Quinton Cox TDCJ1624099 v. State ( 2018 )

NUMBER 13-17-00587-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
QUINTON COX TDCJ #1624099, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Quinton Cox appeals from a judgment sentencing him to twenty years in
the state jail division of the Texas Department of Criminal Justice (TDCJ) for a conviction
of attempted aggravated assault with a deadly weapon on a public servant, a second-
degree felony, see TEX. PENAL CODE ANN. §§ 15.01, 22.01, 22.02 (West, Westlaw through
2017 1st C.S.), and possession of a deadly weapon in a penal institution, a third-degree
felony. See id. § 46.10 (West, Westlaw through 2017 1st C.S.). Cox proceeded pro se
at trial. By one issue, Cox contends the State made an improper jury argument by
implying that his questions to witnesses during trial constituted inculpatory evidence. We
affirm.
I. BACKGROUND
On May 12, 2015, Cox tried to stab Officer Eduardo Galvan with a nine-inch piece
of metal while in a holding cell when Galvan was standing near the open tray slot. Cox
was indicted for three counts: count one was for aggravated assault with a deadly
weapon on a public servant (first-degree felony), see id. §§ 22.01, 22.02; count two was
for attempted aggravated assault with a deadly weapon on a public servant, see id.
§§ 15.01, 22.01, 22.02; count three was for possession of a deadly weapon in a penal
institution. See id. § 46.10. Cox was subsequently brought to trial, and he waived his
right to a jury and proceeded before the bench pro se. During closing argument, the State
argued the following:
And of course Count Three is just the actual possession of that deadly
weapon which we think is pretty clearly demonstrated by those three
different videos inside the cage. From the different angles you can see it in
his hand as well as the Defendant’s own set of questions where he talks
about how he gave it up or did not give it up so we believe that we’ve proven
all those elements beyond a reasonable doubt and that’s all we have for our
opening of closing argument.
The trial court found Cox guilty of attempted aggravated assault with a deadly
weapon on a public servant, see id. §§ 15.01, 22.01, 22.02, and possession of a deadly
weapon in a penal institution, see id. § 46.10, but acquitted him of the aggravated assault
with a deadly weapon charge. See id. §§ 22.01, 22.02. The trial court sentenced Cox to
twenty years’ imprisonment in the state jail division of TDCJ for each offense, with the
sentences to run concurrently. This appeal ensued.
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II. DISCUSSION
In his sole issue, Cox contends the State made an improper jury argument when
it “framed his questioning of witnesses during trial as a sworn testimony admission.” Cox
argues that the prosecutor’s improper argument constitutes structural error and violates
his state and federal constitutional due process rights to have the court consider only
properly admitted sworn testimony presented at trial. Cox concedes that because he did
not object, he has waived review under current case law. See TEX. R. APP. P. 33.1.
However he raises it here in an adversarial fashion solely for purposes of preserving error
for possible further review.
A. Applicable Law and Standard of Review
A structural error is a “defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante,
499 U.S. 279, 310 (1991). The Court of Criminal Appeals has held that structural errors
are “federal constitutional errors labeled by the United States Supreme Court as such.”
Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005). The Supreme Court has
found structural error only in a “very limited class of cases”: the total deprivation of
counsel at trial, lack of an impartial trial judge, the unlawful exclusion of members of the
defendant’s race from a grand jury, the denial of the right to self-representation at trial,
the denial of the right to a public trial, and an instruction that erroneously lowers the
burden of proof for conviction below the “beyond a reasonable doubt” standard. Johnson
v. United States, 520 U.S. 461, 468–69 (1997). A structural error may be raised for the
first time on appeal. Segovia v. State, 543 S.W.3d 497, 502 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (citing Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App.
2004)).
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Prosecutorial jury argument should generally be limited to: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) answer to argument of
opposing counsel; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664,
673 (Tex. Crim. App. 2000); Lawson v. State, 896 S.W.2d 828, 833 (Tex. App.—Corpus
Christi 1995, writ ref'd). “Even when an argument exceeds the permissible bounds of
these approved areas, it will not constitute reversible error unless . . . the argument is
extreme or manifestly improper, violative of a mandatory statute, or injects new facts
harmful to the accused . . . .” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000) (citing Todd v. State, 598 S.W.2d 286, 296–97 (Tex. Crim. App. 1980)). When
examining challenges to a jury argument, a reviewing court must consider the
complained-of argument in the context in which it appears. Gonzalez v. State, 337
S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.] 2011, pet ref’d); see Wesbrook, 29
S.W.3d at 115; Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
The preferred procedure for a defendant to preserve jury argument error for
appellate review is: “(1) to object when it is possible, (2) to request an instruction to
disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party
thinks an instruction to disregard was not sufficient.” Young v. State, 137 S.W.3d 65, 69
(Tex. Crim. App. 2004); see TEX. R. APP. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996) (en banc). Although “this sequence is not essential to preserve
complaints for appellate review,” “[t]he essential requirement is a timely, specific request
that the trial court refuses.” Young, 137 S.W.3d at 69; see TEX. R. APP. P. 33.1(a). A
general or imprecise objection will not preserve error for appeal unless “the legal basis
for the objection is obvious to the court and to the opposing counsel.” Vasquez v. State,
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483 S.W.3d 550, 554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d
772, 775 (Tex. Crim. App. 2006)).
We review a trial court’s ruling on an objection to a jury argument under an abuse
of discretion standard. Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston [1st
Dist.] 2016, no pet.); York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet
ref’d); see Davis v. State, 329 S.W.3d 798, 823 (Tex. Crim. App. 2010).
B. Analysis
The complaint that Cox lodges does not fall within the classes of cases recognized
as structural errors by the U.S. Supreme Court in Johnson. See 520 U.S. at 468–69.
Here, Cox complains of improper jury argument by the prosecutor, which is not a
structural error and, as such, it must have been preserved to be considered on appeal.
See id.; TEX. R. APP. P. 33.1; Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App.
2004) (en banc). However, Cox, who appeared pro se before the trial court, did not object
when the State made this alleged improper jury argument, and this issue was raised for
the first time on appeal. As conceded by Cox, his failure to timely object waives appellate
review. See TEX. R. APP. P. 33.1.
We overrule Cox’s sole issue.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of June, 2018.
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