# Curtis, Wilson v. State > Texas Court of Appeals, 1st District (Houston) ยท April 18, 2002 URL: https://www.frixlaw.com/law-library/cases/2835608 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** April 18, 2002 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2835608 ## Opinion text In The Court of Appeals For The First District of Texas ____________ NO. 01-01-1047-CR ____________ WILSON CURTIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from 209th District Court Harris County, Texas Trial Court Cause No. 843,245 O P I N I O N A jury found appellant, Curtis Wilson, guilty of the offense of possession of a controlled substance and, having found true allegations of prior convictions for attempted capital murder and possession of cocaine, assessed punishment at 25 years in prison. In his sole point of error, appellant contends the trial court erred by denying his motion for mistrial because of improper prosecutorial statements during closing argument. We affirm. Facts At approximately 4:30 a.m. on April 29, 2000, Houston Police Officer John Bryson was on patrol when the continuous sound of a car horn blowing caught his attention. Upon further investigation, Officer Bryson realized the sound was coming from a running vehicle parked in the middle of the street. Bryson pulled the patrol car in front of the honking vehicle and directed his spotlight at the center of the vehicle's windshield. Bryson observed two occupants. The officer identified the passenger in the vehicle as appellant. As Bryson approached the vehicle, he asked the occupants to place their hands on the dash board. As appellant brought his hands to the dash board, he dropped a bag between his seat and door. Officer Bryson recognized the contents as crack cocaine. After the two occupants exited the vehicle, Bryson recovered the bag of crack cocaine from between the seat and the door. Afterwards, Bryson weighed the bag of cocaine at 2.5 grams. At the police crime lab, the chemist weighed the bag at 1.8 grams. Improper Jury Argument In his sole point of error, appellant contends the trial court erred in denying a motion for mistrial because the prosecutor made improper statements during closing argument. Appellant contends the prosecutor's comments suggested that appellant's counsel wanted to divert the jury from the truth. To be proper, a prosecutor's jury argument may encompass summation of evidence presented at trial, reasonable deductions drawn from evidence, answers to opposing counsel's argument, or pleas for law enforcement. See McFarland v. State, 989 S.W. 2d 749, 751 (Tex. Crim. App. 1999). During jury argument, appellant's counsel focused on several theories for the defense. Appellant's main theory of defense, however, rested on the lack of a fingerprint analysis and the differing weights of cocaine. The prosecutor responded: PROSECUTOR: Now we get down to this one: Weighing more than 1 gram and less than 4 grams. And, in all honesty folks, Mr. Hinton is in a spot here, and he's given you some rabbit trails to think about. DEFENSE COUNSEL: Judge, I would object to the personal characterization of my argument. THE COURT: Sustained. DEFENSE COUNSEL: And, I would ask the jury be instructed to disregard that. THE COURT: The last statement referring to Mr. Hinton in a personal manner will not be considered by you in any way when you go back to deliberate. You base your verdict solely, and I mean solely, upon the evidence; not about the personalities or strategies of the attorneys. DEFENSE COUNSEL: Judge, we move for a mistrial. THE COURT: That will be denied. In responding to defense counsel's argument that a fingerprint analysis should have been conducted, the prosecutor argued: PROSECUTOR: Yeah, there is a fingerprint lab up above the chemist lab. But, there wasn't of --there was no question about whose dope it was. Officer Bryson saw it in Wilson Curtis' hand, saw where he dropped it in between the door and the seat on the passenger side. And he picked it up, and he's had it ever since, other than when he turned it over to the lab. So, there wasn't any need for fingerprint analysis. There wasn't [sic] lots of people that might have had this cocaine that maybe we charged the wrong person. And, Mr. Hinton hasn't even argued that. That's just another rabbit trail folks. DEFENSE COUNSEL: Excuse me, again, I object. THE COURT: Do not go into strategies, please. DEFENSE COUNSEL: I ask the jury be instructed to disregard that last statement. THE COURT: Same instruction, ladies and gentlemen. You base your decision solely, I mean solely on the evidence; not about the personalities nor the strategies of the attorneys. Please stay away form that. DEFENSE COUNSEL: Move for mistrial, Judge. THE COURT: Denied. We review claims of harm arising from improper argument under a three-part test: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction without the misconduct (the strength of the evidence supporting the conviction). Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). In the present case, the prosecutor's improper comments included, " Mr. Hinton is in a spot here, and he's given you some rabbit trails ." Later, the prosecutor continued by stating, "Mr. Hinton hasn't even argued that. That's just another rabbit trail folks." Such comments are mildly inappropriate, but do not directly accuse the defense attorney of lying or suggest any evidence was manufactured. Mosely, 983 S.W.2d at 259 . The jury is in a position to evaluate the truthfulness of the prosecutor's assertion and such comments could backfire if the jury disagrees. Id. These comments were improper, but the severity of the misconduct is relatively small. Mosely, 398 S.W.2d at 260. Thus, in applying the first factor, the misconduct, if any, does not weigh heavily in appellant's favor. In applying the second prong, we consider the measures adopted to cure the misconduct. Unlike the Mosely trial court, the present trial court sustained the defense counsel's objections and instructed the jury to disregard the prosecutor's remarks. Generally, any harm from an improper statement in a jury argument is remedied when the court instructs the jury to disregard, unless the remark is so inflammatory that the prejudicial effect cannot be removed by an admonishment. Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985). Although the prosecutor repeated the statement, appellant objected again, and the trial court sustained the objection and instructed the jury to disregard. Given the mildness of the comments, the instructions to disregard were sufficient to remedy any misconduct. See Johnson, 698 S.W.2d at 167 . Finally, in applying the third prong, we look at the certainty of conviction absent the misconduct. In looking at the strength of the evidence to support Wilson's conviction, it is clear that the entire case rested on the testimony of Officer Bryson. The jury found Officer Bryson credible, thus convicting Wilson. The defense put forth only one witness and asked that witness two questions. In comparing the strength of the State's case versus the mildly inappropriate comments, this factor also heavily weighs toward harmlessness. Having examined the arguments complained of under the Mosely factors, we conclude that the trial court did not abuse its discretion in overruling appellant's motions for mistrial. We overrule appellant's sole point of error. Conclusion We affirm the judgment of the trial court. Tim Taft Justice Panel consists of Chief Justice Schneider, and Justices Taft and Radack. Do not publish. Tex R. App. 47.4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2835608. Public record. Not legal advice.