                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-022-CR


JOSEPH CLIFTON CHARLES                                            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 OPINION 1

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                                  I. Introduction

      This case arises from a drug deal gone wrong. Appellant Joseph Clifton

Charles appeals his conviction for attempted capital murder. He contends in two

points that the trial court erred by overruling his objections to the State’s

impermissible closing jury arguments. W e affirm.

                      II. Factual and Procedural Background



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           See Tex. R. App. P. 47.4.
      Appellant first met Terrance Riley when Appellant and his brother, Ronald

Trahan, Jr., 2 were at Hard Body’s, a gentleman’s club, in Arlington, Texas, in May

or June of 2006. Appellant and Trahan approached Riley about whether Riley could

sell them marijuana after they noticed that Riley had a “blunt” behind his ear. After

Riley sold half an ounce of marihuana to Appellant and Trahan, the three men

exchanged names and phone numbers.

      After meeting at Hard Body’s, Riley met with Appellant and Trahan on several

occasions over the next several weeks. Approximately a week after their initial

meeting, Riley sold Trahan some additional marihuana. Shortly after that, Trahan

went to Riley’s apartment to smoke marihuana and play video games. Next,

Appellant went to Riley’s duplex 3 so Riley could cut Appellant’s hair. On another

occasion, Appellant and Trahan set up a drug deal and drove Riley to buy

approximately half a pound of marihuana.

      On July 25, 2006, Appellant went to Riley’s duplex to sell him more

marihuana. Riley had previously spoken on the phone with Trahan, who stated that

he could provide Riley with a better quality of marihuana in exchange for Riley’s

paying a higher price for it. W hen Appellant went inside the duplex, he gave the

marihuana to Riley, who after investigating it, determined that it was dried up and


      2
         Riley knew Appellant as “Joe” and Trahan as “100.” Riley testified that he
later learned that Trahan went by the name “R.J.”
      3
        Riley moved from his apartment to a duplex a couple of days after Trahan
went to Riley’s apartment.

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moldy, not the quality that Trahan had said it would be, and therefore not worth the

$275 that he had agreed to pay for it. After Riley told Appellant that the marihuana

was bad and that it was not what he was expecting, Appellant pulled out a gun and

shot Riley. Riley then slid off the couch and onto the floor and closed his eyes.

W hen he opened his eyes again, he saw Appellant leaving the duplex. Riley then

began hollering and pushed himself across the floor to his cell phone and called 911.

Riley is now a paraplegic, and the doctors do not expect him to walk again.

      Appellant was indicted for the offenses of attempted capital murder in count

one, aggravated robbery in count two, and aggravated assault with a deadly weapon

in count three. 4 Appellant pleaded not guilty to all three offenses and was tried in

January 2009. On January 14, 2009, a jury found Appellant guilty of the offense of

attempted capital murder, found the allegations in the Repeat Offender Notice and

Habitual Count Paragraphs One and Two of the indictment to be true, and assessed

Appellant’s punishment at seventy years’ confinement. This appeal followed.

                                  III. Discussion

      In two points, Appellant contends that the trial court erred by overruling his

objections to two improper comments made by the prosecutor during closing

arguments in the guilt-innocence phase of trial.        Appellant argues that the

      4
        This was the second time that Appellant was tried under this indictment.
On February 25, 2008, the State, after waiving count one (attempted capital murder)
and count three (aggravated assault with a deadly weapon), proceeded to trial on
count two (aggravated robbery). However, the trial court granted Appellant’s motion
for mistrial after the jury could not reach a unanimous verdict.

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prosecutor’s comments bolstered the State’s evidence and improperly shifted the

burden of proof to the defense.

      To be permissible, the State’s jury argument must fall within one of the

following four general areas:     (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or (4)

plea for law enforcement. Felder v. State, 848 S.W .2d 85, 94–95 (Tex. Crim. App.

1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W .2d 230, 231

(Tex. Crim. App. 1973).

      Appellant complains of the following statements made by the State during its

closing argument:

      [State]: Defense counsel says, “W hy didn’t they bring your records?”
      If there were records on this defendant’s cell phone that showed
      otherwise, you’d know they would bring it to you. It’s his phone.

      [Appellant]: Your Honor, it changes the burden of proof from the State
      to the Defense.

      The Court: Overruled.

      [State]: They have absolutely no burden, but don’t you know that if that
      was true, they could have brought it to you.

      Defense counsel said, “W ell, they didn’t bring you word from the street.”
      His entire family is sitting right there. Everybody who knows him and
      loves him is sitting right over there.

      Did a single one of them ever get up here to tell you, “He’s not capable
      of committing this crime; I know Joe; he has nothing to do with firearms;
      I love him; wouldn’t hurt a flea; wouldn’t be involved in something like
      this?”



                                          4
      There’s his mother. His own brother couldn’t say anything good about
      him nor his sisters nor anybody else. That speaks volumes to who
      you’re dealing with.

      Do you want to know Joseph Charles? Their absence tells you who
      you have.

      And for her to sit there and tell you we didn’t bring you word on the
      street and the family came and supported him but couldn’t be bothered
      to say one good thing–

      [Appellant]: Your Honor, I’m going to object again to shifting the burden
      of proof to the defendant.

      The Court: Overruled.

      Regarding the first objection, Appellant complains that the State’s comment

alleging that Appellant did not offer into evidence Appellant’s phone records

erroneously shifted the burden of proof to Appellant.

      During his closing arguments, Appellant had specifically referenced the State’s

failure to present evidence regarding Appellant’s phone records at trial. Appellant’s

counsel had stated in relevant part,

      The State of Texas’[s] case comes down to one witness and only one
      witness. They didn’t bring you DNA. They didn’t bring you prints. They
      didn’t bring you phone records from Tameika Trahan. They didn’t bring
      you phone records from Terrance Riley. They didn’t bring you phone
      records from my client. [Emphasis added.]

      It is apparent that the State was simply trying to respond to Appellant’s

argument that the State did not produce his phone records at trial and emphasize

that Appellant could have provided his own phone records. Absent comment on the

defendant’s lack of testimony, “the State may comment on appellant’s failure to


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present evidence in his favor” during jury argument. See Caron v. State, 162

S.W .3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Jackson v.

State, 17 S.W .3d 664, 667 (Tex. Crim. App. 2000)); Sanders v. State, 74 S.W .3d

171, 173 (Tex. App.—Texarkana 2002, pet. ref’d).

      Here, the State simply stated that Appellant could have brought in his own

phone records as evidence if the records had been favorable to his defense. W e

hold that the trial court did not abuse its discretion by overruling his objection to the

State’s comments because the State was merely responding to Appellant’s closing

argument and suggesting that Appellant had access to his own phone records and

could have provided them as evidence. W e overrule Appellant’s first point.

      Concerning the second objection, Appellant argues that the State commented

on his failure to call defense witnesses and that the argument shifted the burden of

proof to him.

      An objection to a jury argument at trial must be timely and specific, and the

defendant must pursue the objection to an adverse ruling. 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); see also Tex. R. App. P. 33.1(a)(1). An objection

is timely if it is made as soon as the ground of objection becomes apparent.

Thompson v. State, 691 S.W .2d 627, 634 (Tex. Crim. App. 1984), cert. denied, 474

U.S. 865 (1985).


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      Here, Appellant should have objected to the prosecutor’s statements when it

first became apparent that the State was referencing Appellant’s failure to call family

members to testify. See id.; Parks v. State, 858 S.W .2d 623, 631 (Tex. App.—Fort

W orth 1993, pet. ref’d). Appellant, however, waited until the State had commented

generally that his family members, and specifically his mother and brother, did not

testify before he objected to the statements as shifting the burden of proof. Because

Appellant did not timely object to the prosecutor’s statements, he failed to properly

preserve error for our review. See Tex. R. Evid. 103(a)(1); Lagrone v. State, 942

S.W .2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk v. State,

729 S.W .2d 749, 753 (Tex. Crim. App. 1987). Additionally, it is evident from the

record that the State was again responding to the argument by Appellant’s counsel

that the State “didn’t bring you word on the street,” which is logically interpreted to

mean Appellant’s reputation in his neighborhood and community, because the

prosecutor prefaced his remarks by stating, “Defense counsel said, ‘W ell, they didn’t

bring you word from the street.’”     His entire family is sitting right there. . . .”

Accordingly, we overrule Appellant’s second point.

                                  IV. Conclusion

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

judgment.




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                                     ANNE GARDNER
                                     JUSTICE

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

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

DELIVERED: June 17, 2010




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