Adrian Gillian v. the State of Texas ( 2023 )

AFFIRMED as MODIFIED and Opinion Filed March 1, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01152-CR
No. 05-21-01153-CR
ADRIAN GILLIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F18-76363-R, F18-53171-R
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Garcia
Opinion by Justice Garcia
Appellant judicially confessed and entered open guilty pleas to aggravated
robbery and evading arrest or detention with a motor vehicle. After a punishment
hearing, the court assessed punishment at twenty-five years in prison in the
aggravated robbery case and ten years in prison in the evading arrest case.
Appellant now argues the trial court erred in permitting evidence of his gang
affiliation and because the State made an improper argument. Appellant further
argues that the judgments should be reformed. We modify the judgments and, as
modified, affirm.
I. Background
On September 22, 2018, two armed robbers ordered one of the co-owners of
a Wingstop to open the safe at gunpoint. Appellant was identified and apprehended
at the scene.
On March 21, 2019, officers investigating a different aggravated robbery
made a felony stop on a vehicle driven by appellant. Appellant evaded arrest for over
twenty minutes before he was taken into custody.
Appellant was charged with aggravated robbery and evading arrest or
detention with a motor vehicle. He judicially confessed to both charges and entered
open guilty pleas to the court. After a punishment hearing, the court assessed
punishment at twenty-five years in prison in the aggravated robbery case and ten
years in prison in the evading arrest case. This appeal followed.
II. Analysis
Gang Affiliation Testimony
Appellant’s first issue argues the trial court erred by allowing Officer Jared
Maddox to testify about appellant’s gang affiliation. The record reflects, however,
that appellant did not object to the testimony in the court below.
“To properly preserve an issue concerning the admission of evidence for
appeal, a party’s objection must inform the trial court why or on what basis the
otherwise admissible evidence should be excluded.” Ford v. State, 305 S.W.3d 530,
533 (Tex. Crim. App. 2009); see also TEX. R. APP. P. 33.1(a)(1)(A); Martinez v.
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State, 327 S.W.3d 727, 736 n.10 (Tex. Crim. App. 2010) (failure to object waives
issue on appeal). Because appellant failed to object, the issue has not been preserved
for our review. Appellant’s first issue is resolved against him.
Improper Argument
Appellant’s second issue argues the State made improper argument.
Specifically, during closing argument, the State argued:
Judge, these are very serious cases. Thank God nobody got killed. But
at some point, Your Honor, we’re asking for the Court to sentence this
defendant to enough years for him to understand the severity of what
he’s done. And also to seek justice for us, for the State of Texas, for the
victims that -- many victims that have been involved at the bad choices
that this defendant, Adrian Gillian, has made. Even with his poor
grandmother.
In general, proper jury argument falls within one of four areas: (1) summation
of the evidence, (2) reasonable deduction from the evidence, (3) answer to an
argument of opposing counsel, and (4) plea for law enforcement. See Freeman v.
State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (citing Brown v. State, 270
S.W.3d 564, 570 (Tex. Crim. App. 2008)). To preserve a complaint that a jury
argument was improper, a defendant must lodge a “proper objection.” Hougham v.
State, 659 S.W.2d 410, 414 (Tex. Crim. App. [Panel Op.] 1983); see also Arellanes
v. State, No. 05-18-00429-CR, 2018 WL 3629087, at *4 (Tex. App.—Dallas July
31, 2018, pet. ref’d) (mem. op., not designated for publication). A defendant’s failure
to properly object results in forfeiture of his right to complain on appeal about the
argument. See Castillo Alvarado v. State, No. 05-19-00115-CR, 2020 WL 1181487,
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at *2 (Tex. App.—Dallas Mar. 12, 2020, no pet.) (mem. op., not designated for
publication); see also TEX. R. APP. P. 33.1.
When the State made the complained-of argument, appellant did not object.
Therefore, the issue is forfeited on appeal. Appellant’s second issue is resolved
against him.
Modifying the Judgment
Appellant’s third and fourth issues argue the judgments should be modified,
In particular, appellant requests that the judgment in Cause Number F18-7636-R be
modified to reflect that appellant entered an open plea of guilty to the court and was
not sentenced pursuant to a plea bargain, and that the judgments in both cases be
modified to reflect that the prosecutor was Chalana Oliver. The State agrees the
judgments should be modified.
We are authorized to reform a judgment to make the record speak the truth
when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26,
27 (Tex. Crim. App. 1993). Here, the judgment in Cause No. F18-76363-CR states
that appellant was sentenced to twenty–five years in prison pursuant to a plea
bargain. But the record reflects that appellant entered an open plea of guilty to the
court and no plea bargain was operative as to punishment.
The judgments in both cases state that the prosecutor was Sasha Stribling. The
reporter’s record, however, reflects that the prosecutor was Chalana Oliver.
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We therefore sustain appellant’s third and fourth issues and modify the
judgments accordingly.
III. Conclusion
We modify the judgment in Cause No. F18-76363-CR to reflect that appellant
entered an open plea of guilty to the court and no plea bargain was operative as to
punishment. We modify both judgments to reflect that the prosecutor was Chalana
Oliver. As modified, we affirm the trial court’s judgments.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
211152F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADRIAN GILLIAN, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-21-01152-CR V. Trial Court Cause No. F18-76363-R.
Opinion delivered by Justice Garcia.
THE STATE OF TEXAS, Appellee Justices Reichek and Nowell
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that appellant entered an open plea of guilty and no plea
bargain agreement was operative as to punishment and the attorney for the State
was Chalana Oliver.
As REFORMED, the judgment is AFFIRMED.
Judgment entered March 1, 2023
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADRIAN GILLIAN, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-21-01153-CR V. Trial Court Cause No. F18-53171-R.
Opinion delivered by Justice Garcia.
THE STATE OF TEXAS, Appellee Justices Reichek and Nowell
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that the attorney for the State was Chalana Oliver.
As REFORMED, the judgment is AFFIRMED.
Judgment entered March 1, 2023
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