Shaun Ray Mullinax v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00237-CR
SHAUN RAY MULLINAX APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CR17033
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MEMORANDUM OPINION1
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After hearing evidence that Appellant Shaun Ray Mullinax had punched his
twelve-year-old son Z.M. in the arm and the head with a fist and had left bruises
on Z.M.’s arm and a bump on his head, the jury found Mullinax guilty of the
offense of bodily injury to a child fourteen years of age or younger, found the
enhancement paragraph to be true, and assessed his punishment at two years’
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See Tex. R. App. P. 47.4.
confinement. See Tex. Penal Code Ann. § 22.04 (West Supp. 2014). The trial
court sentenced Mullinax accordingly. In two issues, Mullinax argues that the
trial court erred by permitting the State to rely on allegedly inadmissible, highly-
prejudicial prior bad-acts evidence in securing his conviction and complains of a
portion of the State’s closing argument presented in final rebuttal.
The record reflects––and Mullinax expressly concedes in his brief––that he
lodged no objection at trial to either the introduction of the bad-acts evidence or
to the portion of the State’s argument he complains of on appeal. To preserve a
complaint for our review, a party must have presented to the trial court a timely
request, objection, or motion that states the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or
motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238–39
(Tex. Crim. App. 2009); see also Tex. R. Evid. 103(a)(1) (stating that error may
not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected and a timely objection or motion to strike
appears of record, stating the specific ground of the objection). Further, the trial
court must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court’s refusal
to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.
Crim. App. 2004). A reviewing court should not address the merits of an issue
that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532
(Tex. Crim. App. 2009). “Except for complaints involving systemic (or absolute)
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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).” Mendez, 138 S.W.3d at 342. Because Mullinax lodged no objections to
the admission of the evidence or to the closing argument he complains of on
appeal, he forfeited both of these complaints. See Tex. R. App. P. 33.1(a);
Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (recognizing rule
33.1(a)’s preservation requirements apply to closing arguments), cert. denied,
538 U.S. 965 (2003); Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App.
2002); see also Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).
Mullinax, however, argues throughout his first and second issues that the
cumulative effect of the errors in admitting the prior bad-acts evidence, coupled
with the State’s erroneous jury argument, deprived Mullinax of his constitutional
right to due process and a fair and impartial trial and that error preservation is
unnecessary when there is “serious and continuing prosecutorial misconduct.” A
due-process, fair-trial objection is required, however, to preserve a complaint on
appeal that the prosecutor engaged in serious and continuing prosecutorial
misconduct so as to effectively deprive a defendant of due process or a fair trial.
See Clark v. State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012). This is
because an appellant should not be able to “bootstrap a constitutional issue from
the most innocuous trial objection” and because “the trial court should know
when it is being asked to make a constitutional ruling because constitutional error
is subject to a much stricter harm analysis on appeal.” Id. at 340. Consequently,
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in Clark, the court of criminal appeals held that the defendant’s badgering,
sidebar, argumentative, invading the province of the jury, and mischaracterization
objections were not so clearly connected to constitutional protections that they
could be assumed to be due-process objections. Id. Finally, neither the
prosecutors’ use of unobjected-to evidence that Mullinax characterizes as bad-
acts evidence nor the State’s unobjected-to closing argument in final rebuttal rise
to the level of fundamental error. See Arizona v. Fulminante, 499 U.S. 279, 309–
10, 111 S. Ct. 1246, 1264–65 (1991) (fundamental error occurs when certain
constitutional rights are violated, such as the right to counsel, the right to an
impartial judge, the right for there not to be unlawful exclusion of members of the
defendant’s race from the grand jury, the right to self-representation at trial, or
the right to a public trial). We hold that because Mullinax lodged no objections
comporting with the complaints he raises on appeal, he forfeited those
complaints; we also hold that the complaints made by Mullinax on appeal do not
show fundamental error.
We overrule both of Mullinax’s two issues, and we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: May 28, 2015
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