Terry Patrick Hargiss v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00429-CR
TERRY PATRICK HARGISS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Terry Patrick Hargiss appeals his conviction for the offense of
failure to comply with sexual offender registration requirements.2 In one point,
1
See Tex. R. App. P. 47.4.
2
See Tex. Code Crim. Proc. Ann. art. 62.102 (West 2013).
Hargiss argues that the trial court erred by overruling his objection to comments
made by the prosecutor during closing arguments and that he is entitled to a new
trial. We will affirm.
II. BACKGROUND
A court convicted Hargiss of the aggravated sexual assault of a child on
January 3, 1997. As a result of his conviction and resulting designation as a sex
offender, Hargiss was required to report his residence and visitations to other
jurisdictions for the rest of his life. Hargiss complied with these registration
requirements through 2009. But officials discovered that for a period of time in
2011, Hargiss failed to comply with these requirements. Thus, the State charged
Hargiss with the offense of failure to comply with sexual offender registration
requirements.
At trial, the following colloquy transpired during the State’s closing
argument:
[Prosecutor]: [] Hargiss is allegedly a Vietnam veteran,
according to his testimony. Ladies and gentlemen, he’s also a man
who committed [the offense of] aggravated sexual assault of a child.
[Defense Counsel]: Your Honor, I would have to object to [the
prosecutor’s] last argument. That’s not the issue of this trial.
THE COURT: Overruled.
This colloquy serves as the foundation for Hargiss’s sole point on appeal,
and we have duplicated the emphasis he applied to this exchange in his brief. A
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jury convicted Hargiss and assessed punishment at twelve years’ confinement.
The trial court sentenced him accordingly, and this appeal followed.
III. DISCUSSION
In one point, Hargiss argues that the trial court “erred in overruling defense
counsel’s objection to an instance of improper jury argument by the State.” We
hold that Hargiss forfeited any potential error for our review.
It is well established that in order to preserve an issue for appeal, a timely
objection must be made that states the specific ground of objection, if the specific
ground was not apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A),
(B); Tex. R. Evid. 103(a)(1) (West 2003); Heidelberg v. State, 144 S.W.3d 535,
537 (Tex. Crim. App. 2004). A general or imprecise objection may be sufficient
to preserve error for appeal, but only if the legal basis for the objection is obvious
to the court and to opposing counsel. Buchanan v. State, 207 S.W.3d 772, 775
(Tex. Crim. App. 2006). When the objection is not specific and the legal basis is
not obvious, it does not serve the purpose of the contemporaneous-objection rule
for an appellate court to reach the merits of a forfeitable issue that is essentially
raised for the first time on appeal. Id. Furthermore, a point of error on appeal
must comport with the objection made at trial. Thomas v. State, 723 S.W.2d 696,
700 (Tex. Crim. App. 1986).
Here, it is not clear from Hargiss’s objection what he was objecting to at
trial. Hargiss’s objection to the prosecutor’s argument was “That’s not the issue
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of the trial.” One could read the objection as Hargiss having objected to the
prosecutor’s comment that he had previously been convicted of aggravated
sexual assault of a child. Indeed, on appeal, the State interprets Hargiss’s trial
objection as such, and the State’s reply to this court is that Hargiss allowed this
same evidence in at other points during the trial; thus, he failed to preserve the
issue for our review by not objecting each time the State presented evidence of,
or commented on, his previous sexual assault conviction. See Wall v. State, 143
S.W.3d 846 (Tex. App.—Corpus Christi 2004), aff’d as modified and remanded,
184 S.W.3d 730 (Tex. Crim. App. 2006) (holding that defendant failed to
preserve his improper jury argument when prosecutor argued on three separate
occasions that defendant should have received life sentence because of his
propensity for violence and that he might one day commit murder, but defendant
failed to object first two times such statements were made).
The imprecise nature of Hargiss’s objection and the State’s interpretation
of the objection are further clouded by the manner in which Hargiss brings his
point on appeal. In part of his argument, Hargiss states that the prosecutor’s
comments were “significant” because they created “a danger [that] the jury could
convict [] Hargiss of being a person of general bad criminal character, rather than
a person to whom the presumption of innocence applied.” Hargiss further
reinforces the State’s interpretation of his argument by choosing to emphasize
the prosecutor’s comment regarding his past conviction, while choosing not to
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emphasize the remainder of the prosecutor’s statement. But Hargiss seems to
ultimately concede that “his past [offense] was subject to comment.”
Hargiss’s point on appeal appears to be that the prosecutor’s comment
was impermissibly prejudicial because the comment “asked the jury to compare
his good behavior ([his] service to the country) versus his bad behavior (his past
conviction).” As Hargiss explains in his brief to this court, “the [prosecutor’s]
remarks were prejudicial because they concerned an improper comparison
between things done in his past which the jurors were indirectly asked to
compare when deciding whether he was guilty or not guilty.” But this specific
ground is not apparent from the context in which Hargiss lodged his objection at
trial. See Tex. R. App. P. 33.1(a)(1)(A), (B).
Thus, to the extent that Hargiss argues that this comparison was
impermissible, we conclude that the legal basis for his objection was not obvious
to the trial court and opposing counsel and that therefore he forfeited this issue
on appeal. See Heidelberg, 144 S.W.3d at 537. And to the extent that Hargiss’s
objection at trial regarded the prosecutor having allegedly impermissibly
commented on his previous conviction, his point on appeal does not comport with
his objection made at trial. See Thomas, 723 S.W.2d at 700. We overrule
Hargiss’s sole point on appeal.
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IV. CONCLUSION
Having overruled Hargiss’s sole point on appeal, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
WALKER, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 20, 2014
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