Perry Andrew Pippillion v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00264-CR

Perry Andrew Pippillion,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 252nd District Court

Jefferson County, Texas

Trial Court No. 91250

MEMORANDUM  Opinion

      Pippillion appeals his conviction for aggravated kidnapping.  See Tex. Penal Code Ann. § 20.04(a) (Vernon 2003).  We affirm.

      In Pippillion’s first issue, he contends that the trial court erred in overruling Pippillion’s objection to the State’s closing argument.  Pippillion complains of the following argument:

And I will beg you to search through the entire record where a neighbor from there on Hemlock or someone else who lived in the 2400 block of Hemlock or Peter Pippillion or Paul Pippillion ever said we caught them coming out of the house.  We caught them stealing the stuff out of the house.  You look through that whole record.

Pippillion argues that the argument constituted a comment on his failure to testify.  See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005); Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Bustamante v. State, 48 S.W.3d 761, 764-65 (Tex. Crim. App. 2001). 

      We review the trial court’s rulings on objections to argument for abuse of discretion.  See Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996) (plurality op.).  “A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.”  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). 

       “It is well settled that the prosecutor, in argument, may comment on the defendant’s failure to call certain witnesses.”  Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005) (quoting O’Bryan v. State, 591 S.W.2d 464, 479 (Tex. Crim. App. 1979)). “[P]rosecutorial comment on the absence of evidence is proper so long as ‘the language can reasonably be construed to refer to [the] appellant’s failure to produce evidence other than his own testimony.’”  Bible at 249 (quoting Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995)). 

      The State’s argument constituted a comment on Pippillion’s failure to produce corroborating witnesses.  The trial court did not abuse its discretion in overruling Pippillion’s objection. Accordingly, we overrule Pippillion’s first issue. 

      In Pippillion’s second issue, he contends that the trial court erred in overruling his objection to evidence of a sexual assault committed by an accomplice during the criminal transaction in which Pippillion and the accomplice participated.[1]  See Tex. Penal Code Ann. § 22.011(a) (Vernon Supp. 2005).  “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .”  Tex. R. App. P. 33.1(a).  “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”  Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)) (alteration in Neal); accord Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005); see Marin v. State, 851 S.W.2d 275, 277-80 (Tex. Crim. App. 1993). “An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.”  Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)) (alteration in Lane); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Ethington v. State, 819 S.W.2d 854, 858-60 (Tex. Crim. App. 1991).  The witness testified to the sexual assault for some three pages of the reporter’s record before Pippillion objected.  Pippillion thus forfeited his complaint.  Accordingly, we overrule Pippillion’s second issue. 

      Having overruled Pippillion’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed April 26, 2006

Do not publish

[CRPM]

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[1]  Pippillion’s objection at trial was simply to “relevan[ce].”  See Tex. R. Evid. 401-402.  His complaint on appeal is that the evidence constituted inadmissible character evidence, see id. 404, and that the evidence was substantially more prejudicial than probative, see id. 403.  We assume without deciding that Pippillion’s complaint on appeal comports with his trial objection.  See Tex. R. App. P. 33.1(a); Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005); Goff, 931 S.W.2d at 551; Willis v. State, 785 S.W.2d 378, 382 (Tex. Crim. App. 1989).