Mark Brandon Hudson v. State ( 2018 )

NUMBER 13-17-00149-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARK BRANDON HUDSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Contreras
Appellant Mark Brandon Hudson appeals his conviction for two counts of assault
on a public servant, a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(1)
(West, Westlaw through 2017 1st C.S.). By two issues, appellant argues that the
prosecutor’s closing argument was improper because: (1) it attacked appellant over trial
counsel’s shoulder; and (2) it introduced new and harmful facts. We affirm.
I. BACKGROUND
On March 19, 2016, appellant was arrested for assaulting Officers Matthew Hayles
and Russell Copeland of the Victoria Police Department. Appellant was tried by jury, and
only Officer Hayles testified at trial about the assaults on both him and Officer Copeland.1
During defense counsel’s closing argument, the following colloquy occurred:
[Defense counsel]: When somebody files a complaint against you, if
somebody files a complaint against you would you
expect that person, if they’re going to file charges
against you, would you expect that person to come to
court here and testify and say what he’s complaining
about you? Of course you would expect that, that
would be fair to expect that. But that just shows you
the extent of the State’s case. In other words, they’re
bringing you a charge against a person without even
bringing the person who’s filing that complaint. If you
look on page six of your jury charge on the third
paragraph, I think the first line, it says that the evidence
that you must consider consists of testimony of the
witnesses and exhibits admitted into evidence. It
doesn't say testimony of the witness[es] or exhibits, it
says testimony of the witness and the exhibits. And
when we talk about witness, in Count two it says the
complainant is Russell Copeland. Russell Copeland.
Russell Copeland is not here today. If the instruction
is telling you the only way that you could consider the
evidence in a charge is going to be for you to consider
the testimony of the witness and the exhibits, not
witness[es] or exhibits, it says witness and exhibits.
The reason that it’s not fair and the reason that you
shouldn’t consider that, in fact that one you should just
strike off for this reason, because if you were being
charged with an offense would you expect that person
to come here and testify against you, sit in this chair
and say that whatever happened –
1 Officer Copeland was on military leave at the time of trial.
2
[Prosecutor]: Objection, Your Honor, it’s improper argument.
[Defense counsel]: Judge, I’m just saying that if a witness was present that
he would be testifying. What's improper about that?
Would you expect the witness to testify if he came to
court?
THE COURT: Hold on. You’ll have rebuttal.
Defense counsel continued his closing argument in which he repeatedly stressed
the absence of Officer Copeland as a reason to acquit appellant on one of the charges.
On appeal, appellant’s two issues center on the following statements made by the
prosecutor during the State’s closing rebuttal argument:
[Prosecutor]: What the Defense just asked you to do is violate your
oath as a juror. As a juror you took an oath, I will
consider the law that's contained in the jury charge and
the evidence that is presented to me in court, so what
the Defense just did is ask you to violate the oath you
took as a juror. What he’s asking you to do is to convict
his client on a lesser included or outright acquit his
client because the defendant never swung a glass beer
bottle at Officer Hayles or Officer Copeland. That’s not
on our list of elemental facts, those two lists of five,
that's not on that list. If it’s not on the list, having a
reasonable doubt about it is not a reason to acquit.
He’s also saying, oh, we don't know if an assault
happened prior to the police arriving so that’s a reason
to acquit. No, it’s not. He's also claiming that because
the victim’s not here that's a reason to acquit. We
present cases all the time where victims don’t come in
to testify in court. It happens all the time in assault
family violence cases, a lot of times victims don’t come
forward and we get convictions in those cases even if
the victim doesn’t show up. You have a twelve-page
jury charge and nowhere in these twelve pages does it
say if the victim doesn’t come into court to testify you
can't convict.
[Defense Counsel]: Judge, I’m going to make an objection. Page number
six does indicate that the only evidence that this jury
can consider is testimony of witnesses and the
exhibits.
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THE COURT: Overruled.
The jury convicted appellant on both counts, and sentenced him to five years’
imprisonment. This appeal followed.
II. DISCUSSION
A. Applicable Law and Standard of Review
Prosecutorial jury argument should generally be limited to: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) answer to argument of
opposing counsel; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664,
673 (Tex. Crim. App. 2000); Lawson v. State, 896 S.W.2d 828, 833 (Tex. App.—Corpus
Christi 1995, writ ref’d). “Even when an argument exceeds the permissible bounds of
these approved areas, it will not constitute reversible error unless . . . the argument is
extreme or manifestly improper, violative of a mandatory statute, or injects new facts
harmful to the accused . . . .” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000) (citing Todd v. State, 598 S.W.2d 286, 296–97 (Tex. Crim. App. 1980)). When
examining challenges to a jury argument, a reviewing court must consider the
complained-of argument in the context in which it appears. Gonzalez v. State, 337
S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.] 2011, pet ref’d); see Wesbrook, 29
S.W.3d at 115; Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). We review
a trial court’s ruling on an objection to a jury argument under an abuse of discretion
standard. Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016,
no pet.); York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet ref’d); see
Davis v. State, 329 S.W.3d 798, 823 (Tex. Crim. App. 2010).
The preferred procedure for a defendant to preserve jury argument error for
appellate review is: “(1) to object when it is possible, (2) to request an instruction to
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disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party
thinks an instruction to disregard was not sufficient.” Young v. State, 137 S.W.3d 65, 69
(Tex. Crim. App. 2004); see TEX. R. APP. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996) (en banc). Although “this sequence is not essential to preserve
complaints for appellate review,” “[t]he essential requirement is a timely, specific request
that the trial court refuses.” Young, 137 S.W.3d at 69; see TEX. R. APP. P. 33.1(a). A
general or imprecise objection will not preserve error for appeal unless “the legal basis
for the objection is obvious to the court and to the opposing counsel.” Vasquez v. State,
483 S.W.3d 550, 554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d
772, 775 (Tex. Crim. App. 2006) (emphasis in original)). In addition, when a complaint
on appeal differs from that made at trial, the error is waived. Cook v. State, 858 S.W.2d
467, 474 (Tex. Crim. App. 1993) (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim.
App. 1990)) (“An objection stating one legal basis may not be used to support a different
legal theory on appeal.”).
B. Analysis
By his first issue, appellant contends that the prosecutor improperly attacked him
over defense counsel’s shoulder when the prosecutor stated that defense counsel had
asked jurors to violate their oaths.
However, appellant did not object to the prosecutor’s statements which alleged
that defense counsel had asked the jury to violate their oath. Rather, appellant’s objection
came at a later time into the prosecutor’s argument, it did not reference those previous
statements by the prosecutor, and it was asserted on different grounds. Therefore, we
conclude this issue has not been preserved for our review. TEX. R. APP. P. 33.1(a);
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Cockrell, 933 S.W.2d at 89 (holding a “defendant’s failure to object to a jury argument . .
. forfeits his right to complain about the argument on appeal”); see Cook, 858 S.W.2d at
474. We overrule appellant’s first issue.
By his second issue, appellant argues that the prosecutor introduced “new and
harmful facts into the proceeding by telling the jury to consider” that the State “present[s]
cases all the time where victims don't come in to testify in court.”
This issue was also not preserved for review. See TEX. R. APP. P. 33.1(a); Cockrell,
933 S.W.2d at 89. Defense counsel did not object immediately after the prosecutor made
the challenged comment, but rather objected only after the prosecutor stated that
“nowhere in these twelve pages [of the jury charge] does it say if the victim doesn’t come
into court to testify you can’t convict.” Moreover, defense counsel objected only on
grounds that the jury charge “does indicate that the only evidence that this jury can
consider is testimony of witnesses and the exhibits,” which is not the complaint he makes
on appeal. See Cook, 858 S.W.2d at 474. We overrule appellant’s second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of January, 2018.
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