Donald Eugene Bell v. State

• Court: Court of Appeals of Texas
• Decided: April 20, 2015
• Docket: 02-14-00056-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00056-CR

DONALD EUGENE BELL APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1270275D

MEMORANDUM OPINION 1

A jury convicted Appellant Donald Eugene Bell of aggravated sexual

assault of a child under fourteen years of age and assessed his punishment at

sixty-six months’ confinement. The trial court sentenced him accordingly. In

three issues, Appellant contends that during the punishment phase of the trial,

the prosecutor asked him a question on cross-examination that constituted a

1 See Tex. R. App. P. 47.4. comment on his right not to testify, that the trial court should have granted his

motion for mistrial after another allegedly improper comment by the prosecutor,

and that the trial court erred by denying his request for a Fifth Amendment

instruction in the punishment jury charge. Because we hold that the trial court

did not err by omitting the instruction from the jury charge and that Appellant did

not preserve his first issue or adequately brief his third issue, we affirm the trial

court’s judgment.

Denial of Mistrial Inadequately Briefed

In his third issue, Appellant argues that the trial court abused its discretion

by failing to grant a mistrial. The State said to Appellant in cross-examination at

the punishment phase of the trial, “Okay. We all know that the stuff you’ve said

about [Complainant] is not true.” Appellant timely objected, and the trial court

sustained the objection and instructed the jury to disregard. The trial court

denied Appellant’s motion for mistrial. But Appellant cites no authority in support

of his contention that the trial court abused its discretion by denying the motion

for mistrial after instructing the jury to disregard the prosecutor’s statement. As

the State argues, by failing to cite to any authority, Appellant brings us nothing to

review. 2 We overrule his third issue.

2 See Tex. R. App. P. 38.1(i) (requiring brief to contain “appropriate citations to authorities”); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 2712 (2012); Nolan v. State, 102 S.W.3d 231, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding conclusory statements citing no authority present nothing for appellate review).

2 No Objection to Prosecutor’s Comment on Appellant’s Failure to Testify

After the jury found him guilty, Appellant testified at the punishment phase.

He stated that the jury found him guilty “without knowing” him and “without ever

really talking to [him] because [he] didn’t . . . say a word.” On cross-examination,

the following occurred:

Q. And you’re going to tell this jury again that [Complainant] told you all of those things about herself, that you kept a secret, that’s not a lie that you concocted for the detective?

A. I don’t concoct lies, ma’am. I tell you just what you asked me and I tell you the truth. I don’t have to concoct anything.

Q. Which is the reason why you didn’t testify earlier, right?

A. The reason why I didn’t testify earlier is because I didn’t think that I would have to.

Q. Because the truth would come out?

A. The truth would come out. That’s what I thought. But it didn’t. So that’s why I’m up here speaking now. [Emphasis added.]

Appellant did not object but now complains in his first issue of the

emphasized question posed by the prosecutor. To preserve error for appellate

review, a party must make a timely and specific objection or timely file a motion

in the trial court and receive an adverse ruling. 3 Here, Appellant made no

objection. Consequently, Appellant did not preserve this issue for appellate

review. We overrule his first issue.

3 See 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).

3 Proper Denial of Jury Charge Instruction

In his second issue, Appellant argues that the trial court reversibly erred by

denying his requested instruction on the failure to testify at the punishment phase

of the trial. But Appellant had asked that the requested instruction refer to his

decision not to testify at guilt. He testified at the punishment phase. When a

defendant testifies, he is not entitled to an instruction on failure to testify. 4 When

a defendant has no right to a particular instruction, the trial court does not err in

refusing to give the instruction. The trial court therefore did not err by refusing to

give the requested instruction, and, consequently, no harm analysis is required. 5

We overrule Appellant’s second issue.

Conclusion

Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.

4 Smith v. State, 65 S.W.3d 332, 341 (Tex. App.—Waco, 2001, no pet.). 5 See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

4 /s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

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

DELIVERED: April 16, 2015