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Massey v. State

State of Texas in the Fourteenth Court of Appeals
Jun 13, 2017
NO. 14-16-00014-CR (Tex. App. Jun. 13, 2017)

Opinion

NO. 14-16-00014-CR

06-13-2017

JOHNATHAN MASSEY, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 14-CR-2188

MEMORANDUM OPINION

Appellant Johnathan Massey was convicted of sexually assaulting a woman in Galveston, Texas. At issue in this appeal is (1) whether the evidence is sufficient to support the jury's finding that appellant was the individual who sexually assaulted the complainant, and (2) whether a prosecutor may present an alternate theory on the chain of events for the first time during closing argument. We conclude that the evidence is sufficient to support the jury's conviction, and that a prosecutor may suggest during closing argument an alternate theory adduced from evidence previously presented to the jury. Accordingly, we affirm.

BACKGROUND

The complainant and her friend Christina drove to Galveston on Friday, October 4, 2013, and planned to spend the weekend there. After settling in, the two women went out to a local bar and spent the evening drinking. Sometime around 2:00 a.m. the women left the bar, intending to retrieve some marijuana from their car and go smoke on the beach with some other people they had met during the evening.

Appellant and his friend Sedrick were in the bar's parking lot when complainant and Christina went to their car to get the marijuana. It is unclear exactly what happened next. What is undisputed is that complainant ended up in appellant's car and left with appellant.

Complainant, who had consumed approximately eight mixed drinks and four to five shots of liquor over the course of the evening, did not remember leaving with appellant. Christina testified that another car pulled up as she and complainant were getting the marijuana from their car, that she and complainant began talking with the occupants of the other vehicle, and that when she bent down to put some items in her purse and stood back up, complainant and the other vehicle were gone. Appellant contended in a police interview that complainant came up to him while he was in his car in the parking lot, said he looked good, and asked where he was going and whether she could go with him. According to appellant, complainant said her friend would follow in their car. Christina attempted to follow when she realized the other car had left and that complainant was gone, but she lost the car.

Appellant told the interviewing detective that he drove complainant to Sedrick's apartment in Texas City. Appellant told the detective that complainant engaged in oral sex with him while he was driving to the apartment. Sedrick, who was driving in a separate car, likewise testified that he observed complainant engaging in oral sex with appellant during the drive to Texas City. Sedrick testified that his understanding of the situation was that complainant intended to come back to the apartment to have sex with both him and appellant.

Complainant did not remember the drive to the apartment, but did remember arriving at the apartment, at which time she became upset and wanted to know where her friend Christina was. Complainant had no purse or cell phone, so Sedrick allowed complainant to use his phone to call Christina. Sedrick then texted the apartment address to Christina, but Christina did not drive to the apartment because it was off of Galveston Island and she believed it to be a false address. Complainant ultimately left the apartment on foot. Appellant left the apartment at some point after complainant and drove back to the house where he lived on Galveston Island. Appellant contended he did not see complainant again after she left the Texas City apartment.

Complainant did not remember what happened after she left the apartment, other than that she remembered hearing somebody say, "I'll take you back to your friend." She then remembered getting out of a car next to an open field, and that the driver got out and hit her in the face. The driver then told complainant to pull her shorts down and, according to complainant, raped her vaginally and anally. After the assailant drove away, complainant got up and ran down the road to a nearby Sunny's gas station where the attendant called the police.

Appellant was charged with two counts of aggravated sexual assault — specifically, that he sexually assaulted complainant both vaginally and anally and, while doing so, placed her in imminent fear of serious bodily injury or death. See Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2016). A jury acquitted appellant of both aggravated sexual assault charges but found appellant guilty of the lesser included offense of sexual assault on the anal sexual assault charge. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon 2011). After hearing punishment evidence, the jury assessed punishment at eight years' confinement, but recommended that the sentence be probated. The trial court signed a final judgment consistent with the jury's recommendation. This appeal followed.

ANALYSIS

In three issues, appellant (1) challenges the legal sufficiency of the evidence; (2) challenges the factual sufficiency of the evidence; and (3) contends the trial court erred by allowing improper argument during the State's closing.

I. Sufficiency of the Evidence

In his first two issues, appellant challenges the legal and factual sufficiency of the evidence.

A. Factual Sufficiency

Concerning appellant's factual sufficiency challenge, the Texas Court of Criminal Appeals has determined that "there is no meaningful distinction between a Clewis factual-sufficiency standard and a Jackson v. Virginia legal-sufficiency standard," and that "a rigorous and proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard." Brooks v. State, 323 S.W.3d 893, 906, 912 (Tex. Crim. App. 2010). Accordingly, the legal sufficiency standard of review is the only standard we apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Cary v. State, 507 S.W.3d 761, 765-66 (Tex. Crim. App. 2016).

Appellant acknowledges that, "[s]imply put, there no longer exists a factual-sufficiency of the evidence evaluation in Texas jurisprudence." But appellant nevertheless contends that this court has a duty under the Texas Constitution's factual-conclusivity clause to address his factual sufficiency challenge. See Tex. Const. art. V, § 6(a) ("[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.").

We are bound to follow the decisions of the Texas Court of Criminal Appeals, and where, as here, that court has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation. Mayer v. State, 494 S.W.3d 844, 848 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Accordingly, we decline to consider appellant's contention that the high court's imposition of a single sufficiency standard runs afoul of the Texas Constitution. See id. (rejecting appellant's contention that the single standard announced in Brooks ran afoul of the Due Process and Equal Protection Clauses of the United States Constitution); see also Kiffe v. State, 361 S.W.3d 104, 109-10 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (rejecting constitutional challenge to single sufficiency standard under factual-conclusivity clause and stating that, "[a]lthough an intermediate appellate court's decision 'shall be conclusive on all questions of fact brought before them on appeal or error,' the Texas Court of Criminal Appeals has the authority to determine questions of law, including the standard of review that an intermediate appellate court must use in conducting factual review"); Temple v. State, 342 S.W.3d 572, 627 (Tex. App.—Houston [14th Dist.] 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013) (Brown, J., concurring to denial of rehearing en banc) ("The factual-conclusivity clause allows the Court of Criminal Appeals to review an intermediate court's factual-sufficiency decision insofar as necessary to determine whether the intermediate court 'properly applied rules of law.' . . . But not more than that is exactly what the Brooks court did—it laid out the legal boundaries of a proper factual-sufficiency review. And though they have no jurisdiction themselves to perform a factual-sufficiency review, it has been the legitimate realm of our state's courts of last resort to tell the courts of appeals how factual sufficiency should be reviewed.").

We overrule appellant's second issue requesting that we perform a factual sufficiency review of the evidence.

B. Legal Sufficiency

Having overruled appellant's request for a factual sufficiency review, we turn to appellant's contention that the evidence was legally insufficient to support his conviction. Appellant specifically contends that the evidence was insufficient to show that he was the individual who sexually assaulted complainant.

When reviewing the legal sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017). We defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence, and we draw all reasonable inferences from the evidence in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd).

"A criminal conviction may be based upon circumstantial evidence." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence and may alone be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). It is not necessary that every fact and circumstance point directly and independently to the defendant's guilt; it is enough that the combined and cumulative force of all the incriminating circumstances supports the jury's conclusion. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

The jury may not draw conclusions based on speculation, but may draw multiple reasonable inferences from facts as long as each is supported by the evidence presented at trial. Id. at 15. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013).

It is undisputed that complainant rode with appellant in his car to Sedrick's apartment in Texas City. Complainant called her friend Christina from Sedrick's phone at 2:34 a.m., meaning complainant was still at the Texas City apartment at that point in time.

At some point thereafter, complainant, who was intoxicated, left on foot. Appellant later told the interviewing officer that he stayed and talked to Sedrick and Sedrick's roommate for "30 minutes to an hour" after complainant left. Contrary to appellant's statement, and as discussed below, security footage from a gas station in the direction complainant was last seen walking showed appellant's vehicle pull in the lot at 2:54 a.m. — only 20 minutes after complainant talked on the phone with Christina from the Texas City apartment, and presumably even less time after complainant actually left the apartment.

Sedrick texted the address of the apartment to Christina at 2:40 a.m. In appellant's interview, he told the detective that complainant left after the text with the apartment address was sent to Christina.

According to appellant, Sedrick, and Sedrick's roommate, complainant turned left down the road when she walked out of the apartment complex. The investigating detective testified that the area surrounding the apartment complex was desolate and that there was "not much of anything around the apartment complex," but that there was a Conoco gas station approximately a third of a mile from the apartment in the direction complainant walked. According to the detective, the only logical place for complainant to head toward was the Conoco station, as it was the only nearby location that would have been lit up at that time of night.

The detective pulled security footage from the Conoco gas station's cameras. She did not see complainant on the footage, but she did observe a white Ford Mustang — the same type of vehicle appellant was driving that evening — pull into the Conoco lot at 2:54 a.m. The detective testified that it was the only car she observed pull into the Conoco lot during the time frame of the footage she watched. She also testified that she observed on the video what looked to be somebody sitting in the passenger seat of the Mustang. When confronted with still shots from the Conoco video, appellant admitted that it was his car, but denied that he had complainant in the car with him. Appellant contended that he intended to stop at the store and pulled in to the parking lot, but the store was closed so he drove back to Galveston where he was living.

The jury was not shown the video footage from the Conoco station — the footage was not timely recovered due to a miscommunication between the officers, and was automatically overwritten 30 days after the recording. The jury was shown still photos of the Mustang taken from the video.

Complainant testified that she could not remember what happened after she left the apartment, but that she remembered hearing somebody say, "I'll take you back to your friend." She then remembered getting out of a car next to an open field, and that the driver got out and hit her in the face. Complainant remembered that her assailant was black and that he drove a white car. Complainant testified that the driver told her to pull her shorts down, and then began to rape her. Complainant remembered asking the driver if he were wearing a condom, and when he asked "Why?" she told him she "had something," hoping he would think she had a sexually transmitted disease and would stop. At that point, the driver instead began to anally assault complainant. When the assailant finished assaulting complainant, she lay on the ground until the assailant drove away. At that point, complainant got up and ran down the road to a nearby Sunny's gas station where the attendant called the police. The Sunny's gas station where complainant ended up was in Galveston — more than 13 miles from the Texas City apartment.

The jury was shown the trial exhibit reproduced below, which depicts the approximate location where complainant was assaulted (shown by the "X" marked on Post Office St.) and the location of the Sunny's gas station (shown by the "X" marked on the corner of Broadway and 51st Streets). The line represents the route that complainant ran after her assailant left, which was approximately half a mile:

Image materials not available for display.

The detective pulled the video security footage from the Sunny's gas station. The footage showed complainant run up to the station at 3:42 a.m. The State also argued that the footage showed a white Ford Mustang coming down 51st Street from the same direction that complainant came from, and turning left onto Broadway at 3:34 a.m. — eight minutes before complainant ran up to Sunny's.

In his police interview, appellant initially told the detective several times that after leaving Texas City he drove straight home to the house where he was staying in Galveston. Driving from the Conoco station in Texas City on the mainland — where appellant admitted having been — to the house where he was staying in Galveston on 41st Street, the most direct route was to take I-45 across to Galveston Island, continue on when I-45 turns into Broadway Avenue (also labeled Highway 87 on the map below), and then to turn south off Broadway in the vicinity of 41st Street, as can be seen in the trial exhibit below:

The location marked on the map is the house where appellant was living.

Image materials not available for display. But when confronted by the detective with the footage from Sunny's showing what appeared to be appellant's car coming down 51st Street, appellant admitted that it was his car and told the detective that when he came into Galveston he turned off I-45 onto Harborside Drive, which runs parallel to, but to the north of, I-45/Broadway. Although difficult to see on the map above, Harborside can be seen to the north of the word "Galveston," and is also shown on that map as Highway 275. Appellant told the detective that he exited onto Harborside because he was texting a girl named Jessica who lived off of Harborside. Appellant said he wanted to go to Jessica's house, but that when she did not respond to his texts he turned onto 51st Street to head home. Appellant could not give the detective Jessica's last name or phone number, claiming that he had dropped his phone and had to get a new one.

At trial, the State introduced appellant's phone records. Contrary to appellant's assertion that he was texting a girl named Jessica on his way home, the phone records showed no text message activity between 9:49 p.m. on October 4 and 4:57 a.m. on October 5.

The phone records likewise showed no calls made between 2:07 a.m. and 10:02 a.m., and no data usage between 12:06 a.m. and 4:57 a.m.

The State also argued at trial that appellant's statement that he went straight home was inconsistent with the times his car was seen on video at the Texas City Conoco and the Galveston Sunny's. As discussed above, appellant's vehicle was seen at the Texas City Conoco at 2:54 a.m. and at the Galveston Sunny's at 3:34 a.m. — an elapsed time of 40 minutes. The detective testified that the two gas stations are 15 miles apart taking the Harborside route, as appellant contended he did. The detective testified that she drove the Harborside route, went the speed limit, hit every light on the way, and that it took her 26 minutes — leaving at least 14 minutes unaccounted for, assuming appellant also drove the speed limit and also hit every light.

Taking the more direct route down Broadway, the distance was 13.6 miles and took the detective only 18 minutes.

The manager for the Texas City Conoco testified that the security video system was accurate to within two to three minutes. Even assuming the system was off in appellant's favor by three minutes, that still left 11 minutes unaccounted for. Drawing all reasonable inferences from the evidence in favor of the jury's verdict, as we do when conducting a legal sufficiency review, and assuming the video timestamp was off by three minutes the other direction, that left 17 minutes in which appellant could have taken complainant to the field and assaulted her.

Forensic and DNA testing was performed on a number of items of complainant's clothing, as well as on swabs taken from complainant's body. No semen was detected in complainant's vaginal, anal, or oral swabs. Likewise, only complainant's DNA was detected in her vaginal and labial swabs. A forensic scientist with the Houston Forensic Science Center testified that if a condom is used or if no ejaculation occurs, "you wouldn't expect to find any [male] DNA," because the existing forensic technology is "not sensitive enough to pick it up when there's so much female DNA present." Similarly, a DNA analyst testified that there are a number of reasons why a perpetrator's DNA profile might not be present after a sexual encounter: there may have been no ejaculation, a low sperm count, or no sperm count; the perpetrator may have worn a condom; or the victim may have washed, wiped, or urinated after the encounter.

DNA testing revealed that there were at least two contributors to the DNA found in various other items, including the swab taken from the inside waistband of complainant's panties and the swab taken from the inside and outside crotch areas of complainant's panties. However, the DNA was not sufficient for any comparison to be made to any contributor besides complainant.

The forensic lab also performed Y-STR testing on the items and swabs. Y-STR testing is used to pinpoint DNA that contains a Y chromosome, which is found only in males and is useful if there is a significant amount of female DNA present that may be overwhelming a small amount of male DNA. The Y-STR testing looks for information at 17 different locations on the Y chromosome, and requires data from at least six locations in order to make a comparison. Unlike the traditional autosomal DNA testing, which uses statistical data to determine the frequency of a DNA profile within different populations, Y-STR testing uses a "counting method" to compare the data identified at the 17 locations with a limited database of known profiles. Because Y-STR testing is only looking at the male chromosome, there is not as much variability in a Y-STR profile; for example, a son will have the same exact Y-STR profile as his father barring a rare genetic mutation.

Apparent blood was detected based on a chemical test of swabs taken from complainant's right and left hand fingernails. Y-STR testing of the swab of complainant's right hand fingernails returned a partial Y-STR profile that was consistent with appellant's Y-STR profile; at the 12 locations identified, the selected profile was found in 3 of 28,060 individuals in the database. Y-STR testing of complainant's left hand fingernails swab returned a partial Y-STR profile consistent with a mixture of Y-STR profiles; appellant could not be excluded as the contributor of the major component. At the 15 Y-STR locations, the selected profile was found in 9 of 25,644 individuals in the database.

Appellant's counsel argued that his DNA was under complainant's fingernails as a result of her engaging in oral sex with appellant during the car ride to the Texas City apartment. But complainant testified that she did not remember engaging in oral sex with appellant, and the jury was free to disbelieve appellant's theory and to instead believe that the DNA was under her fingernails from the encounter during the sexual assault.

The swab from the inside waistband of complainant's panties returned a Y-STR profile consistent with an indistinguishable mixture; the mixture was used only for exclusionary purposes, and, while appellant was not excluded, no conclusion was drawn as to whether he could be a contributor.

The swab from the inside and outside crotch areas of complainant's panties likewise returned a Y-STR profile consistent with an indistinguishable mixture; the mixture was used only for exclusionary purposes, and appellant was affirmatively excluded as a contributor to that DNA.

Appellant relies heavily on the fact that he was excluded as a contributor to the DNA found on the crotch of complainant's panties. However, the mere fact that another male's DNA was found on complainant's panties — notably not semen, as testimony established no semen was found on the panties — is not proof that appellant did not sexually assault complainant. Another male, such as complainant's boyfriend, may have handled or otherwise transferred their DNA to complainant's panties at some point before or after the assault. The State's burden was not to exclude every conceivable alternative to a defendant's guilt, only to prove each element of the offense beyond a reasonable doubt. See Merritt, 368 S.W.3d at 525.

Having viewed the evidence in the light most favorable to the verdict, we hold that the evidence is sufficient to support appellant's conviction.

First, the State presented evidence of a motive for appellant to have assaulted complainant. Appellant's friend Sedrick testified that he and appellant were taking complainant to the Texas City apartment to "run a train" on her — meaning they were both going to have sex with her. Sedrick testified that all parties, including complainant and Christina, understood that complainant was coming back with the men for that purpose. But Sedrick testified that when they got to the apartment and complainant saw a third person — Sedrick's roommate — she got cold feet and said, "I'm not doing this. I'm not down for that." The State argued, and the jury could have inferred, that appellant was angry that he had driven complainant all the way out to Texas City and then she refused to have sex with him. See, e.g., Guevara, 152 S.W.3d at 50 ("Motive is a significant circumstance indicating guilt.").

The State also presented evidence of inconsistencies in appellant's statements to the detective, including that appellant changed his story about the route he took home when confronted with video footage showing him coming down 51st Street, and that appellant's reason for taking that route — that he was texting a girl named Jessica who lived in that area, and for whom appellant could not provide a last name or phone number — was contradicted by appellant's phone records. See Guevara, 152 S.W.3d at 50 (inconsistent statements and implausible explanations to the police are probative of wrongful conduct and are circumstances of guilt).

Other circumstantial evidence also included that appellant was observed on security footage in close proximity both temporally and physically to where complainant was last seen walking in Texas City and to where complainant was assaulted in Galveston; the time between appellant appearing in the Texas City and Galveston security footage left 17 minutes unaccounted for in appellant's drive home (or more, if appellant exceeded the speed limit or got green lights); the route appellant admitted to taking was not the most direct route home; complainant remembered her assailant being a black male driving a white car, and appellant is a black male and was driving a white Ford Mustang; appellant's DNA was under complainant's fingernails on both hands, possibly as a result of the sexual assault encounter; and that the detective testified she saw another individual in appellant's car on the Conoco video footage.

Moreover, the jury may have logically inferred that appellant was the individual who picked complainant up and then drove her back to Galveston where he assaulted her on his way home, rather than believing that some unidentified assailant happened to pick complainant up in Texas City, drove her more than 13 miles to Galveston before raping her, and then left her very close to where appellant was seen on video eight minutes before complainant ran up to the Sunny's store. See Clayton, 235 S.W.3d at 781-82 (timing of events surrounding victim's death supported rational inference that appellant was with the victim when the victim was shot).

The jury was able to assess the credibility and demeanor of the witnesses who testified at trial, and the jury was shown the video of appellant's police interview. The jury inferred from the circumstantial evidence that appellant was the individual who sexually assaulted complainant. See id. at 782 (incriminating circumstantial evidence combined with rational inferences drawn from that evidence was sufficient to support verdict). That determination was not so outrageous that no rational trier of fact could agree. See Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012) (jury's conviction in case where evidence was "almost entirely circumstantial" was nevertheless "not a determination so outrageous that no rational trier of fact could agree"). Accordingly, we overrule appellant's first issue.

Moreover, the jury's finding that appellant sexually assaulted complainant only anally, and not vaginally, was not irrational when considering that the sexual assault nurse who examined complainant testified that she observed injuries to complainant's anus but not to complainant's vaginal area.

II. Jury Argument

In his third issue, appellant contends the trial court erred by permitting the prosecutor to argue, for the first time during closing argument, that a white car appearing on the Sunny's video footage at 3:12 a.m. and turning from Broadway onto 51st Street was appellant's car.

Throughout the trial, the State's theory appeared to be that appellant picked up complainant, drove down Harborside (as appellant admitted), sexually assaulted complainant, and then drove down 51st street to Broadway. During the State's closing argument, the State posited a new theory:

[THE STATE]: . . . [Appellant] picks [complainant] up, and he brings her back to Galveston. He comes down — he comes to Galveston down 45 on his normal route, down Broadway. And 18 minutes later, 18 minutes after his car is seen in the Conoco video, he is turning left off Broadway onto 51st street to go back to where he raped her.
[APPELLANT'S COUNSEL]: Your Honor, I would object. That's a misstatement of the evidence. That video is in from 3:00 o'clock on,
and it's not on there. There's no evidence whatsoever that his car was on that video.
[THE STATE]: Your Honor, this is argument, for one; and I am about to show them the video.
THE COURT: Okay. Ladies and gentlemen, I will let you determine what's in evidence and what isn't in this regard.
[THE STATE]: Ladies and gentlemen, 2:54 plus 18 minutes is 3:12. And I know it's hard to see in here. Maybe I could turn off some lights and you can make this out. 3:12. That's his car.
[APPELLANT'S COUNSEL]: Your Honor, that's a misstatement of the evidence. There's no evidence of —
THE COURT: It's argument. Move along.
[THE STATE]: That's his car. Look at it for yourself. Take it back and watch it. That's his car turning onto 51st Street to take her back there and rape her. She is in that car with him, and that's where they are going. They are going to the scene right now. 3:12. He is driving her back there 18 minutes later.
This theory lined up with the detective's testimony that it took her 18 minutes to drive the more direct route from the Conoco down Broadway to the Sunny's.

Appellant concedes that the video referenced by the prosecutor was properly admitted in evidence. But appellant contends that "it was improper to pick a point in the video that matched up with the prosecutor's story of what took place that night, and then assign that to Appellant during final argument. Such action was improper as it injected new facts into the trial; facts without basis in the record."

We review a trial court's ruling on an objection to improper jury argument for an abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd); see Garcia v. State, 126 S.W.3d 921, 924-25 (Tex. Crim. App. 2004) (prosecutorial statements during closing concerning appellant's failure to show remorse reviewed for abuse of discretion). To be permissible, jury argument must fall within one of four areas: (1) summation of evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007). Even when a prosecutor's argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

Counsel's remarks during final argument must be considered in the context in which they appear. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). If the remarks are made in response to the defendant's argument, then they are permissible. See Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987); Acosta v. State, 411 S.W.3d 76, 93 (Tex. App.—Houston [1st Dist.] 2013, no pet.). A prosecuting attorney is permitted during closing argument to draw any reasonable inference from the facts in evidence, but may not use closing argument to introduce evidence which is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990); Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San Antonio 2014, no pet.).

We conclude that the prosecutor's statements did not inject new facts into the proceeding or invite the jury to speculate on the existence of evidence not presented. The prosecutor argued a new theory based upon the prosecutor's interpretation of the video footage. The prosecutor's statements constituted a reasonable deduction from the evidence — one of the permissible areas of jury argument. See Gallo, 239 S.W.3d at 767; Borjan, 787 S.W.2d at 57. The prosecutor was not required to present witness testimony that the white vehicle on the video at 3:12 a.m. appeared to be a white Ford Mustang — the jury could make that determination for itself, as the prosecutor invited it to do. Accordingly, we conclude that the trial court did not abuse its discretion by allowing the prosecutor's argument, and we overrule appellant's third issue.

Moreover, we note that appellant's counsel arguably invited the prosecutor's comments. During cross-examination of the detective concerning the Sunny's video, the following exchange took place:

[APPELLANT'S COUNSEL:] We're going to count all the cars because we don't know which direction the person — and by the way, we don't even know that this surveillance camera would have captured the person who assaulted [complainant], do we?

A. Not necessarily. I was just interested in the Mustang.

[APPELLANT'S COUNSEL:] Yeah, well, maybe you should have been interested in all the other cars because there's several that look like a Mustang and they're white. . . .

CONCLUSION

Having overruled all of appellant's issues, we affirm the trial court's judgment.

/s/ William J. Boyce

Justice Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).


Summaries of

Massey v. State

State of Texas in the Fourteenth Court of Appeals
Jun 13, 2017
NO. 14-16-00014-CR (Tex. App. Jun. 13, 2017)
Case details for

Massey v. State

Case Details

Full title:JOHNATHAN MASSEY, Appellant v. THE STATE OF TEXAS, Appellee

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Jun 13, 2017

Citations

NO. 14-16-00014-CR (Tex. App. Jun. 13, 2017)