                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00237-CR


SHAUN RAY MULLINAX                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CR17033

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                        MEMORANDUM OPINION1

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      After hearing evidence that Appellant Shaun Ray Mullinax had punched his

twelve-year-old son Z.M. in the arm and the head with a fist and had left bruises

on Z.M.’s arm and a bump on his head, the jury found Mullinax guilty of the

offense of bodily injury to a child fourteen years of age or younger, found the

enhancement paragraph to be true, and assessed his punishment at two years’


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       See Tex. R. App. P. 47.4.
confinement. See Tex. Penal Code Ann. § 22.04 (West Supp. 2014). The trial

court sentenced Mullinax accordingly. In two issues, Mullinax argues that the

trial court erred by permitting the State to rely on allegedly inadmissible, highly-

prejudicial prior bad-acts evidence in securing his conviction and complains of a

portion of the State’s closing argument presented in final rebuttal.

      The record reflects––and Mullinax expressly concedes in his brief––that he

lodged no objection at trial to either the introduction of the bad-acts evidence or

to the portion of the State’s argument he complains of on appeal. 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); Layton v. State, 280 S.W.3d 235, 238–39

(Tex. Crim. App. 2009); see also Tex. R. Evid. 103(a)(1) (stating that error may

not be predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected and a timely objection or motion to strike

appears of record, stating the specific ground of the objection). 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). “Except for complaints involving systemic (or absolute)


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requirements, or rights that are waivable only, . . . all other complaints, whether

constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule

33.1(a).” Mendez, 138 S.W.3d at 342. Because Mullinax lodged no objections to

the admission of the evidence or to the closing argument he complains of on

appeal, he forfeited both of these complaints.      See Tex. R. App. P. 33.1(a);

Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (recognizing rule

33.1(a)’s preservation requirements apply to closing arguments), cert. denied,

538 U.S. 965 (2003); Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App.

2002); see also Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).

      Mullinax, however, argues throughout his first and second issues that the

cumulative effect of the errors in admitting the prior bad-acts evidence, coupled

with the State’s erroneous jury argument, deprived Mullinax of his constitutional

right to due process and a fair and impartial trial and that error preservation is

unnecessary when there is “serious and continuing prosecutorial misconduct.” A

due-process, fair-trial objection is required, however, to preserve a complaint on

appeal that the prosecutor engaged in serious and continuing prosecutorial

misconduct so as to effectively deprive a defendant of due process or a fair trial.

See Clark v. State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012). This is

because an appellant should not be able to “bootstrap a constitutional issue from

the most innocuous trial objection” and because “the trial court should know

when it is being asked to make a constitutional ruling because constitutional error

is subject to a much stricter harm analysis on appeal.” Id. at 340. Consequently,


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in Clark, the court of criminal appeals held that the defendant’s badgering,

sidebar, argumentative, invading the province of the jury, and mischaracterization

objections were not so clearly connected to constitutional protections that they

could be assumed to be due-process objections.           Id.   Finally, neither the

prosecutors’ use of unobjected-to evidence that Mullinax characterizes as bad-

acts evidence nor the State’s unobjected-to closing argument in final rebuttal rise

to the level of fundamental error. See Arizona v. Fulminante, 499 U.S. 279, 309–

10, 111 S. Ct. 1246, 1264–65 (1991) (fundamental error occurs when certain

constitutional rights are violated, such as the right to counsel, the right to an

impartial judge, the right for there not to be unlawful exclusion of members of the

defendant’s race from the grand jury, the right to self-representation at trial, or

the right to a public trial). We hold that because Mullinax lodged no objections

comporting with the complaints he raises on appeal, he forfeited those

complaints; we also hold that the complaints made by Mullinax on appeal do not

show fundamental error.

      We overrule both of Mullinax’s two issues, and we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

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



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DELIVERED: May 28, 2015




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