holding that because defendant failed to object to jury argument, he forfeited right to raise issue on appeal
How later courts described this case
- holding that because defendant failed to object to jury argument, he forfeited right to raise issue on appeal
- “Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.”
- stating that if prosecutor’s argument was so egregious that no instruction to disregard could have cured harm, defendant should have moved for mistrial to preserve error
Written by the judges who cited it.
The opinion
Opinion issued March 15, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00089-CR
———————————
RICARDO GUTIERREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1467247
MEMORANDUM OPINION
Appellant, Ricardo Gutierrez, pleaded guilty to the second-degree felony
offense of indecency with a child by contact without an agreed recommendation
from the State on punishment.1 After the preparation of a presentence investigation
report, the trial court assessed appellant’s punishment at eighteen years’
confinement. In one issue, appellant contends that the State made an improper
argument at the sentencing hearing by referring to appellant’s behavior toward the
complainant as “grooming” when no expert testimony on grooming was entered into
evidence at the hearing.
We affirm.
Background
N.E. and appellant were in a relationship for over four years and had a young
daughter together. N.E. also had two older children from a previous relationship,
including the complainant, A.P., who was eight years old at the time of the
underlying events in this case.
In 2014, A.P.’s biological father contacted N.E. and told her that he had found
pornography on A.P.’s tablet computer. N.E. asked A.P. who showed her that
material and how to put it on her tablet. Appellant was also present during this
conversation. N.E. told A.P., “[Y]ou need to tell me. We’re not going anywhere,”
and she noticed that A.P. was looking at appellant “with this look of disgust.” N.E.
questioned A.P. about why she was looking at appellant in that way, and A.P. stated
1
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2017).
2
that appellant made her watch pornography on his cell phone. N.E. forced appellant
out of the house and immediately called the police.
During her forensic interview, A.P. disclosed that appellant would force her
to watch pornographic videos on his cell phone and that he would touch her vagina
and force her to touch his penis while they watched the videos. Appellant initially
denied the allegations, suggesting that N.E. had coached A.P. into making false
accusations, but he ultimately pleaded guilty to the offense of indecency with a child
by contact. The trial court accepted appellant’s guilty plea and ordered the
preparation of a presentence investigation report prior to the sentencing hearing.
A.P. briefly testified at the sentencing hearing, and N.E. testified concerning
her relationship with appellant, how she learned about appellant’s abuse of A.P., and
the impact his actions had had on her family. Appellant’s eighteen-year-old niece,
P.T., testified that she had been molested by appellant in 2012, when she was
fourteen years old, and that she had disclosed this incident to her mother in 2016
after she heard appellant talking about the charge involving A.P. and asserting that
N.E. “was making [A.P.] say” false accusations against him. A.P., N.E., and P.T.
were the only witnesses who testified on behalf of the State at the sentencing hearing.
Appellant’s mother, Frances Gutierrez, testified on his behalf and requested that
appellant receive community supervision.
3
During argument, defense counsel argued that community supervision was an
appropriate punishment for appellant. The State made the following argument:
The forced introduction to [A.P.] of pornography by the defendant was
not—by this defendant was not a harmless act. It was not done without
forethought. It was not done without intent. Rather [he] very much
intended to numb his stepdaughter’s mind to the things that he wanted
to do to her and things that he wanted her to do to him, to arouse and
gratify his sexual desire.
It was for the purpose of grooming both—both grooming her for future
abuse and molestation as well as corrupt and twisted pleasure for the
present abuse that happened at that time.
Defense counsel did not object to this argument or request any curative measures.
The trial court assessed appellant’s punishment at eighteen years’
confinement. This appeal followed.
Improper Argument
In his sole issue, appellant contends that the State made an improper argument
at the sentencing hearing because it referenced appellant’s “grooming” of A.P., but
no expert testimony concerning grooming had been introduced into evidence at the
hearing.
A. Preservation of Error
Proper closing argument generally falls within one of four categories:
(1) summation of the evidence; (2) reasonable deductions from the evidence;
(3) answers to argument of opposing counsel; and (4) pleas for law enforcement.
Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “[E]rror exists when
4
facts not supported by the record are interjected in the argument, but such error is
not reversible unless, in light of the record, the argument is extreme or manifestly
improper.” Id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App.
1988)).
The Court of Criminal Appeals has held that a defendant “must pursue to an
adverse ruling his objections” to closing argument. Mathis v. State, 67 S.W.3d 918,
927 (Tex. Crim. App. 2002); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.
2007). Even if a prosecutor’s statement during argument cannot be cured by an
instruction to disregard, the defendant is required to “object and request a mistrial”
to preserve error. Mathis, 67 S.W.3d at 927; Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996) (“Before a defendant will be permitted to complain on
appeal about an erroneous jury argument or that an instruction to disregard could not
have cured an erroneous jury argument, he will have to show he objected and
pursued his objection to an adverse ruling.”); see also Estrada v. State, 313 S.W.3d
274, 303 (Tex. Crim. App. 2010) (stating that if prosecutor’s argument was so
egregious that no instruction to disregard could have cured harm, defendant should
have moved for mistrial to preserve error). A defendant’s failure to object to an
improper argument and pursue that objection to an adverse ruling thus forfeits the
5
defendant’s right to complain about the error on appeal.2 See Mathis, 67 S.W.3d at
927; see also TEX. R. APP. P. 33.1(a) (providing that, to preserve complaint for
appellate review, complaint must be made to trial court by timely request, objection,
or motion that states ground for ruling sought with sufficient specificity to make trial
court aware of complaint); Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim.
App. 2004) (holding that because defendant failed to object to jury argument, he
forfeited right to raise issue on appeal).
B. Analysis
During closing argument at appellant’s sentencing hearing, the State argued
as follows:
The forced introduction to [A.P.] of pornography by the defendant was
not—by this defendant was not a harmless act. It was not done without
forethought. It was not done without intent. Rather [he] very much
intended to numb his stepdaughter’s mind to the things that he wanted
to do to her and things that he wanted her to do to him, to arouse and
gratify his sexual desire.
It was for the purpose of grooming both—both grooming her for future
abuse and molestation as well as corrupt and twisted pleasure for the
present abuse that happened at that time.
2
The Court of Criminal Appeals recently reaffirmed this holding in Hernandez v.
State, — S.W.3d —, No. PD-1389-16, 2018 WL 357612, at *3 (Tex. Crim. App.
Jan. 10, 2018) (“Even incurably improper jury argument is forfeitable. Because
defense counsel did not pursue his objection to an adverse ruling, the court of
appeals should not have entertained his complaint about the prosecutor’s
argument.”).
6
Defense counsel did not object to this argument, nor did he request an instruction to
disregard or move for a mistrial.
On appeal, appellant argues that the prosecutor “improperly inserted expert
opinion evidence, not otherwise into evidence, before the court during its closing
argument,” pointing out that no expert witness testified concerning grooming at the
sentencing hearing and that the presentence investigation report also contained no
reference to grooming. Appellant acknowledges that defense counsel did not object
to the statement, but he argues that “the misconduct was extremely severe” and
therefore this Court should consider his argument on the merits.
The Court of Criminal Appeals, however, addressed a similar argument in
Estrada, in which defense counsel did not object to the prosecutor’s allegedly
improper argument at trial but instead argued on appeal that the argument was “so
egregious that no instruction to disregard could possibly [have] cure[d] the harm”
from the statements. See 313 S.W.3d at 303. The Court held that if the argument
was so egregious that the harm stemming from the statements could not be cured by
an instruction to disregard, the defendant should have moved for a mistrial to
preserve the error. Id.
We hold that because appellant did not object to the allegedly improper
argument and pursue his objection to an adverse ruling, appellant has failed to
preserve his complaint concerning the argument for appellate review. See id.;
7
Threadgill, 146 S.W.3d at 670; Mathis, 67 S.W.3d at 927; Cockrell, 933 S.W.2d at
89.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Brown, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
8