the harm.  The authority relied upon by appellant^[1] was overruled by the Texas Court of Criminal Appeals in Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) in which the court stated:

. . .[W]e hold a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.  Any prior cases to the contrary such as Montoya [v. State, 744 S.W.2d 15, 37 (Tex. Crim. App. 1987)] and Romo [v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. 1982)] are expressly overruled.  Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.        

In the present case, appellant did not object to the State=s argument.  Accordingly, he has not preserved that issue for appellate review.  See Newby v. State, 252 S.W.3d 431, 439 (Tex. App. B Houston [14th Dist.] 2008, pet. ref=d); and Johnson v. State, 233 S.W.3d 109, 113 (Tex. App. B Houston [14th Dist.] 2007, no pet.).  Appellant=s issue is overruled and the judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Justices Anderson, Guzman, and Boyce.

Do not publish - Tex. R. App. P. 47.2(b).

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^[1]  In support of his assertion, appellant cites Romo v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. 1982), Jones v. State, 725 S.W.2d 770, 771 (Tex. App. B  Dallas 1987, pet. ref=d), and Short v. State, 681 S.W.2d 652, 656 (Tex. App. B Houston [14th Dist.], 1984, pet. ref=d).  Both Jones and Short rely upon Romo as authority.