Opinion
NO. 02-17-00165-CR
01-11-2018
TIMOTHY SHAWN WILLIAMS APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR15-0593 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Timothy Shawn Williams appeals his eighty-year sentence for evading arrest or detention while using a vehicle. In two related issues, Williams argues that the State made several improper jury arguments in the punishment phase of his trial and that these allegedly improper arguments cumulatively violated his constitutional right of due process. See U.S. Const. amend V. Williams acknowledges that he did not object to any part of the State's argument in the trial court, and on appeal, the State contends that his failure to do so results in the forfeiture of his complaints. Based on well-settled, longstanding precedent, we agree with the State. We therefore affirm the trial court's judgment.
See Tex. Penal Code Ann. § 38.04(b)(2) (West 2016). Williams does not appeal his conviction; he asks us to reverse the trial court's judgment and to remand for a new trial on punishment.
Background Facts
A grand jury indicted Williams for evading arrest or detention while using a vehicle. For sentence-enhancement purposes, the indictment alleged that he had several prior felony convictions. Williams pleaded guilty and judicially confessed to the offense. He also pleaded true to the indictment's enhancement allegations. The trial court found him guilty, found the enhancement allegations true, and conducted a jury trial for the assessment of his punishment. After receiving the parties' evidence and arguments on punishment, the jury assessed eighty years' confinement. The trial court sentenced Williams accordingly, and he brought this appeal.
Williams's enhanced punishment range was confinement from twenty-five years to ninety-nine years or life. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2017).
Williams stipulated to many prior convictions. The jury received evidence about those convictions, about the circumstances of the evading arrest offense (including a twenty-mile pursuit of Williams by the police), and about other facts. Williams did not testify.
The Forfeiture of Williams's Complaints
In two issues, Williams argues that the State made several improper statements during its closing argument on his punishment. He contends that the statements improperly induced the jury to reach its sentence based on expectations of the community, improperly commented on his decision to not testify, and injected new and harmful facts into the case by speculating about details of his prior convictions. He also asserts that the cumulative effect of the statements amounts to a violation of due process.
Williams acknowledges that he did not object to any part of the State's closing argument in the trial court but argues that he did not need to object. The State contends that Williams's failure to object in the trial court forfeits his complaints for our review. We agree with the State.
To preserve a complaint for our review, a party must have presented to the trial court a timely objection that states the grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013). We cannot not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
The Texas Court of Criminal Appeals and this court have consistently and repeatedly applied rule 33.1(a)'s preservation requirements to jury arguments. See, e.g., Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010), cert. denied, 562 U.S. 1142 (2011); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) ("To preserve error[,] . . . a defendant must pursue to an adverse ruling his objections to jury argument."); Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) ("Appellant did not object to the prosecutor's argument and therefore failed to preserve error."); Isbell v. State, Nos. 02-14-00124-CR, 02-14-00125-CR, 2017 WL 3526339, at *5 (Tex. App.—Fort Worth Aug. 17, 2017, no pet. h.) (mem. op. on remand and on reh'g, not designated for publication) ("Absent an objection to jury argument at trial, nothing is presented for review."); Montez v. State, No. 02-16-00175-CR, 2017 WL 2807395, at *5 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not designated for publication) ("Because Montez did not object to the State's argument regarding the effects of K-2, his complaint on appeal is forfeited."); Hopper v. State, 483 S.W.3d 235, 237 (Tex. App.—Fort Worth 2016, pet. ref'd) ("Hopper did not object to the second argument and, therefore, forfeited any error arising from this argument by the prosecutor."). Indeed, this court and other intermediate courts have recognized that the preservation requirements apply even when the State's argument is egregious. See Morris v. State, No. 02-16-00171-CR, 2017 WL 2590569, at *5 (Tex. App.—Fort Worth June 15, 2017, pet. ref'd) (mem. op., not designated for publication) ("[L]ike all complaints that are subject to preservation, a defendant must object each time an improper argument is made, or he forfeits his complaint, regardless of how egregious the argument."); see also Cruz v. State, No. 08-14-00058-CR, 2016 WL 3194924, at *3 (Tex. App.—El Paso June 8, 2016, pet. ref'd) (not designated for publication) ("[The preservation rule] applies even if the argument is egregious and an instruction to disregard would not have cured the harm caused by the improper argument.").
Williams recognizes that rule 33.1(a)'s preservation requirement is a hurdle to his ability to pursue his complaints, but he relies on three cases to contend that we should depart from the general preservation rule in this appeal. Those cases do not persuade us to do so.
First, Williams cites the decision of the Waco court of appeals in Campbell v. State, 900 S.W.2d 763 (Tex. App.—Waco 1995, no pet.), to argue that "under certain circumstances, a jury argument comment on a defendant's failure to testify can rise to the level of fundamental error." There, Campbell argued that the State had improperly commented on his failure to testify during closing argument. Id. at 765-66. At trial, Campbell's counsel had failed to object to any of the statements. Id. at 766. The Waco court acknowledged the general rule of preservation but relied on an opinion by the Texas Court of Criminal Appeals to state that an "exception to the general rule exists where the argument is manifestly improper, violates some mandatory statute, or injects some new fact harmful to the defendant's case." Id. at 767 (citing Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989)).
After the decision in Campbell, however, the Texas Court of Criminal Appeals denounced this exception and overruled the cases that had recognized it. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997). The court held that a defendant's entitlement "not to be subjected to incurable erroneous jury arguments is . . . forfeited by a failure to insist upon it." Id. The court concluded that "a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Id.; see Estrada, 313 S.W.3d at 303 (stating that in Cockrell, the court "overruled the exception discussed in Willis"); Ortiz v. State, Nos. 14-01-00556-CR, 14-01-00557-CR, 2002 WL 1041054, at *7 (Tex. App.—Houston [14th Dist.] May 23, 2002, pet. ref'd) (not designated for publication) ("In Cockrell v. State, the Court of Criminal Appeals overruled . . . any . . . cases allowing an exception to normal error-preservation rules for improper and incurable jury argument."). Thus, because the Texas Court of Criminal Appeals overruled the exception recognized in Campbell, Williams misplaces his reliance on that decision.
Second, Williams relies on the Texas Court of Criminal Appeals's decision in Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014). He contends that in Grado, the court "re-examined its requirements for error preservation." In that case, the court held that a defendant's right to be "sentenced by a judge who considers the entire range of punishment" is a waivable-only right that is not subject to procedural default. Id. at 737. The court discussed three categories of rights that affect error preservation requirements: (1) absolute rights that a defendant cannot forfeit by inaction, (2) waivable-only rights that a court must implement unless a defendant has expressly waived them, and (3) rights that a defendant forfeits by inaction. Id. at 739 (citing Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993)). The court described the first two categories as "narrow exceptions" to rule 33.1(a)'s preservation requirements and held that under the "unique circumstances" presented in that case, the right to be sentenced by a court that considered the entire range of punishment was a category-two right. Id.
Grado's holding does not help Williams. In Cockrell, the court classified a defendant's right to not be subjected to improper jury arguments as a category-three forfeitable right. 933 S.W.2d at 89; see also Grado, 445 S.W.3d at 741 & n.29 (citing Cockrell and explaining that the right at issue in Grado was "fundamentally different" than the forfeitable right discussed in Cockrell). The court has never departed from this holding, and we have applied it in many cases.
Third, Williams relies on our decision in Hernandez v. State, 508 S.W.3d 737 (Tex. App.—Fort Worth 2016, pet. granted). There, during closing argument, the State used a racial pejorative to which Hernandez timely objected. Id. at 743. The trial court first overruled the objection, then sustained the objection and instructed the jury to disregard the comment. Id. Hernandez did not request a mistrial, but he complained about the improper argument in a motion for new trial. Id. We recognized that under rule 33.1(a), a defendant must preserve a complaint about an improper jury argument, but we held that Hernandez had done so "both at trial and in his motion for new trial." Id. at 743 & n.20, 747.
This case is distinguishable from Hernandez. Here, Williams made no objection to the State's argument during or after the trial—he made no attempt to satisfy rule 33.1(a)'s preservation requirements. We therefore conclude that our holding and reasoning in Hernandez does not avail Williams.
For all of these reasons, without reaching the merits of Williams's issues—see Ford, 305 S.W.3d at 532—we hold that he forfeited his complaints about the State's closing argument by not objecting to the argument in the trial court. See Tex. R. App. P. 33.1(a); Archie, 221 S.W.3d at 699; Hopper, 483 S.W.3d at 237. We overrule both of his issues.
Conclusion
Having overruled both of Williams's issues, we affirm the trial court's judgment.
/s/ Wade Birdwell
WADE BIRDWELL
JUSTICE PANEL: GABRIEL, KERR, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: January 11, 2018