COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00293-CR
MICHAEL WAYNE PERRY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1302260D
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MEMORANDUM OPINION 1
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Upon his plea of guilty, the jury convicted Appellant Michael Wayne Perry
of robbery by threat and assessed his punishment at forty years’ confinement as
a repeat offender. The trial court sentenced him accordingly. In his sole issue,
Appellant complains that the trial court reversibly erred by overruling his objection
1
See Tex. R. App. P. 47.4.
to the State’s jury argument at punishment. Because the trial court committed no
reversible error, we affirm the trial court’s judgment.
Appellant argues that the trial court committed reversible error by
overruling his objection to the State’s closing argument, “which invited the jurors
to speculate as to imaginary witnesses that the defense might have, but failed, to
call to testify regarding his character when no evidence was presented by either
the [S]tate or defense that the witnesses actually existed or could have been
called.” Generally, in order to preserve a complaint related to jury argument
error, the complaining party must make timely and specific objection to the jury
argument. 2
At trial, the following exchange occurred:
[STATE]: This has been a very short trial. We’ve got some
pictures, we’ve got testimony. But you’ve seen
the photo album that we brought to you. And I
told you in jury selection guilt and innocence—or
rather punishment phase of a trial is an
opportunity for both sides to bring you anything
they want. Have you heard anything good about
this defendant?
[DEFENSE]: Your Honor, we will object to that argument. It’s
a comment on the defendant’s election not to
testify.
THE COURT: I’m going to overrule that particular objection.
2
Tex. R. App. P. 33.1(a)(1); Threadgill v. State, 146 S.W.3d 654, 667 (Tex.
Crim. App. 2004); Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002);
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520
U.S. 1173 (1997); Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. 1981).
2
[STATE]: Have you heard from an employer saying he’s
ever worked an honest day in his life? Fellow
church member to say he’s a good person?
Anybody? If anybody came to you and said
you’ve got a week, you need to come up with
some people to come up with something good to
say about you, could you come up with one?
Although Appellant’s trial objection was that the argument was a comment
on his election not to testify, on appeal he contends that the prosecutor’s
argument was outside the record and encouraged the jury to speculate. It is well
established that, in order to preserve a complaint for appellate review, the
objection at trial must comport with the complaint raised on appeal. 3 In the case
now before this court, we cannot conclude that the trial objection that the
argument is a comment on Appellant’s decision not to testify comports with the
complaint on appeal that the argument is outside the record and encourages the
jury to speculate.
We therefore overrule Appellant’s sole issue on appeal and affirm the trial
court’s judgment.
3
Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014).
3
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 11, 2015
4