In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00312-CR
JEFFREY FLORES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2023-CR-2006, Honorable Douglas H. Freitag, Presiding
March 25, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Following a plea of not guilty, Appellant, Jeffrey Flores, was convicted by a jury of
continuous sexual abuse of a child and sentenced to life without parole. 1 He challenges
his conviction by a single issue asserting his Sixth Amendment right to an impartial jury
was violated when the trial court overruled his objection to the State’s improper closing
argument regarding his demeanor. He concedes improper jury argument is generally
1 TEX. PENAL CODE ANN. § 21.02(b). reviewed for harm as nonconstitutional error but requests this Court review the alleged
error for harm under the standard for constitutional error per Rule 44.2(a) of the Texas
Rules of Appellate Procedure. We affirm.
BACKGROUND
Appellant and the complainant met when the complainant and his mother moved
into the same apartment complex. Appellant served as a father figure to him because the
complainant’s father was in prison. Appellant’s son and the complainant became friends
at a very young age, attended school together, and had sleepovers. In 2014, Appellant
began sexually abusing the complainant during the sleepovers.
Appellant does not challenge the sufficiency of the evidence. Thus, only facts
necessary to disposition of his sole issue will be addressed.
Appellant contends the trial court violated his Sixth Amendment right to an impartial
jury when it overruled his objection on the State’s improper closing argument referencing
Appellant’s demeanor. The State argues error, if any, was harmless. We find Appellant
did not preserve his complaint and does not present harmful reversible error for the
following reasons:
• objection at trial does not comport with complaint on appeal;
• Sixth Amendment issue is raised for the first time on appeal; and
• failure to object again when the prosecutor presented the same argument.
During the State’s closing argument in the underlying case, the prosecutor argued as
follows:
2 [The complainant] came in and he had the courage to not only face this Defendant, but a courtroom full of people, and relive the most horrific things that ever happened to him in his life. That is not something that he wanted to do. And you can consider his demeanor, you can also consider the demeanor of this Defendant throughout trial. Anything you have seen in this courtroom.
Ladies and gentlemen, this Defendant knows exactly what he did to [the complainant]. He will not be surprised at all when you come back with a guilty verdict.
[Defense counsel]: Objection, your Honor, that’s improper argument.
The Court: Overruled.
[Prosecutor]: He will not be surprised one bit when you come back with a guilty verdict on continuous sexual abuse of a child because he knows what he has been doing to [the complainant] since he was six years old. . . .
(Emphasis added). The prosecutor continued with the same argument without further
objection.
ANALYSIS
Although not raised by the State, preservation of error is a systemic requirement
we must review sua sponte. Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App.
2009). To preserve an error for appellate review, a party must make a timely and specific
objection and obtain an adverse ruling. TEX. R. APP. P. 33.1(a)(1)(A). “Magic words” are
not required; all a party has to do to avoid forfeiture on appeal is let the trial judge know
what he wants, why he thinks himself entitled to it, and to do so clearly enough for the
judge to understand at a time when the judge is in a proper position to do something
about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
3 Objection and Appellate Issue Differ
The only objection raised by Appellant during closing argument was “improper
argument” which was promptly overruled. A complaint on appeal must comport with the
objection made at trial. See Clark v. State, 365 S.W.3d 333, 339 n.1 (Tex. Crim. App.
2012) (noting an issue on appeal must comport with the objection made at trial); Thomas
v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Here, Appellant maintains for the
first time that his Sixth Amendment right to an impartial jury was violated. However, he
never put the trial court on notice that he was arguing a Sixth Amendment violation at a
time when the court was in a proper position to rule on such a complaint; thus, his issue
does not comport with his trial objection and is not preserved for appellate review.
Sixth Amendment Complaint
A Sixth Amendment violation may not be raised for the first time on appeal. See
Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim. App. 2018). See also Mims v.
State, 607 S.W.3d 419, 428 (Tex. App.—Texarkana 2020, pet. ref’d). A complaint of a
Sixth Amendment violation of the right to an impartial jury “must be pressed in some
fashion at trial before reversal of [a defendant’s] conviction may be predicated upon its
breach.” Hicks v. State, 606 S.W.3d 308, 320 (Tex. App.—Houston [1st Dist.] 2020, pet.
ref’d) (citing Delrio v. State, 840 S.W.2d 443, 445–46 (Tex. Crim. App. 1992) (noting that
Court of Criminal Appeals has not held “that an impartial jury is an inflexible constitutional
imperative which cannot be procedurally defaulted or consciously waived”)).
After an exhaustive search, this Court has not found any authority in which a claim
of improper jury argument morphed into the denial of the Sixth Amendment right to an
4 impartial jury. Even so, a specific objection on the right to an impartial jury was required
unless the error was so egregious it caused harm. See Drake v. State, 465 S.W.3d 759,
763 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (finding complaint on appeal of the
denial of a fair and impartial jury waived unless error is so egregious it caused harm).
Violations of Sixth Amendment protections attributable to trial court error must comply
with Rule 33.1(a) of the Texas Rules of Appellate procedure or be forfeited. Ripkowski v.
State, 61 S.W.3d 378, 386 (Tex. Crim. App. 2001). See also Darcy v. State, 488 S.W.3d
325, 329 (Tex. Crim. App. 2016) (finding a violation of the right to counsel under the Sixth
Amendment as it pertained to evidentiary issues forfeited by inaction); Suniga v. State,
No. AP-77,041, 2019 Tex. Crim. App. Unpub. LEXIS 128, at *14 n.5 (Tex. Crim. App.
March 6, 2019) (finding complaint of a Sixth Amendment violation on trial court’s denial
of a challenge for cause raised for the first time on appeal forfeited when defendant did
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00312-CR
JEFFREY FLORES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2023-CR-2006, Honorable Douglas H. Freitag, Presiding
March 25, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Following a plea of not guilty, Appellant, Jeffrey Flores, was convicted by a jury of
continuous sexual abuse of a child and sentenced to life without parole. 1 He challenges
his conviction by a single issue asserting his Sixth Amendment right to an impartial jury
was violated when the trial court overruled his objection to the State’s improper closing
argument regarding his demeanor. He concedes improper jury argument is generally
1 TEX. PENAL CODE ANN. § 21.02(b). reviewed for harm as nonconstitutional error but requests this Court review the alleged
error for harm under the standard for constitutional error per Rule 44.2(a) of the Texas
Rules of Appellate Procedure. We affirm.
BACKGROUND
Appellant and the complainant met when the complainant and his mother moved
into the same apartment complex. Appellant served as a father figure to him because the
complainant’s father was in prison. Appellant’s son and the complainant became friends
at a very young age, attended school together, and had sleepovers. In 2014, Appellant
began sexually abusing the complainant during the sleepovers.
Appellant does not challenge the sufficiency of the evidence. Thus, only facts
necessary to disposition of his sole issue will be addressed.
Appellant contends the trial court violated his Sixth Amendment right to an impartial
jury when it overruled his objection on the State’s improper closing argument referencing
Appellant’s demeanor. The State argues error, if any, was harmless. We find Appellant
did not preserve his complaint and does not present harmful reversible error for the
following reasons:
• objection at trial does not comport with complaint on appeal;
• Sixth Amendment issue is raised for the first time on appeal; and
• failure to object again when the prosecutor presented the same argument.
During the State’s closing argument in the underlying case, the prosecutor argued as
follows:
2 [The complainant] came in and he had the courage to not only face this Defendant, but a courtroom full of people, and relive the most horrific things that ever happened to him in his life. That is not something that he wanted to do. And you can consider his demeanor, you can also consider the demeanor of this Defendant throughout trial. Anything you have seen in this courtroom.
Ladies and gentlemen, this Defendant knows exactly what he did to [the complainant]. He will not be surprised at all when you come back with a guilty verdict.
[Defense counsel]: Objection, your Honor, that’s improper argument.
The Court: Overruled.
[Prosecutor]: He will not be surprised one bit when you come back with a guilty verdict on continuous sexual abuse of a child because he knows what he has been doing to [the complainant] since he was six years old. . . .
(Emphasis added). The prosecutor continued with the same argument without further
objection.
ANALYSIS
Although not raised by the State, preservation of error is a systemic requirement
we must review sua sponte. Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App.
2009). To preserve an error for appellate review, a party must make a timely and specific
objection and obtain an adverse ruling. TEX. R. APP. P. 33.1(a)(1)(A). “Magic words” are
not required; all a party has to do to avoid forfeiture on appeal is let the trial judge know
what he wants, why he thinks himself entitled to it, and to do so clearly enough for the
judge to understand at a time when the judge is in a proper position to do something
about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
3 Objection and Appellate Issue Differ
The only objection raised by Appellant during closing argument was “improper
argument” which was promptly overruled. A complaint on appeal must comport with the
objection made at trial. See Clark v. State, 365 S.W.3d 333, 339 n.1 (Tex. Crim. App.
2012) (noting an issue on appeal must comport with the objection made at trial); Thomas
v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Here, Appellant maintains for the
first time that his Sixth Amendment right to an impartial jury was violated. However, he
never put the trial court on notice that he was arguing a Sixth Amendment violation at a
time when the court was in a proper position to rule on such a complaint; thus, his issue
does not comport with his trial objection and is not preserved for appellate review.
Sixth Amendment Complaint
A Sixth Amendment violation may not be raised for the first time on appeal. See
Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim. App. 2018). See also Mims v.
State, 607 S.W.3d 419, 428 (Tex. App.—Texarkana 2020, pet. ref’d). A complaint of a
Sixth Amendment violation of the right to an impartial jury “must be pressed in some
fashion at trial before reversal of [a defendant’s] conviction may be predicated upon its
breach.” Hicks v. State, 606 S.W.3d 308, 320 (Tex. App.—Houston [1st Dist.] 2020, pet.
ref’d) (citing Delrio v. State, 840 S.W.2d 443, 445–46 (Tex. Crim. App. 1992) (noting that
Court of Criminal Appeals has not held “that an impartial jury is an inflexible constitutional
imperative which cannot be procedurally defaulted or consciously waived”)).
After an exhaustive search, this Court has not found any authority in which a claim
of improper jury argument morphed into the denial of the Sixth Amendment right to an
4 impartial jury. Even so, a specific objection on the right to an impartial jury was required
unless the error was so egregious it caused harm. See Drake v. State, 465 S.W.3d 759,
763 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (finding complaint on appeal of the
denial of a fair and impartial jury waived unless error is so egregious it caused harm).
Violations of Sixth Amendment protections attributable to trial court error must comply
with Rule 33.1(a) of the Texas Rules of Appellate procedure or be forfeited. Ripkowski v.
State, 61 S.W.3d 378, 386 (Tex. Crim. App. 2001). See also Darcy v. State, 488 S.W.3d
325, 329 (Tex. Crim. App. 2016) (finding a violation of the right to counsel under the Sixth
Amendment as it pertained to evidentiary issues forfeited by inaction); Suniga v. State,
No. AP-77,041, 2019 Tex. Crim. App. Unpub. LEXIS 128, at *14 n.5 (Tex. Crim. App.
March 6, 2019) (finding complaint of a Sixth Amendment violation on trial court’s denial
of a challenge for cause raised for the first time on appeal forfeited when defendant did
not implicitly advance it as a legal basis during trial); Reyna v. State, 168 S.W.3d 173,
179 (Tex. Crim. App. 2005) (noting a hearsay objection does not preserve error under the
Confrontation Clause of the Sixth Amendment). But a claim of ineffective assistance of
counsel in violation of the Sixth Amendment does not implicate trial court error and may
be raised for the first time on appeal. Robertson v. State, 187 S.W.3d 475 (Tex. Crim.
App. 2006).
Here, Appellant’s complaint is directed at the trial court’s ruling on his objection of
improper argument. To preserve his Sixth Amendment complaint, he was required to
specify it as the legal basis during trial.
5 Same Improper Argument Without Objection
Immediately after the trial court overruled Appellant’s “improper argument”
objection, the prosecutor urged the same jury argument that Appellant would not “be
surprised one bit when you come back with a guilty verdict . . . .” No objection was made.
“Where the same objected-to argument is presented elsewhere during trial without
objection, no reversible error exists.” McFarland v. State, 845 S.W.2d 824, 840 (Tex.
Crim. App. 1992), cert. denied, 508 U.S. 963, 24 L. Ed. 2d 686, 113 S. Ct. 2937 (1993).
For the reasons explained, Appellant’s sole issue is unpreserved and thus,
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Alex Yarbrough Justice
Do not publish.
Quinn, C.J., concurs in the result.