Justin Earl Bennett v. the State of Texas

NO. 12-23-00293-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JUSTIN EARL BENNETT, § APPEAL FROM THE 273RD
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Justin Earl Bennett appeals his conviction for murder. He presents three issues on appeal.
We affirm.
BACKGROUND
Appellant was charged by indictment with murdering Deon Bailey. He pleaded “not
guilty,” and the matter proceeded to a jury trial. At trial, Appellant admitted shooting and killing
Bailey at a public outdoor event; however, he claimed he did so in self-defense. According to
Appellant, he and Bailey argued and “tussled,” and Appellant fell to the ground. Appellant then
left the event on foot and walked home to clean up. He returned to the event in his girlfriend’s
car, retrieved his girlfriend’s nine-millimeter handgun from the console, and confronted Bailey
again. The two began fighting and, according to Appellant, began struggling over the gun.
Appellant managed to disengage and shot Bailey in the thigh and head, killing him. Appellant
fled the scene in his girlfriend’s car, and eventually fled into the woods on foot. He turned
himself in to the authorities four days later. The jury ultimately found Appellant “guilty” and
sentenced him to fifty years imprisonment. This appeal followed.

RECALL OF WITNESSES
In his first issue, Appellant contends the trial court violated his right to confrontation and
due process when it denied his request to recall witnesses for additional cross-examination and
impeachment.
During his case-in-chief, Appellant attempted to recall two witnesses, Nashun Cartwright
and Simone Rushing. The State previously called both witnesses and Appellant cross-examined
them. However, he wished to impeach them with videotaped interviews with law enforcement.
After the State objected, Appellant notified the trial court that he had the videos available earlier
in the week when the witnesses testified but had not “properly reviewed them.” The trial court
did not allow Appellant to recall the witnesses. Appellant made no objections at that time and
rested.
Now, on appeal, Appellant complains that the trial court’s decision violated his right to
confrontation and due process. Appellant did not make those objections at trial. To preserve a
complaint for appellate review, there must be a timely, specific objection and a ruling by the trial
court. State v. Lerma, 639 S.W.3d 63, 66 (Tex. Crim. App. 2021); TEX. R. APP. P. 33.1(a). The
point of error on appeal must comport with the objection made at trial. Clark v. State, 365
S.W.3d 333, 339 (Tex. Crim. App. 2012); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim.
App. 1986). If a party fails to properly object to constitutional errors at trial, these errors can be
forfeited. Clark, 365 S.W.3d at 339; Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.
1990) (waiver of rights to confrontation and due process by failure to object). Because Appellant
did not assert that the denial of his request to recall witnesses implicated his rights to
confrontation and due process, the trial court had no opportunity to correct any error and
Appellant has not preserved this argument for our review. See Reyna v. State, 168 S.W.3d 173,
179-80 (Tex. Crim. App. 2005). We overrule Appellant’s first issue.

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PROSECUTORIAL MISCONDUCT
In his second issue, Appellant urges the District Attorney violated his right to due process
under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution as well as
Article One of the Texas Constitution.
At the beginning of his case-in-chief, Appellant attempted to call Justin Carter. When the
bailiff called Carter to the stand, he was not present and did not respond. Carter testified two
days prior when called by the State. During that testimony, Carter denied seeing Appellant
wielding a gun on the night in question, and the State impeached him with his prior statements to
law enforcement. Appellant cross-examined Carter and asked that he be subject to recall. The
trial court released Carter to return home to Louisiana, subject to recall by Appellant.
On the second day of his case-in-chief, during a hearing outside the jury’s presence
concerning a different witness, Appellant mentioned Carter. He claimed that Carter could not be
found the previous day because he had been arrested. He further asserted that the District
Attorney knew of Carter’s arrest and failed to inform the trial court. The District Attorney
denied hearing Appellant call Carter, and the trial court did not have Carter listed as a witness for
that day. Appellant made no further attempts to either call Carter or secure his additional
testimony. Nor did he move for a mistrial, seek sanctions against the District Attorney, or file a
motion for new trial to develop the issue.
Appellant did not raise a specific objection to the prosecutor’s alleged misconduct. See
Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding
that appellant had not preserved complaint about prosecutorial misconduct because he did not
object on that theory at trial); Calvert v. State, No. 02-18-00341-CR, 2020 WL 5241744, at *25
(Tex. App.—Fort Worth Sept. 3, 2020, pet. ref’d) (mem. op., not designated for publication); see
also Clark v. State, No. 09-20-00083-CR, 2021 WL 5498115, at *7 (Tex. App.—Beaumont Nov.
24, 2021, no pet.) (mem. op., not designated for publication) (“Prosecutorial misconduct is
generally an independent basis for objection that must be specifically urged [at trial] in order for
error to be preserved.”) (quoting Taylor v. State, Nos. 09-16-00303-CR, 09-16-00307-CR, 2018
WL 2224126, at *6 (Tex. App.—Beaumont May 16, 2018, pet. ref’d) (mem. op., not designated
for publication)). Under Compton v. State, we may not consider in our analysis of Appellant’s
issue any prosecutorial conduct for which Appellant did not preserve a complaint. 666 S.W.3d
685, 731 (Tex. Crim. App. 2023), cert. denied, 144 S. Ct. 916 (2024); see also Mateo v. State,

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No. 07-23-00282-CR, 2024 WL 714344, at *1 n.2 (Tex. App.—Amarillo Feb. 21, 2024, no pet.)
(mem. op., not designated for publication) (recognizing recent directives regarding error
preservation). Because Appellant did not object to the District Attorney’s alleged misconduct,
this issue is not preserved for our review. We overrule Appellant’s second issue.

FAIR TRIAL
In his third issue, Appellant claims the trial court denied his right to a fair trial when it
made comments outside the presence of the jury to the parties regarding the pace of trial.
The parties conducted voir dire and started trial on Monday, October 16, 2023. The State
rested on the afternoon of Thursday, October 19. After not being able to call Carter to testify,
Appellant took the stand to testify. At 5:15 p.m., the State had not concluded its cross-
examination of Appellant. During a bench conference, the trial court asked the parties how much
longer the witness and case would take. The trial was adjourned for the day and the trial court
stated on the record that it believed the jury was “getting close to checking out” and was “worn
out.” He then asked the parties to do their “dead-level best to wrap [it] up tomorrow.” Again,
Appellant made no objection, did not ask the trial court to recuse itself, and did not move for a
mistrial or file a motion for new trial.
As stated above, to preserve error for appellate review, the complaining party must make
a timely, specific objection and obtain a ruling on the objection. Lerma, 639 S.W.3d at 66; TEX.
R. APP. P. 33.1(a). In addition, the point of error must correspond to the objection made at trial.
Clark, 365 S.W.3d at 339. Even constitutional errors may be waived by failure to object at trial.
Briggs, 789 S.W.2d at 924; Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974).
For the first time on appeal, Appellant urges that the trial court’s comments suggesting
that the parties quickly conclude trial impeded his right to present a defense. However, he did
not present that argument or objection to the trial court. And we do not construe the trial court’s
comments as mandating that trial conclude the following day. Nothing in the record suggests
that the trial court’s comments in any way impeded Appellant’s defense. The right to present a
defense and the right to due process are included in errors that can be forfeited by failure to
object. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Because Appellant
failed to object, he has not preserved this issue for our review. We overrule Appellant’s third
issue.

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DISPOSITION
Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.

GREG NEELEY
Justice

Opinion delivered July 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2024

NO. 12-23-00293-CR

JUSTIN EARL BENNETT,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 273rd District Court
of Shelby County, Texas (Tr.Ct.No. 2021-CR-21952)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, and that this decision be certified to the
court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.