Richard Brian Devereaux v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-030-CR
RICHARD BRIAN DEVEREAUX APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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Appellant Richard Brian Devereaux pleaded guilty to felony driving while
intoxicated, and a jury assessed his punishment, enhanced to habitual felony
punishment status, at ninety-nine years’ confinement. See Tex. Penal Code
Ann. § 12.42(d) (Vernon Supp. 2009), § 49.04 (Vernon 2003), § 49.09(b)(2)
(Vernon Supp. 2009). In one point, Devereaux complains that the State made
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 See Tex. R. App. P. 47.4.
impermissible closing arguments that were so egregious they could not be cured
by objection and a court instruction. We will affirm.
Devereaux complains about the following statements made by the State
during its final argument at punishment:
[State]: So the next thing that you have -- so if you con -- consider
the crime itself, it’s not that bad in a vacuum, a couple of things,
he lied to the officer, he refused a breath test, had to get him -- had
to get his blood work and had to be able to get the evidence that
he was intoxicated. I promise you he wouldn’t -- he probably
wouldn’t be in here pleading guilty if we hadn’t had that. Okay.
But the fact is --
[Defense counsel]: Judge, I’m going to object to him speculating
and -- and also making references to what my client should or
shouldn’t have done during this trial.
The Court: Sustained.
[State]: The -- I guess from defense counsel’s argument is, you’re
supposed to go back there and now doubt whether he was really
guilty of driving while intoxicated. Okay. He was guilty, just like
he’s guilty of these other things. And so the crime itself, you take
it in -- you don’t take it in a vacuum. You consider the crime, the
criminal, the man and the community effect.
Let’s talk about the criminal for a second, okay, and that’s
what he is. Because, remember, I talked to you about consider
what’s in evidence. If you go back there and you say one good
thing about this defendant, you know what, you’re going to be
making it up because it’s not in evidence. There’s not one good
thing. You -- you would think, you know, if -- if a -- if anyone was
on trial for their life with a life sentence hanging over their head,
you would hope that there would be somebody that could come in
and take one good thing --
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[Defense counsel]: Judge, I’m going to object to him making
anything related to what -- what we’ve got going in terms of
evidence.
The Court: Well, this is argument. I’ll allow the argument.
[State]: If somebody could have come in here and said one good
thing -- where is this wife to come in and say one good thing?
Where is a pastor, where’s a father, a mother, a sister, a brother,
a friend, somebody that could come in and tell you one reason why
you should give this person anything less than a maximum
sentence in this case? The fact they’re not here means there’s
nothing in evidence to that effect. And you cannot consider
anything but what is in evidence.
Regarding the first objection, which the trial court sustained, Devereaux
contends that the State argued and speculated about his motive for pleading
guilty. Regarding the second objection, which the trial court implicitly
overruled, Devereaux contends that the State commented on his failure to call
defense witnesses even though he had elected not to testify or to present any
evidence and that the argument shifted the burden of proof to him. Devereaux
argues that the State’s comments did not fall within any of the categories of
permissible argument, and, citing Montoya v. State, 744 S.W.2d 15, 37 (Tex.
Crim. App. 1987), he contends that the arguments “were so prejudicial in their
[e]ffect as to be incurable by any instruction designed to withdraw the negative
impressions produced on the minds of the jurors.”
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In general, to preserve error for improper jury argument, a
contemporaneous objection must be made and an adverse ruling obtained. Tex.
R. App. P. 33.1(a) (stating that to preserve error, party must object and trial
court must explicitly or implicitly make an adverse ruling or refuse to rule on the
objection); Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992), cert.
denied, 509 U.S. 927 (1993). If the trial court sustains the objection, the
defendant must then request an instruction to disregard and, if granted, move
for a mistrial. Cooks, 844 S.W.2d at 727–28; see Young v. State, 137 S.W.3d
65, 69 (Tex. Crim. App. 2004). If a defendant fails to object to a jury
argument or fails to pursue an adverse ruling on his objection to a jury
argument, he forfeits his right to complain about the jury argument on appeal.
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied,
520 U.S. 1173 (1997).
Here, Devereaux received all the relief he requested when the trial court
sustained his first objection. Because he did not pursue his complaint to an
adverse ruling by requesting an instruction to disregard and moving for a
mistrial if the trial court granted the instruction to disregard, Devereaux failed
to preserve for appellate review his argument regarding the first objection
asserted to the State’s final argument. See id. (expressly overruling Montoya
and holding that a defendant’s failure to pursue to an adverse ruling his
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objection to a jury argument forfeits his right to complain about the argument
on appeal); Robertson v. State, 245 S.W.3d 545, 547 (Tex. App.—Tyler 2007,
pet. ref’d).
Turning to Devereaux’s argument concerning the second objection,
assuming he preserved error, 2 the State’s argument did not impermissibly shift
the burden of proof to Devereaux or reference his failure to testify. Instead, the
argument was a permissible comment on Devereaux’s failure to present
evidence on his behalf or of his good character. See Pope v. State, 207
S.W.3d 352, 365 & nn.51–52 (Tex. Crim. App. 2006), cert. denied, 549 U.S.
1350 (2007) (reasoning that “a party may always comment on the fact that the
opponent failed to call an available witness and then argue ‘Don’t you know,
if Mr. X had anything favorable to say, my opponent would have called him’”);
Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (reasoning that
State’s argument was a permissible comment on appellant’s failure to produce
witnesses and evidence because it did not fault the appellant for exercising his
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 A defendant must object each time an impermissible argument is
made, or else the complaint is forfeited. Helleson v. State, 5 S.W.3d 393, 396
(Tex. App.—Fort Worth 1999, pet. ref’d); Giles v. State, No. 14-98-00966-CR,
2000 WL 1289332, at *2 (Tex. App.—Houston [14th Dist.] Sept. 14, 2000,
no pet.). After the trial court overruled Devereaux’s objection, he did not assert
any objection when the State continued the same argument that he had just
objected to.
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right not to testify); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App.
1995), cert. denied, 517 U.S. 1106 (1996) (reasoning that if State’s language
can reasonably be construed to refer to appellant’s failure to produce evidence
other than his own testimony, the comment is not improper); Shaw v. State,
826 S.W.2d 763, 767 (Tex. App.—Fort Worth 1992, pet. ref’d) (“In the
punishment phase of a noncapital case, the prosecutor may comment on the
failure of an accused to present any witnesses or evidence at all on his behalf
or to call certain particularized competent and material witnesses to testify
about character, or other relevant matters.”); see also Mosley v. State, 686
S.W.2d 180, 183–84 (Tex. Crim. App. 1985). We overrule Devereaux’s point
and affirm the trial court’s judgment.
PER CURIAM
PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 25, 2009
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