Avery Desmond Grant v. the State of Texas

AFFIRMED as MODIFIED and Opinion Filed May 21, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00683-CR

AVERY DESMOND GRANT, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1921410-V

MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Smith
Opinion by Justice Molberg
A jury found appellant, Avery Grant, guilty of aggravated robbery and

sentenced him to twenty-five years’ confinement. On appeal, he argues the trial

court erred in admitting a photograph of him in a jail setting and the State’s closing

argument improperly referred to prospective jurors’ statements made during voir

dire. We affirm in this memorandum opinion.

Because we conclude none of appellant’s issues are preserved for our review,

we limit our discussion of the case to the facts necessary to resolve the appeal.

Appellant first complains of State’s Exhibit 61, a photograph of appellant taken
when he was arrested. Officer Barrett Nelson testified he took two photographs of

appellant the morning he arrested him. The State moved to admit the photographs,

and defense counsel stated, “Your Honor, I’m going to object. May I approach,

Your Honor?” A sidebar, off-the-record discussion took place, and afterwards, the

trial court overruled appellant’s objection and admitted the photographs as State’s

Exhibits 61 and 62. Later in the day, during a break, defense counsel again objected

to State’s Exhibit 61, which had already been admitted. Counsel stated, “For the

record, the defense objects to State’s Exhibit 61 being admitted. We believe it is

highly prejudicial, and any probative value it has is exceeded by the prejudicial

effect, so we’re asking that this not be admitted before the Jury.” The trial court

overruled the objection.

Now, on appeal, appellant argues the admission of State’s Exhibit 61 violated

his fundamental right to the presumption of innocence. As a prerequisite to

presenting a complaint for appellate review, the record must show, among other

things, the complaint was made to the trial court by a timely request, objection, or

motion that stated the grounds for the ruling the complaining party sought from the

trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context. TEX. R. APP. P.

33.1(a)(1)(A). The objection must be specific so the trial court is made aware of the

complaint and has the opportunity to correct any error, or the opposing party has an

opportunity to remove the basis for objection. Crouse v. State, 441 S.W.3d 508, 516

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(Tex. App.—Dallas 2014, no pet.) (citing Martinez v. State, 22 S.W.3d 504, 507

(Tex. Crim. App. 2000)). Even constitutional error can be forfeited if an objection

is not made at trial. Id. (citing Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.

2009)). The issue on appeal must also comport with the objection made at trial;

otherwise, the issue has not been preserved for our review. Id.

We conclude this issue is not preserved for our review. Appellant’s objection

before the bench conference failed to state any specific grounds for excluding the

photograph. A generic “objection” without more preserves nothing for review. See

TEX. R. APP. P. 33.1(a)(1)(A); see also Buchanan v. State, 207 S.W.3d 772, 775

(Tex. Crim. App. 2006) (“When the objection is not specific, and the legal basis is

not obvious, it does not serve the purpose of the contemporaneous-objection rule for

an appellate court to reach the merits of a forfeitable issue that is essentially raised

for the first time on appeal.”). Moreover, to the extent any objections were made

during the off-the-record bench conference, they preserved nothing for our review.

See Knowles v. State, No. 05-20-00410-CR, 2022 WL 3714516, at *5 (Tex. App.—

Dallas Aug. 29, 2022, no pet.) (mem. op.) (“When objections and rulings are made

during a sidebar conference that is conducted off the record, nothing is preserved for

review.”). Finally, appellant’s objection to State’s Exhibit 61 later articulated on the

record—after the exhibit was previously admitted—related only to rule 403;

consequently, even assuming that objection’s timeliness, the issue appellant now

raises relating to the fundamental right to the presumption of innocence is not

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preserved for our review because it does not comport with the trial objection. See

Crouse, 441 S.W.3d at 516. We overrule appellant’s first issue.

In his second and third issues, appellant contends the prosecutor’s closing

argument harmed appellant when it referred to two potential jurors’ voir dire

statements. During voir dire, a potential juror discussed his friend who had a gun

pulled on him while working as a security guard. The prosecutor asked whether the

friend was focused on identifying the perpetrator or on “his life possibly ending,”

and the juror responded, “He was focusing on his life possibly ending.” Shortly

afterwards, a second prospective juror shared that her sister was raped and assaulted,

and she described the impact it was still having on the victim twenty-seven years

after the crime. During the State’s closing argument, the prosecutor recalled the two

discussions, stating:

Whenever we were talking about, during jury selection, [the first
prospective juror] over there, he was sitting right over there, he talked
about how he had a friend that was a security guard that had a gun
pointed in his -- put in his face.

And he told you he talked to his friend. The friend didn’t make any
mention whatsoever of trying to identify the defendant. He said his
friend told him he was just thinking about his life flashing before his
eyes. That is it.

He thought he was going to die. A rush of nerves and shock came over
him. You’re not thinking about what that person that is threatening you
with, what he looks like.

And the same with [the second prospective juror] right there, talking
about how her sister was a victim of a rape and assault and how they
still haven’t caught the bad guy.

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And I’m talking about all that to try to lead into what we talked about
with circumstantial versus direct evidence, direct evidence being eye
witness testimony and why we don’t rely on that today.

Appellant did not object to the prosecutor’s remarks about either prospective juror,

and he concedes this on appeal.

Appellant argues, relying on Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.

1993), that no objection was required to raise these two complaints on appeal. In

that case, the court of criminal appeals explained that a litigant’s rights generally fall

within three categories: (1) systemic requirements and prohibitions, (2) waivable-

only rights, (3) and forfeitable rights. Id. Rule 33.1’s preservation requirements do

not apply to complaints about systemic requirements and prohibitions or waivable-

only rights. Rios v. State, 665 S.W.3d 467, 477 (Tex. Crim. App. 2022). But the

right to a trial untainted by improper jury argument does not fall into these two

categories; it is forfeitable. See Hernandez v. State, 538 S.W.3d 619, 622 (Tex.

Crim. App. 2018). Therefore, we conclude these two complaints about improper

jury argument are not preserved for our review. We overrule appellant’s second and

third issues.

The State raises a cross-issue, seeking to modify the judgment to reflect that

appellant pleaded “not true” to the two enhancement paragraphs alleged in the

indictment. This Court may modify the trial court’s judgment to make the record

speak the truth when it has the necessary data and information to do so. See TEX. R.

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APP. P. 43.2(b); Fuller v. State, No. 05-18-00635-CR, 2019 WL 2296232, at *1 (Tex.

App.—Dallas May 30, 2019, no pet.) (mem. op.). The record reflects appellant

pleaded “not true” to the two enhancement paragraphs alleged in the indictment.

Despite this, the judgment reflects that he “pleaded true” to both. Accordingly, we

conclude the requested modifications are supported by the record. We modify the

judgment to reflect that appellant “pleaded not true” to the first and second

enhancement paragraphs.

Having overruled appellant’s three issues and sustained the State’s cross-

issue, we affirm the judgment below as modified.

/Ken Molberg/
KEN MOLBERG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
220683F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

AVERY DESMOND GRANT, On Appeal from the 292nd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1921410-V.
No. 05-22-00683-CR V. Opinion delivered by Justice
Molberg. Justices Reichek and Smith
THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

in the field for “1st Enhancement Paragraph,” we DELETE “pleaded
true” and INSERT in its place, “pleaded not true”; and

in the field for “2nd Enhancement Paragraph,” we DELETE “pleaded
true” and INSERT in its place, “pleaded not true.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered May 21, 2024

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