### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00349- CR

Charles A. Lott, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 10- 9040 38, TH E H ONO RAB LE B OB P ERKI NS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted Charles A. L ott of two counts of ag g rava ted robber y with a deadly

wea pon. See Tex. Penal Code Ann. § 29.03 (West 2011). The jury further found the enhanc ement
para g raphs of the indictment, alleg ing two previous sequential felony convictions, to be true and

as s es s ed his punishment at confine ment for 30 y ear s in the I nstitut ional Division of the Texas Depa rtment of Criminal J ustice on eac h count. See id. § 12.42(d) (West Supp. 2011). L ott appea ls, raising three points of error . We affir m the judgme nts of the trial cour t.

BACK GR OUND During the ear ly morning hours of Dec ember 23, 2009, Charles A

. L o tt e n te red a local Austin “Speedy Stop” co n v en i en ce store along with another male who was wea ring a plastic bag

cover ing the lower part of his fac e. L ott came around the counter , g un in hand, and order ed the store employ ee at g unpoint to g ive him the cash from the regis t er . When the employ ee took too longopening the reg ister, L ott struck him repe atedly in the head with the g un, verba lly threa tening ,“Give

me the money or I ’ll blow y our brains out.” At that point, the cus t o mer chec king out when L ott
enter ed the store—a local cab driver who was purchasing g as for her cab—ra n to the bathroom at the back of the store and locked herse lf inside. L ott followed, kicking in the door. He g rabbe d the
money in her hand and pulled at her clothes asking “whe re the money was.” When she told him she had no more money , L ott took the key s to her cab from her jacke t pocket and turned around and left.

Both the store employ ee and customer subsequently identified L ott from a six -photo lineup. Authorities eventua lly arr ested L ott. L ott admitted to inve stiga tors that he committed the

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robber y , but claimed to have used a pellet g un during the offe nse. He further claimed that the man who commi tted the robber y with him had, in rea lity , forc ed him to commit the robbery

. L ott told investiga tors that he owed the man money for drug s and, when he demande d pay ment and L ott did not have the mone y , the man for ced him to par ticipate in the robbe ry . 2

Neither was able to identify the second male beca use of the plastic bag cover ing the lower 1 half of his fa ce. L ott testified that he s oug ht out his companion in order to purcha se cra ck coca ine from 2 him. After L ott g ave him $30 in exchang e for two “stones” of coca ine, t h e two drove around for sever al hours smoking coca ine and g etting high. Howeve r, the two consumed more than the amount L ott had purcha sed. Eventually , L ott had smoked betwee n 60 and 80 dollars worth of coca ine. The two then arg

ued about L ott’s drug debt. L ott understood that he was obtaining the additional drug s on cre dit, but then his c ompanion wanted immediate pay ment. L ott, having no money , could only promise future pay

ment. Acc ording to L ott, his companion ref used to w ait. He drove them to the convenie nce store, stopped by a near by dumpster, pulled a knife on L ott, and told L ott that if he did not go in the store and g et his money he wa s “g oing to g ut [ him] like a fish.” L ott later testified that afte r the robber y his companion g ave him additional coca ine and told him that they

wer e “stra ight,” meaning L ott had discharg ed his debt. 2At trial L ott testified in his own defe nse, repe ating to the jury the claims that he had

g iven to law enfor ceme nt—that he used a pellet g un, not a rea l g un, during the robber y and that he 3

was forc ed by his companion to participa te in the robber

y . The jury convicted L ott on both counts of ag g rava ted robber

y with a deadly wea

pon and assessed his punishment at 30 y ear s’ imprisonment for e ach c ount. The trial cour t sentence d L ott in accor dance with the jury ’s ver dicts.

DISCUSSIO N On appea l, L ott complains of prosec utorial misconduct and improper jury arg ument.
For the rea sons that follow, we overr ule his points of err or and aff irm the convictions and sentenc es.

Prosecutorial Miscondu ct I n two points of err o r, L o t t complains about prosec utorial misconduct. I n his first point of err or he arg ues that the pro s e c u to r e n g ag ed in prosec utorial misconduct when she questioned
him during cross-e x amination about t he underly ing details o f h i s prior robbery conviction. I n his third point of err or, L ott a sserts that the prosec utor eng ag ed in prosec utorial misconduct when she injected he r per sonal opinion into her closing jury arg ument. A f te r a d e ta il e d d is c u s s io n a ddressing L ott’s objections to impeachme nt with his p r io r conviction for robber

y , the t rial court ruled that the S tate could not go into the underly ing fac ts of the robber

y , limit ing the State to the conviction itself and th e af fi rm ative deadly wea

pon finding

Both the store employ ee and customer testified that they believed the g un to be a real 3 firea rm. I n fac t, the store employ ee was ex-mil itary and “ver y familiar with firea

rms.” He identified the g un as a nine milli meter Glock with a rubber handle and stated that there was “no doubt” in his mind that the weapon w as a r eal g un. 3ref

lected in the judgme nt. After L ott testified that he participa ted in the instant robber y only beca

use his companion forc ed him to, the prosec utor asked during cross-e x amination, “So y our prior robber y conviction, did somebody forc e y ou on that one? ” L ott objected based upon Rules 402, 403, 404(b), 608, and 609 of the Texas Rules of Evidence

. The trial court sustained the objection and instructed the jury to disreg ard the prosec utor’s question. L ott did not request a mistrial.
D u r in g c losing arg ument of the g uilt-innocence phase, the prosec utor arg ued th a t L o tt was ly ing a

bout being forc ed to par

ticipate in the instant robber y , stating:

He is not a c redible w itness and he is ly ing. H e is absolutely ly ing.
An d just beca

use he admitted that he did drug s doesn’t mean that y o u ca n believe all of his story

. And the rea son why the prosec ution didn’t put in h i s statement that was g iven at the robber y is beca use we didn’t believe it. I didn’t believe it then. 4

The State indicates that the prosec u t or was responding to defe nse counsel’s closing 4 arg ument conce rning the rec orded statement taken by the detec tive and its consistency with L ott’s trial testimony . Def

ense c ounsel arg ued, in par t:
To this day , [Lot t ] h as not had an opportunity to watch the video rec orded interrog ation by Detec tive Tejirina, to listen to it. I f this was an elabor ate falsehood that he concoc ted to beat the wra p [si c] for ag g rava

ted robber

y , don’t y ou know that y ou would have been prese nted with Detec tive Tejirina’ s testimony , that y ou would have been shown the video rec ording of that interrog ation p o i nting out all the discrepa ncies. Counsel later a

rg ued: This was not an 11th hour defense that was concocte d to at t em p t t o mislead a jury into finding a

man not g uilty

. This w as something that actua lly happene d. He told Detec tive Tejirina a

bout it. He told y ou about it. He was cross examined at leng th about it. And y et, there wer e no contra dictions in his testimony

. You never saw the video re cording of that interr og ation. You neve r hea rd fr om Detec tive Tejirina. 4L ott objected “to the sta tement of persona l opinion” in the prosecutor’s arg ument. The trial c ourt

sustained the objection and, althoug h L ott did not reque st a jury instruction, instructed the jury about the proper scope of jury arg ument and the prohibition ag ainst attorney s arg uing their persona l opinions about the evidenc e. L ott did not m ove for a mistrial.
Preser vation of err or i s a s y s temic require ment on appea l. Ford v. State , 305 S.W .3d 530, 532 (Tex. Crim. App. 2009); Haley v. State , 173 S.W .3d 510, 5 1 5 (T ex . Crim. App. 2005). A revie wing court should not addre ss the merits of an issu e t h at h as not been
prese rved for appea l. W

ilson v. State , 311 S.W .3d 452, 473-74 (Tex. Crim. App. 2010) (citing Ford , 305 S.W .3d at 532). To prese rve a complaint for appellate review, a p ar t y m ust have presente d a specific and timely reque st, motion, or objection to the trial court and, further , must have obtained an adve rse r

uling. Te x . R. App. P. 33.1(a) ; Pena v. State , 353 S.W .3d 797, 807 (Tex. Crim. App. 2011); Peav ey v. State , 248 S.W .3d 455, 47 0 (T ex . Ap p.—Austin 2008, pet. ref ’d). A defe ndant
must secur e an adver se ruling

. See Roberts v. State , 220 S.W .3d 521, 533 (Tex. Crim. App. 2007); 5
Y oung v. State , 137 S.W .3d 65, 69 (Tex. Crim. App

. 2 0 0 4 ); s ee also Tex. R. App. P. 33.1(a) (2).
Most complaints are subject to forf eiture by failure to comply with Rule 33.1(a) of the Rules of Appellate Proc edure

. Mende z v. State , 138 S.W .3d 334, 342 (Tex. Crim. App. 2004).

I n the context of jury arg ument, the court of criminal appea ls has expli citly held that to 5 prese rve e rror

a def endant must contempora

neously object to the statement, reque st a n instruction that the jury disreg ard the statement, and move for a mistrial. Cook v. State , 858 S.W .2d 467, 473 (Tex. Crim. App. 1993); see Estrada v. Stat e , 313 S.W .3d 274, 303 (Tex. Crim. App. 2010), cert. denied , 131 S.Ct

. 905 (2011). A defe ndant’s failure to object to a jury arg ument, or failure to pursue an adver se ruling to his objection to the jury arg ument, forf eits his rig ht to complain about the jury arg ument on appea l. Cockrell v. State , 933 S.W .2d 73, 89 (Tex. Crim. App. 1996). 5Her e, L ott has no adver se ruling s about which to complain. I n both instances, the trial

court sustained his objection and g ave a jury instruction. Both times, L ott failed to reque st a mistrial. By failing to purs u e h i s o b j ec t ions to an adverse ruling, L ott forf eited his rig ht to complain about
prosec utorial misconduct on appe al.

Moreove r, L ott’s trial objection to the prosec utor’s p u rp o rtedly improper

cross-e x amination question was based upon the inadmissibil ity of the evidenc e under the Rules of Evidence

. His trial objection to the prosec utor’s improper jury arg ument was based upon the

err oneous injection of her persona l opinion into jury arg ument. I n neither instance did L ott complain about prosec utorial misconduct. Prosecutoria l misconduct is an independe nt basis for an objection that must be specific ally urg ed in order for err or to be prese rved. Temple v. State , 341 S.W .3d 572, 603 n.10 (Tex. App.—Houston [14t h Dist.] 2010, no pet.); see Tex. R. App. P roc. 33.1( a).

Fur ther, to proper ly prese rve err or for appellate revie w, the complaint raised on
appea l must comport with the complaint made at trial. Lovill v. State , 319 S.W .3d 687, 691-92 (Tex. Crim. App. 2009). The objections L ott raised at trial—inadmissibil ity of evidenc e and improper jury
arg ument—do not comport with his complaints of prosecutor ial misconduct on appe al.

For the above rea sons, w e find that L ott failed to proper ly prese rve err or as to the se complaints and there fore has waived revie w of any alleg ed prosec utorial misconduct. Acc ording ly ,

we ove rrule his fir st and third points of error

.

6Jury Argu m ent I n his second point of err or, L ott asser ts that the trial court err ed in overr uling his objection to t h e p ro s ecutor’s statement during jury arg ument conce rning the availability of the defe nse of dur ess. During jury arg ument the State ar g ued to the jury :

And if y ou find that his testimony -- if y ou find that h i s testimony was believable , that he did this beca use he was threa tened by the other robber and he was in imminent fea

r of serious bodily injury or death and that he did this beca use of that, then h e’s not g uilty of all offe nses. Now the State submits to y ou that the duress defe nse does not apply in this case . He place d himself in this situation acc ording to h is own testimony

. There is an instruction or there is a part of the law is t h at y o u can’ t place y ourself in the situation and still claim duress.

L ott objected to that arg

ument as a misstatement of the law as contained in the court’s char g e. The
t ri al co u rt o verr

uled the objection. L ott maintains that the prosec utor’s statement that “y ou can’ t place y ourself in the situation and still claim duress” was a m i s s t at em ent of the law beca use the defe nse of duress requires the actor to ha ve intentionally , knowing ly , or recklessly place d himself in a situation in whic h it was probable that he would be subje cted to compulsion. Specifica lly , he complains beca

use the prosec utor: (1) failed to indicate that the defe nse of duress was unavailable only if L ott “intentionally , knowing ly , or rec klessly ” place d himself in the situation likely to subject
him to compulsion, and (2) ref err ed to L ott placing himself in “the situation” instead of “a situation
in which it was probable that he would be subjected to compulsion.” L ott arg ues that omitti ng these
two “cr itical elements” of the de fense of dure ss constituted a misstatement of the law.

A prosec utor may quote or para phrase the jury char g e so long as the prosec utor does
not misstate the law or prese nt a statement of law contra ry to that prese nted in the char g e. W hiting

7v. State , 797 S.W .2d 45, 48 (Tex. Crim. App. 1990). Her e, a compar ison of the court’s jury char g e

with the complained- of argu ment shows that the prosec utor did not asser t a leg al proposition
contra ry to the court’s char g e or misstate the law. The State simply para phrase d the law in arg uing that the defe nse of duress was unavailable to L ott based upo n h i s o wn conduct. Be cause the
prosec utor’s arg ument was not a misstatement of the law or contra ry to the jury char g e, the trial court did no t er r i n overr

uling L ott’s objection to this portion of the prosec utor’s closing arg ument. Acc ording ly , we ove rrule his sec ond point of err or.

CONCLUSION
For the fore g oing r easons, we aff irm the judg ments of the trial c ourt.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin
Affir med Filed: May

4, 2012 Do Not Publish

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