                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                                NO. 02-14-00264-CR


MICHAEL L. JONES                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
               TRIAL COURT NO. CR-2014-00223-A

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                        MEMORANDUM OPINION 1

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      Appellant Michael L. Jones appeals his conviction and sentence for driving

while intoxicated. We affirm.

                                Background Facts

      On September 15, 2013, Appellant was arrested for driving while

intoxicated. At the end of Appellant’s trial, the trial court announced that each


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       See Tex. R. App. P. 47.4.
side had fifteen minutes for closing argument. One State’s attorney said, “I’ll be

going first for the State. If you’ll let me know when I’ve used five minutes.” The

second State’s attorney requested a two-minute warning.            Appellant’s trial

counsel asked for a five-minute warning and a ten-minute warning.

      After the charge was read to the jury, the State’s first attorney made her

closing statement. Appellant’s trial counsel then announced that she was going

to waive closing argument.     The trial court then allowed the State’s second

attorney to proceed with the State’s closing argument. Appellant objected,

             Your Honor, I’d like to make an objection to the State being
      allowed to make their rebuttal close. Since we had waived our
      close, the State should not be allowed to make their rebuttal close.

            THE COURT: I’ve given each side 15 minutes, and you’ve—
      you’ve chosen how you want to use yours.

            You may proceed.

The State then finished its closing argument.

      The jury returned a unanimous verdict of guilty and assessed Appellant’s

punishment at eighty-five days in jail. The punishment was probated for a period

of fifteen months with certain conditions of probation. Appellant then filed this

appeal.

                                   Discussion

1. Rebuttal argument

      In his first point, Appellant argues that the trial court erred by allowing the

State to make “rebuttal” argument when Appellant had elected to waive closing



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argument. The code of criminal procedure provides that “[t]he order of [the]

argument may be regulated by the presiding judge; but the State’s counsel shall

have the right to make the concluding address to the jury.” Tex. Code Crim.

Proc. Ann. art. 36.07 (West 2007). We review a trial court’s decisions regarding

argument for abuse of discretion. Degadillo v. State, 262 S.W.3d 371, 378 (Tex.

App.—Fort Worth 2008, pet. ref’d) (citing Threadgill v. State, 146 S.W.3d 654,

673 (Tex. Crim. App. 2004); Margraves v. State, 56 S.W.3d 673, 684 (Tex.

App.—Houston [14th Dist.] 2001, no pet.)).

      Here, Appellant implied that he would be making closing argument by

requesting time warnings from the trial court.    Both of the State’s attorneys

requested time warnings, clearly indicating that they would both be arguing

during the State’s allotted fifteen minutes.    However, after the State’s first

attorney argued, Appellant then elected not to argue. Appellant’s complaint that

the State was allowed to proceed with its closing argument despite Appellant’s

choice is in effect a complaint that he was not allowed to choose unilaterally to

cut off the State’s argument prematurely. It is not an abuse of discretion for the

trial court to deny Appellant that power.

      Appellant argues that we should conduct a harm analysis under rule

44.2(a) because the trial court’s actions raise constitutional concerns regarding

the right to a fair trial. See Tex. R. App. P. 44.2(a). We do not conduct a harm

analysis unless we have determined that error occurred, which we have not done

in this case. See id. Further, Appellant has not identified what harm he suffered


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as a result of the State’s closing argument nor have we identified any.

See Norris v. State, 902 S.W.2d 428, 442 (Tex. Crim. App. 1995) (“[A]ppellant

argues the trial court’s failure to allow him to rebut the State’s arguments

rendered his trial fundamentally unfair.     This Court has resolved appellant’s

contentions adversely to him. In addition, appellant has failed to demonstrate

how his trial was fundamentally unfair.”) (citations omitted), overruled on other

grounds by Roberts v. State, 273 S.W.3d 322, 331 (Tex. Crim. App. 2008);

Degadillo, 262 S.W.3d at 379 (“Degadillo did not offer a bill of exception, nor did

he specify any harm that would come from the State not having made an opening

argument.”). We overrule Appellant’s first point.

2. Trial court’s comment

      In his second point, Appellant argues that the trial court erred by stating

after Appellant objected, “I’ve given each side 15 minutes, and you’ve—you’ve

chosen how you want to use yours.” Appellant claims this comment “would be

construed by a jury as an admission that the Defendant was guilty.”

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that 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); Everitt v. State, 407 S.W.3d

259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306

(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled

on the request, objection, or motion, either expressly or implicitly, or the


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complaining party must have objected to the trial court’s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. 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).

      Appellant did not object in the trial court and has not preserved this

complaint for our review. Even if he had, we note that in order to control the trial

of a case, the trial judge is necessarily given the discretion to express himself,

and his judgment will not be reversed based on his comments unless “there is a

showing of impropriety coupled with probable prejudice and rendition of an

improper verdict.” Food Source, Inc. v. Zurich Ins. Co., 751 S.W.2d 596, 600

(Tex. App.—Dallas 1988, writ denied). Appellant has not demonstrated probable

prejudice or that the verdict was improper, nor have we found anything in the

record to support his contention. We overrule Appellant’s second point.

                                   Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.

                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

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

DELIVERED: December 17, 2015


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