Opinion
NO. 01-15-00671-CR
07-25-2017
KEVIN BRAY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Case No. 1395197
MEMORANDUM OPINION
A jury convicted appellant Kevin Bray of murder with a deadly weapon, and the trial court assessed punishment at 40 years in prison. See TEX. PENAL CODE § 19.02. On appeal, Bray raises five issues. In two issues, he challenges the sufficiency of the evidence to support his conviction. In two other issues, he challenges the admission of evidence over hearsay objections. In the final issue he argues that the trial court erred by refusing to grant a mistrial based on the State's allegedly improper closing argument.
We conclude the evidence was legally sufficient to support the conviction, and the remaining issues either were not preserved or fail to identify a reversible error. Accordingly, we affirm the judgment of conviction.
Background
Mourice Campbell picked up his friends Kristina Trute and Corey Taylor from the Forum Park apartment complex in Houston. The three friends went to physical therapy and then returned to the complex. Campbell and Taylor decided to accompany Trute to her apartment and smoke marijuana there. Trute shared the apartment with Jesse Turner and Dwayne Adams, also known as "Duck."
Once inside the apartment, Campbell, Trute, and Taylor visited in the living room while Turner and his girlfriend rested in a bedroom. Someone knocked on the door of the apartment. Trute asked who was there. A man identified himself as "Polar Bear" and said that he was there to see "Duck." Trute knew of a man nicknamed Polar Bear, but she had never met him. Campbell stood behind Trute as she answered the door. Taylor remained seated on the couch.
Trute opened the door slightly and saw that the man had a gun. The man forced his way into the apartment, pushing Trute to the ground. Campbell said that the man had a gun. Campbell then escaped through a window. The man pointed a gun at Taylor, who was still sitting on the couch. Taylor retrieved Trute's pistol from under the couch. Trute closed her eyes and then heard several gunshots. When she opened her eyes, she saw Taylor slumped over on the couch. "Polar Bear" was gone.
Turner came out of his bedroom to find the door open, Taylor slumped over on the couch, and Trute screaming that "Polar Bear" had shot him. Turner called 911 and moved Taylor to the floor. The police arrived, secured the scene, and began investigating the shooting. In the course of their investigation, they discovered that appellant Kevin Bray, who went by the street name of Polar Bear, had been admitted to a nearby hospital with a gunshot wound.
Bray was arrested, and a grand jury indicted him for the murder of Taylor. At a trial before a jury, the State called numerous witnesses to testify about the shooting. Campbell and Trute testified to the events leading up to and during the shooting. Both testified that a man who identified himself as Polar Bear forced his way into the apartment with a gun and that they both heard gunshots. Trute also testified that she saw the man point a gun in the direction of Taylor. Campbell testified that after he saw the gun, he ran to the kitchen and jumped out of the second-story window. Neither Campbell nor Trute could identify the shooter.
During Trute's testimony, the State presented a gun that it found in her apartment. The gun had been dismantled and hidden in three different places around the apartment. Trute testified that Taylor gave her the gun for protection before the shooting, and she kept it in the living room under the couch. She also testified that Taylor had the gun in his hand at the time of the shooting. After the shooting, however, Trute dismantled the gun and hid it and the marijuana from the police. She testified that she hid the gun because she didn't want anyone to "get in trouble." Defense counsel cross-examined Trute about other drugs that the police discovered in the apartment.
Dwayne Adams and another man named Alfred Little also testified at trial. Both Adams and Little identified Bray as "Polar Bear." Bray objected to Little's identification on the basis of lack of personal knowledge and hearsay. The trial court sustained the objection and allowed defense counsel to explain why Little lacked personal knowledge of Bray's identity as "Polar Bear."
Houston Police Officer E. Zugner investigated the shooting. He received information that the person who shot Taylor went by the street name "Polar Bear." Zugner also testified that a street-name database indicated that Bray went by the name "Polar Bear." Bray objected to Zugner's testimony regarding the name "Polar Bear" and the results of the database search.
During Zugner's testimony, the State introduced an audio-recording of his interview of Bray. On the recording, Bray admitted that he went to Trute's apartment on the day of the shooting, but he said that he did not have a gun and did not shoot anyone. Bray confirmed that he was shot in the apartment. After the State played the recording, Zugner testified about inconsistencies in Bray's statement.
Finally, the State called an assistant medical examiner to testify about her examination of photographs of Taylor's autopsy. Based on these photographs, it was her opinion that the gunshot wound caused Taylor's death. During his cross-examination of the medical examiner, defense counsel elicited testimony that Taylor would have lost all motor control as a result of his injury.
After the State rested, Bray testified on his own behalf. According to his testimony, he had gotten to know Adams several months prior to the shooting. He had been to Trute's apartment several times to purchase drugs from Adams. On these occasions, Adams allegedly showed Bray locations in the apartment where guns were hidden. Bray testified that on the day of the shooting, he got off work in the afternoon and received a call from Adams, who had been interested in buying a van from him. Bray claimed that he and his uncle brought the van to the apartment complex to meet Adams, but he did not show up. Bray said that he decided to go to the apartment where he had met Adams previously. As he climbed the stairs, two men who Bray did not know waited outside the apartment. He testified that he knocked on the door and identified himself as "Polar Bear."
In contrast to Campbell's and Trute's versions of events, Bray testified he was shoved from behind after Trute opened the door. He speculated that the two unidentified men pushed him. Bray said that he fell into the apartment on top of Trute, and when he tried to get up, he was shot in the side. He claimed that he grabbed Trute, used her as a shield, and then found one of the guns that he knew Adams had hidden inside the apartment. After finding the gun, Bray said he shot in the direction of Taylor. He then ran out of the apartment, and his uncle took him to the hospital.
After the close of the evidence, both sides gave closing arguments. During the State's closing argument, defense counsel objected numerous times, contending that the prosecutor had engaged in improper argument. On several of these occasions, defense counsel also moved for a mistrial. The trial court denied the motions for mistrial.
The jury found Bray guilty of murder with a deadly weapon, and after he pleaded true to two enhancement allegations, the court sentenced him to 40 years in prison. Bray appealed.
Analysis
On appeal, Bray raises five issues. In his first issue, he argues that the trial court erred by denying his motion for directed verdict. In his fourth issue, he challenges the sufficiency of the evidence to support the jury's verdict. We consider these issues together because both are reviewed under the same legal standard. By his three remaining issues, Bray contends that the trial court erred by admitting a recorded statement he gave to police, admitting testimony from three of the State's witnesses, and denying his motions for mistrial urged as a result of allegedly improper statements made by the State during closing argument.
I. Sufficiency of the evidence
In his first issue, Bray contends that the trial court erred by denying his motion for directed verdict made at the close of the State's case-in-chief. Confining the analysis to evidence presented prior to the motion, he argues the State had not met its burden at that time to prove all of the elements of murder beyond a reasonable doubt. In his fourth issue, Bray generally challenges the sufficiency of the evidence to support the jury's verdict, with additional argument based on evidence presented after the denial of the motion for directed verdict.
In determining whether a trial court erred by denying a motion for directed verdict, a reviewing court is not constrained to consider only the evidence presented in the State's case-in-chief. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993); Allen v. State, No. 14-14-00844-CR, 2015 WL 6948710, at *2 (Tex. App.—Houston [14th Dist.] Nov. 10, 2015, pet. ref'd) (mem. op., not designated for publication). Instead, we review Bray's challenge to the trial court's denial of his motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); Mims v. State, 434 S.W.3d 265, 273 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In this respect, the premise of Bray's first issue, as he attempts to distinguish it from his fourth issue, is fundamentally incorrect. The conviction may not be reversed based on the denial of the motion for directed verdict by restricting the universe of evidence to that presented by the State before the defense presented its case, and the first and fourth issues are analyzed by applying the same sufficiency standard to the same body of evidence. See Cook, 858 S.W.2d at 470; Allen, 2015 WL 6948710, at *2.
We review the sufficiency of the evidence to support a criminal conviction by determining whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). We measure the evidence "by the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the exclusive judge of the facts, the jury may believe or disbelieve all or any part of a witness's testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution. See Brooks, 323 S.W.3d at 922. On appeal we may not reevaluate the weight and credibility of the record evidence and thereby substitute our own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
A person commits the offense of murder if he "intentionally or knowingly causes the death of an individual," or if he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." TEX. PENAL CODE § 19.02; see Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). Bray argues that the trial court erred by denying his motion for directed verdict because the State produced insufficient evidence to establish the identity of the shooter. Thus, with respect to his motion for directed verdict, Bray only challenges the sufficiency of the State's evidence to establish the identity of the person who shot Taylor. The State is required to prove beyond a reasonable doubt that the accused is the person who committed the charged crime. See Jones v. State, 458 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
Bray admitted that he went to the apartment, found a gun, and shot in the direction of Taylor. Bray affirmatively argued at trial, and argues on appeal, that he shot Taylor in self-defense. Accordingly, after considering all of the evidence admitted at trial and viewing that evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding that Bray was the person who shot Taylor. See Brooks, 323 S.W.3d at 902. Thus, the evidence was legally sufficient to establish the identity of Bray as the person who shot Taylor.
Bray also argues that the evidence is insufficient because it showed that he shot Taylor in self-defense, and therefore a reasonable jury could not have rejected that evidence and found him guilty of murder. In reviewing the sufficiency of the evidence when a jury has rejected a claim of self-defense, in addition to the essential elements of the offense we must determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found against the appellant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see Smith, 355 S.W.3d at 144-45. When some evidence, if believed, supports a self-defense claim, but other evidence, if believed, supports a conviction, we "will not weigh in on this fact-specific determination, as that is a function reserved for a properly instructed jury." Reeves v. State, 420 S.W.3d 812, 820 (Tex. Crim. App. 2013).
Self-defense may be raised against a charge of murder as justification for a defendant's actions and in support of an acquittal. See, e.g., TEX. PENAL CODE §§ 9.31-.33; Alonzo v. State, 353 S.W.3d 778, 781-82 (Tex. Crim. App. 2011). "A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force . . . ." TEX. PENAL CODE § 9.31(a). Similarly, a "person is justified in using deadly force against another . . . when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to protect the actor against the other's use or attempted use of unlawful deadly force." Id. § 9.32(a); see Smith, 355 S.W.3d at 145.
In a claim of self-defense, "a defendant bears the burden of production," while "the State . . . bears the burden of persuasion to disprove the raised defense." Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The defendant's burden of production requires him to adduce some evidence that would support a rational jury finding in his favor on the defensive issue. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). By contrast, the State's "burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt." Zuliani, 97 S.W.3d at 594 (citing Saxton, 804 S.W.2d at 913).
In light of these burdens of production and proof, "[w]hen a jury finds the defendant guilty, there is an implicit finding against the defensive theory." Id. A jury, however, is not permitted to reach a speculative conclusion. Elizondo v. State, 487 S.W.3d 185, 203 (Tex. Crim. App. 2016). Nor is it permitted to disregard undisputed facts that allow only one logical inference. Evans v. State, 202 S.W.3d 158, 162-63 (Tex. Crim. App. 2006); Satchell v. State, 321 S.W.3d 127, 132 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).
Some evidence indicated that Bray may have been acting in self-defense when he shot Taylor. Trute testified that she always hid a gun in her apartment and that Taylor knew where the gun was located. Further, according to Trute, Taylor had the gun in his hand at the time of the shooting. Trute also testified that she dismantled the gun and hid the pieces throughout the apartment after the shooting occurred. The State presented the dismantled gun at trial. Through his questioning of witnesses and his closing argument, defense counsel suggested that Trute dismantled and hid the gun in an effort to hide wrongdoing on the part of Taylor and herself.
Bray also relied upon a medical examiner's testimony as support for his claim of self-defense. The medical examiner testified that because of Taylor's injuries, a person typically would lose "motor skills." Bray contends that this testimony conclusively established that Taylor shot him first.
The jury's decision to reject Bray's defensive claims, however, ultimately hinges on the credibility of the witnesses. "As factfinder, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties." Chambers, 805 S.W.2d at 461. The statements of a defendant and his witnesses do not conclusively prove a claim of self-defense. See Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003); see also Smith, 355 S.W.3d at 146.
Bray's testimony and the evidence that suggested he acted in self-defense presumably was not believed by the jury, and thus did not render the evidence in the case insufficient to support the jury's verdict. See Chambers, 805 S.W.2d at 461. There was evidence that Bray forced his way into the apartment with a gun. Further, Bray admitted that he was at the apartment at the time of the shooting and shot a gun in the direction of Taylor. An expert concluded that the shooting caused Taylor's death. Finally, the debilitating injury to Taylor did not foreclose the possibility that both men shot at or very near the same time. Thus, after viewing all the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found that each element of the charged offense was proved beyond a reasonable doubt, and it rationally could have rejected Bray's claims of self-defense beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914; Zuliani, 97 S.W.3d at 594; Smith, 355 S.W.3d at 147. The evidence was sufficient to support Bray's conviction for the murder of Taylor. We overrule Bray's fourth issue.
II. Hearsay
In his second and third issues, Bray contends that the trial court erred by admitting an audio-recording of an interview statement he made to police following the shooting and by allowing certain testimony from several different witnesses. He argues that the recording and testimony constituted inadmissible hearsay.
A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006); Smith v. State, 340 S.W.3d 41, 53-54 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)); Smith, 340 S.W.3d at 53-54. A trial court's evidentiary ruling will not be reversed unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not disturb a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. TEX. R. EVID. 801. Hearsay statements are not admissible unless they fall under a recognized exception to the hearsay rule. TEX. R. EVID. 802.
a. Bray's recorded statement
Bray argues that the trial court erred by admitting an audio-recording of a statement that he made to the police while he was in the hospital. He contends that the recording was hearsay and was not admissible under the hearsay exception for statements against interest.
Rule 803(24) permits the admission of: "A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true" such as when "it is offered in a criminal case as one that tends to expose the declarant to criminal liability." The rationale behind admitting these types of statements "stems from the commonsense notion that people ordinarily do not say things that are damaging to themselves unless they believe they are true." Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008). "[A] reasonable person would not normally claim that he committed a crime, unless it were true." Id.
The State offered the recorded statement at issue during its case-in-chief, while Zugner testified on direct examination. Bray's counsel objected on the basis of hearsay, but the trial court overruled the objection and admitted the statement. On the recording, Zugner interviewed Bray in a hospital the day after Taylor was shot. Zugner read the Miranda warnings, and Bray stated that he understood them. Zugner then asked about the shooting and what happened at the apartment. Bray denied shooting anyone or even having a gun, but he admitted to visiting the Forum Park apartments. He told Zugner that he went to the apartment on the day of the shooting because "Duck" called him about buying his uncle's van. Bray said he knocked on the door and was let into the apartment. He asked the occupants of the apartment, "where is Duck," and they began shooting. After he was shot, he left the apartment, and his uncle took him to the hospital.
Bray contends that his recorded statement does not fall under the hearsay exception for statements against interest because it did not expose him to civil or criminal liability. Even if Bray's contention is correct, the State argues that the statement did not constitute hearsay because it was the statement of an opposing party under Texas Rule of Evidence 801(e)(2)(A). We agree with the State.
An admission of a party opponent does not constitute hearsay. TEX. R. EVID. 801(e)(2); see Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999); Jones v. State, 466 S.W.3d 252, 265-67 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Bray made the statements on the audio-recording, and they were offered by the State against him. Because the statements were made by a party and offered against that party, the statements on the audio-recording were statements of a party opponent and were not hearsay. TEX. R. EVID. 801(e)(2)(A); see Jones, 466 S.W.3d at 265-67. Therefore, the trial court did not err by admitting the recording. We overrule Bray's second issue.
b. Testimony of Alfred Little
Bray argues that the trial court erred by allowing testimony from Alfred Little. The challenged testimony consisted of Little's identification of Bray as "Polar Bear."
Little testified that he was in the pool area of the apartment complex at the time of the shooting. He did not witness what took place in the apartment when Taylor was shot, however, he heard gunshots and then heard a car "speed off." After the car left, Trute came out of the apartment "hollering and crying." She told Little that "somebody had just shot her brother and his name was Polar Bear." Little then encountered Adams and took him to the police station. The police interviewed Little and asked him if he could identify someone that he knew as Polar Bear. Little identified Bray as Polar Bear.
The State asked Little if he saw Polar Bear in the courtroom. Little identified Bray as Polar Bear. Defense counsel did not object to Little's in-court identification. The State then questioned Little about his identification of Polar Bear from a photo array shown to him by police officers after the shooting. Little testified that he knew the man he identified in the photo array as Polar Bear because Trute had shown him a photo when she came out of the apartment, and she said that it was him. Defense counsel then objected, stating:
Based on [Little's] testimony, any identification he has of Polar Bear is all hearsay. His testimony is not that he knew him. His testimony was that he was shown a picture that day. So, that means somebody else told him that that was Polar Bear. So, I object on those grounds.Out of the presence of the jury, the court asked Little about his identification of Bray as Polar Bear. Through its questioning, the court confirmed that Little's knowledge was based on what he was told by Trute. The following exchange then occurred:
. . . .
. . . he made the identification based on hearsay. I don't think he should be allowed to identify him because he doesn't have personal knowledge that this is Polar Bear.
Defense Counsel: . . . the entire identification testimony of Alfred Little should be stricken, Judge, because it's not based on personal knowledge. It's all based on hearsay. His whole identification of Polar Bear comes from what [Trute] told him.
The Court: I understand.The court then discussed with the parties the best way to proceed. The court did not strike the testimony. Instead, the court allowed defense counsel to cross-examine Little about his lack of personal knowledge of Bray's identity. Defense counsel also requested and received an unspecified "running objection."
Defense Counsel: So, that's our position that -
The Court: I know what your position is. Okay. I sustain it.
Defense Counsel: And also, I think that [the] Court should admonish the jury that, that although that identification has been made - or however the Court sees fit. But I think they should be admonished because the connection has been made in front of the jury based on hearsay.
To preserve error on appeal regarding the admission of evidence, a party must make a timely objection at trial, and he must state the specific basis for the objection unless the particular ground is apparent from the context. See TEX. R. APP. P. 33.1(a); Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Also, the complaining party must have obtained an adverse ruling from the trial judge, or objected to the judge's refusal to rule. Moff, 131 S.W.3d at 489. The proper method of pursuing an objection until an adverse ruling is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. See Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. [Panel Op.] 1982).
The trial court sustained Bray's objection to Little's in-court identification. Bray did request that the trial court strike Little's identification or that the court admonish the jury, but the trial court never ruled on these requests. Thus, Bray did not obtain an adverse ruling based on his original objection. Bray does not complain on appeal that the court should have struck the testimony or admonished the jury. Bray simply contends that the trial court erred by admitting the identification. Because Bray failed to pursue his objection to an adverse ruling, he failed to preserve for appellate review his challenge to Little's in-court identification of him as Polar Bear. See Moff, 131 S.W.3d at 489; Brooks, 642 S.W.2d at 798.
c. Testimony of Officer Zugner
Bray challenges the trial court's decision to allow Zugner to testify about how he came to learn that his street name was "Polar Bear." He contends that because Zugner learned of the street name through another officer and a "street name database" used by the Houston Police Department, his testimony was inadmissible hearsay.
When a police officer testifies about out-of-court statements that led to a defendant becoming a suspect in an investigation and such testimony is used to explain how a defendant became a suspect, it does not constitute inadmissible hearsay. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); McCreary v. State, 194 S.W.3d 517, 521-22 (Tex. App.—Houston [1st Dist.] 2006, no pet.). If an out-of-court statement is offered not for the truth of the matter asserted, but to show how or why a defendant became a suspect in an investigation, then it is admissible. See McCreary, 194 S.W.3d at 521-22.
Zugner testified that he received a name from patrol officers at the scene of the shooting prior to his arrival at the apartment. The name he received from the officers was "Polar Bear." He searched a street-name database used by the Houston Police Department for people who went by that name. Zugner testified at trial that the search indicated that Bray used the street name of Polar Bear. Bray also was being treated in a hospital for a gunshot wound. Based on this information, Bray became a suspect in the investigation.
Because any testimony from Zugner regarding what the patrol officers told him and the information he received from the street-name database was not offered to prove the truth of the matter asserted, but to show how Bray became a suspect in the investigation, it was not inadmissible hearsay. See Dinkins, 894 S.W.2d at 347; McCreary, 194 S.W.3d at 521-22. Therefore, the trial court did not err by admitting Zugner's testimony.
d. Testimony of Dwayne Adams
Bray challenges the trial court's admission of testimony from Adams regarding his in-court identification of Bray as Polar Bear. He argues that Adams's testimony constituted hearsay. To preserve an issue for review on appeal, an appellant must make a timely objection that specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); Degar v. State, 482 S.W.3d 588, 590 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Defense counsel made no objections when Adams identified Bray as Polar Bear. Because defense counsel did not make a hearsay objection at trial, Bray failed to preserve error with respect to Adams's testimony. See TEX. R. APP. P. 33.1(a); Degar, 482 S.W.3d at 590.
Because Bray did not properly preserve his challenges to Little's and Adams's testimony, and the testimony of Zugner did not constitute hearsay, we overrule the third issue.
III. Motions for mistrial
In his fifth issue, Bray contends that the trial court erred by denying his motions for mistrial because the State made improper arguments to the jury during closing.
"The law provides for, and presumes, a fair trial free from improper argument by the State." Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (citing Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991)). The approved areas of jury argument are (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Andrade v. State, 246 S.W.3d 217, 229-30 (Tex. App.— Houston [14th Dist.] 2007, pet. ref'd). Wide latitude is allowed in drawing inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). In examining challenges to a jury argument, a court considers the remark in the context in which it appears. Id. An argument exceeding the permissible bounds of the four approved areas of argument constitutes reversible error only if an analysis of the record as a whole shows the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Wesbrook, 29 S.W.3d at 115; see also Hawkins v. State, 135 S.W.3d 72, 79 (Tex. Crim. App. 2004). In assessing the harm of an improper argument, an appellate court considers three factors: "(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Generally, the appropriate remedy for improper argument is an instruction to disregard. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice arising from the improper argument is incurable, a mistrial is appropriate and a request for a mistrial will preserve error on appeal. Id.; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
A prosecutor cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). Arguments referencing matters that are not in evidence and may not be inferred from the evidence are usually "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).
a. Arguments regarding dispute and possible robbery
Bray argues that the trial court erred by denying his motion for a mistrial when the prosecutor suggested that there was a dispute between Bray and "Duck." The prosecutor stated:
Now, I want to talk real briefly about self-defense. There's two instructions in the jury charge as to why it's not self-defense. First, you can't bring a gun to a dispute. There is evidence in the statement that there was bad blood between Duck and Polar Bear.Defense counsel objected on the basis that the argument was "outside the record." The trial court responded by saying, "All right. The jury will recall the evidence in this case. Stay in the record, please." Defense counsel then objected on the basis of improper argument and moved for a mistrial. The trial court denied the motion without ruling on the objection.
The State also stated that Bray went to the apartment to break in and steal money or drugs. The prosecutor said:
[Bray] shot Corey Taylor after Corey shot him probably because he was trying to break into the house and steal some money or drugs. That's what happened. Your job is to judge the facts and to bring justice to the community.Defense counsel objected and moved for a mistrial. The court, without ruling on the objection said, "All right. Your mistrial is denied."
Although Bray objected to the arguments and requested a mistrial, he failed to obtain rulings on his objections or to request instructions to disregard. Merely requesting a mistrial is insufficient to preserve error in most circumstances because the appropriate remedy for a curable, erroneous argument to which an objection has been sustained is an instruction to disregard. McGinn, 961 S.W.2d at 165. If the prejudice created by the improper argument is curable by an instruction to disregard, a motion for mistrial is insufficient to preserve error. Thompson, 89 S.W.3d at 851. We must determine whether the prejudicial effect of the argument was incurable.
The harm arising from improper jury argument is incurable if the argument (1) is extreme, improper, injects new and harmful facts into the case, or violates a mandatory statutory provision and (2) as a result, is so inflammatory that its prejudicial effect reasonably cannot be cured by an instruction to disregard. Long, 823 S.W.2d at 267; Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985). We review the trial court's refusal to grant a mistrial for an abuse of discretion. Hawkins, 135 S.W.3d at 77.
With respect to the prosecutor's suggestion of a dispute with Duck, Bray contends that it was improper because it injected new and harmful facts into the case. Although there may not have been direct evidence of "bad blood between Duck and Polar Bear," there was evidence that Polar Bear went to the apartment armed, asked for "Duck," forced his way in, and pulled a gun. Based on this evidence, the trial court could have considered the prosecutor's argument a reasonable deduction from the evidence. See Berry v. State, 233 S.W.3d 847, 860 (Tex. Crim. App. 2007). As such, the trial court did not abuse its discretion by denying a mistrial.
Bray likewise contends that the prosecutor's statement suggesting that he went to the apartment to steal money or drugs was improper because it was outside the record and inserted new and harmful facts into the case. There may not have been direct evidence that Bray went to the apartment to steal money or drugs, but there was evidence that he had been to the apartment before to buy drugs from "Duck." From this it can be deduced that Bray had reason to expect that drugs could have been found in the apartment. Furthermore, there was evidence that drugs actually were found in the apartment. Even to the extent the prosecutor's argument improperly went beyond a reasonable deduction from the evidence by suggesting that Bray may have gone to the apartment to steal money or drugs and then asserting "that's what happened," it was not so prejudicial that it could not have been cured by an instruction to disregard. See Gaddis, 753 S.W.2d at 399-400; Mims, 434 S.W.3d at 275. As such, Bray failed to preserve error.
b. Argument regarding the jury's duty to bring justice to the community
Bray further argues that the State's closing argument was improper to the extent it invited the jury to "bring justice to the community as a whole." Defense counsel objected to the prosecutor's arguments, and the trial court sustained the objections. But defense counsel did not request instructions to disregard or move for a mistrial. Because the trial court sustained his objections, Bray did not obtain an adverse ruling. To preserve an issue for appellate review, a party must obtain an adverse ruling. See TEX. R. APP. P. 33.1(a); Moff, 131 S.W.3d at 489. Thus, Bray's challenge to these statements has not been preserved for appeal.
We overrule Bray's fifth issue.
Conclusion
We affirm the judgment of conviction.
Michael Massengale
Justice Panel consists of Justices Jennings, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).