                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00032-CR


DOMINQUE NASHAUN PARKER                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Dominque Nashaun Parker appeals his conviction and sentence

of two years‘ confinement for possessing four or more but less than four hundred

grams of methylenedioxy methamphetamine (ecstasy).2        He contends in two




      1
      See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. § 481.103(a)(1) (West Supp. 2011),
§ 481.116(a), (d) (West 2010).
points that reversible error occurred because the State discussed his plea

negotiations and criminal history during its closing argument. We affirm.

                                 Background Facts

      A grand jury indicted appellant for possessing four or more but less than

four hundred grams of ecstasy. Appellant retained counsel, entered an open

guilty plea, waived constitutional and statutory rights, and judicially confessed

that he committed each act alleged in the indictment.

      At a hearing following appellant‘s plea, the trial court admitted, without

objection, a presentence investigation report, and the court also heard brief

testimony from appellant, who said that he had intended to sell the ecstasy, and

his mother, who said that appellant had broken his relationships with people who

had negatively influenced him.

      Both of appellant‘s points arise from comments that the prosecutor made

during closing argument. The prosecutor said,

      Your Honor, the State‘s offer prior to the open plea had been 10
      years TDC.[3] We based on that his -- the escalating nature of his
      criminal history. He‘s always been able to receive a break from the
      State one way or another over as many cases he‘s picked up. He‘s
      continued to demonstrate criminal behavior, now moving into actual
      narcotics transactions. And, although the State waived the intent to
      deliver language in good faith as part of an attempt to get an open
      plea, his own admissions to the PSI officer indicate that I probably
      should have not done that, since he clearly had the intent to sell that

      3
       As the State notes, the ten-year plea bargain offer had already been
disclosed to the trial court through written plea admonishments that were signed
by appellant and filed of record.

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      dope in exchange for money, but that being said, Your Honor, the
      State‘s last offer was 10 years TDC. I defer the Court for disposition
      in this case.

After listening to the prosecutor‘s argument, the trial court found appellant guilty

and sentenced him to two years‘ confinement. Appellant brought this appeal.

                      The Forfeiture of Appellant’s Points

      Appellant offered no objection to the prosecutor‘s statements at the time

they were given. Thus, in his first point, appellant contends that plain error, to

which an objection would not be required, occurred when the prosecutor notified

the trial court about appellant‘s plea negotiation. He relies in part on rule of

evidence 410, which relates to the general inadmissibility of plea discussions.

See Tex. R. Evid. 410(4) (excluding from evidence any statement made in the

course of plea discussions that does ―not result in a plea of guilty or a plea of

nolo contendere or that results in a plea, later withdrawn, of guilty or nolo

contendere).   In his second point, appellant argues that plain error occurred

when the prosecutor referred to ―extraneous crimes that [appellant] had not

committed and that he could not be held criminally responsible for.‖ For the

reasons stated below, we disagree with appellant‘s characterization of his

complaints as plain error, and we therefore conclude that appellant forfeited the

complaints by failing to object to the prosecutor‘s comments.

      In most circumstances, to preserve a complaint for our review, a party

must have presented to the trial court a timely request, objection, or motion that


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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); Layton v.

State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). 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); Mendez v. State, 138 S.W.3d 334, 341 (Tex.

Crim. App. 2004). A reviewing court should not address the merits of an issue

that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532

(Tex. Crim. App. 2009). Preservation of error is a systemic requirement. Archie

v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007). Generally, an appellant

may not complain about his sentence for the first time on appeal. See Kim v.

State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref‘d).

      Rule of appellate procedure 33.1, however, ―does not apply to rights which

are waivable only or to absolute systemic requirements, the violation of which

may still be raised for the first time on appeal.‖ State v. Dunbar, 297 S.W.3d 777,

780 (Tex. Crim. App. 2009). Systemic requirements, also known as absolute

requirements or prohibitions, are laws that a trial court has a duty to follow even if

the parties wish otherwise. Mendez, 138 S.W.3d at 340; see Anderson v. State,

301 S.W.3d 276, 279 (Tex. Crim. App. 2009). Systemic requirements include

jurisdiction of the person or subject matter, a constitutional requirement that a

district court conduct its proceedings at the county seat, and a constitutional


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prohibition against ex post facto laws. Saldano v. State, 70 S.W.3d 873, 888–89

(Tex. Crim. App. 2002); Hall v. State, 303 S.W.3d 336, 341 (Tex. App.—Amarillo

2009, pet. ref‘d). ―Waivable only‖ rights include the right to the assistance of

counsel and the right to trial by jury. Saldano, 70 S.W.3d at 888.

      Appellant does not direct us to any authority, and we find none,

characterizing the State‘s discussion of plea negotiations or of the defendant‘s

criminal history during closing argument as systemic, waivable-only, or otherwise

―fundamental‖ or ―plain‖ error.4      On the contrary, courts have repeatedly

emphasized that a defendant must preserve a complaint that the State‘s closing

argument was improper. See Threadgill v. State, 146 S.W.3d 654, 670 (Tex.

Crim. App. 2004) (―Because appellant failed to object to the jury argument, he

has forfeited his right to raise the issue on appeal.‖); Mathis v. State, 67 S.W.3d

918, 926–27 (Tex. Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.

Crim. App. 1996) (―Therefore, we hold a defendant‘s failure to object to a jury

argument or a defendant‘s failure to pursue to an adverse ruling his objection to a

jury argument forfeits his right to complain about the argument on appeal.‖), cert.

      4
        ―The traditional term in Texas‘ criminal law that corresponds to ‗plain error‘
is ‗fundamental error.‘‖ Jimenez v. State, 32 S.W.3d 233, 238 & n.19 (Tex. Crim.
App. 2000); see also Tex. R. Evid. 103(d) (―In a criminal case, nothing in these
rules precludes taking notice of fundamental errors affecting substantial rights
although they were not brought to the attention of the court.‖). The court of
criminal appeals now considers questions of fundamental error under the
categorical framework that classifies potential error into systemic rights,
waivable-only rights, or forfeitable rights. See Mendez, 138 S.W.3d at 341;
Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim. App. 2003).

                                          5
denied, 520 U.S. 1173 (1997); Marchbanks v. State, 341 S.W.3d 559, 565 (Tex.

App.—Fort Worth 2011, no pet.). Courts have applied this rule to bench trials.

See, e.g., Tucker v. State, 07-10-00421-CR, 2011 WL 3652762, at *2 (Tex.

App.—Amarillo Aug. 19, 2011, pet. ref‘d) (mem. op., not designated for

publication).

      Moreover, in Whitaker v. State, the court of criminal appeals required

preservation of a contention that witnesses improperly discussed a plea

negotiation during the guilt and punishment phases of trial; the court noted,

―[T]he record clearly reflects that appellant made no objection to the State‘s

references to the . . . plea negotiations.     Appellant, therefore, procedurally

defaulted any error in these references.‖ 286 S.W.3d 355, 362 (Tex. Crim. App.

2009); see also Capps v. State, 244 S.W.3d 520, 530 (Tex. App.—Fort Worth

2007, pet. ref‘d) (mem. op.) (holding that a defendant forfeited his complaint that

evidence contained statements about plea bargaining by not raising the

complaint at trial).   Likewise, appellate courts have required preservation of

arguments concerning a discussion of a defendant‘s criminal history during the

punishment phase of a trial. See, e.g., Miles v. State, 312 S.W.3d 909, 910 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref‘d) (―We conclude appellant waived the

[improper argument] complaint by failing to make a specific objection to the

argument.‖).




                                        6
       The facts of Miles are similar to those in this case. Miles had pled guilty to

driving while intoxicated. Id. During the punishment phase, the State told the

jury, ―Look at that [criminal history]. Chance after chance after chance. And let

me tell you, when he gets out, based on this, he‘s going to be right back in here

somewhere.‖     Id.   Miles objected, stating, ―That‘s improper argument.‖        Id.

But the court overruled Miles‘s objection, and Miles made no further comments

regarding the State‘s argument. Id. On appeal, the appellate court concluded

that Miles‘s objection was ―insufficient to preserve error‖ because it was overly

general. Id. at 911; see also Kelley v. State, No. 01-96-01078-CR, 1998 WL

43311, at *2 (Tex. App.—Houston [1st Dist.] Feb. 5, 1998, no pet.) (not

designated for publication) (holding that the defendant failed to preserve a

complaint that the State improperly urged the jury to levy a harsher punishment

in light of the defendant‘s criminal history because although the defendant

objected to the argument at trial, he failed to request a curative instruction or

mistrial). Appellant relies in part on Abdygapparova v. State, but in that case, the

defendant objected to the discussion of plea negotiations, thus preserving the

issue for appellate review. 243 S.W.3d 191, 204 (Tex. App.—San Antonio 2007,

pet. ref‘d).

       Based on this authority, we conclude that appellant‘s complaints about the

prosecutor‘s closing argument do not fall into the categories of error to which no




                                          7
objection is required, and we therefore hold that by failing to object, appellant

forfeited the complaints. We overrule appellant‘s points.

                                   Conclusion

      Having overruled appellant‘s points, we affirm the trial court‘s judgment.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 1, 2011




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