                          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




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