Kristopher Lee Smith v. State

Opinion

MEMORANDUM OPINION No. 04-11-00360-CR

Kristopher Lee SMITH, Appellant

v.

The STATE of Texas

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR12385 Honorable Sid L. Harle, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: March 21, 2012

AFFIRMED

A jury found appellant Kristopher Lee Smith guilty of the offense of murder and

sentenced him to sixty-five years confinement in the Texas Department of Criminal Justice–

Institutional Division. On appeal, Smith raises a single point of error in which he contends his

constitutional rights were violated by the State’s improper jury argument during the punishment

phase of the trial. We affirm. 04-11-00360-CR

BACKGROUND

A detailed rendition of the facts is unnecessary to the disposition of the appeal.

Accordingly, an abbreviated version of the facts is provided for context.

At trial, the evidence showed that in 2009, Smith was living with his parents. One

evening, Smith’s father became angry because Smith had failed to go to work. Smith’s mother

went upstairs to talk to Smith about this issue. After talking with her son, Smith’s mother went

back downstairs, but Smith began to yell at her from upstairs as she and Smith’s father attempted

to watch television.

When Smith’s mother tired of listening to Smith yell over the television, she went into

her office to check her email. Before she checked more than two emails, she heard a shot and

ran to see what had happened. She found Smith’s father in the living room looking upstairs at

Smith; Smith’s father then collapsed–he had been shot. Smith’s mother called 911. As she

spoke to the 911 operator, Smith came downstairs, stood by his father’s body and said, “Where is

your God now?” Smith was still holding the gun. Smith’s father died from a single gunshot

wound to the heart.

Smith claimed that on the day of the murder he drank alcohol and took pills in an attempt

to commit suicide. He further claimed he could not remember shooting his father. After a jury

trial, Smith was convicted. He then perfected this appeal.

ANALYSIS

On appeal, the only error alleged by Smith relates to a portion of the State’s closing

argument. Smith contends he is entitled to a new trial on punishment because the State

improperly asked the jury during closing argument to consider Smith’s mother’s testimony that a

twenty-year sentence was unacceptable to her. Smith contends this argument violated his

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constitutional rights to due course and due process of law. The State responds by arguing that

Smith has failed to preserve error for our review because he failed to object to the complained of

argument.

The Texas Court of Criminal Appeals has held that to preserve error regarding improper

jury argument, the defendant must object to the argument. See, e.g., Mays v. State, 318 S.W.3d

368, 394 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 1606 (2011); Estrada v. State, 313

S.W.3d 274, 303 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 905 (2011); Cockrell v. State,

933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also TEX. R. APP. P. 33.1. Even if the argument

is so egregious that no instruction to disregard could cure the harm, an objection is required to

preserve the matter for appellate review. Estrada, 313 S.W.3d at 303 (noting that court of

criminal appeals overruled egregious argument exception in Cockrell).

We have reviewed the record and have determined that Smith did not object to the

portion of the State’s argument of which he now complains. Accordingly, Smith has not

preserved this matter for our review, and his argument that his failure to object “matters not” is

incorrect. See Mays, 318 S.W.3d at 394; Estrada, 313 S.W.3d at 303; Cockrell, 933 S.W.2d at

89; TEX. R. APP. P. 33.1. Even if challenged as constitutional error, an error is waived by a

failure to object unless the alleged error relates to a right that is: (1) waivable-only, such as the

right to counsel and the right to trial by jury, or (2) an absolute systemic right, such as

jurisdiction of the person, subject matter jurisdiction, and a penal statute’s need for compliance

with the separation of powers section of the state constitution. Saldano v. State, 70 S.W.3d 873,

888-89 (Tex. Crim. App. 2002). Here, Smith does not argue the State’s argument violated a

waivable-only right nor an absolute systemic right, nor do we find that the alleged error amounts

to an attack on such rights.

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Having failed to object to the State’s argument, Smith has waived error. Accordingly, we

overrule his point of error and affirm the trial court’s judgment.

Marialyn Barnard, Justice

Do Not Publish

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