Arrion Morris v. the State of Texas

Opinion

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-26-00122-CR

ARRION MORRIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 16th District Court Denton County, Texas1

Trial Court No. F24-2880-16, Honorable Sherry Shipman, Presiding

August 27, 2026

MEMORANDUM OPINION

Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

After entering a guilty plea to a charge of murder, Appellant, Arrion Keonta Morris, went to a jury for a recommendation on punishment. After hearing evidence, the jury returned a verdict of life imprisonment. The trial court accepted the jury’s recommendation and entered judgment. Appellant timely appeals raising one issue

1 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by

the Texas Supreme Court pursuant to its docket-equalization efforts. See TEX. GOV’T CODE § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.

relating to the State’s opening statement during the punishment hearing. We affirm the trial court’s judgment.

BACKGROUND

Because Appellant pleaded guilty to committing the charged offense of murder and does not challenge his plea on appeal, we will not address the facts supporting the murder. Appellant elected to have a jury assess his punishment. At the start of the punishment hearing, the State presented its opening statement. During its opening, the State said, “I anticipate that here at trial [Appellant’s] story is going to shift again to fit his new defensive theory, sudden passion. [Appellant] will say what he needs to, change his story when he needs to, and lie when he --.” At this point, Appellant objected stating, “Judge, object to being argumentative, outside the scope of opening statement.” The trial court sustained Appellant’s objections. The State resumed its statement. Once the State finished making its opening statement, Appellant requested a hearing outside the presence of the jury. After the jury was excused, Appellant objected that the State’s opening statement shifted the burden to Appellant and commented on his Fifth Amendment right not to testify. Appellant moved for a mistrial, which the trial court denied. At the close of the punishment hearing, the jury returned a verdict recommending Appellant be sentenced to life in prison. The trial court accepted this verdict and entered judgment in accordance. Appellant timely appealed.

ANALYSIS

By his sole issue, Appellant contends that the trial court abused its discretion by denying his request for a mistrial after the State used its opening statement to accuse

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Appellant of fabricating a sudden-passion defense before he raised the defense at trial. We conclude that Appellant failed to preserve this argument for review on appeal.

Rule 33.1 of the Texas Rules of Appellate Procedure requires that, in general, for a complaining party to preserve an alleged error for appellate review, the record must show that the party raised the issue with the trial court in a timely and specific request, objection, or motion. TEX. R. APP. P. 33.1(a); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Nearly every right may be waived by a party’s failure to object. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (en banc). The timely-objection requirement applies to claims that the State improperly commented on a defendant’s invocation of his Fifth Amendment right to silence. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc) (defendant’s failure to object to jury argument forfeits right to complain about issue on appeal); Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App. 1994) (en banc) (defendant must object to jury argument commenting on his failure to testify). To be timely, an objection must be raised as soon as the grounds for it become apparent. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). Specifically, to preserve error regarding improper jury argument, the essential requirements are that a party make a timely, specific request or objection and pursue the request or objection to an adverse ruling. Fonseca v. State, No. 08-10-00080-CR, 2011 Tex. App. LEXIS 6782, at *20–21 (Tex. App.—El Paso Aug. 24, 2011, no pet.) (not designated for publication) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004), and Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002)).

In the present case, immediately after the State said, “I anticipate that here at trial [Appellant’s] story is going to shift again to fit his new defensive theory, sudden passion.

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This [d]efendant will say what he needs to, change his story when he needs to, and lie when he --,” Appellant objected that the statement was “argumentative, [and] outside the scope of opening statement.” The trial court sustained Appellant’s objections. Appellant did not request an instruction to disregard the statement. After the State completed its opening statement, Appellant appears to have requested a hearing outside the presence of the jury. At this time, Appellant objected that the State’s argument violated Appellant’s Fifth Amendment right not to testify and shifted the burden to Appellant. Appellant explained that he “did not object in front of the jury to highlight it even more.” Appellant moved for a mistrial on this basis. He also indicated that, if the mistrial was not granted, he requested the trial court instruct the jury that it should not consider anything that the lawyers say in opening statements as evidence and that “they cannot consider anything stated about my client testifying on his own behalf . . . .” The trial court denied the motion for mistrial. When asked what instruction he was requesting, Appellant said, “[m]aybe explain one more time that what the lawyers say at this stage of the trial is not evidence.” The trial court instructed the jury in accordance with Appellant’s request.

We conclude that Appellant has waived his appellate issue. First, we note that his initial objections to the State’s opening statement were sustained. However, Appellant did not request an instruction that the jury disregard this argument. Generally, when an objection to jury argument is sustained, to preserve error, the defendant must request an instruction to disregard. Cooks v. State, 844 S.W.2d 697, 727–28 (Tex. Crim. App. 1992); see McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (en banc) (exception is when instruction to disregard would not cure error)). We conclude that an instruction to disregard the State’s argument on the grounds that it was argumentative and outside

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the record would have cured any harm caused by the error. 2 See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (instruction to disregard generally sufficient to cure improprieties because we presume jury will follow those instructions). Second, Appellant did not make his objections that the State’s argument violated his Fifth Amendment right not to testify and shifted the burden until after the State completed its opening statement. These objections are waived as untimely. See Gillenwaters, 205 S.W.3d at 537 (for objection to be timely, it must be made when grounds become apparent); Weems v. State, 328 S.W.3d 172, 179 (Tex. App.—Eastland 2010, no pet.) (objection raised after State concludes closing argument in which it commented on defendant’s failure to testify is not timely and is, therefore, waived). Additionally, when the trial court asked Appellant how he was requesting the trial court instruct the jury, Appellant responded to “[m]aybe explain one more time that what the lawyers say at this stage of the trial is not evidence. I just think that is the cleanest way.” The trial court did so instruct the jury.

Having determined that Appellant waived any error in the State’s opening statements, we overrule his sole issue.

2 Appellant contends that an instruction to disregard “would not have been sufficient to cure the

error.” However, his argument is that such an instruction would have been ineffective because allowing the State “to forecast Appellant’s defense [of sudden passion] and attack it . . . is not a procedural or timing tactic that could be cured by an instruction.” However, because Appellant’s entire claim of harm caused by the State’s opening statement is that it improperly presented Appellant’s sudden passion claim and attacked it, we fail to see how an instruction to disregard this argument would not have cured this harm.

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CONCLUSION

Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.

Judy C. Parker

Chief Justice

Do not publish.