Michael L. Jones v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00264-CR
MICHAEL L. JONES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-00223-A
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MEMORANDUM OPINION 1
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Appellant Michael L. Jones appeals his conviction and sentence for driving
while intoxicated. We affirm.
Background Facts
On September 15, 2013, Appellant was arrested for driving while
intoxicated. At the end of Appellant’s trial, the trial court announced that each
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See Tex. R. App. P. 47.4.
side had fifteen minutes for closing argument. One State’s attorney said, “I’ll be
going first for the State. If you’ll let me know when I’ve used five minutes.” The
second State’s attorney requested a two-minute warning. Appellant’s trial
counsel asked for a five-minute warning and a ten-minute warning.
After the charge was read to the jury, the State’s first attorney made her
closing statement. Appellant’s trial counsel then announced that she was going
to waive closing argument. The trial court then allowed the State’s second
attorney to proceed with the State’s closing argument. Appellant objected,
Your Honor, I’d like to make an objection to the State being
allowed to make their rebuttal close. Since we had waived our
close, the State should not be allowed to make their rebuttal close.
THE COURT: I’ve given each side 15 minutes, and you’ve—
you’ve chosen how you want to use yours.
You may proceed.
The State then finished its closing argument.
The jury returned a unanimous verdict of guilty and assessed Appellant’s
punishment at eighty-five days in jail. The punishment was probated for a period
of fifteen months with certain conditions of probation. Appellant then filed this
appeal.
Discussion
1. Rebuttal argument
In his first point, Appellant argues that the trial court erred by allowing the
State to make “rebuttal” argument when Appellant had elected to waive closing
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argument. The code of criminal procedure provides that “[t]he order of [the]
argument may be regulated by the presiding judge; but the State’s counsel shall
have the right to make the concluding address to the jury.” Tex. Code Crim.
Proc. Ann. art. 36.07 (West 2007). We review a trial court’s decisions regarding
argument for abuse of discretion. Degadillo v. State, 262 S.W.3d 371, 378 (Tex.
App.—Fort Worth 2008, pet. ref’d) (citing Threadgill v. State, 146 S.W.3d 654,
673 (Tex. Crim. App. 2004); Margraves v. State, 56 S.W.3d 673, 684 (Tex.
App.—Houston [14th Dist.] 2001, no pet.)).
Here, Appellant implied that he would be making closing argument by
requesting time warnings from the trial court. Both of the State’s attorneys
requested time warnings, clearly indicating that they would both be arguing
during the State’s allotted fifteen minutes. However, after the State’s first
attorney argued, Appellant then elected not to argue. Appellant’s complaint that
the State was allowed to proceed with its closing argument despite Appellant’s
choice is in effect a complaint that he was not allowed to choose unilaterally to
cut off the State’s argument prematurely. It is not an abuse of discretion for the
trial court to deny Appellant that power.
Appellant argues that we should conduct a harm analysis under rule
44.2(a) because the trial court’s actions raise constitutional concerns regarding
the right to a fair trial. See Tex. R. App. P. 44.2(a). We do not conduct a harm
analysis unless we have determined that error occurred, which we have not done
in this case. See id. Further, Appellant has not identified what harm he suffered
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as a result of the State’s closing argument nor have we identified any.
See Norris v. State, 902 S.W.2d 428, 442 (Tex. Crim. App. 1995) (“[A]ppellant
argues the trial court’s failure to allow him to rebut the State’s arguments
rendered his trial fundamentally unfair. This Court has resolved appellant’s
contentions adversely to him. In addition, appellant has failed to demonstrate
how his trial was fundamentally unfair.”) (citations omitted), overruled on other
grounds by Roberts v. State, 273 S.W.3d 322, 331 (Tex. Crim. App. 2008);
Degadillo, 262 S.W.3d at 379 (“Degadillo did not offer a bill of exception, nor did
he specify any harm that would come from the State not having made an opening
argument.”). We overrule Appellant’s first point.
2. Trial court’s comment
In his second point, Appellant argues that the trial court erred by stating
after Appellant objected, “I’ve given each side 15 minutes, and you’ve—you’ve
chosen how you want to use yours.” Appellant claims this comment “would be
construed by a jury as an admission that the Defendant was guilty.”
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); Everitt v. State, 407 S.W.3d
259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306
(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled
on the request, objection, or motion, either expressly or implicitly, or the
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complaining party must have objected to the trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. 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).
Appellant did not object in the trial court and has not preserved this
complaint for our review. Even if he had, we note that in order to control the trial
of a case, the trial judge is necessarily given the discretion to express himself,
and his judgment will not be reversed based on his comments unless “there is a
showing of impropriety coupled with probable prejudice and rendition of an
improper verdict.” Food Source, Inc. v. Zurich Ins. Co., 751 S.W.2d 596, 600
(Tex. App.—Dallas 1988, writ denied). Appellant has not demonstrated probable
prejudice or that the verdict was improper, nor have we found anything in the
record to support his contention. We overrule Appellant’s second point.
Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 17, 2015
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