Opinion issued November 20, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01022-CR ——————————— STEVE LEE DORSEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1249910
MEMORANDUM OPINION
Without a sentencing recommendation from the State, Appellant pleaded
guilty to the offense of aggravated robbery. 1 Following the preparation of a
1 See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011). presentence investigation (“PSI”) report, the trial court conducted a sentencing
hearing. At the conclusion of the hearing, the trial court found Appellant guilty of
the aggravated-robbery offense, and sentenced him to 25 years in prison. The trial
court also made a deadly-weapon finding in the judgment, indicating that
Appellant had used a firearm in the commission of the offense. In one issue on
appeal, Appellant complains that the State’s closing argument improperly
influenced the trial court’s imposition of Appellant’s sentence.
We affirm.
Background
At Appellant’s sentencing hearing, the State did not introduce any testimony
or other evidence. Instead, it relied on the PSI report.
Appellant and his mother testified in his defense at the hearing. They both
stated that Appellant, who was 20 years old at the time of the hearing, was 16 years
old at the time he committed the aggravated robbery. They testified that, at the
time of the robbery, Appellant’s family had been unable to afford medication that
Appellant had been prescribed for a psychiatric condition. They both claimed that,
when he does not take his medication, Appellant is easily influenced by others to
do things that he should not do. Appellant and his mother indicated he was
influenced by his co-defendant to commit the aggravated-robbery offense. In this
2 regard, Appellant referred to himself as a “victim.” Appellant also emphasized
that it was his co-defendant, and not him, who held the gun during the robbery.
Appellant acknowledged that he had been “incarcerated as a juvenile” for
committing assault. He also testified that, while out on bond for the instant
offense, he had been charged with the offenses of possession of cocaine and
unlawfully carrying a weapon, which he stated was a gun.
Despite his troubled past, Appellant told the trial court that he planned to go
to school to obtain his GED and to find work doing construction. In his closing
argument, Appellant’s counsel restated Appellant’s testimony and requested that
Appellant be placed on community supervision.
In its closing, the State pointed out that Appellant had been in repeated
trouble with the law, including while he was out on bond in this case. The
prosecutor also pointed to the PSI report, which, according to the prosecutor,
indicated that Appellant had been more violent than his co-defendant during the
robbery. The complainant had indicated that Appellant had repeatedly threatened
to kill him during the robbery. It was in this context that the prosecutor made the
following statement during closing argument:
It’s not [his co-defendant’s] fault. And, as much as defense counsel is trying to portray [Appellant’s] co-defendant as the bad, older man, [the co-defendant’s] date of birth is September 8, 1992. This defendant’s date of birth is December 29, 1992. At some point he has to be held accountable for his choices and his actions. And, I would ask the Court to do that, knowing that his co-defendant for the same
3 offense, without picking up any additional charges, was sentenced to 25 years by this Court back in 2011. I would ask the Court to assess 30 years in this case for this defendant.
At that point, the trial court ruled: “Steve Dorsey Jr., on your plea of guilty and the
evidence introduced herein, the Court finds you guilty of the offense of aggravated
robbery and assesses your punishment at 25 years’ confinement in the Texas
Department of Corrections.”2
No Objection to State’s Argument
In his sole issue, Appellant complains of the State’s remark during closing
argument in which the prosecutor stated that the trial court had sentenced
Appellant’s co-defendant to 25 years in prison for the same offense. Appellant
points out that immediately following this statement, the trial court sentenced
Appellant to 25 years in prison. He asserts that this shows that the trial court was
improperly influenced by the State’s argument.
In his brief, Appellant concedes that he did not object to the State’s
argument. And, he acknowledges that, to preserve a complaint for appellate
review, Rule of Appellate Procedure 33.1 requires a party to make a specific and
timely request, motion, or objection to the trial court and, further, to obtain an
2 The offense of aggravated robbery is a first-degree felony. TEX. PENAL CODE ANN. § 29.03(b). The punishment range for a first-degree felony is imprisonment for five to ninety-nine years or confinement for life; the fact finder may also impose fine of up to $10,000. See TEX. PENAL CODE ANN. § 12.32 (Vernon 2011).
4 adverse ruling. See TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807
(Tex. Crim. App. 2011). Nonetheless, Appellant asserts as follows:
[T]he lack of an objection to the prosecutor’s improper argument should not deter this Court from analyzing appellant’s point for review. Unlike an objection to improper argument at a jury trial where the trial court can instruct the jury to disregard the improper argument, in a court trial such as appellant’s, there is no one to whom the judge needs to give an instruction to disregard. Appellant also contends that an exception to the general rule requiring an objection exists in appellant’s case because the prosecutor’s improper argument so infected the punishment phase of appellant’s case with unfairness that it denied appellant due process and hereby violated his 14th Amendment rights.
The Court of Criminal Appeals has emphasized that a defendant must
preserve a complaint that the State’s closing argument was improper. See Mays v.
State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) (“[W]e will not review the
propriety of the prosecutor’s arguments, as appellant failed to object to those
arguments at trial. He has failed to preserve any issue for appeal.”); Threadgill v.
State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (“Because appellant failed to
object to the jury argument, he has forfeited his right to raise the issue on appeal.”);
Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002) (“Appellant failed
to object at trial to the prosecutor’s arguments, however, and therefore forfeited his
right to complain about this issue on appeal.”). Courts have applied this rule to
bench trials. See, e.g., Parker v. State, No. 02–11–00032–CR, 2011 WL 5984539,
at *2–3 (Tex. App.—Fort Worth Dec. 1, 2011, no pet.) (mem. op., not designated
5 for publication) (holding that, in a bench trial, by failing to object to prosecutor’s
closing arguments at the time they were made, appellant forfeited any potential
error for appellate review).
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Opinion issued November 20, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01022-CR ——————————— STEVE LEE DORSEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1249910
MEMORANDUM OPINION
Without a sentencing recommendation from the State, Appellant pleaded
guilty to the offense of aggravated robbery. 1 Following the preparation of a
1 See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011). presentence investigation (“PSI”) report, the trial court conducted a sentencing
hearing. At the conclusion of the hearing, the trial court found Appellant guilty of
the aggravated-robbery offense, and sentenced him to 25 years in prison. The trial
court also made a deadly-weapon finding in the judgment, indicating that
Appellant had used a firearm in the commission of the offense. In one issue on
appeal, Appellant complains that the State’s closing argument improperly
influenced the trial court’s imposition of Appellant’s sentence.
We affirm.
Background
At Appellant’s sentencing hearing, the State did not introduce any testimony
or other evidence. Instead, it relied on the PSI report.
Appellant and his mother testified in his defense at the hearing. They both
stated that Appellant, who was 20 years old at the time of the hearing, was 16 years
old at the time he committed the aggravated robbery. They testified that, at the
time of the robbery, Appellant’s family had been unable to afford medication that
Appellant had been prescribed for a psychiatric condition. They both claimed that,
when he does not take his medication, Appellant is easily influenced by others to
do things that he should not do. Appellant and his mother indicated he was
influenced by his co-defendant to commit the aggravated-robbery offense. In this
2 regard, Appellant referred to himself as a “victim.” Appellant also emphasized
that it was his co-defendant, and not him, who held the gun during the robbery.
Appellant acknowledged that he had been “incarcerated as a juvenile” for
committing assault. He also testified that, while out on bond for the instant
offense, he had been charged with the offenses of possession of cocaine and
unlawfully carrying a weapon, which he stated was a gun.
Despite his troubled past, Appellant told the trial court that he planned to go
to school to obtain his GED and to find work doing construction. In his closing
argument, Appellant’s counsel restated Appellant’s testimony and requested that
Appellant be placed on community supervision.
In its closing, the State pointed out that Appellant had been in repeated
trouble with the law, including while he was out on bond in this case. The
prosecutor also pointed to the PSI report, which, according to the prosecutor,
indicated that Appellant had been more violent than his co-defendant during the
robbery. The complainant had indicated that Appellant had repeatedly threatened
to kill him during the robbery. It was in this context that the prosecutor made the
following statement during closing argument:
It’s not [his co-defendant’s] fault. And, as much as defense counsel is trying to portray [Appellant’s] co-defendant as the bad, older man, [the co-defendant’s] date of birth is September 8, 1992. This defendant’s date of birth is December 29, 1992. At some point he has to be held accountable for his choices and his actions. And, I would ask the Court to do that, knowing that his co-defendant for the same
3 offense, without picking up any additional charges, was sentenced to 25 years by this Court back in 2011. I would ask the Court to assess 30 years in this case for this defendant.
At that point, the trial court ruled: “Steve Dorsey Jr., on your plea of guilty and the
evidence introduced herein, the Court finds you guilty of the offense of aggravated
robbery and assesses your punishment at 25 years’ confinement in the Texas
Department of Corrections.”2
No Objection to State’s Argument
In his sole issue, Appellant complains of the State’s remark during closing
argument in which the prosecutor stated that the trial court had sentenced
Appellant’s co-defendant to 25 years in prison for the same offense. Appellant
points out that immediately following this statement, the trial court sentenced
Appellant to 25 years in prison. He asserts that this shows that the trial court was
improperly influenced by the State’s argument.
In his brief, Appellant concedes that he did not object to the State’s
argument. And, he acknowledges that, to preserve a complaint for appellate
review, Rule of Appellate Procedure 33.1 requires a party to make a specific and
timely request, motion, or objection to the trial court and, further, to obtain an
2 The offense of aggravated robbery is a first-degree felony. TEX. PENAL CODE ANN. § 29.03(b). The punishment range for a first-degree felony is imprisonment for five to ninety-nine years or confinement for life; the fact finder may also impose fine of up to $10,000. See TEX. PENAL CODE ANN. § 12.32 (Vernon 2011).
4 adverse ruling. See TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807
(Tex. Crim. App. 2011). Nonetheless, Appellant asserts as follows:
[T]he lack of an objection to the prosecutor’s improper argument should not deter this Court from analyzing appellant’s point for review. Unlike an objection to improper argument at a jury trial where the trial court can instruct the jury to disregard the improper argument, in a court trial such as appellant’s, there is no one to whom the judge needs to give an instruction to disregard. Appellant also contends that an exception to the general rule requiring an objection exists in appellant’s case because the prosecutor’s improper argument so infected the punishment phase of appellant’s case with unfairness that it denied appellant due process and hereby violated his 14th Amendment rights.
The Court of Criminal Appeals has emphasized that a defendant must
preserve a complaint that the State’s closing argument was improper. See Mays v.
State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) (“[W]e will not review the
propriety of the prosecutor’s arguments, as appellant failed to object to those
arguments at trial. He has failed to preserve any issue for appeal.”); Threadgill v.
State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (“Because appellant failed to
object to the jury argument, he has forfeited his right to raise the issue on appeal.”);
Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002) (“Appellant failed
to object at trial to the prosecutor’s arguments, however, and therefore forfeited his
right to complain about this issue on appeal.”). Courts have applied this rule to
bench trials. See, e.g., Parker v. State, No. 02–11–00032–CR, 2011 WL 5984539,
at *2–3 (Tex. App.—Fort Worth Dec. 1, 2011, no pet.) (mem. op., not designated
5 for publication) (holding that, in a bench trial, by failing to object to prosecutor’s
closing arguments at the time they were made, appellant forfeited any potential
error for appellate review).
Appellant asserts that making an objection to the remark served no useful
purpose here because this was a bench trial; thus, there was no jury to instruct to
disregard the State’s argument. However, even accepting this reasoning, appellant
was still required to object and request a mistrial. See Mathis, 67 S.W.3d at 927
(reaffirming rule that, even if jury argument error could not be cured by
instruction, defendant is still required to object and request mistrial).
Moreover, Appellant’s objection to the remark may have served the useful
purpose of making the trial court aware of Appellant’s complaint at a time when
the trial court could have ruled on the issue. Rule 33.1’s requirement that a party
must make a timely, specific objection and obtain an adverse ruling serves two
main purposes: (1) to inform the trial court of the objection and give the trial court
an opportunity to rule on it, and (2) to give opposing counsel the opportunity to
take appropriate action in response. See Garza v. State, 126 S.W.3d 79, 82 (Tex.
Crim. App. 2004); see also TEX. R. APP. P. 33.1(a).
We also reject Appellant’s assertion that he was not required to object to the
State’s remark because it violated his due-process rights. Appellant appears to
confuse constitutional rights with systemic requirements or waivable-only rights,
6 for which no objection is required to preserve error. State v. Dunbar, 297 S.W.3d
777, 780 (Tex. Crim. App. 2009) (holding that Rule 33.1 “does not apply to rights
which are waivable only or to absolute systemic requirements, the violation of
which may still be raised for the first time on appeal”).
Numerous constitutional rights, including those that implicate a defendant’s
due-process rights, may be forfeited for purposes of appellate review unless
properly preserved. See Anderson v. State, 301 S.W.3d 276, 279–80 (Tex. Crim.
App. 2009) (rejecting “due process” exception to error preservation requirement);
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (holding errors based
on the constitutional rights to confrontation and due process may be waived by
failure to object at trial). Thus, Appellant has forfeited any due-process challenge
that he had regarding the effect of the State’s argument on his sentence.
We hold that Appellant has not preserved for appellate review his complaint
regarding the State’s closing argument and any possible effect it may have had on
the trial court’s sentencing of him. We overrule Appellant’s sole issue.
7 Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Higley, Bland, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).