Aaron Caleb Swenson v. the State of Texas

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

No. 06-21-00126-CR

AARON CALEB SWENSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 20F0505-102

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion on Remand by Chief Justice Stevens
MEMORANDUM OPINION ON REMAND

This case is before us on remand from the Texas Court of Criminal Appeals. The court

reversed our decision and found that the State sufficiently proved Aaron Caleb Swenson

committed the offense of attempted capital murder. Swenson v. State, No. PD-0589-22, 2024

WL 4829943 (Tex. Crim. App. Nov. 20, 2024). The Texas Court of Criminal Appeals remanded

the case to this Court for consideration of Swenson’s remaining points of error: (1) that the State

made harmful improper argument at trial and (2) that the judgment must be modified to reflect

the proper statute of the offense for which Swenson was convicted.

We find that Swenson did not obtain an adverse ruling on his objection to the State’s

closing argument and that it is not preserved for our review. We also modify the judgment to

reflect that Swenson was convicted of attempted capital murder. As modified, we affirm the trial

court’s judgment.

I. The State’s Closing Argument

Swenson argues that, during closing arguments in the punishment phase of the trial, the

State made an impermissible jury argument. In its closing argument to the jury, the State said

the following:

When you talk about punishment, punishment is what is right and just, not
only for Mr. Swenson but for the men and women in blue and for members of
your community. You, ladies and gentlemen, need to send a message this
behavior in our community will not be tolerated, period. And you do that by
giving him a life sentence.

[BY SWENSON’S ATTORNEY]: Your Honor, note my exception to this
argument.

THE COURT: Be noted.
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To preserve a complaint for our review, a party must first present to the trial court “a

timely request, objection, or motion” stating the specific grounds for the desired ruling if not

apparent from the context. TEX. R. APP. P. 33.1(a)(1). 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). “To preserve

error in prosecutorial argument, a defendant must pursue to an adverse ruling his objections to

jury argument.” Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).

In Iglesias v. State, 564 S.W.3d 461, 467 (Tex. App.—El Paso 2018, pet. ref’d), the

defendant made a hearsay objection. “However, the trial court did not rule on the objection, and

only commented, ‘Your objection is noted.’” Id. Because Iglesias “did not object to the trial

court’s failure to rule on his objection, [that] complaint [was] not before” the court on appeal. Id.

(citing TEX. R. APP. P. 33.1(a)(1)(A), (a)(2)(A)–(B)). Where the trial court made no ruling to the

appellant’s objection to a State’s question to a witness, the complaint was not preserved for

review. See Mayfield v. State, 803 S.W.2d 859, 864 (Tex. App.—Corpus Christi–Edinburg

1991, no pet.) (“Appellant did not receive an adverse ruling. Therefore, nothing is preserved for

review.”); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (plurality op.) (“Before a

defendant will be permitted to complain on appeal about an erroneous jury argument or that an

instruction to disregard could not have cured an erroneous jury argument, he will have to show

he objected and pursued his objection to an adverse ruling.”); see also Cienfuegos v. State, 113

S.W.3d 481, 488–89 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (Defendant objected to

questioning of a police officer, claiming it allowed “backdoor hearsay.” The trial court

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responded, “I understand.” This was not an adverse ruling, and the objection was not preserved

for appellate review.).

Here, Swenson made an objection, and the trial court only answered that the objection

was “noted.” We find that the trial court’s answer, “Be noted,” was not an adverse ruling, which

is necessary to preserve error. As a result, we find this matter was not preserved for our review.

We, therefore, overrule this point of error.

II. Modification of Judgment

The trial court’s judgment states, correctly, that Swenson was convicted of attempted

capital murder. However, it only lists the Texas Penal Code statute for attempt. This Court has

the “authority to reform the judgment . . . to make the record speak the truth when the matter has

been called to [our] attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992). The Texas Rules of Appellate Procedure also provide direct authority for this Court

to “modify the trial court’s judgment.” TEX. R. APP. P. 43.2. We modify the trial court’s

judgment to add Section 19.03 of the Texas Penal Code, the statute for capital murder, to

describe what offense Swenson attempted. See TEX. PENAL CODE ANN. § 19.03 (Supp.).

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III. Conclusion

As modified, we affirm the trial court’s judgment.

Scott E. Stevens
Chief Justice

Date Submitted: December 16, 2024
Date Decided: April 10, 2025

Do Not Publish

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