Willie James McCray v. State ( 2010 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-08-00076-CR ____________________

WILLIE JAMES MCCRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 07-01811

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MEMORANDUM OPINION

A jury convicted appellant Willie James McCray of intoxication manslaughter in the death of Beaumont police officer Lisa Beaulieu, who was working at the scene of a traffic accident when she was struck by a vehicle driven by McCray. The jury assessed punishment at eleven years of confinement and a $5000 fine. McCray then filed this appeal, in which he complains in two issues that error occurred when the State was permitted to comment on his failure to testify. We affirm the trial court's judgment.

In his first issue, McCray argues that "egregious" error occurred when the prosecutor was allowed to comment on McCray's failure to testify. In his second issue, McCray contends that fundamental error occurred when the State was allowed to engage in improper jury argument by commenting on his failure to testify. We address issues one and two together.

The first instance of which McCray complains occurred during defense counsel's cross-examination of the State's first witness, Christine Stelly, when the following exchange transpired:

Q. (By [defense counsel]) Now, after Mr. McCray's vehicle collided with Officer Beaulieu, would it be correct that he told you or asked you, when he got out of the car, "What happened? What happened?"

A. Yes, that's correct.

Q. Now, by asking you the question, "What happened? Tell me what happened," it wouldn't seem at that very point he knew he had - -

[PROSECUTOR]: Objection, Your Honor. He's now speaking for his client and avoiding him taking the witness stand.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Your Honor, permission to approach?

THE COURT: Yeah, you can approach.

Sustain the objection.

(Bench discussion)

[DEFENSE COUNSEL]: Your Honor, for the record, I believe the Court's order is specifically clear there will be no speaking objections tolerated. He said I make this objection so my client would not take the stand. Clearly that is a speaking, not a legal, objection.

THE COURT: What would be the proper objection whenever you're asking - -

[DEFENSE COUNSEL]: Objection - - side - bar.

THE COURT: Don't talk while I'm talking.

The question is: If you put him the [sic] position to make an objection because you're not asking proper questions or an objection cannot be phrased in a legal manner, you put me on the spot to say, yeah, that's the way it's going to be. So, move forward. I want to tell you again you need to tread lightly.

[PROSECUTOR]: May I inquire of the defense - - by that question, are they waiving the Fifth Amendment privilege on behalf of their client?

[DEFENSE COUNSEL]: No.

THE COURT: I mean, if you are, certainly you can get up there and proffer what he's going to say.

[DEFENSE COUNSEL]: No.

McCray's counsel did not object at trial on the grounds that the prosecutor's statements constituted a comment on McCray's failure to testify; instead, counsel objected only that the prosecutor's statements constituted a speaking objection. Therefore, McCray failed to preserve his argument that these statements constituted an improper comment on his failure to testify. See Tex. R. App. P. 33.1(a) (A timely and specific trial objection is a prerequisite to presenting a complaint for appellate review.); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) (Grounds of objection raised on appeal must comport with the objections made before the trial court.).

The second statement by the prosecutor that McCray contends constituted an improper comment on his failure to testify occurred during the State's closing argument, when the prosecutor argued McCray failed to accept responsibility for his actions.

The record reflects that defense counsel did not object to the prosecutor's closing argument. Therefore, McCray has failed to preserve the issue for our review. See Tex. R. App. P. 33.1(a); Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) (Court of Appeals erred in considering argument that the prosecutor's comment constituted a comment on appellant's failure to testify because appellant "made no such argument in the trial court."); 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 . . . , he will have to show he objected and pursued his objection to an adverse ruling."); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (Even constitutional errors may be waived by failure to object at trial.). Accordingly, we overrule McCray's issues and affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on January 4, 2010

Opinion Delivered February 24, 2010

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.