Timothy Shawn Williams v. The State of Texas

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.3 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’ evidence4 and arguments on punishment, the jury assessed

eighty years’ confinement. The trial court sentenced Williams accordingly, and

he brought this appeal.

3Williams’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).

4Williams 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.

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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).

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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,

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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)).

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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

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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.

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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.

Having overruled both of Williams’s issues, we affirm the trial court’s

judgment.