Hawkins v. State

Full title: JASON WAYNE HAWKINS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 2, 2005

No. 05-05-00248-CR (Tex. App. Nov. 2, 2005)

Opinion

No. 05-05-00248-CR

Opinion filed November 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd District Court, Dallas County, Texas, Trial Court Cause No. F04-41612-JT. Affirmed;

Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.

MEMORANDUM OPINION

Opinion By Justice MAZZANT.

A jury convicted Jason Wayne Hawkins of aggravated sexual assault of a child under fourteen years of age and set punishment of confinement of fifty-two years and a $5,000 fine. In his only point of error, appellant asserts that during final argument the prosecutor effectively asked the jury to convict him, in part, upon his failure to testify. We affirm the trial court's judgment.

Factual and Procedural Background

The facts of this case are well-known to the parties, and we do not recite them in detail. The appellant did not testify at trial. The record reflects that the appellant waived his post-arrest right to silence and made a written statement to the police after being warned of his constitutional rights. The statement was admitted into evidence at trial. The relevant portion of the statement was as follows:

The only thing that happened with [R.G.], my cousin, was also about a year and a half ago. We were at the same house, 2618 Brenda, in [R.G.]'s room. Me and [R.G.] were playing Nintendo and I started touching her. I got up and shut the bedroom door. I took off my clothes and she took off her clothes and I sat her on my lap. I then put my penis inside her vagina. I did not cum inside of her, I was wearing a condom. I went to the bathroom after she got off my lap and cummed in the shower. Investigator Holley wrote this for me at my request, while I told him what to write.

In rebuttal argument the prosecutor made the following statement, which appellant now claims was a comment on his right to remain silent and failure to testify:

. . . . And this is where the case turns. Ladies and gentlemen of the jury, there were two people that were present when this offense occurred and both people have told you the same story. How can you have any doubt? She hasn't seen his statement. It was offered into evidence for the first time today. The two people who were there told you the exact same story five years after it happened. How can there be any doubt as to guilt?

This case is now about [R.G.] "[A]bout a year and a half ago in [R.G.]'s room, me and [R.G.] were playing Nintendo and I started touching her." She's a five year old baby girl. "I got up and shut the bedroom door. I took off my clothes and she took off her clothes. I sat her on my lap." These are his words. This is what [R.G.] told you, too, before she knew that this was coming in. "I sat her on my lap. I then put my penis inside of her." Defense counsel's objection, which the court overruled, was:

Judge, excuse me, if the Court pleases, the entire purpose of a closing argument is for the attorneys to address the jury concerning their opinions about the case. I would like the record to reflect that [the prosecutor] is not directing his comments to the jury. He's standing about three feet from the defendant, looking straight at the defendant, and not making any comments to the jury, which is violating [sic] of the closing arguments or violating of the rules about closing arguments, and I object to it.

Analysis

To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court, and the trial objection must correspond with the complaint on appeal. Tex.R.App.P. 33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) (citing State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Crim.App. 1998)); Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App. 2002) (it violates "ordinary notions of procedural default" for a Court of Appeals to reverse a trial court's decision on a legal theory not presented to the trial court by the complaining party); Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App. 1998) (appellate complaint did not comport with trial objection so error, if any, was not preserved); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). A general objection is generally insufficient to preserve error. Kelly v. State, 903 S.W.2d 809, 811 (Tex.App.-Dallas 1995, pet. ref'd). Appellant's objection of "violating the rules of closing argument" was insufficient to inform the trial judge of how the comment was allegedly improper. Appellant's objection at trial referenced where the prosecutor was standing, not the defendant's failure to testify. The appellant did not properly preserve a complaint for appellate review. Moreover, even assuming it was properly preserved, we conclude the trial judge did not err in overruling the objection. Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Dooley v. State, 65 S.W.3d 840, 843 (Tex.App.-Dallas 2002, pet. ref'd) (citing Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996)). The record reflects that the appellant gave a voluntary written statement to police after being warned of his constitutional rights. That statement was admitted into evidence. The prosecutor read directly from that statement in rebuttal argument. When a defendant makes a statement which is admitted into evidence, the State's reference to the statement, and comparison between the statement and the other evidence collected, is not a comment on the defendant's failure to testify or his right to remain silent. Garcia v. State, 126 S.W.3d 921, 924 (Tex.Crim. App 2004); Lopez v. State, 170 Tex. Crim. 208, 339 S.W.2d 906, 910-911 (1960). The prosecutor was clearly referring to the defendant's written statement, which was in evidence, and not to his failure to testify at trial.

Conclusion

The judgment of the trial court is affirmed.