                                                                             PD-1667-14
                           PD-1667-14                       COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                        Transmitted 12/22/2014 11:53:33 AM
                                                           Accepted 12/29/2014 1:21:59 PM
                          NO.                                                 ABEL ACOSTA
                                                                                      CLERK
               IN THE TEXAS COURT OF CRIMINAL APPEALS


                          N0.01-13-01022-CR

                    IN THE COURT OF APPEALS FOR THE


               FIRST SUPREME JUDICIAL DISTRICT OF TEXAS


                                AT HOUSTON


                       TRIAL COURT NO. 1249910


                      IN THE 209TH DISTRICT COURT


                        OF HARRIS COUNTY TEXAS


                     STEVEN LEE DORSEY, APPELLANT


                                   VS.

                     THE STATE OF TEXAS, APPELLEE


           APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



                                  Charles Hinton
                                  P.O. Box 53719
                                  Houston, Texas 77052-3719
                                  (832) 603-1330
                                  SBOT 09709800
                                  Attorney for Appellant
                                  chashinton@sbcglobal.net
December 29, 2014
                             TABLE OF CONTENTS


                                                    Page:

Statement Regarding Oral Argument

Index of Authorities

Statement of the Case

Statement of Procedural History

Question for Review Number One

      WHETHER A PROSECUTOR'S CLOSING ARGUMENT AT THE
      PUNISHMENT PHASE OF A PRE-SENTENCE INVESTIGATION
      HEARING MAY INFECT THE TRIAL COURT'S PUNISHMENT
      ASSESSMENT WITH SUCH UNFAIRNESS THAT AN APPELLATE
      COURT MAY ANALYZE A DENIAL OF DUE PROCESS CLAIM
      EVEN IN THE ABSENCE OF AN OBJECTION?


Argument

Prayer for Relief



Certificate of Service                              7


Certificate of Compliance

Appendix
                     STATEMENT REGARDING ORAL ARGUMENT

         Pursuant to TEX. R. APP. PROC. 68.4, appellant waives oral argument.

                               INDEX OF AUTHORITIES

Cases:                                                                 Page:

Andersen v. State,
301 S.W.Sd 276 (Tex. Crim. App. 2009)

Dorsey v. State,
NO. 01-13-01022-CR (Tex. App. - Houston [1st Dist] 2014,
non-published memorandum op.)                                          2,4

Dunbarv. State,
297 S.W.Sd 777 (Tex. Crim. App. 2009)

Garza v. State,
126 S.W.Sd 79 (Tex. Crim. App. 2004)                                   4

Kelly v. State,
321 S.W.Sd 583 (Tex. App. -- Houston [14th Dist] 2010)

Miller v. State,
741 S.W.2d 382 (Tex. Crim. App. 1987)                                  4,5

Torres v. State,
92 S.W.Sd 911 (Tex. App. -- Houston [14th Dist] 2002)

Rules:

TEX. R. APP. PROC. 33.1                                                2,3
                          INDEX OF AUTHORITIES (cont'd}

                                                          Page:



Constitutions

TEX. CONST, art. I, sec. 10

TEX. CONST, art. I, sec. 19

U.S. CONST, amendment 6th

U.S. CONST, amendment 14th
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:


                            STATEMENT OF THE CASE


      On July 15, 2013, Appellant pled guilty to aggravated robbery. On

Novembers, 2013, after a hearing, the trial court assessed punishment at 25 years

in prison (CR 1:81).

                       STATEMENT OF PROCEDURAL HISTORY


      On November 20, 2014, the 1st Court of Appeals issued a non-published

memorandum opinion affirming appellant's conviction. No motion for rehearing

was filed. Appellant now petitions for discretionary review.

                       QUESTION FOR REVIEW NUMBER ONE


             WHETHER A PROSECUTOR'S CLOSING ARGUMENT AT THE
             PUNISHMENT PHASE OF A PRE-SENTENCE INVESTIGATION
             HEARING MAY INFECT THE TRIAL COURT'S PUNISHMENT
             ASSESSMENT WITH SUCH UNFAIRNESS THAT AN APPELLATE
             COURT MAY ANALYZE A DENIAL OF DUE PROCESS CLAIM
             EVEN IN THE ABSENCE OF AN OBJECTION (RR I: 35-36)?


                                   ARGUMENT

      The First Court of Appeals, in affirming the judgment in appellant's case,

held "that Appellant has not preserved for appellate review his complaint
regarding the State's closing argument and any possible effect it may have had on

the trial court's sentencing of him." Dorsey v. State, No. 01-13-01022-CR (Tex.

App. — Houston [1st Dist] 2014, non-published memorandum op,} at p. 7.

         In its opinion, id., at p. 7, the First Court of Appeals cited this Court of

Criminal Appeals' decision in Dunbar v. State, 297 S.W.3d 777 (Tex. Crim. App.

2009).

               "Rule 33.1 provides that as a prerequisite to presenting a

               complaint for appellate review, the record must show that

               the complaint was made to the trial court by a specific and

               timely request, objection, or motion. See GHIenwoters v.

               State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (dis-

               cussing Rule 33.1) But Rule 33.1 does not apply to rights

               which are waivable only or to absolute systemic require-

               ments, the violation of which may still be raised for the

               first time on appeal. Marin v. State, 851 S.W.2d 275, 280

               (Tex. Crim. App. 1993)." Id., at 780.

         Appellant agrees that the First Court of Appeals correctly set forth the
applicable   law   concerning waivable       only   rights     and absolute systemic

requirements in the context of the lack of an objection to the prosecutor's

complained of punishment argument to the trial court in appellant's case.

However, appellant disagrees with the First Court of Appeals' holding that clearly

implies that no due process violation can ever qualify as an exception to the error

preservation requirement set out in TEX. R. APR. PROC. 33.1.

      This Court of Criminal Appeals, in Andersen v. State, 301 S.W.3d 276, 279

(Tex. Crim. App. 2009) stated:

      "In Marin, we identified three distinct types of rules involved in our

      adversarial judicial system: (1) absolute requirements and prohibitions;

      (2) rights of litigants that must be implemented by the system unless

      expressly waived; and (3) rights of litigants that are to be implemented

      upon request. An absolute requirement, also known as "systemic re-

      quirement," is a rule or law that a trial court must follow even if the

      parties wish otherwise. Waivable rights "are not extinguished by in-

      action alone." A defendant must expressly relinquish them. All other

      complaints, whether constitutional, statutory, or otherwise, are sub-

      ject to forfeiture, and fall into the third category."
      The First Court of Appeals cited this Court of Criminal Appeals opinion in

Andersen, id. at 280 for the proposition that, "Numerous constitutional rights,

including those that implicate a defendant's due-process rights, may be forfeited

for purposes of appellate review unless properly preserved. Dorsey, supra, at p. 7.

      Appellant contends that the language that " ... a defendant's due-process

rights, may be forfeited for purposes of appellate review unless properly

preserved.", id., at p.7 and Andersen, supra, at 280, clearly imply that there are

exceptional instances where the prosecutor's argument results in such unfairness

that the error is preserved even though no objection was made. Miller v. State,

741 S.W.2d 382, 391 (Tex. Crim. App. 1987).

      Appellant concedes that, at a bench trial such as his, the judge is presumed

to disregard the inadmissible evidence if the judge is called upon to decide the

merits of the case. Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004).

However, in appellant's care, the appellate record plainly shows that the trial

judge did not disregard the prosecutor's argument concerning the co-defendant's

sentence.

      (RR1:35):

      MS BUESS: "At some point he has to be held accountable for his
      choices and actions. And, I would ask the Court to do that, knowing

      that, knowing that his co-defendant for the same offense, without

      picking up any additional charges, was sentenced to 25 years by this

      Court in 2011. I would ask the Court to assess 30 years in this case

      for this defendant."

      (RR1:36):

      THE COURT: "Thank you, Allison. Mr. Dorsey, please stand up.

      (Defendant complies.)

      THE COURT: "Steve Dorsey, Jr., on your plea of guilty and the evidence

      introduced herein, the Court finds you guilty and assesses your punish-

      ment at 25 years confinement in the Texas Department of Corrections."

      There is no doubt that the prosecutor's argument that deliberately

reminded the trial court that he had sentenced appellant's co-defendant to 25

years in prison was improper. The disposition of a defendant's case is not

admissible in the trial of a co-defendant Kelly v. State, 321 S.W.3d 583, 595 (Tex.

App. - Houston [14th Dist.j 2010); Miller, supra, at 389; Torres v. State, 92

S.W.3d 911 (Tex. App. - Houston [14th Dist] 2002).

      The Court of Appeals in Torres, id. at 921, stated that "Thus, it is the law's

                                          5
objective to assess a reasoned, rational, and just punishment that fits the crime

and the offender."

      Appellant contends that the only reasonable deduction that can be made,

based on the appellate record that reflects the trial court assessing appellant's

punishment at 25 years confinement immediately after the prosecutor made her

improper punishment argument, is that the trial court assessed the punishment

at 25 years due to the fact that he also assessed the co-defendant's punishment

at 25 years. The reason for the exact same sentences is just too coincidental to be

otherwise explained.

      If, as the Court of Appeals in Torres, id., at 921. also stated, " ... the Sixth

Amendment of the United States Constitution and article I, sec. 10 of the Texas

Constitution guarantee the accused the right to a fair trial ...." and if the appellate

record plainly presents a situation in which the trial court's punishment

assessment was so unfairly infected by an improper prosecution punishment

argument as to be a denial of an appellant's 14th Amendment federal due process

and his Art. I, sec. 19 Texas state due course of law rights, should not an appellate

court be required to address the issue raised in such a exceptional and narrow

instance even where no objection to the improper argument was lodged?
      Appellant contends that the Court of Appeals erred in appellant's case by

not so doing.

                                PRAYER FOR RELIEF


      Appellant prays that this Court grant his petition for discretionary review;

set this case for submission; and that, after submission, reverse the judgment of

the Court of Appeals and remand the case for further proceedings. TEX. R. APP.

PROC. 78.1   (d).


                                               Respectfully submitted,

                                                 /s/Charles Hinton_
                                               Charles Hinton
                                               P.O. Box 53719
                                               Houston, Texas 77052-3719
                                               chashinton@sbcglobal.net
                                               SBOT #09709800
                                               Attorney for Appellant

                             CERTIFICATE OF SERVICE


      I certify that a copy of appellant's petition has been sent through the e-file

system to the following parties:

Alan Curry
Chief Prosecutor
Harris County District Attorney's Office
1201 Franklin, Ste. 600
Houston, Texas 77002-1923

                                           7
State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, Texas 78711


                                              /s/Charles Hinton
                                           Charles Hinton
                                           P.O. Box 53719
                                           Houston, Texas 77052-3719
                                           832-603-1330
                                           chashinton@sbcglobal.net
                                           SBOT #09709800
                                           Attorney for Appellant

                        CERTIFICATE OF COMPLIANCE

                  PURSUANT TO TEX. R. APP. PROC. 9.4(i)(3)

     Appellant's counsel certifies thatthe word count of this document is 1480.




                                             /s/Charles Hinton
                                           Charles Hinton
                                           P.O. Box 53719
                                           Houston, Texas 77052-3719
                                           832-603-1330
                                           chashinton@sbcglobal.net
                                           SBOT #09709800
                                           Attorney for Appellant




                                       8
                                     JUDGMENT

                                  Court of &pp*afe
                             jffrsft jatetrict of ^xa*
                                  NO. 01-13-01022-CR

                            STEVE LEE DORSEY, Appellant

                                          V.

                           THE STATE OF TEXAS, Appellee

     Appeal from the 209th District Court of Harris County. (Tr. Ct. No. 1249910).

       This case is an appeal from the final judgment signed by the trial court on November
8, 2013. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.

       The Court orders that this decision be certified below for observance.

Judgment rendered November 20^ 2014.

Panel consists of Justices Higley, Bland, and Sharp. Opinion delivered by Justice Higley.
Opinion issued November 20,2014




                                    In The
                             Court of
                                   For The

                        Jftntt JBfetrirt of

                            NO. 01-13-01022-CR


                     STEVE LEE DORSEY, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 209th District Court
                          Harris County, Texas
                      Trial Court Case No. 1249910


                        MEMORANDUM OPINION

     Without a sentencing recommendation from the State, Appellant pleaded

guilty to the offense of aggravated robbery.1 Following the preparation of a



     See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
presentence investigation ("PSI") report, the trial court conducted a sentencing

hearing. At the conclusion of the hearing, the trial court found Appellant guilty of

the aggravated-robbery offense, and sentenced him to 25 years in prison. The trial

court also made a deadly-weapon finding in the judgment, indicating that

Appellant had used a firearm in the commission of the offense. In one issue on

appeal, Appellant complains that the State's closing argument improperly

influenced the trial court's imposition of Appellant's sentence.

      We affrrm.

                                    Background

      At Appellant's sentencing hearing, the State did not introduce any testimony

or other evidence. Instead, it relied on the PSI report.

      Appellant and his mother testified in his defense at the hearing. They both

stated that Appellant, who was 20 years old at the time of the hearing, was 16 years

old at the time he committed the aggravated robbery. They testified that, at the

time of the robbery, Appellant's family had been unable to afford medication that

Appellant had been prescribed for a psychiatric condition. They both claimed that,

when he does not take his medication, Appellant is easily Influenced by others to

do things that he should not do. Appellant and his mother indicated he was

influenced by his co-defendant to commit the aggravated-robbery offense. In this
regard, Appellant referred to himself as a "victim." Appellant also emphasized

that it was his co-defendant, and not him, who held the gun during the robbery.

      Appellant acknowledged that he had been "incarcerated as a juvenile" for

committing assault. He also testified that, while out on bond for the instant

offense, he had been charged with the offenses of possession of cocaine and

unlawfully carrying a weapon, which he stated was a gun.

      Despite his troubled past, Appellant told the trial court that he planned to go

to school to obtain his GED and to find work doing construction. In his closing

argument, Appellant's counsel restated Appellant's testimony and requested that

Appellant be placed on community supervision.

      In its closing, the State pointed out that Appellant had been in repeated

trouble with the law, including while he was out on bond in this case.            The

prosecutor also pointed to the PSI report, which, according to the prosecutor,

indicated that Appellant had been more violent than his co-defendant during the

robbery. The complainant had indicated that Appellant had repeatedly threatened

to kill him during the robbery. It was in this context that the prosecutor made the

following statement during closing argument:

      It's not [his co-defendant's] fault. And, as much as defense counsel is
      trying to portray [Appellant's] co-defendant as the bad, older man,
      [the co-defendant's] date of birth is September 8, 1992. This
      defendant's date of birth is December 29, 1992. At some point he has
      to be held accountable for his choices and his actions. And, I would
      ask the Court to do that, knowing that Ms co-defendant for the same
      offense, without picking up any additional charges, was sentenced to
      25 years by this Court back in 2011. I would ask the Court to assess
      30 years in this case for this defendant.

At that point, the trial court ruled: "Steve Dorsey Jr., on your plea of guilty and the

evidence introduced herein, the Court finds you guilty of the offense of aggravated

robbery and assesses your punishment at 25 years' confinement in the Texas
                              <-*
Department of Corrections."

                        No Objection to State's Argument

      In his sole issue, Appellant complains of the State's remark during closing

argument in which the prosecutor stated that the trial court had sentenced

Appellant's co-defendant to 25 years in prison for the same offense. Appellant

points out that immediately following this statement, the trial court sentenced

Appellant to 25 years in prison. He asserts that this shows that the trial court was

improperly influenced by the State's argument.

      In his brief, Appellant concedes that he did not object to the State's

argument.    And, he acknowledges that, to preserve a complaint for appellate

review, Rule of Appellate Procedure 33.1 requires a party to make a specific and

timely request, motion, or objection to the trial court and, further, to obtain an


      The offense of aggravated robbery is a first-degree felony. TEX. PENAL CODE
      ANN. § 29.03(b). The punishment range for a first-degree felony is imprisonment
      for five to ninety-nine years or confinement for life; the fact finder may also
      impose fine of up to $10,000. See TEX. PENAL CODE ANN. § 12.32 (Vernon
      2011).
adverse ruling. See TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807

(Tex. Crim. App. 2011). Nonetheless, Appellant asserts as follows:

      [T]he lack of an objection to the prosecutor's improper argument
      should not deter this Court from analyzing appellant's point for
      review. Unlike an objection to improper argument at a jury trial
      where the trial court can instruct the jury to disregard the improper
      argument, in a court trial such as appellant's, there is no one to whom
      the judge needs to give an instruction to disregard. Appellant also
      contends that an exception to the general rule requiring an objection
      exists in appellant's case because the prosecutor's improper argument
      so infected the punishment phase of appellant's case with unfairness
      that it denied appellant due process and hereby violated his 14th
      Amendment rights.

      The Court of Criminal Appeals has emphasized that a defendant must

preserve a complaint that the State's closing argument was improper. See Mays v.

State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) ("[W]e will not review the

propriety of the prosecutor's arguments, as appellant failed to object to those

arguments at trial. He has failed to preserve any issue for appeal."); 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, 61 S.W.3d 918, 926-27 (Tex. Crim. App. 2002) ("Appellant failed

to object at trial to the prosecutor's arguments, however, and therefore forfeited his

right to complain about this issue on appeal."). Courts have applied this rule to

bench trials. See, e.g., Parker v. State, No. 02-11-00032-CR, 2011 WL 5984539,

at *2—3 (Tex. App.—Fort Worth Dec. 1, 2011, no pet.) (mem. op., not designated
for publication) (holding that, in a bench trial, by failing to object to prosecutor's

closing arguments at the time they were made, appellant forfeited any potential

error for appellate review).

      Appellant asserts that making an objection to the remark served no useful

purpose here because this was a bench trial; thus, there was no jury to instruct to

disregard the State's argument. However, even accepting this reasoning, appellant

was still required to object and request a mistrial. See Mathis, 67 S.W.Sd at 927

(reaffirming rule that, even if jury argument error could not be cured by

instruction, defendant is still required to object and request mistrial).

      Moreover, Appellant's objection to the remark may have served the useful

purpose of making the trial court aware of Appellant's complaint at a time when

the trial court could have ruled on the issue. Rule 33.1's requirement that a party

must make a timely, specific objection and obtain an adverse ruling serves two

main purposes: (1) to inform the trial court of the objection and give the trial court

an opportunity to rule on it, and (2) to give opposing counsel the opportunity to

take appropriate action in response. See Garza v. State, 126 S.W.Sd 79, 82 (Tex.

Grim. App. 2004); see also TEX. R. APP. P. 33.1(a).

      We also reject Appellant's assertion that he was not required to object to the

State's remark because it violated his due-process rights. Appellant appears to

confuse constitutional rights with systemic requirements or waivable-only rights,
for which no objection is required to preserve error. State v. Dunbar, 297 S.W.Sd

777, 780 (Tex. Grim. App. 2009) (holding that Rule 33.1 "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").

      Numerous constitutional rights, including those that implicate a defendant's

due-process rights, may be forfeited for purposes of appellate review unless

properly preserved. See Anderson v. State, 301 S.W.3d 276, 279-80 (Tex. Crim.

App. 2009) (rejecting "due process" exception to error preservation requirement);

Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (holding errors based

on the constitutional rights to confrontation and due process may be waived by

failure to object at trial). Thus, Appellant has forfeited any due-process challenge

that he had regarding the effect of the State's argument on his sentence.

      We hold that Appellant has not preserved for appellate review his complaint

regarding the State's closing argument and any possible effect it may have had on

the trial court's sentencing of him. We overrule Appellant's sole issue.
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).
