QUINCY BROWN v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Bridges

Quincy Brown appeals his convictions on two counts of aggravated robbery and one count of engaging in organized criminal activity convictions.   A jury convicted appellant of each count and sentenced him to ten years and eight months' confinement and a $5000 fine in each aggravated robbery case and seventeen years' confinement and a $7000 fine in the engaging in organized criminal activity case.   In a single issue, appellant argues the prosecutor at trial improperly struck at appellant over the shoulders of defense counsel.   We affirm the trial court's judgment.

Appellant was indicted on two counts of aggravated robbery and one count of engaging in organized criminal activity arising out of several jewelry store robberies.   In closing argument, the prosecutor made the following statements:

When you're in trouble, go into your dance.   That's all he's got.   The evidence in this case is so overwhelming that what he has to do is get up here and talk to you about everything and everyone except the guilty robber sitting at that table.   He's got to get up here and talk to you about what the evidence isn't․  Jury service is not a game of mental gymnastics.   We have three citizens—excuse me, 12 citizens of Collin County there because you have reason and you have common sense.   And that's your job, to use your reason and common sense.   Not to engage in mental gymnastics.   If we needed mental gymnasts, we would put defense attorneys over there.

At the conclusion of the trial, a jury convicted appellant, and this appeal followed.

In a single issue, appellant argues the above statements “constituted a clear attack on defense counsel's character, which is extreme or manifestly improper.”   Appellant argues the statements affected his substantial rights and amounted to error that was “harmful and fundamental.”   However, at trial appellant made no objection to the prosecutor's closing argument.   Because appellant failed to make his complaint to the trial court by a timely request, objection, or motion, he has failed to preserve his complaint for our review.   Tex.R.App. P. 33.1(a)(1);  Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (even constitutional errors may be waived by failure to object at trial);  Castaneda v. State, 135 S.W.2d 719, 723 (Tex.App.—Dallas 2003, no pet.).   We overrule appellant's single issue.

We affirm the trial court's judgment.

100082F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

QUINCY BROWN, Appellant

No. 05–10–00082–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 401 st District Court of Collin County, Texas.  (Tr.Ct.No.401–81306–09).

Opinion delivered by Justice Bridges, Justices Richter and Murphy participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 23, 2012.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE

DAVID L. BRIDGES JUSTICE