             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00055-CR
     ___________________________

     CALIPH WILLIAMS, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 371st District Court
         Tarrant County, Texas
       Trial Court No. 1534757D


   Before Gabriel, Kerr, and Birdwell, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       A jury found Caliph Williams guilty of aggravated sexual assault of a child and

assessed his punishment at seven years’ imprisonment. The trial court sentenced

Williams accordingly, and Williams appealed. In one issue, Williams argues that the

trial court reversibly erred by not instructing the jury to disregard the State’s failure-to-

testify argument. We affirm.

           The complained-of argument, the objection, and the ruling

       During the trial’s guilt phase, Williams testified and denied committing the

offense. He did not testify during the punishment phase.

       The State’s closing punishment argument elicited two quick objections:

             [Prosecutor]: . . . . Did you hear something today? He didn’t take
       responsibility.

               [Defense counsel]: Your Honor, I’m going to object to – I’m
       going to object to counsel commenting on Mr. Williams[’s] [not]
       testifying. The Court’s charge says –

              THE COURT: Sustained.

              [Prosecutor]: Did you hear any of the witnesses today say that he’s
       sorry? Did you hear anyone say that? She was a child, and he took her to
       a playground, and he sexually assaulted her. Why isn’t he sorry?

              [Defense counsel]: I’m going to object to counsel standing over
       the defense table speaking directly to Mr. Williams.

       THE COURT: Sustained.

Williams did not ask for an instruction to disregard or move for a mistrial.




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                The appellate complaint vis-à-vis the trial complaint

       On appeal, relying only on the why-isn’t-he-sorry question, Williams contends

that the prosecutor commented on his failure to testify. Our first concern is whether

Williams’s argument on appeal comports with his objection at trial; the State argues

that it does not. An appellant forfeits an alleged error if his appellate complaint differs

from his trial complaint. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009);

Kayne v. State, No. 02-09-00017-CR, 2010 WL 2889691, at *4 (Tex. App.—Fort Worth

July 22, 2010, no pet.) (mem. op., not designated for publication); see also Tex. R. App.

P. 33.1(a)(1). Here, defense counsel objected to where the prosecutor was standing

and to the prosecutor’s directing her remarks at Williams—but not to anything that

the prosecutor had said.

       Directing arguments at the defendant is improper. See Brown v. State, 477 S.W.2d

617, 622 (Tex. Crim. App. 1972); see also Bennett L. Gershman, Prosecutorial Misconduct

§ 11:39 (2d ed. Oct. 2019 update). And the spot where the prosecutor was standing—

rather than being a separate objection—might have been part of the complaint that

the prosecutor was directing her arguments at Williams. Put another way, Williams’s

objection might have had nothing to do with the prosecutor’s allegedly commenting

on his failure to testify.

       And at least one court has held that objecting to where the prosecutor is

standing does not preserve a complaint that the prosecutor was commenting on the

defendant’s failure to testify. See Hawkins v. State, No. 05-05-00248-CR,

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2005 WL 2864229, at *2 (Tex. App.—Dallas Nov. 2, 2005, no pet.) (mem. op., not

designated for publication). Under Hawkins, treating Williams’s I-don’t-like-where-the-

prosecutor-is-standing objection as a separate complaint would not help him align his

appellate issue with his trial objection.

       On the other hand, when a prosecutor stands near a defendant and couples

that proximity with certain arguments, the two may add up to commenting on the

defendant’s failure to testify. See Archie v. State, 340 S.W.3d 734, 740 (Tex. Crim. App.

2011) (“[T]he asking of these questions,” which only the appellant could answer,

“coupled with the prosecutor’s act of turning from the jury to face the defense

counsel table, pointing, and taking a step or two towards the appellant, directly

highlighted the fact that the appellant did not personally take the stand to testify.”);

Hicks v. State, 525 S.W.2d 177, 179 (Tex. Crim App. 1975) (“[T]he prosecutor was

standing behind the appellant when he raised his voice, looked down at the appellant

and stated, ‘But there is somebody that we haven’t heard from in this case. And I

think you all know who it is.’”); see also Michael E. Keasler & Michael J. Ritter, Criminal

Procedure: Confessions, Searches, and Seizures, 65 SMU L. Rev. 423, 428 (2012).

       Thus, depending on the context, the trial court could have understood

Williams’s objection to be that the prosecutor was commenting on Williams’s failure

to testify during the trial’s punishment phase. See Tex. R. App. P. 33.1(a)(1)(A) (“[The

complaining party] stated the grounds for the ruling that [it] sought from the trial

court with sufficient specificity to make the trial court aware of the complaint, unless

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the specific grounds were apparent from the context . . . .”); Pena, 285 S.W.3d at

464 (stating that when determining whether the appellate complaint comports with

the trial complaint, courts “consider the context in which the complaint was made and

the parties’ shared understanding at that time.”).

      As noted earlier, Williams voiced two objections in quick succession. Regarding

his first objection, he invoked the court’s charge, which provided:

             You are instructed that the law provides that the election of the
      Defendant not to testify shall not be taken as a circumstance against
      him, and during your deliberations you must not allude to, comment on,
      or discuss the election of the Defendant not to testify in the punishment
      phase, nor will you refer to or discuss any matter not before you in
      evidence.

Contextually, we are persuaded both that (1) Williams was objecting to the

prosecutor’s commenting on his not testifying during the punishment phase and

(2) the trial court understood that to be his objection.

      Given that

          • Williams’s previous objection addressed the prosecutor’s commenting
            on his not testifying,

          • the prosecutor’s next question went from asking the jurors whether they
            had heard Williams take responsibility for the offense to whether they
            had heard him express any remorse for having committed it, and

          • Williams was objecting to where the prosecutor was standing and
            looking when making the comment,

we hold that the trial court would have understood that Williams was objecting to the

prosecutor’s commenting on his failure to testify. See Tex. R. App. P. 33.1(a)(1)(A);



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Archie, 340 S.W.3d at 740; Hicks, 525 S.W.2d at 179. Williams’s appellate complaint

thus comports with his trial complaint. See Pena, 285 S.W.3d at 464.

   The relief requested and granted; the relief neither requested nor denied

      But having cleared that preservation hurdle, Williams stumbles on the next one.

Williams received all the relief that he asked for—the trial court sustained his

objection. He is not complaining about an adverse ruling but is instead complaining

after receiving a favorable ruling. An adverse ruling is a prerequisite to preservation.

See Tex. R. App. P. 33.1(a)(2). Because Williams did not receive an adverse ruling after

either requesting an instruction to disregard or moving for a mistrial, Williams has not

preserved his complaint that the trial court erred by not giving him one or the other.

See Hernandez v. State, 538 S.W.3d 619, 622–23 (Tex. Crim. App. 2018); Estrada v. State,

313 S.W.3d 274, 303 (Tex. Crim. App. 2010).

      We overrule Williams’s issue.

                                      Conclusion

      Having overruled Williams’s sole issue, we affirm the trial court’s judgment.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)


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Delivered: February 27, 2020




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