Summary
asking jury "What do you want the newspaper to say tomorrow? Jury gives man who rapes 89-year-old lady probation?" was "not an improper appeal to community expectations"
Summary of this case from York v. StateOpinion
No. 05-03-01719-CR
Opinion Filed February 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01099-T. Affirmed.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Eldridge Sellers, IV, of aggravated sexual assault of an elderly person and assessed punishment at forty years in prison. In two issues, appellant complains the trial court erred in (1) admitting hearsay evidence in violation of the confrontation clause of the Sixth Amendment and (2) overruling his objection to an improper argument. Because the dispositive issues are well settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm. In his first issue, appellant argues the trial court erred in allowing the investigating officer to testify as to what the complainant told her in violation of his constitutional right to confront witnesses against him. Although appellant did raise a hearsay objection to this evidence, he did not raise a confrontation clause complaint. Consequently, we conclude this issue is waived. See Crawford v. State, 139 S.W.3d 462, 464 (Tex.App.-Dallas 2004, pet. ref'd). In his second issue, appellant argues the trial court reversibly erred in overruling his objection to the following punishment argument by the State: "What do you want the newspaper to say tomorrow? Jury gives man who rapes 89-year-old lady probation?" Appellant objected to "improper argument." On appeal, he contends the argument improperly appealed to "community expectations." Appellant's objection was not specific enough to preserve his complaint. See Earnhart v. State, 582 S.W.2d 444, 449 (Tex.Crim. App 1979) (concluding objection that argument was "not a proper argument, not a proper statement" not specific enough to preserve complaint that argument was comment on failure to testify). Even assuming it was, the argument was not an improper appeal to community expectations. The prosecutor had argued that appellant was a "wolf in sheep's clothing" who "lurk[ed] behind a facade of nice gestures and kind words and helpful action." Immediately preceding the objected-to comments, the prosecutor had urged the jury as follows: "That's what you really have here, ladies and gentlemen. And you can tell our community what you think about someone who does that to an 89-year-old lady." Considering the objected-to comments in light of the argument, we conclude the comments were a plea to send a message to the community about what happens to people who prey on the elderly. See Harris v. State, 122 S.W.3d 871, 888 (Tex.App.-Fort Worth 2003, pet. ref'd) (explaining that argument constitutes proper plea for law enforcement if urges jury to be "voice" of community, rather than asking jury to lend ear to community). Issue two is without merit. We affirm the trial court's judgment.