Avery Desmond Grant v. the State of Texas ( 2024 )

AFFIRMED as MODIFIED and Opinion Filed May 21, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00683-CR
AVERY DESMOND GRANT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1921410-V
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Smith
Opinion by Justice Molberg
A jury found appellant, Avery Grant, guilty of aggravated robbery and
sentenced him to twenty-five years’ confinement. On appeal, he argues the trial
court erred in admitting a photograph of him in a jail setting and the State’s closing
argument improperly referred to prospective jurors’ statements made during voir
dire. We affirm in this memorandum opinion.
Because we conclude none of appellant’s issues are preserved for our review,
we limit our discussion of the case to the facts necessary to resolve the appeal.
Appellant first complains of State’s Exhibit 61, a photograph of appellant taken
when he was arrested. Officer Barrett Nelson testified he took two photographs of
appellant the morning he arrested him. The State moved to admit the photographs,
and defense counsel stated, “Your Honor, I’m going to object. May I approach,
Your Honor?” A sidebar, off-the-record discussion took place, and afterwards, the
trial court overruled appellant’s objection and admitted the photographs as State’s
Exhibits 61 and 62. Later in the day, during a break, defense counsel again objected
to State’s Exhibit 61, which had already been admitted. Counsel stated, “For the
record, the defense objects to State’s Exhibit 61 being admitted. We believe it is
highly prejudicial, and any probative value it has is exceeded by the prejudicial
effect, so we’re asking that this not be admitted before the Jury.” The trial court
overruled the objection.
Now, on appeal, appellant argues the admission of State’s Exhibit 61 violated
his fundamental right to the presumption of innocence. As a prerequisite to
presenting a complaint for appellate review, the record must show, among other
things, the complaint was made to the trial court by a timely request, objection, or
motion that stated the grounds for the ruling the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context. TEX. R. APP. P.
33.1(a)(1)(A). The objection must be specific so the trial court is made aware of the
complaint and has the opportunity to correct any error, or the opposing party has an
opportunity to remove the basis for objection. Crouse v. State, 441 S.W.3d 508, 516
–2–
(Tex. App.—Dallas 2014, no pet.) (citing Martinez v. State, 22 S.W.3d 504, 507
(Tex. Crim. App. 2000)). Even constitutional error can be forfeited if an objection
is not made at trial. Id. (citing Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.
2009)). The issue on appeal must also comport with the objection made at trial;
otherwise, the issue has not been preserved for our review. Id.We conclude this issue is not preserved for our review. Appellant’s objection
before the bench conference failed to state any specific grounds for excluding the
photograph. A generic “objection” without more preserves nothing for review. See
TEX. R. APP. P. 33.1(a)(1)(A); see also 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.”). Moreover, to the extent any objections were made
during the off-the-record bench conference, they preserved nothing for our review.
See Knowles v. State, No. 05-20-00410-CR, 2022 WL 3714516, at *5 (Tex. App.—
Dallas Aug. 29, 2022, no pet.) (mem. op.) (“When objections and rulings are made
during a sidebar conference that is conducted off the record, nothing is preserved for
review.”). Finally, appellant’s objection to State’s Exhibit 61 later articulated on the
record—after the exhibit was previously admitted—related only to rule 403;
consequently, even assuming that objection’s timeliness, the issue appellant now
raises relating to the fundamental right to the presumption of innocence is not
–3–
preserved for our review because it does not comport with the trial objection. See
Crouse, 441 S.W.3d at 516. We overrule appellant’s first issue.
In his second and third issues, appellant contends the prosecutor’s closing
argument harmed appellant when it referred to two potential jurors’ voir dire
statements. During voir dire, a potential juror discussed his friend who had a gun
pulled on him while working as a security guard. The prosecutor asked whether the
friend was focused on identifying the perpetrator or on “his life possibly ending,”
and the juror responded, “He was focusing on his life possibly ending.” Shortly
afterwards, a second prospective juror shared that her sister was raped and assaulted,
and she described the impact it was still having on the victim twenty-seven years
after the crime. During the State’s closing argument, the prosecutor recalled the two
discussions, stating:
Whenever we were talking about, during jury selection, [the first
prospective juror] over there, he was sitting right over there, he talked
about how he had a friend that was a security guard that had a gun
pointed in his -- put in his face.
And he told you he talked to his friend. The friend didn’t make any
mention whatsoever of trying to identify the defendant. He said his
friend told him he was just thinking about his life flashing before his
eyes. That is it.
He thought he was going to die. A rush of nerves and shock came over
him. You’re not thinking about what that person that is threatening you
with, what he looks like.
And the same with [the second prospective juror] right there, talking
about how her sister was a victim of a rape and assault and how they
still haven’t caught the bad guy.
–4–
And I’m talking about all that to try to lead into what we talked about
with circumstantial versus direct evidence, direct evidence being eye
witness testimony and why we don’t rely on that today.
Appellant did not object to the prosecutor’s remarks about either prospective juror,
and he concedes this on appeal.
Appellant argues, relying on Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.
1993), that no objection was required to raise these two complaints on appeal. In
that case, the court of criminal appeals explained that a litigant’s rights generally fall
within three categories: (1) systemic requirements and prohibitions, (2) waivable-
only rights, (3) and forfeitable rights. Id. Rule 33.1’s preservation requirements do
not apply to complaints about systemic requirements and prohibitions or waivable-
only rights. Rios v. State, 665 S.W.3d 467, 477 (Tex. Crim. App. 2022). But the
right to a trial untainted by improper jury argument does not fall into these two
categories; it is forfeitable. See Hernandez v. State, 538 S.W.3d 619, 622 (Tex.
Crim. App. 2018). Therefore, we conclude these two complaints about improper
jury argument are not preserved for our review. We overrule appellant’s second and
third issues.
The State raises a cross-issue, seeking to modify the judgment to reflect that
appellant pleaded “not true” to the two enhancement paragraphs alleged in the
indictment. This Court may modify the trial court’s judgment to make the record
speak the truth when it has the necessary data and information to do so. See TEX. R.
–5–
APP. P. 43.2(b); Fuller v. State, No. 05-18-00635-CR, 2019 WL 2296232, at *1 (Tex.
App.—Dallas May 30, 2019, no pet.) (mem. op.). The record reflects appellant
pleaded “not true” to the two enhancement paragraphs alleged in the indictment.
Despite this, the judgment reflects that he “pleaded true” to both. Accordingly, we
conclude the requested modifications are supported by the record. We modify the
judgment to reflect that appellant “pleaded not true” to the first and second
enhancement paragraphs.
Having overruled appellant’s three issues and sustained the State’s cross-
issue, we affirm the judgment below as modified.
/Ken Molberg/
KEN MOLBERG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
220683F.U05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AVERY DESMOND GRANT, On Appeal from the 292nd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1921410-V.
No. 05-22-00683-CR V. Opinion delivered by Justice
Molberg. Justices Reichek and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
in the field for “1st Enhancement Paragraph,” we DELETE “pleaded
true” and INSERT in its place, “pleaded not true”; and
in the field for “2nd Enhancement Paragraph,” we DELETE “pleaded
true” and INSERT in its place, “pleaded not true.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered May 21, 2024
–7–