Opinion
No. 04-01-00838-CR.
Delivered and Filed: March 26, 2003. DO NOT PUBLISH.
Appeal From the 399th Judicial District Court, Bexar County, Texas, Trial Cause No. 2001-CR-3480, Honorable Juanita Vasquez-Gardner, Judge Presiding. AFFIRMED.
Sitting: Alma L. LOPEZ, Chief Justice, Catherine STONE, Justice, Paul W. GREEN, Justice.
MEMORANDUM OPINION
A jury found Kenneth Edward Dixon, the appellant, guilty of burglary of a habitation with the intent to commit assault and burglary of a habitation with the intent to commit sexual assault, and assessed punishment at five years' and fifteen years' confinement respectively. In two issues on appeal, Dixon contends the prosecutor made improper statements to the jury during closing arguments, and the trial court erred by denying his motion for new trial without a hearing. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex.R.App.P. 47.4. We affirm.
Improper Jury Argument
In the State's rebuttal closing argument during the guilt-innocence phase, the prosecutor called defense counsel's explanation of Dixon's primary motivation for going to complainant's house "the most ridiculous load of crap I have ever heard in my life." Later in the State's closing argument, Dixon spoke out loud, interrupting the prosecutor. Immediately thereafter, the prosecutor addressed the jury and called Dixon a "bullshitter." Moreover, throughout closing arguments, the prosecutor consistently referred to Dixon as a "liar." On appeal, Dixon asserts the prosecutor's statements to the jury were improper. Dixon admits he did not object at trial to any of the prosecution's closing arguments; however, he argues that the statements were so egregious as to rise to the level of fundamental error, for which no objection at trial is required. We disagree. A defendant forfeits his right to complain on appeal about improper jury argument when he fails to object or obtain an adverse ruling on his objection. Valencia v. State, 946 S.W.2d 81, 82-83 (Tex.Crim.App. 1997). Because Dixon did not object to any of the statements he challenges on appeal, he has not preserved error for our review.Motion for New Trial
After the trial court imposed judgment in open court, two motions for new trial were filed, one by Dixon's counsel and one by Dixon pro se. The trial court did not rule on either motion. On appeal, Dixon contends the trial court erred by denying the motions for new trial without conducting an evidentiary hearing. The Texas Rules of Appellate Procedure require that a defendant file a motion for new trial no later than thirty days after the trial court imposes judgment in open court. Tex.R.App.P. 21.4(a). In addition, the defendant must present the motion for new trial to the court within ten days of filing it, unless the trial court in its discretion permits it to be presented and heard within seventy-five days from the date when the court imposes sentence in open court. Tex.R.App.P. 21.6. Dixon contends he filed and presented the motions to the court; however, the record does not support this contention. Although Dixon timely filed the motions, merely filing a motion for new trial does not fulfill the presentment requirement. Carranza v. State, 960 S.W.2d 76, 78 (Tex.Crim.App. 1998). When a defendant fails to adequately present his motion, the trial court will not abuse its discretion by denying a hearing on a motion for new trial. Id. at 80. Here, there is no evidence in the record that Dixon presented the motions for new trial to the trial court or that the trial court knew one or both of the motions had been filed. Thus, Dixon did not satisfy the presentment requirement of Rule 21.6 and his motions were overruled by operation of law. Accordingly, the trial court did not abuse its discretion by not conducting an evidentiary hearing on Dixon's motions for new trial.Conclusion
We overrule Dixon's issues on appeal and affirm the trial court's judgment.I concur in the majority's opinion and judgment, and I agree that the comments made by the prosecutor during jury argument did not rise to the level of fundamental error. I write separately to emphasize that our failure to find fundamental error should not be read as an approval of the prosecutor's remarks. A prosecutor should not reduce himself or herself to name-calling or improper criticism of defense counsel's closing argument during jury argument. Such behavior could potentially jeopardize the State's case against a defendant. Obviously, defense counsel should be encouraged to object when such comments are made. Although the trial judge is not required to make objections for defense counsel, it may be appropriate in some cases for the trial judge to privately admonish a prosecutor's actions when such admonishments would ensure that proper decorum is maintained in a court of law. When a prosecutor's inappropriate comments are raised in an appeal, the district attorney's office should takes steps to ensure that the prosecutor in question understands the law regarding proper jury argument, follows the rules of ethics, and refrains from the type of behavior exhibited in this case in the future.