Terry Patrick Hargiss v. State

• Court: Court of Appeals of Texas
• Decided: March 20, 2014
• Docket: 02-12-00429-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00429-CR

TERRY PATRICK HARGISS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

I. INTRODUCTION

Appellant Terry Patrick Hargiss appeals his conviction for the offense of

failure to comply with sexual offender registration requirements.2 In one point,

1 See Tex. R. App. P. 47.4. 2 See Tex. Code Crim. Proc. Ann. art. 62.102 (West 2013). Hargiss argues that the trial court erred by overruling his objection to comments

made by the prosecutor during closing arguments and that he is entitled to a new

trial. We will affirm.

II. BACKGROUND

A court convicted Hargiss of the aggravated sexual assault of a child on

January 3, 1997. As a result of his conviction and resulting designation as a sex

offender, Hargiss was required to report his residence and visitations to other

jurisdictions for the rest of his life. Hargiss complied with these registration

requirements through 2009. But officials discovered that for a period of time in

2011, Hargiss failed to comply with these requirements. Thus, the State charged

Hargiss with the offense of failure to comply with sexual offender registration

requirements.

At trial, the following colloquy transpired during the State’s closing

argument:

[Prosecutor]: [] Hargiss is allegedly a Vietnam veteran, according to his testimony. Ladies and gentlemen, he’s also a man who committed [the offense of] aggravated sexual assault of a child.

[Defense Counsel]: Your Honor, I would have to object to [the prosecutor’s] last argument. That’s not the issue of this trial.

THE COURT: Overruled.

This colloquy serves as the foundation for Hargiss’s sole point on appeal,

and we have duplicated the emphasis he applied to this exchange in his brief. A

2 jury convicted Hargiss and assessed punishment at twelve years’ confinement.

The trial court sentenced him accordingly, and this appeal followed.

III. DISCUSSION

In one point, Hargiss argues that the trial court “erred in overruling defense

counsel’s objection to an instance of improper jury argument by the State.” We

hold that Hargiss forfeited any potential error for our review.

It is well established that in order to preserve an issue for appeal, a timely

objection must be made that states the specific ground of objection, if the specific

ground was not apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A),

(B); Tex. R. Evid. 103(a)(1) (West 2003); Heidelberg v. State, 144 S.W.3d 535,

537 (Tex. Crim. App. 2004). A general or imprecise objection may be sufficient

to preserve error for appeal, but only if the legal basis for the objection is obvious

to the court and to opposing counsel. Buchanan v. State, 207 S.W.3d 772, 775

(Tex. Crim. App. 2006). When the objection is not specific and the legal basis is

not obvious, it does not serve the purpose of the contemporaneous-objection rule

for an appellate court to reach the merits of a forfeitable issue that is essentially

raised for the first time on appeal. Id. Furthermore, a point of error on appeal

must comport with the objection made at trial. Thomas v. State, 723 S.W.2d 696,

700 (Tex. Crim. App. 1986).

Here, it is not clear from Hargiss’s objection what he was objecting to at

trial. Hargiss’s objection to the prosecutor’s argument was “That’s not the issue

3 of the trial.” One could read the objection as Hargiss having objected to the

prosecutor’s comment that he had previously been convicted of aggravated

sexual assault of a child. Indeed, on appeal, the State interprets Hargiss’s trial

objection as such, and the State’s reply to this court is that Hargiss allowed this

same evidence in at other points during the trial; thus, he failed to preserve the

issue for our review by not objecting each time the State presented evidence of,

or commented on, his previous sexual assault conviction. See Wall v. State, 143

S.W.3d 846 (Tex. App.—Corpus Christi 2004), aff’d as modified and remanded,

184 S.W.3d 730 (Tex. Crim. App. 2006) (holding that defendant failed to

preserve his improper jury argument when prosecutor argued on three separate

occasions that defendant should have received life sentence because of his

propensity for violence and that he might one day commit murder, but defendant

failed to object first two times such statements were made).

The imprecise nature of Hargiss’s objection and the State’s interpretation

of the objection are further clouded by the manner in which Hargiss brings his

point on appeal. In part of his argument, Hargiss states that the prosecutor’s

comments were “significant” because they created “a danger [that] the jury could

convict [] Hargiss of being a person of general bad criminal character, rather than

a person to whom the presumption of innocence applied.” Hargiss further

reinforces the State’s interpretation of his argument by choosing to emphasize

the prosecutor’s comment regarding his past conviction, while choosing not to

4 emphasize the remainder of the prosecutor’s statement. But Hargiss seems to

ultimately concede that “his past [offense] was subject to comment.”

Hargiss’s point on appeal appears to be that the prosecutor’s comment

was impermissibly prejudicial because the comment “asked the jury to compare

his good behavior ([his] service to the country) versus his bad behavior (his past

conviction).” As Hargiss explains in his brief to this court, “the [prosecutor’s]

remarks were prejudicial because they concerned an improper comparison

between things done in his past which the jurors were indirectly asked to

compare when deciding whether he was guilty or not guilty.” But this specific

ground is not apparent from the context in which Hargiss lodged his objection at

trial. See Tex. R. App. P. 33.1(a)(1)(A), (B).

Thus, to the extent that Hargiss argues that this comparison was

impermissible, we conclude that the legal basis for his objection was not obvious

to the trial court and opposing counsel and that therefore he forfeited this issue

on appeal. See Heidelberg, 144 S.W.3d at 537. And to the extent that Hargiss’s

objection at trial regarded the prosecutor having allegedly impermissibly

commented on his previous conviction, his point on appeal does not comport with

his objection made at trial. See Thomas, 723 S.W.2d at 700. We overrule

Hargiss’s sole point on appeal.

5 IV. CONCLUSION

Having overruled Hargiss’s sole point on appeal, we affirm the trial court’s

judgment.

/s/ Bill Meier

BILL MEIER JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

WALKER, J., concurs without opinion.

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

DELIVERED: March 20, 2014