Frankie Lee Watson v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00040-CR
NO. 02-11-00041-CR
FRANKIE LEE WATSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Frankie Lee Watson appeals his two convictions for aggravated
robbery with a deadly weapon, 2 contending in three issues that the evidence is
insufficient to sustain one of the convictions, that the trial court improperly
commented on his right to not testify, and that the trial court abused its discretion
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
by sustaining the State’s objection to his proposed demonstration during closing
argument. We affirm.
Background Facts
Pedro Hernandez is the manager of a 99 Cent Only store in Fort Worth.
According to Hernandez, the store has a problem with shoplifters. One afternoon
in March 2010, appellant stole several items from the store by stuffing them into
his zipped green jacket and leaving the store without paying for them. 3
Hernandez followed appellant outside and demanded, ―[G]ive me my stuff.‖
Appellant denied the theft and continued to walk away from the store.
Hernandez kept following him and insisted that appellant return the merchandise
or Hernandez would call the police. Appellant again denied having anything, but
when Hernandez pulled out a cellular telephone and threatened to call the police,
appellant took a box of soap from his jacket and threw it on the ground.
Hernandez told appellant, ―[T]his is not everything. I have called the police.‖
Appellant then withdrew some packages of socks from his jacket and tossed
them on the ground too.
While Hernandez remained on the phone with the police, appellant
approached a fence and began climbing it, but Hernandez pulled him off it.
Hernandez testified that when appellant landed on his feet on the ground, he
spun around, said, ―[L]et me go,‖ and with an open knife in his right hand, made a
3
On appeal, appellant admits that he ―had indeed taken some items from
the store.‖
2
sweeping motion in front of Hernandez’s face, who stood four or five feet away
from him. Hernandez grabbed an empty beer bottle off of the ground to defend
himself and said, ―[I]f you’re going to hurt me, I’m going to hurt you.‖ But
appellant started running away again. Appellant ran onto a golf course, and he
was throwing clothes and ―more stuff‖ that he had taken from the store on the
ground as he ran. He reached another fence and began to climb it. Again,
Hernandez yanked him down, and again, appellant swung his knife at
Hernandez. Hernandez was closer to appellant this time, and he later testified
that he had been afraid that appellant could cause him bodily injury or death.
Thus, Hernandez continued following appellant only from a distance.4
Appellant eventually ran to a nearby Goodwill parking lot that is down the
street from the 99 Cent Only store. The Goodwill store was having a grand
opening, so several cars were there. Appellant jumped into the back of a truck,
but Hernandez warned the driver that a thief was in the truck bed. The driver
immediately stopped the truck, and appellant jumped to the ground and
continued to run. He attempted to jump into the back of another truck, but the
driver sped away. Next, he went to a parked vehicle whose occupants, a
husband and wife, were exiting. The driver, Forrest Tucker, began opening his
door when appellant yanked it fully open and reached into the vehicle toward the
4
At trial, Hernandez testified, ―I was keeping my distance. I don’t want to
get close to him, you know, because, like I said, the second time he came close
to me with the knife.‖
3
keys, which were still in the ignition switch. Tucker shoved appellant away, but
appellant, pointing the knife at Tucker’s side near his ribs, commanded, ―[D]rive
or I’ll kill you.‖5
At trial, Tucker testified that he was ―[e]xtremely scared and extremely
angry,‖ thinking that appellant was going to hurt or kill him and his wife. When
asked if he felt threatened by appellant, Tucker responded, ―Absolutely.‖ After
appellant pushed Tucker further into the vehicle, Tucker’s wife reached over from
the passenger seat and hit appellant around the groin with her cane. Tucker
then pushed appellant away from the car, slammed the door shut, and locked the
vehicle.
Appellant began walking away from the parking lot as police officers
arrived. Hernandez waved the police toward appellant. Appellant threw his knife
under a nearby car, and as an officer approached him, he, without any
prompting, told the officer, ―[H]ey, it’s under 50 bucks. It’s just a ticket. Just write
me a ticket and let me go.‖ The officer detained appellant in his patrol car while
Hernandez informed the police what had happened and where appellant had
discarded the knife, which the officers retrieved.
When the police searched appellant, they found more items from the 99
Cent Only store. Hernandez printed a receipt recording all of the items that the
5
In a statement to the police, Tucker surmised that the knife blade was
closed when appellant stuck it to his side because Tucker did not feel a point.
But at trial, Tucker expressed his belief that the blade was open.
4
police had delivered to him after appellant was in custody. Hernandez testified
that he found more items taken from the store, which he valued at about $17,
after he had printed the receipt admitted as State’s Exhibit 19, which listed a total
price for the items that the police had collected of $27.06. Appellant later
admitted to a police officer that the knife found by the police belonged to him.
The State charged appellant through two indictments (one naming
Hernandez as a victim, and the other naming Tucker) with aggravated robbery
with a deadly weapon, to which he pled not guilty. The jury found him guilty of
both charges, and after he pled true to the indictments’ enhancement
paragraphs, the trial court sentenced him to fifty years’ confinement on each
charge, with the sentences running concurrently. Appellant brought these
appeals.
Evidentiary Sufficiency
In his first issue, appellant contends that the evidence is insufficient to
show that he threatened bodily injury to Hernandez. In our due-process review
of the sufficiency of the evidence to support a conviction, we view all of the
evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). This
standard gives full play to the responsibility of the trier of fact to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
5
basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi,
330 S.W.3d at 638.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009). Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). Instead, we Adetermine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.@ Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at
638.
The State may obtain a conviction for aggravated robbery by proving that
a person, in the course of committing theft and with the intent to obtain or
maintain control of property, intentionally or knowingly threatened or placed
another in fear of imminent bodily injury[6] or death and used or exhibited a
6
The penal code defines ―bodily injury‖ as ―physical pain, illness, or any
impairment of physical condition.‖ Tex. Penal Code Ann. § 1.07(a)(8) (West
Supp. 2011).
6
deadly weapon. Tex. Penal Code Ann. §§ 29.02(a)(2), .03(a)(2) (West 2011);
see Tweedy v. State, 645 S.W.2d 922, 924 (Tex. App.—Fort Worth 1983, no
pet.); see also Williams v. State, 886 S.W.2d 495, 497 (Tex. App.—Fort Worth
1994, no pet.) (stating that ―[t]hreatening or placing the complainant in fear is an
essential element‖ of robbery); Williams v. State, 827 S.W.2d 614, 616 (Tex.
App.—Houston [1st Dist.] 1992, pet. ref’d) (―In order to prove the offense of
robbery, the accused must have made actual or threatened overtures of violence
to the person of another, such that the threatened or injured party was put in
fear.‖).
Hernandez testified that after he had first pulled appellant off a fence,
appellant pulled out a knife, opened its blade, swept it in front of Hernandez’s
face, and said, ―[L]et me go.‖ At that time, Hernandez was within four or five feet
of appellant, and he testified that he felt threatened by appellant’s act, looked for
―something to defend [himself],‖ and grabbed an empty beer bottle. Appellant
ran inside a golf course and tried to get over another fence, but Hernandez pulled
him off it as well, and appellant came closer to Hernandez with the knife.
Hernandez believed that the knife could have caused death if it had cut him in
the right place. He testified at trial, ―That’s when I noticed that he had
intentions . . . . I mean, that he wanted to get away, you know. So I said, okay, I
just threw the bottle . . . . I was not going to pull him or anything.‖ Hernandez
said that he was scared when appellant swung the knife at him. Officers opined
7
at trial that the knife appellant had swung at Hernandez was capable of causing
serious bodily injury or death.
Hernandez indicated at trial that he attempts to prevent thefts from his
store because he wants to ―make it a better place.‖ But Hernandez also testified
that since the day of appellant’s offense, he responds differently to shoplifters
because he ―get[s] cold right away.‖
Despite the direct evidence from Hernandez’s testimony that he was
scared and felt threatened, appellant contends that Hernandez’s actions in
continuing to follow appellant and preventing his escape negate the jury’s finding
that Hernandez feared imminent bodily injury or death. We agree with the State
that ―[i]mplicitly, [a]ppellant’s position is that a shopkeeper’s continued pursuit of
an armed, shoplifting defendant . . . bars a factfinder from accepting the
shopkeeper’s testimony that he was afraid.‖
In determining whether appellant placed Hernandez in fear of imminent
bodily injury or death, we must consider whether appellant’s actions were of such
a nature that they were likely to induce a person to part with his property against
his will. See Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011);
Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). The fear must
arise from the conduct of the accused rather than the temperamental timidity of
the victim. Devine, 786 S.W.2d at 271.
On an objective level, we are confident that appellant’s exhibition and
slashing motion with the knife a few feet from Hernandez’s face would place a
8
reasonable person in Hernandez’s circumstances in fear of imminent bodily injury
or death. See, e.g., Gorham v. State, 985 S.W.2d 694, 697 (Tex. App.—Fort
Worth 1999, pet. ref’d) (holding that the defendant’s jab with a knife toward the
victim’s chest coupled with his explicit request for the victim to back away or get
―cut‖ while the defendant was stealing cigarettes from a convenience store was
sufficient to support the element that the appellant threatened or placed the
victim in fear of serious bodily injury or death).
Moreover, we do not conclude that Hernandez’s decision to follow
appellant belies his testimony that he felt threatened and was scared.
Appellant’s contention that Hernandez’s actions manifested a lack of fear is
similar to an argument that we resolved in Wilson v. State, No. 02-02-00123-CR,
2003 WL 300692 (Tex. App.—Fort Worth Feb. 13, 2003, pet. ref’d) (mem. op.,
not designated for publication). Wilson had picked up some beer and had
walked out of a convenience store without paying. Id. at *1. The store’s clerk,
Crystal Bonham, ordered Wilson to stop and jumped over a counter to pursue
him when Wilson said, ―If you touch me, I’ll fucking shoot you.‖ Id. Nonetheless,
Bonham followed Wilson outside, recorded Wilson’s license plate number, went
back inside, and called the police. Id. The police arrived and talked to Bonham,
who was alarmed and emotional. Id. In rejecting Wilson’s evidentiary sufficiency
challenge to his robbery conviction, we stated,
Wilson contends that Ms. Bonham, by jumping over the
counter, following him outside to obtain the van’s license plate
number, and by directing an obscenity toward him, exhibited a lack
9
of fear outweighing her trial testimony that she was scared. Wilson
points out that, after the incident, Ms. Bonham returned inside and
calmly picked up fallen beer cartons from the floor, proceeded to ring
up customers, and completed the remainder of her shift before going
home. In Wilson’s view, this evidence proves that Ms. Bonham was
either never threatened at all or was not placed in sufficient fear by
any threat actually made.
Ms. Bonham testified, however, that Wilson threatened to
shoot her and caused her to fear for her life. [An officer] testified that
Ms. Bonham was shaking and trembling when he interviewed her
just minutes after the offense. He offered his firm opinion that Ms.
Bonham was frightened by Wilson’s threat of violence.
An acquaintance of Wilson’s informed the jury that Wilson admitted
to threatening Ms. Bonham to ease his getaway with the stolen
beer. . . . Finally, Ms. Bonham testified that her actions immediately
following the threat sprang from her desire to see the perpetrators
caught and her knowledge that, if she failed to take action, the police
would likely be unable to apprehend them.
Id. at *2–3. Similarly to Wilson, other courts have affirmed robbery convictions
despite victims’ efforts to follow or apprehend the defendant. See, e.g., Moralez
v. State, No. 04-06-00033-CR, 2006 WL 3085714, at *3 (Tex. App.—San Antonio
Nov. 1, 2006, no pet.) (mem. op., not designated for publication) (―Moralez
argues that White’s actions show that White did not fear imminent harm.
However, White’s conduct in pursuing Moralez and attempting to prevent his
escape does not necessarily show that she was not afraid.‖). Like in Wilson and
Moralez, we hold that Hernandez’s actions in pursing appellant do not preclude
the jury’s determination that Hernandez was threatened or placed in fear of
imminent bodily injury or death when appellant twice swung a knife at him.
Viewing the evidence in the light most favorable to appellant’s conviction,
we conclude that the jury could have rationally concluded that appellant
10
intentionally or knowingly threatened or placed Hernandez in fear of imminent
bodily injury or death. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi,
330 S.W.3d at 638; see also Tex. Penal Code Ann. §§ 29.02(a)(2), .03(a)(2).
Because appellant challenges only that element of his conviction involving
Hernandez, we hold that the evidence is sufficient to sustain the conviction, and
we overrule appellant’s first issue.
The Trial Court’s Comments During Voir Dire
In his second issue, appellant contends that the trial court erred by
improperly commenting on his right to not testify. During voir dire, the following
exchange occurred between defense counsel and a prospective juror:
PROSPECTIVE JUROR: I get it that you don’t have to . . .
prove his innocence, but back to the Fifth Amendment. I understand
that that’s a right as well, but if someone were innocent, why
wouldn’t they want to tell us?
[DEFENSE COUNSEL]: That’s a very --
PROSPECTIVE JUROR: Why would you not allow them?
[DEFENSE COUNSEL]: That’s a very good question.
PROSPECTIVE JUROR: I would want to defend myself.
[DEFENSE COUNSEL]: I understand.
PROSPECTIVE JUROR: And make it verbal and every other
way.
....
[DEFENSE COUNSEL]: . . . There are a lot of reasons. . . .
Not everybody is accustom[ed] to talking in public. . . .
....
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[DEFENSE COUNSEL]: . . . I talk in public. I do this for a
living. I’m kind of used to getting up in front of a bunch of people
making a fool of myself talking. Not everybody is like that.
Okay. There could be other reasons. I stutter would be a
good reason. Okay. Or maybe I’m guilty and don’t want to admit it.
Is that a reason possibly?
PROSPECTIVE JUROR: Yes.
[DEFENSE COUNSEL]: Or how about, my lawyer tells me
that they haven’t proven each and every element of the case, and
that there’s no way a jury could find you guilty based upon the crap
evidence that they have.
....
[DEFENSE COUNSEL]: If a person -- if they had terrible
evidence and, you know, a client insists on getting on the witness
stand to testify, he might talk himself into prison. Can you --
because it’s a rule, I know most of you don’t believe this, but if my
client were to get on the witness stand to testify, I would be required
to stand up and say, Judge, he’s lying. Time out. My client’s lying
because --
PROSPECTIVE JUROR: Is he talking about this case or what
case are you talking about?
[DEFENSE COUNSEL]: In general.
....
[DEFENSE COUNSEL]: . . . So there are lots of reasons why
somebody might not testify. Okay. Not just because somebody is
guilty. Okay. [Emphasis added.]
Appellant’s issue arises from the following comment of the trial court, which was
presumably made in response to the above colloquy:
You know, Ms. Roberts, I was thinking about your question
about if somebody was not guilty, why wouldn’t they get up there
and tell us, and I was trying to think of an answer. The only answer
12
that I could come up with is because our constitution says he can.
[Emphasis added.]
Appellant argues that this comment ―inferred that there was no good reason a
defendant would not testify if he was actually innocent‖ and therefore allegedly
violated his privilege against self-incrimination. See U.S. Const. amend V; Tex.
Const. art I, § 10; see also Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim.
App. 2001) (―Neither the trial judge nor the prosecutor can comment on the
failure of an accused to testify. Such a comment violates the privilege against
self-incrimination and the freedom from being compelled to testify . . . .‖)
(footnote omitted). Appellant concedes, however, that he did not object to the
comment; without citing any authority concerning error preservation, he asks us
to address the issue ―in the interest of justice.‖
In general, to preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling if they are not apparent from the context of
the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319
S.W.3d 687, 691–92 (Tex. Crim. App. 2009). Further, the trial court must have
ruled on the request, objection, or motion, either expressly or implicitly, or the
complaining party must have objected to the trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.
2004). A reviewing court should not address the merits of an issue that has not
been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim.
13
Ohio App. 2010) (op. on reh’g). Preservation of error is a systemic requirement. Id. at
473–74; Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009).
Forfeiture for lack of an objection applies to most comments made by a
trial court. See Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986),
cert. denied, 488 U.S. 872 (1988); Madrigal v. State, 347 S.W.3d 809, 815 (Tex.
App.—Corpus Christi 2011, pet. ref’d); Wilkerson v. State, 347 S.W.3d 720, 725
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Forfeiture also applies to most
constitutional errors. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.
2008), cert. denied, 129 S. Ct. 904 (2009); Mendez, 138 S.W.3d at 342; Saldano
v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002). More specifically, a
defendant’s challenge about the violation of his privilege against self-
incrimination must be preserved by an objection. See, e.g., Collier v. State, 959
S.W.2d 621, 626 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 929 (1998);
Ramirez v. State, 815 S.W.2d 636, 646 (Tex. Crim. App. 1991).
Preservation requirements do not apply, however, to rights which are
waivable only or to absolute systemic requirements, the violation of which may
still be raised for the first time on appeal. State v. Dunbar, 297 S.W.3d 777, 780
(Tex. Crim. App. 2009). Systemic requirements—also known as absolute
requirements or prohibitions—are laws that a trial court has a duty to follow even
if the parties wish otherwise. Mendez, 138 S.W.3d at 340. ―Waivable only‖ rights
include the right to the assistance of counsel and the right to trial by jury.
Saldano, 70 S.W.3d at 888.
14
Before (in voir dire) and after (in jury instructions) making the comment at
issue, the trial court, at length, emphasized that a person’s decision to not testify
cannot be considered in evaluating guilt. It is doubtful that the complained-of
two-sentence statement about why an innocent person may choose to not testify
undermined the trial court’s emphasis in the rest of the trial on protecting the
defendant’s right to remain silent. And even assuming that the comment could
have been interpreted in a negative fashion by the prospective jurors, the trial
court also included the following instruction in the jury charge:
[D]o not assume from anything I may have done or said during
the trial that I have any opinion concerning any of the issues in this
case. Except for the instructions to you on the law, you should
disregard anything I may have said during the trial in arriving at your
own findings as to the facts.
On appeal, we generally presume that the jury followed the trial court’s
instructions in the manner presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex.
Crim. App. 2005); Walker v. State, 300 S.W.3d 836, 850 (Tex. App.—Fort Worth
2009, pet. ref’d). Appellant has not directed us to anything in the record showing
that the jury considered his decision to not testify as a factor against him.
Cf. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (presuming
that the jury did not consider parole in reaching a punishment verdict when the
trial court instructed it not to).
For all of these reasons, we conclude that the trial court’s challenged
comment in this case does not rise to the level of a comment for which no
objection is required to preserve error. Cf. Blue v. State, 41 S.W.3d 129, 132
15
(Tex. Crim. App. 2000) (plurality op.) (―The comments of the trial judge, which
tainted appellant’s presumption of innocence in front of the venire, were
fundamental error of constitutional dimension and required no objection.‖); see
also Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (distinguishing
Blue and overruling a point about a trial court’s comments because they did not
―bear on the presumption of innocence or vitiate the impartiality of the jury‖);
Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston 2006, pet. ref’d)
(holding similarly). Because we hold that the trial court’s statement did not fall
into the categories for which no objection is required, we conclude that appellant
was required to object to the statement in order to preserve it for our review. See
Tex. R. App. P. 33.1(a); Dunbar, 297 S.W.3d at 780. Appellant did not object, so
we hold that he forfeited the complaint, and we overrule his second issue.
Appellant’s Closing Argument
In his third issue, appellant contends that the trial court erred by precluding
his use of a demonstration during closing argument.7 In the closing argument,
appellant’s counsel attempted to undermine the State’s case concerning
Hernandez by demonstrating how unwieldy it would be for appellant to swing a
knife at Hernandez while encumbered with all of the items that, according to
7
The authority cited by appellant in his third issue concerns the
admissibility of demonstrative evidence, not the propriety of demonstrations
made by counsel during closing argument. See, e.g., Reyna v. State, 797
S.W.2d 189, 193 (Tex. App.—Corpus Christi 1990, no pet.); Rogers v. State, 756
S.W.2d 332, 336 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d).
16
Hernandez, appellant had stolen. After informing the jury, ―[T]his is not the
evidence and what I say is not the evidence. This is just a demonstration to get
you to imagine,‖ appellant’s attorney apparently intended to stuff a jacket with
items allegedly matching the stolen items listed on the receipt that Hernandez
had printed. The prosecutor objected, arguing, ―[T]his is not in evidence. It’s not
even a demonstrative aid, and it’s inappropriate for closing argument.‖ The trial
court sustained the State’s objection. On appeal, appellant contends that the
court abused its discretion by sustaining the objection and thus disallowing the
demonstration; he argues that the demonstration would have highlighted the fact
that it was ―highly questionable‖ whether appellant had threatened Hernandez.
We review a trial court’s rulings on objections to jury arguments under an
abuse of discretion standard. See Lemon v. State, 298 S.W.3d 705, 707 (Tex.
App.—San Antonio 2009, pet. ref’d). A trial court has broad discretion in
controlling the scope of closing argument, but it may not prevent defense counsel
from making a point essential to the defense. Lemos v. State, 130 S.W.3d 888,
892 (Tex. App.—El Paso 2004, no pet.).
To summarize the evidence that has been admitted, an attorney may, at
the court’s discretion, use visual aids in closing argument. See Jarnigan v. State,
57 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). But closing
argument cannot be used to inject new facts into the record. See Freeman v.
State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011); Sparkman v. State, 968
S.W.2d 373, 380–81 (Tex. App.—Tyler 1997, pet. ref’d) (op. on reh’g)
17
(―Defendant’s Exhibit # 4 . . . cannot be said to meet the requirements of proper
jury argument because [it] include[s] references to facts which were not in
evidence.‖), cert. denied, 523 U.S. 1085 (1998); see also Cowan v. State, No.
01-89-00068-CR, 1990 WL 113630, at *8 (Tex. App.—Houston [1st Dist.] Aug. 9,
1990, pet. ref’d) (not designated for publication) (ruling that the prosecutor’s jury
argument demonstration of having a deputy wear a stocking to illustrate the
ability to discern the identity of an attacker wearing a stocking was not supported
by the record because there was no evidence of how the attacker wore the
stocking or the color of the stocking).
The record demonstrates that appellant’s proposed demonstration would
have injected new facts into the record. First, appellant’s counsel recognized at
trial that the jacket to be used for the demonstration was only ―somewhat similar‖
to the green jacket that appellant used in the robberies. Second, appellant did
not establish that the products that he intended to stuff into the jacket had the
same physical characteristics as the products that, according to Hernandez,
appellant had stolen. Appellant’s attorney had obtained the items that he
intended to stuff into the jacket by referring to the receipt from the 99 Cent Only
store that was admitted as State’s Exhibit 19. But that receipt does not describe
the physical characteristics or the packaging of the items that it lists. As the trial
court observed, there was no testimony that the items to be used in the
18
demonstration had the same bulkiness as the items represented by the receipt. 8
The parties did not introduce the items that appellant had taken from the store
into evidence, nor did the parties present photographs of those items. And from
this record, we have no way of knowing whether appellant’s counsel researched
the products to determine that they had not changed packaging since the time of
the theft. Thus, because the proposed demonstration would have introduced
new, unsubstantiated facts concerning the physical characteristics of the items
that appellant stole, and because the bulkiness of those items was the very
reason for the demonstration, we hold that the trial court did not abuse its
discretion by excluding the demonstration. See Lemon, 298 S.W.3d at 707. We
overrule appellant’s third issue.
8
The receipt includes twenty-five items, but the last item is ―Misc Taxable
Item,‖ which appellant’s counsel obviously could not match without more details.
19
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgments.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DAUPHINOT, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 12, 2012
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