Tevin Raymond Wilson v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00036-CR

TEVIN RAYMOND WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd District Court
Bowie County, Texas
Trial Court No. 20F1289-202

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION

A Bowie County jury convicted Tevin Raymond Wilson of sexual assault of a child and

assessed a sentence of five years’ imprisonment with a $5,000.00 fine. See TEX. PENAL CODE

ANN. § 22.011 (Supp.). On appeal, Wilson argues (1) that the trial court erred by admitting

speculative testimony and (2) that the State made an improper closing argument at trial. We

overrule both of Wilson’s appellate points of error based on the rules of waiver and error

preservation. As a result, we affirm the trial court’s judgment.

I. Waiver and Preservation Rules Lead Us to Overrule Wilson’s Evidentiary
Complaint

In his first point of error on appeal, Wilson argues that the trial court erred by overruling

his speculation objection. We find that Wilson failed to object to the same or similar testimony

at trial. We also find that Wilson failed to preserve his complaint that the trial court should have

excluded the testimony under the lay-witness rule. See TEX. R. EVID. 701.

A. Factual Background

D. E. Evans, a sergeant with the Texarkana, Texas Police Department, testified that he

was dispatched to a local hospital to speak with Samantha,1 a fifteen-year-old “sexual assault

victim . . . who had been sexually assaulted by her basketball coach” while she was at his

apartment. According to Evans, Samantha’s friend and fellow basketball teammate, Joyce, was

also at the hospital. Joyce testified that Wilson began calling her while she was at the hospital

with Samantha “to see if [Joyce] knew about th[e] situation or if [Samantha] told [Joyce] about

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We will use pseudonyms to protect the identities of individuals who were minors at the time of the offense. See
TEX. R. APP. P. 9.10.
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the situation.” Joyce said that she put Wilson on speakerphone and recorded the conversation.

Evans testified that he listened to the recorded call between Wilson and Joyce, which was played

for the jury. On the call, Wilson asked at least four times what Samantha had told Joyce.

When the State asked Evans for his opinion of Wilson and Joyce’s conversation based on

his training and experience in law enforcement, Evans testified, “To me, it’s like [Wilson] was

fishing for information from the victim’s friend to try to find out what she told law

enforcement.” Wilson objected to the testimony as speculative, but the objection was overruled.

The State continued its questioning of Evans. Without objection, Evans testified that suspects

call others “just so they can get information about the case, and then they can adjust their story to

try to make it look like they didn’t do anything.”

B. Analysis

On appeal, Wilson first argues that Evans’s testimony that Wilson “was fishing for

information from [Joyce]” was speculative. Wilson’s objection was overruled, but he did not

obtain a running objection. The recording of the call between Wilson and Joyce was in evidence.

The jury heard Wilson ask Joyce what Samantha had told her. Evans initially testified

specifically about that call. Evans then testified, without objection, regarding general patterns of

suspects trying to obtain information for use in “adjust[ing]” their stories. Wilson’s failure to

object to Evans’s later testimony was critical since the Texas Court of Criminal Appeals has

clarified that “a party must object each time the inadmissible evidence is offered or obtain a

running objection. An error [if any] in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.” Davis v. State, 614 S.W.3d 223, 229 (Tex.

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App.—Texarkana 2020, no pet.) (alteration in original) (quoting Lane v. State, 151 S.W.3d 188,

193 (Tex. Crim. App. 2004)); see Josey v. State, 97 S.W.3d 687, 698 (Tex. App.—Texarkana

2003, no pet.) (“If the same or similar evidence is admitted without objection at another point

during the trial, improper admission of the evidence will not constitute reversible error.”). “This

rule applies whether the same evidence was admitted ‘without objection . . . before or after the

complained-of ruling.’” Davis, 614 S.W.3d at 229 (quoting Lane, 151 S.W.3d at 193). We find

that Evans’s later testimony was substantially similar to the testimony that drew Wilson’s

objection. See Cook v. State, 665 S.W.3d 595, 600 (Tex. Crim. App. 2023). Since Wilson did

not object to this later testimony, we overrule this complaint since any error in admitting the

earlier testimony was cured.

Next, Wilson argues that Evans’s testimony constituted an impermissible lay opinion

under Rule 701 of the Texas Rules of Evidence. See Osbourn v. State, 92 S.W.3d 531, 535–36

(Tex. Crim. App. 2002) (discussing the differences between lay-person-opinion testimony under

Rule 701 and expert-opinion testimony under Rule 702). The State argues that Wilson did not

preserve this issue, and we agree.

Wilson only raised a speculation objection at trial, did not object that Evans was offering

a lay opinion, and raised no argument fairly notifying the trial court of any objection under Rule

107. “To preserve error, a party must object and state the grounds for the objection with enough

specificity to make the trial judge aware of the complaint, unless the specific grounds were

apparent from the context.” Davison v. State, 602 S.W.3d 625, 649 (Tex. App.—Texarkana

2020, pet. ref’d) (quoting Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (citing

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TEX. R. APP. P. 33.1(a)(1))). “The objection must be sufficiently clear to give the judge and

opposing counsel an opportunity to address and, if necessary, correct the purported error.” Id.

(quoting Thomas, 505 S.W.3d at 924). “If a trial objection does not comport with arguments on

appeal, error has not been preserved.” Id. (quoting Thomas, 505 S.W.3d at 924). After

reviewing the record, we find that Wilson failed to preserve his Rule 701 argument.

Accordingly, we overrule his first point of error on appeal.

II. Wilson Failed to Preserve His Complaint About the State’s Closing Argument

In his second point of error, Wilson complains of the following closing argument given

by the State on the ground that it injected facts not in evidence:

[Wilson’s counsel] asked, you know, well, I didn’t get to talk to [Samantha] about
the consequences of lying. You know who did? Me [the prosecutor]. I talked to
her. I called her and said, are you ready to go? And she said you bet. Think
about the times that she’s had in the last four years to be like, hmm, I don’t think I
want to do this anymore. I’ve moved on with my life. I don’t want any part of
this. And I called her a month ago, and I said, are you ready, because we are, and
she said, yes, ma’am. That’s how that works.

Wilson admits that there was no objection to the State’s closing argument at trial. Even

so, he argues that we should address the issue based on the opinion of the Texas Court of

Criminal Appeals in Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996)

(per curiam). There, the Texas Court of Criminal Appeals found that Janecka failed to preserve

her complaints of “various improper and inflammatory statements during [the State’s] closing

arguments” by failing to raise an objection at trial. Id. Even so, the Texas Court of Criminal

Appeals wrote, “Without timely and specific objections, the question of allegedly improper

closing arguments is not preserved for review unless manifestly improper.” Id. (emphasis

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added). Complaining that the State’s arguments here were manifestly improper, Wilson argues

that error preservation was not required. However, the Texas Court of Criminal Appeals has

clarified that “the statement in Janecka was dictum” and that an objection is required to preserve

error. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004).

The requirement of error preservation was restated by the Texas Court of Criminal

Appeals again in Hernandez v. State, when it reiterated that “[t]he right to a trial untainted by

improper jury argument is forfeitable.” Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim.

App. 2018) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (plurality op.)).

As a result, it is clear that “[e]ven an inflammatory jury argument is forfeited if the defendant

does not pursue his objection to an adverse ruling.” Id. at 622–23 (citing Estrada v. State, 313

S.W.3d 274, 303 (Tex. Crim. App. 2010) (even assuming prosecutor’s argument was so

egregious that instruction to disregard would be ineffectual, defendant “should have moved for a

mistrial to preserve this error.”)). By its ruling in Hernandez, the Texas Court of Criminal

Appeals expressly rejected the defendant’s argument that “error preservation was not required

here due to the egregious nature of the prosecutor’s argument.” Id. at 623. Instead, the Texas

Court of Criminal Appeals clarified, “Erroneous jury argument must be preserved by objection

pursued to an adverse ruling; otherwise, any error from it is waived.” Id.

Here, the record establishes that Wilson failed to object to the closing argument he now

complains of. As a result, we find Wilson’s last point of error unpreserved. It is overruled.

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III. Disposition

We affirm the trial court’s judgment.

Jeff Rambin
Justice

Date Submitted: September 12, 2024
Date Decided: October 8, 2024

Do Not Publish

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