Adrian Gillian v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 1, 2023
• Docket: 05-21-01153-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed March 1, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01152-CR No. 05-21-01153-CR

ADRIAN GILLIAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F18-76363-R, F18-53171-R

MEMORANDUM OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Garcia Appellant judicially confessed and entered open guilty pleas to aggravated

robbery and evading arrest or detention with a motor vehicle. After a punishment

hearing, the court assessed punishment at twenty-five years in prison in the

aggravated robbery case and ten years in prison in the evading arrest case.

Appellant now argues the trial court erred in permitting evidence of his gang

affiliation and because the State made an improper argument. Appellant further

argues that the judgments should be reformed. We modify the judgments and, as

modified, affirm. I. Background

On September 22, 2018, two armed robbers ordered one of the co-owners of

a Wingstop to open the safe at gunpoint. Appellant was identified and apprehended

at the scene.

On March 21, 2019, officers investigating a different aggravated robbery

made a felony stop on a vehicle driven by appellant. Appellant evaded arrest for over

twenty minutes before he was taken into custody.

Appellant was charged with aggravated robbery and evading arrest or

detention with a motor vehicle. He judicially confessed to both charges and entered

open guilty pleas to the court. After a punishment hearing, the court assessed

punishment at twenty-five years in prison in the aggravated robbery case and ten

years in prison in the evading arrest case. This appeal followed.

II. Analysis

Gang Affiliation Testimony

Appellant’s first issue argues the trial court erred by allowing Officer Jared

Maddox to testify about appellant’s gang affiliation. The record reflects, however,

that appellant did not object to the testimony in the court below.

“To properly preserve an issue concerning the admission of evidence for

appeal, a party’s objection must inform the trial court why or on what basis the

otherwise admissible evidence should be excluded.” Ford v. State, 305 S.W.3d 530,

533 (Tex. Crim. App. 2009); see also TEX. R. APP. P. 33.1(a)(1)(A); Martinez v.

–2– State, 327 S.W.3d 727, 736 n.10 (Tex. Crim. App. 2010) (failure to object waives

issue on appeal). Because appellant failed to object, the issue has not been preserved

for our review. Appellant’s first issue is resolved against him.

Improper Argument

Appellant’s second issue argues the State made improper argument.

Specifically, during closing argument, the State argued:

Judge, these are very serious cases. Thank God nobody got killed. But at some point, Your Honor, we’re asking for the Court to sentence this defendant to enough years for him to understand the severity of what he’s done. And also to seek justice for us, for the State of Texas, for the victims that -- many victims that have been involved at the bad choices that this defendant, Adrian Gillian, has made. Even with his poor grandmother.

In general, proper jury argument falls within one of four areas: (1) summation

of the evidence, (2) reasonable deduction from the evidence, (3) answer to an

argument of opposing counsel, and (4) plea for law enforcement. See Freeman v.

State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (citing Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008)). To preserve a complaint that a jury

argument was improper, a defendant must lodge a “proper objection.” Hougham v.

State, 659 S.W.2d 410, 414 (Tex. Crim. App. [Panel Op.] 1983); see also Arellanes

v. State, No. 05-18-00429-CR, 2018 WL 3629087, at *4 (Tex. App.—Dallas July

31, 2018, pet. ref’d) (mem. op., not designated for publication). A defendant’s failure

to properly object results in forfeiture of his right to complain on appeal about the

argument. See Castillo Alvarado v. State, No. 05-19-00115-CR, 2020 WL 1181487,

–3– at *2 (Tex. App.—Dallas Mar. 12, 2020, no pet.) (mem. op., not designated for

publication); see also TEX. R. APP. P. 33.1.

When the State made the complained-of argument, appellant did not object.

Therefore, the issue is forfeited on appeal. Appellant’s second issue is resolved

against him.

Modifying the Judgment

Appellant’s third and fourth issues argue the judgments should be modified,

In particular, appellant requests that the judgment in Cause Number F18-7636-R be

modified to reflect that appellant entered an open plea of guilty to the court and was

not sentenced pursuant to a plea bargain, and that the judgments in both cases be

modified to reflect that the prosecutor was Chalana Oliver. The State agrees the

judgments should be modified.

We are authorized to reform a judgment to make the record speak the truth

when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26,

27 (Tex. Crim. App. 1993). Here, the judgment in Cause No. F18-76363-CR states

that appellant was sentenced to twenty–five years in prison pursuant to a plea

bargain. But the record reflects that appellant entered an open plea of guilty to the

court and no plea bargain was operative as to punishment.

The judgments in both cases state that the prosecutor was Sasha Stribling. The

reporter’s record, however, reflects that the prosecutor was Chalana Oliver.

–4– We therefore sustain appellant’s third and fourth issues and modify the

judgments accordingly.

III. Conclusion

We modify the judgment in Cause No. F18-76363-CR to reflect that appellant

entered an open plea of guilty to the court and no plea bargain was operative as to

punishment. We modify both judgments to reflect that the prosecutor was Chalana

Oliver. As modified, we affirm the trial court’s judgments.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 211152F.U05

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ADRIAN GILLIAN, Appellant On Appeal from the 265th Judicial District Court, Dallas County, Texas No. 05-21-01152-CR V. Trial Court Cause No. F18-76363-R. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Reichek and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to reflect that appellant entered an open plea of guilty and no plea bargain agreement was operative as to punishment and the attorney for the State was Chalana Oliver.

As REFORMED, the judgment is AFFIRMED.

Judgment entered March 1, 2023

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ADRIAN GILLIAN, Appellant On Appeal from the 265th Judicial District Court, Dallas County, Texas No. 05-21-01153-CR V. Trial Court Cause No. F18-53171-R. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Reichek and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to reflect that the attorney for the State was Chalana Oliver.

–7–