Opinion
No. 05-16-00969-CR
06-26-2017
MIGUEL ANGEL BERUMEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1430502-U
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Francis
Miguel Angel Berumen appeals his conviction for aggravated assault with a deadly weapon. In a single issue, appellant contends the trial court erred in permitting the prosecutor to make an improper jury argument that bolstered a witness's credibility. We affirm the trial court's judgment.
Appellant was indicted for shooting a coworker after the coworker had him arrested for a previous assault. At trial, the State presented the testimony of Betty Lundin, the human resources director for the roofing company that employed both men. Lundin testified she was the custodian of employment records for the company and the State submitted into evidence the employee files of both appellant and the victim. Lundin testified regarding the company's general hiring practices such as drug screening, but did not testify about any facts at issue in the case or the information contained in appellant's file.
During the punishment phase of trial, the State questioned appellant about his criminal history which included time in prison for a deadly conduct conviction. The prosecutor noted that appellant used a different name when he applied for his job with the roofing company and his employee file contained no information about his criminal record. The job application included in appellant's file showed he checked "no" in response to a question asking whether he had ever been convicted of a felony or misdemeanor. Appellant acknowledged using "fake papers" to get the roofing job, but stated he had been employed by the roofing company years earlier and they were aware he had been in prison.
In the State's closing argument to the jury on punishment, the prosecutor referenced the fact that appellant's employee file did not contain any information about his criminal history. The prosecutor stated,
Furthermore, you heard that Mr. Berumen is capable of changing his identity so that nobody knows who he is. Do you think Ms. Lundin was lying yesterday when she said she brought me the whole file and that he was hired in 2004? You can look at the file she brought. There's not one mention of having been to prison before or having any kind of record. And I don't know what Mr. Berumen is talking about but I know I trust Ms. Lundin. If she drug tests her employees, I am sure she would not hire a convicted felon.Appellant did not object to this argument.
In his sole issue on appeal, appellant contends the trial court erred in allowing the prosecutor to bolster the credibility of a witness through unsworn testimony. It is error to argue the jury should believe a witness simply because the prosecutor does. See Gardner v. State, 730 S.W.2d 675, 698 (Tex. Crim. App. 1987).
Before a defendant may complain on appeal about an improper jury argument, he must show he objected to the argument below and pursued his objection to an adverse ruling. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004). Absent an objection, the defendant forfeits his right to raise the issue on appeal. See Threadgill, 146 S.W.3d at 670. As stated above, appellant failed to make any objection to the jury argument he now challenges as improper.
In a footnote, appellant cites to Texas Rule of Evidence 103(e) that states we may take notice of fundamental error affecting a substantial right even if the claim of error was not preserved. Appellant makes no argument to show how the alleged error was fundamental in nature. Nor does he explain how any of his substantial rights were affected. Mere citation to rule 103(e) does not constitute adequate briefing on the issue of fundamental error. See Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).
Finally, even if error was preserved, appellant does not show how he was harmed by the argument. See Jimenez v, State, 298 S.W.3d 203, 215 (Tex. App.—San Antonio 2009, pet, ref'd) (bolstering complaint subject to harm analysis). Appellant notes he was given more than the minimum sentence and states without analysis that the bolstering of Lundin as a witness "undoubtedly increased [his] punishment." But the record shows Lundin's credibility was not an issue in the case. She was not a fact witness. She only authenticated appellant's employment file. Appellant does not dispute the authenticity of the documents in the file, including his employment application which affirmatively fails to acknowledge his criminal record. Those documents, and not Lundin's testimony, contradict appellant's assertion that the roofing company knew he had a criminal history. Appellant has failed to show how the prosecutor's alleged bolstering of Lundin could have impacted his case.
We resolve appellant's sole issue against him. We affirm the trial court's judgment.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.1
160969F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1430502-U.
Opinion delivered by Justice Francis. Justices Brown and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 26, 2017.