COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00032-CR

DOMINQUE NASHAUN PARKER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Dominque Nashaun Parker appeals his conviction and sentence 

of two years‘ confinement for possessing four or more but less than four hundred 

grams of methylenedioxy methamphetamine (ecstasy).

2

 He contends in two 

 

1See Tex. R. App. P. 47.4.

2See Tex. Health & Safety Code Ann. § 481.103(a)(1) (West Supp. 2011),

§ 481.116(a), (d) (West 2010).
2

points that reversible error occurred because the State discussed his plea 

negotiations and criminal history during its closing argument. We affirm.

Background Facts

A grand jury indicted appellant for possessing four or more but less than 

four hundred grams of ecstasy. Appellant retained counsel, entered an open 

guilty plea, waived constitutional and statutory rights, and judicially confessed 

that he committed each act alleged in the indictment.

At a hearing following appellant‘s plea, the trial court admitted, without 

objection, a presentence investigation report, and the court also heard brief 

testimony from appellant, who said that he had intended to sell the ecstasy, and 

his mother, who said that appellant had broken his relationships with people who 

had negatively influenced him.

Both of appellant‘s points arise from comments that the prosecutor made 

during closing argument. The prosecutor said, 

Your Honor, the State‘s offer prior to the open plea had been 10 

years TDC.[

3

] We based on that his -- the escalating nature of his 

criminal history. He‘s always been able to receive a break from the 

State one way or another over as many cases he‘s picked up. He‘s 

continued to demonstrate criminal behavior, now moving into actual 

narcotics transactions. And, although the State waived the intent to 

deliver language in good faith as part of an attempt to get an open 

plea, his own admissions to the PSI officer indicate that I probably 

should have not done that, since he clearly had the intent to sell that 

 

3As the State notes, the ten-year plea bargain offer had already been 

disclosed to the trial court through written plea admonishments that were signed 

by appellant and filed of record.
3

dope in exchange for money, but that being said, Your Honor, the 

State‘s last offer was 10 years TDC. I defer the Court for disposition 

in this case.

After listening to the prosecutor‘s argument, the trial court found appellant guilty 

and sentenced him to two years‘ confinement. Appellant brought this appeal.

The Forfeiture of Appellant’s Points

Appellant offered no objection to the prosecutor‘s statements at the time 

they were given. Thus, in his first point, appellant contends that plain error, to 

which an objection would not be required, occurred when the prosecutor notified 

the trial court about appellant‘s plea negotiation. He relies in part on rule of 

evidence 410, which relates to the general inadmissibility of plea discussions. 

See Tex. R. Evid. 410(4) (excluding from evidence any statement made in the 

course of plea discussions that does ―not result in a plea of guilty or a plea of 

nolo contendere or that results in a plea, later withdrawn, of guilty or nolo 

contendere). In his second point, appellant argues that plain error occurred 

when the prosecutor referred to ―extraneous crimes that [appellant] had not 

committed and that he could not be held criminally responsible for.‖ For the 

reasons stated below, we disagree with appellant‘s characterization of his 

complaints as plain error, and we therefore conclude that appellant forfeited the 

complaints by failing to object to the prosecutor‘s comments.

In most circumstances, to preserve a complaint for our review, a party 

must have presented to the trial court a timely request, objection, or motion that 
4

states the specific grounds for the desired ruling if they are not apparent from the 

context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. 

State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Further, the trial court 

must have ruled on the request, objection, or motion, either expressly or 

implicitly, or the complaining party must have objected to the trial court‘s refusal 

to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. 

Crim. App. 2004). A reviewing court should not address the merits of an issue 

that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 

(Tex. Crim. App. 2009). Preservation of error is a systemic requirement. Archie 

v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007). Generally, an appellant 

may not complain about his sentence for the first time on appeal. See Kim v. 

State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref‘d).

Rule of appellate procedure 33.1, however, ―does not apply to rights which 

are waivable only or to absolute systemic requirements, the violation of which 

may still be raised for the first time on appeal.‖ State v. Dunbar, 297 S.W.3d 777, 

780 (Tex. Crim. App. 2009). Systemic requirements, also known as absolute 

requirements or prohibitions, are laws that a trial court has a duty to follow even if 

the parties wish otherwise. Mendez, 138 S.W.3d at 340; see Anderson v. State, 

301 S.W.3d 276, 279 (Tex. Crim. App. 2009). Systemic requirements include 

jurisdiction of the person or subject matter, a constitutional requirement that a 

district court conduct its proceedings at the county seat, and a constitutional 
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prohibition against ex post facto laws. Saldano v. State, 70 S.W.3d 873, 888–89 

(Tex. Crim. App. 2002); Hall v. State, 303 S.W.3d 336, 341 (Tex. App.—Amarillo 

2009, pet. ref‘d). ―Waivable only‖ rights include the right to the assistance of 

counsel and the right to trial by jury. Saldano, 70 S.W.3d at 888.

Appellant does not direct us to any authority, and we find none, 

characterizing the State‘s discussion of plea negotiations or of the defendant‘s 

criminal history during closing argument as systemic, waivable-only, or otherwise 

―fundamental‖ or ―plain‖ error.4 On the contrary, courts have repeatedly 

emphasized that a defendant must preserve a complaint that the State‘s closing 

argument was improper. See Threadgill v. State, 146 S.W.3d 654, 670 (Tex. 

Crim. App. 2004) (―Because appellant failed to object to the jury argument, he 

has forfeited his right to raise the issue on appeal.‖); Mathis v. State, 67 S.W.3d 

918, 926–27 (Tex. Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. 

Crim. App. 1996) (―Therefore, we hold a defendant‘s failure to object to a jury 

argument or a defendant‘s failure to pursue to an adverse ruling his objection to a 

jury argument forfeits his right to complain about the argument on appeal.‖), cert. 

 

4

―The traditional term in Texas‘ criminal law that corresponds to  ̳plain error‘

is  ̳fundamental error.‘‖ Jimenez v. State, 32 S.W.3d 233, 238 & n.19 (Tex. Crim. 

App. 2000); see also Tex. R. Evid. 103(d) (―In a criminal case, nothing in these 

rules precludes taking notice of fundamental errors affecting substantial rights 

although they were not brought to the attention of the court.‖). The court of 

criminal appeals now considers questions of fundamental error under the 

categorical framework that classifies potential error into systemic rights, 

waivable-only rights, or forfeitable rights. See Mendez, 138 S.W.3d at 341; 

Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim. App. 2003).
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denied, 520 U.S. 1173 (1997); Marchbanks v. State, 341 S.W.3d 559, 565 (Tex. 

App.—Fort Worth 2011, no pet.). Courts have applied this rule to bench trials. 

See, e.g., Tucker v. State, 07-10-00421-CR, 2011 WL 3652762, at *2 (Tex. 

App.—Amarillo Aug. 19, 2011, pet. ref‘d) (mem. op., not designated for 

publication).

Moreover, in Whitaker v. State, the court of criminal appeals required 

preservation of a contention that witnesses improperly discussed a plea 

negotiation during the guilt and punishment phases of trial; the court noted, 

―[T]he record clearly reflects that appellant made no objection to the State‘s 

references to the . . . plea negotiations. Appellant, therefore, procedurally 

defaulted any error in these references.‖ 286 S.W.3d 355, 362 (Tex. Crim. App. 

2009); see also Capps v. State, 244 S.W.3d 520, 530 (Tex. App.—Fort Worth 

2007, pet. ref‘d) (mem. op.) (holding that a defendant forfeited his complaint that 

evidence contained statements about plea bargaining by not raising the 

complaint at trial). Likewise, appellate courts have required preservation of

arguments concerning a discussion of a defendant‘s criminal history during the 

punishment phase of a trial. See, e.g., Miles v. State, 312 S.W.3d 909, 910 (Tex. 

App.—Houston [1st Dist.] 2010, pet. ref‘d) (―We conclude appellant waived the 

[improper argument] complaint by failing to make a specific objection to the 

argument.‖).
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The facts of Miles are similar to those in this case. Miles had pled guilty to 

driving while intoxicated. Id. During the punishment phase, the State told the 

jury, ―Look at that [criminal history]. Chance after chance after chance. And let 

me tell you, when he gets out, based on this, he‘s going to be right back in here 

somewhere.‖ Id. Miles objected, stating, ―That‘s improper argument.‖ Id. 

But the court overruled Miles‘s objection, and Miles made no further comments 

regarding the State‘s argument. Id. On appeal, the appellate court concluded 

that Miles‘s objection was ―insufficient to preserve error‖ because it was overly 

general. Id. at 911; see also Kelley v. State, No. 01-96-01078-CR, 1998 WL 

43311, at *2 (Tex. App.—Houston [1st Dist.] Feb. 5, 1998, no pet.) (not 

designated for publication) (holding that the defendant failed to preserve a

complaint that the State improperly urged the jury to levy a harsher punishment 

in light of the defendant‘s criminal history because although the defendant

objected to the argument at trial, he failed to request a curative instruction or 

mistrial). Appellant relies in part on Abdygapparova v. State, but in that case, the 

defendant objected to the discussion of plea negotiations, thus preserving the 

issue for appellate review. 243 S.W.3d 191, 204 (Tex. App.—San Antonio 2007, 

pet. ref‘d).

Based on this authority, we conclude that appellant‘s complaints about the 

prosecutor‘s closing argument do not fall into the categories of error to which no 
8

objection is required, and we therefore hold that by failing to object, appellant 

forfeited the complaints. We overrule appellant‘s points.

Conclusion

Having overruled appellant‘s points, we affirm the trial court‘s judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 1, 2011