Opinion issued November 20, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             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


1
      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 affirm.

                                    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




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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 his co-defendant for the same

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      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.”2

                        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


2
      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).

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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, 67 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



                                           5
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.3d 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.3d 79, 82 (Tex.

Crim. 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,



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for which no objection is required to preserve error. State v. Dunbar, 297 S.W.3d

777, 780 (Tex. Crim. 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.




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                                   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).




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