COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00603-CR
NO. 02-13-00604-CR
NO. 02-13-00605-CR
ANTONIO HALES, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1319929R, 1267508D, 1266108D
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MEMORANDUM OPINION1
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A jury convicted Appellant Antonio Hales, Jr. of attempted capital murder
and assessed his punishment at life in prison (in trial cause number 1319929R),
and the trial court adjudicated Hales guilty of possession of between five pounds
1
See Tex. R. App. P. 47.4.
and four ounces of marijuana and possession of less than one gram of a
controlled substance and sentenced him to two years’ confinement in state jail for
each offense (trial cause numbers 1267508D and 1266108D). In three points,
Hales complains that numerous questions asked and arguments made by the
State during trial caused reversible error. We will affirm.
Hales and Kyesha Holman dated for seven years. On August 17, 2012,
Holman returned to her apartment after work and became upset with Hales, who
was there, because the apartment was a mess. Hales asked Holman to
accompany him to a friend’s apartment, and the two went there in Hales’s car.
When they arrived at the complex, Holman told Hales to go inside and that she
wanted to stay in the car. The two began to argue, and at some point, Hales
grabbed a gas can from the back seat and doused Holman’s clothes with
gasoline. Holman exited the car and removed most of her clothes before getting
back inside the car. At some point, Hales exited the car to look for his keys.
Holman attempted to drive away, but Hales “caught the passenger door,” choked
Holman, returned to the driver’s seat, and drove to the front of the apartment
complex. Hales then struck a match and threw it at Holman’s feet, where her
gasoline-doused clothes were located. Holman heard a “whoosh sound,” saw
flames “everywhere,” and stuck her hand through the flames to open the
passenger door and exit the car. Holman ran inside an office and asked an
employee for help. Police later located Hales, who had fled the scene after
2
failing to convince Holman to leave with him. Holman suffered burns to 47% of
her body.
A grand jury indicted Hales for attempted capital murder, and the State
filed petitions to adjudicate him guilty of the two drug offenses described above.
This appeal followed his convictions for all three offenses.
Hales argues in his first point that the State violated his Fifth Amendment
privilege against self-incrimination while examining an arson investigator,2 that
the State improperly exploited his silence and shifted the burden of proof to him
2
The exchange occurred as follows:
Q: How many did you originally know that were transported to
the Parkland burn unit voluntarily?
A: One.
Q: Did the other person stick around, to your knowledge, to
share information with you?
A: No.
Q: Did you have the other individual there to treat to see if
they needed lifesaving skills?
A: No.
Q: Did anybody come up to you that night and say this was
just a horrific accident?
A: No.
3
during argument at punishment,3 that the State violated his Sixth Amendment
right to confront witnesses during argument at punishment,4 and that the State
improperly injected outside-the-record facts into the record during argument at
punishment.5
3
The prosecutor argued,
See, the Defense put a case on at punishment. Did you hear
them call any witnesses to revert or change any of the testimony that
Ms. Holman brought out about the assaults and the years of
domestic violence? Huh-uh. Didn’t exist, because it’s true. So you
get to make the decision.
Hales also argues that “the prosecutor made repeated statements
commenting upon [Hales’s] failure to testify,” but he does not direct us to any
specific statements made by the State, and we decline to guess which
statements he is referring to.
4
The prosecutor argued,
She’ll make a full recovery. Yeah, they did tell her that in the
hospital. They also don’t have mirrors in the burn unit. There’s no
mirrors in those hospital rooms for a reason. And why do you tell
somebody in intensive care they’re going to make a full recovery?
To keep their spirits high enough to get through it.
5
The prosecutor argued,
They brought you some people that would love and care for
him and want to hang out with him, his sister. They can visit.
There’s visitation days in the penitentiary.
....
. . . His family can visit him in jail. Don’t make any mistakes
about that. He’ll get visitation. He can buy a TV. That’s the life he’ll
have.
4
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh’g); Sample, 405 S.W.3d at 300.
Hales failed to preserve all of his arguments for appellate review because
he did not assert any objection to the complained-of evidence and arguments.
See Tex. R. App. P. 33.1(a)(1). We overrule his first point.
In his second point, as best we can tell, Hales argues that the trial court
reversibly erred by overruling his objection to the State’s closing argument that
Hales had threatened Holman in the past. The prosecutor argued, “[Holman]’s a
person, I think you’ve found now, that’s lived in a relationship, based on the
testimony, that has had some issues. He has made threats before. That’s what
came out on the stand.” The trial court did not abuse its discretion by overruling
5
Hales’s objection because, just as the prosecutor had alluded, Holman had
testified earlier that Hales had threatened to kill her in the past. See Brown v.
State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (stating that proper jury
argument includes summarizing evidence). We overrule Hales’s second point.
In his third point, Hales complains that the prosecutor improperly injected
his opinion and inflammatorily compared Hales to perpetrators of high-profile,
multi-murder cases during voir dire and argument at punishment.6 As with the
first point, Hales failed to preserve these arguments for appellate review because
he did not assert any objection to the complained-of arguments or statements
during trial. See Tex. R. App. P. 33.1(a)(1). We overrule his third point and
affirm the trial court’s judgments.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 6, 2014
6
The prosecutor stated that the district attorney’s office would have
pursued the death penalty had Holman died and that he did not know if he would
have been able to tolerate the injuries that Holman suffered, and the prosecutor
mentioned the “Texas Seven” during voir dire and Major Hasan from the Fort
Hood shootings during voir dire and during argument at the guilt phase.
6