Seandre McMahon v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00080-CR
NO. 09-19-00081-CR
NO. 09-19-00082-CR
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SEANDRE MCMAHON, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause Nos. 23851, 23853 & 23855
__________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant Seandre McMahon for aggravated robbery
with a deadly weapon in trial cause numbers 23851, 23853, and 23855. See Tex.
Penal Code Ann. § 29.03. McMahon pleaded guilty to all three charges, and
McMahon elected to have his punishment assessed by the trial court without a jury.
After hearing evidence, the court assessed punishment at forty years’ confinement
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for each offense, to run concurrently. McMahon filed a notice of appeal in all three
cases.
McMahon raises one issue on appeal, arguing that the State improperly
commented on McMahon’s failure to testify at the hearing on punishment in
violation of the U.S. and Texas constitutions and article 38.08 of the Code of
Criminal Procedure, which protect the right against self-incrimination. See U.S.
Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08.
McMahon’s issue focuses on the comment made by the State’s attorney in closing
argument:
The other thing you have not heard here, Judge, is you haven’t
heard the victims come up here and say: We’ve heard from the
Defendant and his remorse and we’ve talked to him and we’re asking
you for leniency on his part. And because you don’t hear that, what you
heard is what’s on that tape -- on that 911 tape. So, on that basis, we
ask you to give him the 45 [years].
McMahon argues that this statement asked the trial court to consider whether
McMahon was hiding something and challenged his right not to testify, and he
contends that the error affected his substantial rights, and that the cases should be
remanded for a new punishment hearing.
The notices of appeal in trial cause number 23853 and the notice of appeal for
trial cause number 23855 (appellate cause numbers 09-19-00081-CR and 09-19-
00082-CR respectively) were filed more than thirty days following entry of
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judgment. Under Texas Rule of Appellate Procedure 26.2, in a criminal case, a
defendant must file a notice of appeal “within 30 days after the day sentence is
imposed or suspended in open court, or after the day the trial court enters an
appealable order[.]” Tex. R. App. P. 26.2(a)(1). If an appeal is not timely perfected,
a court of appeals lacks jurisdiction to address the merits of the appeal, and the court
can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d
208, 210 (Tex. Crim. App. 1998) (citing Olivo v. State, 918 S.W.2d 519, 523 (Tex.
Crim. App. 1996)); see also Castillo v. State, 369 S.W.3d 196, 202 (Tex. Crim. App.
2012) (explaining that a notice of appeal filed even one day late is enough to deprive
the appellate court of jurisdiction to consider the appeal).
McMahon alleged in his notices that he was an inmate in the Hardin County
jail at the time he filed his notices of appeal. The “prisoner mailbox rule” deems an
item filed with the clerk of court “at the time the prison authorities duly receive the
document to be mailed.” Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004);
Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010) (adopting mailbox
rule for pro se inmate filings in criminal appeals). There are no envelopes in the
clerk’s record, and nothing in the record before us indicates when or if McMahon
delivered the notices to the prison authorities for delivery with the United States
Postal Service.
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We asked the parties attorneys to provide additional information about the
time and method used by McMahon to file the notices of appeal. McMahon
responded with an affidavit from his appellate attorney, which stated in relevant part:
1. I have spoken with the mother of the Defendant. . . .
2. She has told me that she picked up the Notice of Appeal paperwork
from the prison officials.
3. The paperwork only addressed [] one of the cases on appeal. She
copied the original notice and added the other two case numbers.
However, the other cases[’] notices were filed after the deadline.
The affidavit establishes that McMahon did not use the prion mail system for the
United States Mail to file his notices of appeal, and further that the two late notices
were not timely filed. See Tex. R. App. P. 9.2(b)(1). We conclude that the notices of
appeal in trial cause numbers 23853 and 23855 (appellate cause numbers 09-19-
00081-CR and 09-19-00082-CR respectively) were untimely, and we lack
jurisdiction to consider them. See Tex. R. App. P. 26.2(a)(1).1 Accordingly, we
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McMahon may seek an out-of-time appeal by application for writ of habeas
corpus under article 11.07 of the Texas Code of Criminal Procedure, but this relief
is beyond our court’s jurisdiction on direct appeal. See Tex. Code Crim. Proc. Ann.
art. 11.07; Ater v. Eighth Ct. of App., 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)
(Court of Criminal Appeals has exclusive authority to grant relief in post-conviction
felony proceedings); In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st
Dist.] 2001, orig. proceeding) (“Article 11.07 contains no role for the courts of
appeals; the only courts referred to are the convicting court and the Court of Criminal
Appeals.”).
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dismiss appellate cause numbers 09-19-00081-CR and 09-19-00082-CR for lack of
jurisdiction.
McMahon’s notice of appeal in trial cause 23851 (appellate cause number 09-
19-00080-CR) was timely filed. However, the record does not reflect that McMahon
made a timely objection to the comment of the State’s attorney with the trial court.
To preserve error for appellate review, a party generally must present a timely
objection to the trial court, state the specific grounds for the objection, and obtain a
ruling. See Tex. R. App. P. 33.1(a); Garcia v. State, 887 S.W.2d 862, 877 (Tex.
Crim. App. 1994) (overruling the appellant’s claim that the State improperly
commented on the appellant’s failure to testify because the defense did not object
and preserve the error), abrogated in part on other grounds by Hammock v. State,
46 S.W.3d 889, 892-93 (Tex. Crim. App. 2001). To complain on appeal about an
erroneous argument, an appellant must show that he objected at trial to the argument
and that he pursued his objection to an adverse ruling. See Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996); Garcia, 887 S.W.2d at 877 (holding that no
error was preserved when appellant did not object to State’s alleged comment during
closing argument on appellant’s failure to testify). Having failed to establish that he
made that objection at trial and obtained a ruling thereon, McMahon has forfeited
his right to complain about the prosecutor’s argument on appeal, and we overrule
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this issue. See Oliva v. State, 942 S.W.2d 727, 731 (Tex. App.—Houston [14th Dist.]
1997, pet. dism’d); see also Humphries v. State, No. 09-17-00104-CR, 2019 Tex.
App. LEXIS 1033, at **15-16 (Tex. App.—Beaumont Feb. 13, 2019, no pet.) (mem.
op., not designated for publication) (“Before a defendant will be permitted to
complain on appeal about an erroneous jury argument or that an instruction to
disregard could not have cured an erroneous jury argument, he will have to show he
objected and pursued his objection to an adverse ruling.”) (quoting Cockrell, 933
S.W.2d at 89); Weeks v. State, 396 S.W.3d 737, 740-41 (Tex. App.—Beaumont
2013, pet. ref’d) (failure to object at trial forfeits error on appeal).
Even assuming McMahon had preserved this complaint, we find no error. The
complained-of statement in the State’s closing argument was “you haven’t heard the
victims come up here and say: We’ve heard from the Defendant and his remorse and
we’ve talked to him and we’re asking you for leniency on his part.” 2 “To violate the
right against self-incrimination, the offending language must be viewed from the
[factfinder’s] standpoint and the implication that the comment referred to the
defendant’s failure to testify must be clear.” Bustamante v. State, 48 S.W.3d 761,
765 (Tex. Crim. App. 2001) (emphasis added). In this case, the State’s closing
argument was made to the trial court and not to a jury, and it referred to what the
2
Emphasis added.
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trial court had not heard, and to the victims’ failure to testify, not the defendant’s
failure to testify. Therefore, we cannot say the complained-of comment violated the
right against self-incrimination. See id.
Having overruled McMahon’s issue in cause number 09-19-00080-CR, we
affirm the judgment of the trial court in trial cause number 23851. We dismiss cause
numbers 09-19-00081-CR and 09-19-00082-CR for lack of jurisdiction.
AFFIRMED; DISMISSED.
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LEANNE JOHNSON
Justice
Submitted on November 21, 2019
Opinion Delivered January 15, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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