Boderic Komolafe v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-15-00117-CR NO. 02-15-00118-CR

BODERIC KOMOLAFE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NOS. F-2013-0379-D, F-2013-0378-D

MEMORANDUM OPINION1

Appellant Boderic Komolafe pleaded guilty to two cases of aggravated

robbery, and the jury assessed his punishment at eighty years’ confinement in

each case. See Tex. Penal Code Ann. § 29.03 (West 2011). The trial court

sentenced Komolafe accordingly and ordered the sentences to run concurrently.

1 See Tex. R. App. P. 47.4. In three points, Komolafe complains of various portions of the State’s closing

argument during punishment.

The record reflects—and Komolafe expressly concedes in his brief with

regard to his first point—that he lodged no objection at trial to the various

portions of the State’s closing argument he complains of on appeal. To preserve

a complaint for our review, a party must have presented to the trial court a timely

request, objection, or motion that states the specific 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); Everitt v. State, 407 S.W.3d 259, 262–63

(Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort

Worth 2013, pet. ref’d). 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, 407 S.W.3d at 263. A reviewing court should 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). “Except for complaints involving systemic (or

absolute) requirements, or rights that are waivable only, . . . all other complaints,

whether constitutional, statutory, or otherwise, are forfeited by failure to comply

with [r]ule 33.1(a).” Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App.

2004).

2 To avoid the preservation issue, Komolafe argues throughout his three

points that the State’s allegedly erroneous and harmful jury argument deprived

him of a fair trial. A due-process, fair-trial objection is required, however, to

preserve a complaint on appeal that the prosecutor engaged in serious and

continuing prosecutorial misconduct so as to effectively deprive a defendant of

due process or a fair trial. See Clark v. State, 365 S.W.3d 333, 339–40 (Tex.

Crim. App. 2012). The trial court “needs to be presented with and have the

chance to rule on the specific constitutional objection” because “constitutional

error is subject to a much stricter harm analysis on appeal.” Id. at 340.

Moreover, a substantive review of the challenged but unobjected-to portions of

the State’s closing argument during punishment reveals that the portions do not

rise to the level of fundamental error. See Arizona v. Fulminante, 499 U.S. 279,

309–10, 111 S. Ct. 1246, 1264–65 (1991) (recognizing fundamental error occurs

when certain constitutional rights are violated, such as the right to counsel, the

right to an impartial judge, the right for there not to be unlawful exclusion of

members of the defendant’s race from the grand jury, the right to self-

representation at trial, or the right to a public trial).

Because Komolafe lodged no objections to the portions of the State’s

closing argument he complains of on appeal, he forfeited all three of his

complaints. See Tex. R. App. P. 33.1(a); Threadgill v. State, 146 S.W.3d 654,

670 (Tex. Crim. App. 2004) (holding appellant’s failure to object to jury argument

3 during punishment phase forfeited right to raise the issue on appeal). We also

hold that no fundamental error occurred during the State’s closing argument. We

overrule Komolafe’s three points, and we affirm the trial court’s judgments.

/s/ Sue Walker SUE WALKER JUSTICE

PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: December 23, 2015