                             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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