author: TERRY JENNINGS, Justice.

text:
    The STATE of Texas, Appellant, v. Telly Wayne FURY, Appellee.
    No. 01-04-00906-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 20, 2005.
    Discretionary Review Refused April 26, 2006.

      Kurt Sistrunk, Criminal District Attorney, Galveston, TX, for Appellant.
    John Henry Grady, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
   OPINION

TERRY JENNINGS, Justice.

A jury found appellee, Telly Wayne Fury, guilty of the offense of aggravated assault on a public servant and assessed punishment at confinement for 60 years. The trial court granted appellee’s motion for new trial. In three issues, the State contends that (1) the trial court erred in granting appellee’s motion for new trial on a ground not pleaded by appellee, (2) the evidence was legally and factually sufficient to sustain appellee’s conviction, and (3) there was no Brady violation to support granting appellee’s motion for new trial. We vacate the trial court’s order granting appellee’s motion for new trial and remand the cause to the district court for entry of judgment consistent with the jury’s verdict.

Factual and Procedural Background

Amanda Jones, the complainant, testified that she was working as a jailer at the Texas City Jail when she instructed appel-lee to enter his cell. Appellee picked up the complainant and threw her into the cell. Appellee then used one hand to pin the complainant against the wall and the other hand to choke her to the point that she “started not to breathe” and-was lightheaded. The complainant, fearing for her life, pleaded with appellee to stop and told appellee that she had children. Appellee then began to rub himself on the complainant and move his hands across her breasts and crotch. Ultimately, appellee let the complainant go, and she was able to exit the cell and call for help.

Stephen Rodriguez, who was incarcerated in the Texas City Jail at the time of the offense, testified that he witnessed the incident. Rodriguez stated that appellee grabbed the complainant, forced her into the cell, threw her into the wall, and put his arm around her neck. Rodriguez further stated that appellee started choking the complainant and fondling her. Rodriguez noted that appellee had “a good grip” and that the complainant was choking, could hardly speak, and was gasping for air. Rodriguez was afraid for the complainant’s life. -While appellee was choking the complainant, appellee told her “I could kill you bitch.” After the complainant was able to get out of the cell, appellee told Rodriguez “I was going to rape that bitch.”

During appellee’s cross-examination of the complainant, appellee asked the complainant, “You didn’t have any injuries to photograph?” and the complainant answered, “No.” Later during cross-examination, appellee again asked the complainant about whether there were any photographs of her. injuries. , This time; the complainant stated that photographs of her injuries did exist. The following exchange took place:

[Appellee]: So, all we really have is your word saying all this stuff happened. We don’t have any pictures. We don’t have any video. We don’t have any injuries. All this horrible force was used. You were thrown up. against the wall. You were choked until you were about to pass out and thought you were going to die. Didn’t even leave any red marks on your neck to take pictures of?
[Complainant]: I believe there is pictures. I’m not — that the jail should have.
[Appellee]: That the jail should have?
[Complainant]: We took pictures with our jail camera-we use to take booking shots with.
[Appellee]: Where are they?
[Complainant]: I don’t have no idea. I don’t work there anymore.
[Appellee]: Pass the witness, Your Hon- or.

Following this testimony, appellee did not make any additional inquiry about the photographs. During closing argument, appellee made numerous references to the fact that the State did not present photographs of the complainant’s injuries. Ap-pellee argued: •

We have absolutely no injuries. We have no videos. We have no photographs. If there had been substantial injuries — actually that’s not true. Ms. Jones said photographs were taken. Do you think that if they helped get a conviction of [appellee] that they would have found them? I’ll put it to you that there was nothing on the photographs to help the State’s case and that’s why they’re not here.

The jury found that appellee intentionally, knowingly, or recklessly caused bodily injury to the complainant with his hand or arm, and that appellee, through the use of his hand or arm, used or exhibited a deadly weapon during the commission of the assault. Appellee timely filed a first amended motion for new trial. First, ap-pellee alleged that “the verdict was contrary to the law and evidence.” Second, appellee alleged

Evidence tending to show the defendant’s innocence or which may mitigate punishment has been destroyed or withheld, thus preventing its production at trial, to wit: the complainant, Amanda Jones[,] testified upon cross-examination during the State’s case-in-chief that photographs showing her alleged injuries, or lack thereof, were taken shortly after the alleged offense took place. No photographs, video or other visual evidence of the complainant after the alleged offense were made available nor was its existence made known to defense counsel prior to trial in violation of the [c]ourt’s discovery order. Additionally, withholding of any evidence which may exonerate the accused or be of material importance to the defense is grounds for a new trial pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The trial court held a hearing on appel-lee’s motion, and then continued the hearing “to allow the State to make further inquiry as to whether in fact photos had been taken.” At the subsequent hearing, the State informed the trial court that, per its instructions, it made an inquiry at the Texas City Police Department as to whether there were any photographs taken of the complainant after the assault, and that there were eleven such photographs. After these photographs were introduced by the State, appellee first argued that the photographs showed no injury. Appellee subsequently conceded that the photographs showed that the complainant was “red all over somehow,” but speculated that the redness might be due to a printer malfunction. Appellee contended that the photographs were mitigating and that the jury needed to see the photographs to determine whether a deadly weapon was used and the extent of injury. Appellee further contended that the trial court had broad discretion to grant a new trial “in the interest of justice.”

In response, the State argued that the photographs defeated appellee’s trial position that there was no photographic evidence that the complainant was even injured, and that the photographs were detrimental to appellee’s defense. The State noted that the photographs showed extensive redness to the complainant’s face and neck and established that appel-lee’s hands were around the complainant’s neck, causing blood to rush to her face. The State also noted that it was only obligated to prove that appellee used his hands in a manner capable of causing death or serious bodily injury.

The trial court granted appellee’s motion for new trial and subsequently issued a memorandum explaining its ruling. The trial court stated, in part:

The basis for [appellee’s] motion was the testimony of the complaining witness ... on cross-examination, wherein she stated unequivocally that photographs had been taken of her shortly after the assault to document her injuries. Timely request had been made by the defendant and an agreed discovery order signed for “all photographs taken, or used, in the course of the investigation of this case” to be produced to the defendant. However, the photographs referred to by [the complainant] were not disclosed by the State at any time prior to or during trial.
At the subsequent hearing ... the State produced ten (10) photos of the complaining witness showing marks on her neck, redness on her neck, face, ears and arms and possible'bruising of her arms. The photos appeared to show injuries consistent with her testimony at trial.
The Court does not believe that the failure of the State to produce and disclose the photos prior to trial was intentional or in bad faith. But in light of [the complainant] stating without hesitation on cross that - photographs were taken, it appears that the State inadvertently or negligently failed to make sufficient inquiry as to their existence.
What effect the photos would have had on the jury during the case in chief or punishment is open to speculation. The most important implication of their absence is the inability of the defense to evaluate the potential effect of this evidence pre-trial, thus effecting [sic] the ultimate decision of whether to enter into a plea agreement with the State or proceed to jury trial.
Because of the violation of the discovery order to produce the photographs, the defendant’s [motion for new trial] will be granted.

Standard of Review

The trial court’s decision to grant a new trial is measured by an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993); State v. Hart, 905 S.W.2d 690, 692 (Tex.App.-Houston [14th Dist.] 1995, pet. ref' d). A trial court abuses its discretion when the trial court’s decision is arbitrary or unreasonable. State v. Read, 965 S.W.2d 74, 77 (Tex.App.-Austin 1998, no pet.). The question is whether the trial court “acted without reference to any guiding rules or principles.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990)..

Brady Violation and Newly Discovered Evidence

In its first issue,- the State contends that the trial court erred in granting appellee’s motion for new trial on a ground not pleaded by appellee. The State argues that the trial court was limited to granting a new trial on the grounds pleaded by the appel-lee and could not, sua sponte, grant a new trial. The State further contends that the photographs .were not newly discovered evidence, that the photographs were known about during trial, that the photographs were “not of such a nature to bring about a different result,” and that “the evidence was cumulative and corroborative of the State’s case, and was not Brady evidence or impeaching of the complainant.” In its third issue, the State contends that the trial court erred in granting appellee’s motion for new trial based upon an alleged Brady violation because the photographs fully supported the complainant’s testimony and the injuries shown in the photographs are consistent with the complainant’s testimony. Appellee responds that the photographs “constitute newly discovered evidence” and that the trial court acted within its discretion in granting a new trial on this ground. We address the State’s first and third issues together.

First, .the State’s contention that the trial court granted a new trial on a ground not pleaded by appellee is unavailing. In our review of the trial court’s order granting appellee’s motion for new trial, we do not consider the statements of the trial court that relate to its rationale for granting the new trial. Tex.R.App. P. 21.8(b); State v. Reynolds, 893 S.W.2d 156, 159 (Tex.App.-Houston [1st Dist.] 1995, no pet.). Rather, we look to the grounds pleaded by the movant in the motion and determine whether any of these grounds provide a basis for granting the new trial. Reynolds, 893 S.W.2d at 159; State v. Blanco, 953 S.W.2d 799, 802 (Tex.App.-Corpus Christi 1997, pet. ref'd). While the State is correct in its assertion that a trial court does not have the authority to grant a motion for new trial sua sponte, and that there must be a timely motion made by the defendant, see State v. Aguilera, 165 S.W.3d 695, 699 n. 9 (Tex.Crim.App.2005), here, appellee timely filed a motion for new trial and specified multiple grounds on which he contended that the trial court should have granted a motion for new trial. Appellee’s motion for new trial clearly requested a new trial on grounds of legal and factual insufficiency and a Brady violation. Appellee’s motion for new trial can also be interpreted to include, as grounds for a new trial, newly discovered evidence and a violation of a discovery order. Accordingly, we overrule the State’s first issue.

In regard to the merits of appel-lee’s motion for new trial, we note, pursuant to Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), that the State has an affirmative duty to disclose evidence favorable and material to a defendant’s guilt or punishment under the due process clause of the Fourteenth Amendment. Thomas v. State, 841 S.W.2d 399, 407 (Tex.Crim.App.1992); Palmer v. State, 902 S.W.2d 561, 562-63 (Tex.App.-Houston [1st Dist.] 1995, no pet.). A defendant is entitled to a new trial if (1) the State fails to disclose evidence, (2) the evidence is favorable to the accused, and (3) the evidence creates a probability sufficient to undermine the confidence in the outcome of the proceeding. Thomas, 841 S.W.2d at 404.

Motions for new trial based upon newly discovered evidence are controlled by article 40.001 of the Texas Code of Criminal Procedure, which provides that “[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” Tex. Code Crim. PROC. Ann. art 40.001 (Vernon Supp.2004-2005); Keeter v. State, 74 S.W.3d 31, 36 (Tex.Crim.App.2002). Texas courts have used a four-part test in determining whether a trial court may grant a new trial based on newly discovered evidence: (1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant’s failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is material and would probably cause a different result in another trial. Keeter, 74 S.W.3d at 36-37; Moore v. State, 882 S.W.2d 844, 849 (Tex.Crim.App.1994); Reynolds, 893 S.W.2d at 159.

In regard to the alleged Brady violation, when the withheld evidence is disclosed during trial, the inquiry is whether the defendant was prejudiced by the tardy disclosure. Little v. State, 991 S.W.2d 864, 867 (Tex.Crim.App.1999); Palmer, 902 S.W.2d at 565. A defendant’s failure to request a continuance indicates that the tardy disclosure of the evidence was not prejudicial. Davis v. State, 992 S.W.2d 8, 12 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Here, once the complainant stated that there had been photographs taken of her injuries at the jail with the jail camera and that the jail should have the pictures, appellee did not request a continuance or take any additional action to obtain and review the photographs. Instead, appellee waited until after the jury found him guilty and then, for the first time in his motion for new trial, complained to the trial court about the State’s tardy disclosure of the existence of the photographs. By waiting to raise this issue for the first time in his motion for new trial, appellee either waived any Brady error or failed to show that any Brady error prejudiced him. Id. (finding defendant who did not request continuance after State’s tardy disclosure of evidence concerning alleged misconduct of arresting officer failed to show' he was prejudiced by tardy disclosure). Thus, we hold that the trial court would have abused its discretion in granting appellee’s motion for new trial on the grounds of an alleged Brady violation.

Similarly, in regard to the newly discovered evidence ground, in his motion for new trial appellee concedes that he became aware of the photographs during his cross-examination of the complainant, and appellee’s failure to request a continuance waives any complaint regarding this “newly discovered evidénce” or the State’s violation of a discovery order. See Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.) (stating that “failure to request continuance waives any Brady violation, as well as any violation of discovery order”); see also Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App.1982) (stating.“failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise”). Furthermore, appellee has failed to show that this evidence was unknown or unavailable to him at the time of his trial or that his failure to discover or obtain the photographs was not due to a lack of diligence. Appellee contends that the record merely reflected “the possibility of the existence of the photographs in issue.” However, although the complainant initially stated there were no photographs of her injuries, she later unequivocally stated that there were photographs of her injuries and that the photographs were taken with the jail’s' camera. Finally, as noted by the trial court, the photographs were consistent with the complainant’s testimony and were merely cumulative and were corroborative of the evidence presented to the jury. Accordingly, we hold that the trial court would have abused its discretion in granting appellee’s motion for new trial on. the grounds of newly discovered evidence and the violation of a discovery order.

We sustain the State’s third issue.

Legal and Factual Sufficiency

In its second issue, the State contends that the trial court erred in granting ap-pellee’s motion for new trial because the evidence was legally and factually.sufficient to sustain appellee’s conviction,

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id. We review the factual sufficiency of the evidence by examining all of the evidence neutrally, not in the light most favorable to the verdict, and we will set aside the verdict “only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004); see also Johnson v. State, 23 S.W.3d 1, 6 (Tex.Crim.App.2000). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986).

A person commits the offense of aggravated assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to another whom the person knows is a public servant while the public servant is lawfully discharging an official duty, and the person uses or exhibits a deadly weapon during the commission of the assault on the public servant. Tex. Pen.Code Ann. § 22.02 (Vernon Supp. 2004-2005).

Appellee does not cite any evidence contrary to the jury’s verdict. Here, the complainant testified that, while she was working as a jailer at the Texas City Jail, appellee picked her up, threw her into a jail cell, pinned her against the wall, choked her to the point that she was getting lightheaded and “started not to breathe,” rubbed himself against her, and moved his hands across her breasts and crotch. Furthermore, Rodriguez, an eyewitness to the incident, testified that ap-pellee grabbed the complainant, threw her into a wall, and choked and fondled her. Rodriguez specifically noted that appellee had a good grip around the complainant and that the complainant could hardly speak and was gasping for air, and Rodriguez was afraid for the complainant’s life. During the assault, appellee told the complainant “I could kill you bitch,” and after the assault, appellee told Rodriguez “I was going to rape that bitch.”

Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant committed the offense of aggravated assault on a public servant. Thus, we hold that the evidence was legally sufficient to support appellant’s conviction. Additionally, viewing all of the evidence neutrally, we conclude that the evidence was not so weak that the verdict was clearly wrong or manifestly unjust and that the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met. We hold that the evidence was factually sufficient to support appellant’s conviction. Accordingly, we further hold that the trial court would have abused its discretion in granting appellee’s motion for new trial on the ground that the evidence was legally and factually insufficient to support appel-lee’s conviction.

We sustain the State’s second issue.

Conclusion

Because we conclude that the trial court would have abused its discretion in granting appellee’s motion for new trial on the grounds of an alleged Brady violation, newly discovered evidence, and the violation of a discovery order, or legal and factual insufficiency, we hold that the trial court abused its discretion in granting ap-pellee’s motion for new trial. We vacate the trial court’s order granting appellee’s motion for new trial and remand the cause to the district court for entry of judgment consistent with the jury’s verdict.

      . Tex. Pen.Code Ann. § 22.02 (Vernon Supp. 2004-2005).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . The State may appeal a trial court’s order granting a new trial in a criminal case. Tex. Code'Crim. Proc. Ann. art. 44.01(a)(3) (Vernon Supp.2004-2005).

      . Motions for new trials based on the grounds of newly discovered evidence are not favored by the courts and are viewed with great caution. Reynolds, 893 S.W.2d at 159.

      . Additionally, the photographs defeat appel-lee’s position that the complainant was not injured in the assault. Appellee does not make any argument explaining how the photographs are material and would probably cause a different result in another' trial. Rather, in his brief, appellee simply states that "the newly discovered photographs' effect on the jury during the guilt or punishment can never be known.”

      . While we address the legal sufficiency point raised in appellee's motion, we recognize that a new trial would not be the appropriate remedy if the evidence is in fact legally insufficient to support appellee's conviction.


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice.

license: Public Domain

text:
    Tam Pho VONG, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-01143-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 27, 2005.

      Winifred E. Akins, Houston, TX, for Appellant.
    Peyton Z. Peebles, III, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Tam Pho Vong, was charged by indictment with possession of between one and four grams of cocaine, enhanced by a prior felony conviction for theft of a firearm. See Tex. Health & Saeetv Code Ann. §§ 481.102(3), .112 (Vernon 2003 & Supp.2004-2005); Tex. Pen.Code Ann. §§ 31.03(a)-(b), (e)(4)(C), 12.42(a)(3) (Vernon Supp.2004-2005). He pleaded not guilty to the primary offense and not true to the enhancement. A jury found appellant guilty as charged, found the enhancement paragraph true, and assessed punishment at 10 years’ confinement and a $1,000 fine.

In two issues, appellant contends that, during the punishment stage, (1) the State’s evidence was legally insufficient to support the jury’s finding of true to the enhancement and (2) he received ineffective assistance of counsel.

We affirm.

Background

Appellant does not challenge his conviction in the primary offense; rather, he solely challenges the enhancement.

The enhancement stems from an incident in 1993, when appellant stole a car that contained a stolen firearm. Appellant was charged with auto theft under cause number 673402 and separately charged with theft of a firearm under cause number 683158. Appellant pleaded guilty in both causes, and in 1994 he was given six years’ community supervision in each cause, to run concurrently.

In 1996, appellant violated the terms of his community supervision. Appellant’s community supervision was revoked and he was assessed six years’ confinement. During the trial for the present offense, the State entered into evidence the order revoking probation for the auto theft, leaving open the question of whether probation had also been revoked for the stolen firearm.

In the present case, appellant was charged with possession of between one and four grams of cocaine. The State sought to enhance his sentence by proof of a prior felony conviction for theft of a firearm. To do this, the State had to show that community supervision had been revoked on cause number 683158, the theft of a firearm. Rather than offering the order revoking community supervision for the theft of the firearm, the State took a more tortured path. During the punishment phase, the State offered into evidence (1) appellant’s judgment and sentence for the theft of a firearm; (2) appellant’s judgment and sentence for auto theft; (3) an order revoking appellant’s community supervision for the auto theft; and (4) a jail card from the Texas Department of Corrections recording appellant’s incarceration. The jail card indicates that appellant was incarcerated for both the auto theft and the theft of the firearm. The only testimonial evidence suggesting community supervision had been revoked for the theft of the firearm was during direct examination of appellant by the defense attorney, where defendant admitted to “signing for the time.”

We are now asked to decide whether (1) proof of revocation of community supervision for a concurrently running offense, (2) a notation on a jail card indicating community supervision had been revoked for both offenses, and (3) testimony that the appellant “signed for the time” is sufficient evidence to establish a final conviction of appellant’s theft of a firearm for the purposes of enhancement and whether appellant’s counsel at trial was ineffective.

Legal Sufficiency

Appellant argues that the State’s evidence was legally insufficient to “support the jury’s finding of ‘true’ to the enhancement allegation because the conviction alleged for enhancement was not a final conviction.”

A. Standard of Review

A legal sufficiency challenge requires us to determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000).

Section 12.42(a)(3) of the Penal Code provides for enhanced punishment of second felony offenses. Tex. Pen.Code Ann. § 12.42(a)(3) (Vernon 2003). To invoke this statute, the State bears the burden of showing that a prior conviction is final. Johnson v. State, 784 S.W.2d 413, 414 (Tex.Crim.App.1990). A probated sentence is not a final conviction for enhancement purposes unless community supervision has been revoked. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App.1992). If the State establishes that a defendant has been previously convicted and the record is silent on whether the conviction is final, this Court will presume that the conviction is final. Johnson, 784 S.W.2d at 414.

B. Analysis

As this case turns on the evidence provided by the State to meet its burden, it is important to review exactly what evidence was presented at trial to establish that the judgment was final. The State offered the judgment and sentence for appellant’s conviction for auto theft as well as the judgment and sentence for his conviction of theft of a firearm. The trial court also admitted into evidence the order revoking community supervision for the auto theft. The final piece of physical evidence was a jail card indicating that appellant committed the offenses of auto theft and theft of a firearm and appellant was “sent 6 yrs tdc 4-8-96” as to both offenses.

The oral testimony consisted of testimony from Deputy Randy Schield and appellant. Deputy Schield testified that appellant was the person who committed the previous crimes, identifying him by fingerprints from the jail card. He also testified that appellant’s community supervision was revoked for the auto theft offense. Appellant testified that he was convicted of the auto theft and that he “signed for the time” on the theft of a gun offense. “Signing for the time” was never defined by either party, leaving it to the jury to decide whether this meant that he was simply convicted or that he served time for the offense.

In Sanders v. State, we indicated that a jail card could provide proof that community supervision had been revoked, finalizing the judgment. Sanders v. State, 787 S.W.2d 485, 488-40 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). In that case, there were three jail cards; however, each jail card had numerous discrepancies between them and the judgment. Id. at 439-40. We held that because of the discrepancies, the jail cards did not contain sufficient rehable information to prove that the person was finally convicted. Id. at 440.

Here, there is only one jail card, and there are no discrepancies between it and the judgment. The appellant was identified as the one who committed the crimes listed on the jail card, and the jail card notes that his community supervision was revoked for two offenses. The order revoking community supervision for the auto theft offense was provided. Additionally, appellant admitted to “signing for the time” for the theft of a firearm, a term that was never defined for the jury. We also note that the jury was never given an indication that community supervision was not revoked for the theft of the firearm.

While we do not find this to be the preferred, the most efficient, or even the easiest method for proving a final conviction, we are mindful of our standard of review. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that community supervision had been revoked and that the judgment was final.

We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In his second issue, appellant contends that he was denied effective assistance of counsel at punishment because his counsel “failed to object to the State’s use of a probated sentence to enhance punishment.”

A. Standard of Review

. Appellant was entitled to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const, art. I, § 10. In considering whether counsel’s assistance was so defective that a reversal of the conviction is warranted, we follow the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App.1999). Under the Strickland standard, we determine (1) whether counsel’s performance was deficient and (2) whether, but for counsel’s deficient performance, the result of the proceeding would have been different. Hernandez, 988 S.W.2d at 770 n. 3. The Strickland standard applies to both guilt and punishment phases. Id. at 772.

To prevail, appellant must show ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). In addition, appellant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” or might reasonably be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

As the reviewing court, we consider the adequacy of assistance as viewed at the time of trial, not through hindsight. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App.1983). We cannot speculate as to the reasons why trial counsel behaved as he did; rather, we must be highly deferential and presume that counsel’s actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). The Court of Criminal Appeals has held that, normally, trial counsel should be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003). Otherwise, “the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Id. at 110-11 (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001)).

B. Analysis

As to the first prong of the Strickland standard, appellant must show errors “firmly founded in the record” to support his claim of deficient performance. Thompson, 9 S.W.3d at 813. The State argues that appellant did not bring forth an adequate record to allow us to address these complaints. Appellant argues that such record of explanation is not warranted when, as here, no trial strategy could explain counsel’s failure “to object to the State’s use of a probated sentence to enhance punishment.” See Rylander, 101 S.W.3d at 111 (Meyers, J., dissenting).

Having determined that the jury could have found beyond a reasonable doubt that appellant’s community supervision was revoked and that his theft conviction was final, we conclude that the State did not use a probated sentence to enhance punishment and thus there is no error on which to base appellant’s claim of ineffectiveness.

In an apparent sub-issue, appellant complains that his counsel was ineffective for failing to request that the range of punishment be submitted as a third degree felony and not enhanced to a second degree felony. However, the record shows that defense counsel did raise this issue upon submission of the jury charge as well as in closing arguments. During discussion of the jury charge, defense counsel proposed the following:

[Defense Counsel]: [Appellant] would ask that the Court insert the language that, Other [sic] evidence of crimes committed by the accused have been admitted before you and can be taken into account when assessing the appropriate punishment within a range of no more than two years—excuse me, within a range of no less than 2 years in the Texas Department of Corrections and no more than 10 years in the Texas Department of Corrections.
However, the enhancement paragraph of the indictment which alleges theft of a firearm is the crime, that if found to be, quote, true can be used to increase the range of the accused [sic] punishment from no less than 2 years to no more than 20 years.
[THE COURT]: I am denying your request.

Moreover, in his closing statement, defense counsel argued, “before you can consider 20 years ... you have to believe beyond a reasonable doubt that the theft of the firearm had been committed and is a proper judgment.”

Appellant has not presented an error upon which we can base appellant’s claim of ineffectiveness.

We conclude that appellant has not met his burden to show ineffective assistance of counsel by a preponderance of the evidence. See Thompson, 9 S.W.3d at 813. Accordingly, appellant’s second issue is overruled.

CONCLUSION

We affirm the judgment of the trial court.


text:
    Felix ONWUKWE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-05-00031-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 17, 2005.

      james M. Ardoin III, Houston, TX, for Appellant.
    Kevin P. Keating, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
   OPINION

TERRY JENNINGS, Justice.

A jury found appellant, Felix Onwukwe, guilty of the offense of theft of property worth more than $50 but less than $500 After assessing his punishment at confinement for 180 days and a fine of $200, the trial court suspended the sentence and placed appellant on community supervision for two years. In two issues, appellant contends that the trial court erred in admitting demonstrative evidence and that the evidence was factually insufficient to support his conviction. We affirm.

Factual and Procedural Background

Jeremy Moye, a Wal-Mart store loss prevention associate, testified that, on or about March 29, 2004 at approximately 2:00 p.m., he saw appellant place five watches into a shopping cart while shopping at a Wal-Mart store. Moye found appellant’s positioning of the items in the basket to be highly suspicious, and he, along with his co-worker, Kathy Lucas, decided to monitor appellant. As Moye and Lucas followed and watched appellant, appellant attempted to conceal the watches within a vacuum cleaner box. When the watches would not fit into the vacuum cleaner box, appellant returned the box to its original location. Appellant then selected a “Wind Tower” fan box, cut the packaging tape to open the box, concealed the watches inside, and used Wal-Mart tape from a store shelf to reseal the “Wind Tower” box. Appellant proceeded to the checkout line and paid for the ‘Wind Tower” fan and some produce and shirts that he had selected while shopping. After appellant exited the store, Moye approached appellant and asked him to return to the store. Moye lead appellant to the loss prevention office where Moye opened the Wind Tower” box and recovered the watches and a pair of reading glasses. At this point, appellant asked to pay for the merchandise. Moye reported the incident to the Houston Police Department, and appellant was arrested for the theft of five watches, a pair of glasses, and the tape used to reseal the box.

Lucas, a loss prevention trainee, testified .that she, along with Moye, saw appellant select five watches from the jewelry department. Moye instructed Lucas that, in his experience, the multiple selection of the same item can often be an indication of an intent to steal. Moye and Lucas followed appellant as he proceeded to the domestics section, opened up a vacuum cleaner box, circled the department, and then returned the box to its place. Appellant next selected a Wind Tower” fan box, cut the box open with a razor, lifted the flap, and put the watches inside the fan box. Appellant sealed the box with tape and proceeded to the register to pay for the “Wind Tower” fan, some shirts, and produce. After appellant exited the store with the watches concealed in the fan box, Lucas and Moye approached appellant and asked him to return to the store. Inside the loss prevention office, Moye opened the box and “poured out the fan and the watches fell along with it and the glasses.” Appellant then asked if he could pay for the merchandise. After Moye called the Houston Police Department to report the incident, Lucas refunded appellant’s purchase of the fan and shirts.

Appellant testified that he drove to the Wal-Mart store on his lunch break in order to purchase fruit, and, while there, he also decided to purchase some clothing and a fan. As appellant was leaving the store, an alarm sounded and a loss prevention officer stopped appellant and asked to investigate what was setting off the alarm. Appellant testified that he and Moye entered a small room where Moye, with appellant’s back turned to him, searched the contents of appellant’s cart and began writing a report of the incident. Moye produced five watches in a blue Wal-Mart bag, took pictures of the merchandise as well as appellant, and called the Houston Police Department. As police officers arrested appellant, appellant heard Moye state that, “he was going to get all these foreigners one at a time in this store.” Appellant stated that he did not see Moye remove the watches from the fan box, and he denied stealing any merchandise.

Demonstrative Evidence

In his first issue, appellant argues that the trial court erred in admitting demonstrative evidence as it should not have allowed the State to present an empty ceramic heater box with dimensions different from the Wind Tower” fan box allegedly used in the commission of the theft. Appellant asserts that (1) an exact replica of the “Wind Tower” fan box was available to the State; (2) the probative value of the empty ceramic heater box was too weak to outweigh the prejudice to appellant; and (3) the trial court failed to fully and properly instruct the jury of the limitations of the evidence.

Initially, we note that it is within the trial court’s discretion to admit into evidence a similar type instrument used in the commission of an offense if it is relevant and material to an issue in the case, is not overly inflammatory, and the original, if available, would be admissible. Simmons v. State, 622 S.W.2d 111, 113 (Tex.Crim.App.1981); Fletcher v. State, 902 S.W.2d 165, 166 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). The lack of positive identification of an instrumentality used during the commission of an offense affects its weight rather than its admissibility. Simmons, 622 S.W.2d at 113-14; Fletcher, 902 S.W.2d at 166-67. If the weapon or instrumentality depicted as a replica is not an exact replica or duplicate, but is merely “similar to” the original, then its admissibility is subject to an abuse of discretion. Simmons, 622 S.W.2d at 111, 113. An abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).

Availability of Original

Relying on Simmons, appellant asserts that “a non-exact replica is admissible only if. the original is not available.” However, the Texas Rules of Evidence allow parties to present all evidence that is relevant and material to an issue in the trial court unless its probative value is outweighed by the danger of unfair prejudice. Tex.R. Evid. 402, 403. Moreover, Simmons does not mandate that the original instrument used in the offense be “unavailable” as a prerequisite to the admissibility of an object that is not an exact replica or duplicate of the original. Rather, Simmons merely requires that the “the original, if available, would be admissible.” 622 S.W.2d at 113. To the extent that other intermediate courts of appeals have attributed such an “unavailability” requirement to Simmons, we note our respectful disagreement. See Devis v. State, 18 S.W.3d 777, 785 (Tex.App.-San Antonio 2000, no pet.); Orrick v. State, 36 S.W.3d 622, 626 (Tex.App.-Fort Worth 2000, no pet.); Miskis v. State, 756 S.W.2d 350, 352 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Unfair Prejudice

Appellant next argues that the “probative value of the [ceramic heater box] ... does not outweigh the prejudicial effect its use had on the jury” because the ceramic heater box had different dimensions than the box allegedly used in the commission of the offense and, as opposed to the box allegedly used in the commission of the theft, the ceramic heater box was empty. Appellant asserts that the State’s use of the empty ceramic heater box implied that appellant could have easily slipped the stolen items into the box. Appellant also complains that, during the trial, the State referred to the ceramic heater box as the actual box used in the commission of the crime.

Initially, we note that the test propounded by appellant differs from the standard mandated by the Texas Rules of Evidence, which provides that all relevant evidence may be admitted unless its probative value is “substantially outweighed by the danger of unfair prejudice.” Tex.R. Evid. 408 (emphasis added). Demonstrative evidence is admissible at trial of a criminal case if it tends to resolve some issue in the case and is relevant. Simmons, 622 S.W.2d at 113. Additionally, an article sought to be exhibited to the jury must be shown to be properly identified, as against any idea of speculation, conjecture, or presumption of what the exhibit represents. Id.

Here, the state noted that it was using the ceramic heater box only for the purpose of demonstrating the approximate dimensions of the box allegedly used in the commission of the offense. Additionally, the trial court noted, in front of the jury, that the box “was offered just as [a] similar box.” The testimony of the witnesses made clear that the actual box used in the commission of the offense had slightly varying dimensions and was not empty. The record also reveals that the jury was able to view the dimensions of the replica “Wind Tower” box presented by appellant.

Again, “[demonstrative evidence is admissible if it tends ... to shed light on the subject at hand.” Simmons, 622 S.W.2d at 113. The exhibit was used to assist the jury in identifying the manner in which appellant committed the theft. The record does not demonstrate that the ceramic heater box was overly inflammatory; nor is this a situation where any distinguishing characteristics of the replica, when compared to that of the original instrumentality allegedly used in the commission of the offense, significantly affected the probative value of the exhibited box. See Simmons, 622 S.W.2d at 113. Accordingly, we hold that the trial court did not abuse its discretion in concluding that the probative value of the ceramic heater box was not substantially outweighed by the danger of unfair prejudice.

Failure to Properly Instruct Jury

Finally, although appellant contends that he was entitled to an instruction explaining to the jury that both the photograph of a vacuum box and the ceramic heater box introduced into evidence were admitted for limited purposes, appellant did not ask for any such limiting instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Tex.R. Evid. 105(a). However, “in the absence of such request, the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.” Id; Hammock v. State, 46 S.W.3d 889, 893 (Tex.Crim.App.2001). Here, appellant did not ask the trial court to give a limiting instruction and, therefore, has waived this complaint on appeal. Tex.R. Evid. 105(a).

We hold that the trial court did not abuse its discretion in admitting the demonstrative evidence. Accordingly, we overrule appellant’s first issue.

Factual Sufficiency

In his second issue, appellant argues that the evidence was factually insufficient to support his conviction because the State’s witnesses were “not credible.”

In our factual sufficiency review, we view all of the evidence neutrally, and we will set aside the verdict “only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004). When undertaking a factual sufficiency review, we may not merely substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Merckling v. Curtis, 911 S.W.2d 759, 763 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

A person commits the class B misdemeanor offense of theft if he unlawfully appropriates property valued between $50 and $500 with the intent to deprive the owner of the property. Tex. Pen.Code Ann. § 31.03(a), (e)(2) (Vernon Supp.2004-2005).

Here, two Wal-Mart employees testified that they saw appellant attempt to conceal merchandise in the “Wind Tower” fan box and then leave the store without paying for the concealed merchandise. They testified that they lead appellant to the loss prevention office and recovered 5 watches and a pair of glasses from the ‘Wind Tower” box. Appellant testified that he “did not stuff anything into the fan box.” Appellant also presented a replica of the fan box that he had bought at Wal-Mart on the day of the theft, and he asked Moye to place five watches and a pair of glasses into the box. Moye admitted that it would be impossible to do so without removing the styrofoam from the fan box, and although both Lucas and Moye testified that they did not take their eyes off appellant after he placed the watches in his cart, neither saw appellant remove styrofoam from the fan box before placing the items into the box. Further, appellant asserts that the jury should not have given the testimony of the State’s witnesses a great amount of weight because Moye and Lucas each made contradictory statements and failed to mention in their reports that appellant asked to pay for the watches or that styrofoam had been removed from the fan box.

A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Moreover, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and the jury may believe or disbelieve all or any part of a witness’s testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).

We conclude that the verdict is not clearly wrong and that the evidence is not such that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction.

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . Tex. Pen.Code Ann. § 31.03(a),(e)(2)(A)(i) (Vernon Supp.2004-2005).


author: JANE BLAND, Justice.

text:
    Jonathan N. McDONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 01-05-00065-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 17, 2005.

      Richard Edward “Dick” Wheelan, Houston, for appellant.
    Jessica Akins McDonald, Assistant District Attorney, Houston, for appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted appellant Jonathan N. McDonald of aggravated sexual assault of a child and assessed punishment at seven years’ confinement. On appeal, McDonald asserts that (1) the trial court erred in permitting the State to ask an improper commitment question during voir dire, and (2) the State made improper remarks to the jury during closing argument at the guilt-innocence phase of the trial. We affirm.

Facts

The complainant in this case is a twelve-year-old boy. McDonald’s companion, Carlos Ledesma, was employed with the complainant’s mother at the Red Top Cab Company. When McDonald and Ledesma lost their video store business, the complainant’s mother invited them to stay with her family. The complainant testified that while McDonald was living with his family, McDonald wrestled with him and grabbed him in his private area on two separate occasions.

After McDonald and Ledesma moved into their own apartment, the complainant stayed with them during Easter weekend of 2004. McDonald and Ledesma took the complainant to a bar and gave him a shot of alcohol to drink. Later, McDonald and Ledesma asked the complainant to come to their bed, and McDonald began touching the complainant in his private area. One of the men removed the complainant’s clothes, and McDonald then pressured the complainant to insert his penis into McDonald’s anus. The encounter lasted approximately twenty minutes.

The second incident occurred while the complainant was taking a shower. McDonald got into the shower with the complainant and again pressured the complainant to insert his penis into McDonald’s anus. McDonald and the complainant were in the shower for approximately five minutes and then moved to the bed where McDonald again had the complainant insert his penis into McDonald’s anus. The entire encounter lasted approximately fifteen minutes.

Upon returning home at the end of the weekend, the complainant did not tell his mother what had happened because he did not want to get the men into trouble. The complainant did, however, confide in a friend of the family. The complainant’s mother eventually learned what had happened and immediately reported the incident to the Baytown Police Department. The police later arrested McDonald.

Analysis

Commitment Question

In his first issue, McDonald contends the trial court erred in allowing the State, over his objection, to pose an improper commitment question to the venire panel. At the beginning of voir dire, the State informed the prospective jurors that the case involved aggravated sexual assault, which is “penetrating the mouth, sexual organ or anus of a child under 14[, o]r the other way around, causing the child to penetrate or contact the mouth, sexual organ or anus of the defendant.” The State then discussed with the venire members the “one witness rule” and the concept of “delayed outcry” without any objection from the defense. Thereafter, the following exchange occurred:

MR. WEISSFISCH: Okay. How many people — let me just ask you, each one of you, real quickly. Do you think it’s likely that a child will make up allegations of sexual abuse or unlikely? We’re talking about a child under 14. What do you think?
MR. SCOTT: I will object to the form of the question. Obviously, trying to lock the potential jurors into a particular situation.
THE COURT: Why don’t you restate the question.
MR. WEISSFISCH: Just your general feeling. Do you feel that children likely will make up sexual abuse or unlikely? MR. SCOTT: Please the Court. Same question. I object to it, locking the jurors into a particular situation.
THE COURT: I’ll overrule it.

The State proceeded to ask each prospective juror individually whether he or she thought it was likely or unlikely that children would make up sexual abuse.

McDonald contends this question constitutes an improper commitment question. See Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App.2001). According to McDonald, the State’s question was tantamount to asking the venire members if they were likely to believe the one witness whom the State would call to testify.

Questions during voir dire are proper if they seek to discover a juror’s views on an issue applicable to the case. Barajas v. State, 98 S.W.3d 36, 38 (Tex.Crim.App.2002) (citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985)). Voir dire examination permits the parties to assess the desirability of prospective jurors and to select a “competent, fair, impartial, and unprejudiced jury[.]” Staley v. State, 887 S.W.2d 885, 896 (Tex.Crim.App.1994) (citation omitted). Because a trial court has broad discretion over the process of selecting a jury, an appellate court should not disturb a trial court’s ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Barajas, 93 S.W.3d at 38.

An attorney may not, however, “attempt to bind or commit a venire member to a verdict based on a hypothetical set of facts.” Lydia v. State, 109 S.W.3d 495, 497 (Tex.Crim.App.2003). “Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” Standefer, 59 S.W.3d at 179. Although these types of questions generally “elicit a ‘yes’ or ‘no’ answer, an open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making.” Id. at 180. Commitment questions that attempt to bind prospective jurors to a position, using a hypothetical or otherwise, are improper and “serve no purpose other than to commit the jury to a specific set of facts before the presentation of any evidence at trial.” Lydia, 109 S.W.3d at 497.

In Standefer, the Texas Court of Criminal Appeals articulated a three-prong test for determining whether a voir dire question calls for an improper commitment. Standefer, 59 S.W.3d at 179-83. The first prong requires the trial court to decide whether a particular question is a commitment question. Id. at 179-81. If the court determines that a particular question is a commitment question, the second prong requires the court to consider whether the question leads to a valid challenge for cause. Id. at 181-82. If the question meets the “challenge for cause” requirement, the third prong requires the court to determine whether the question includes only those facts necessary to test whether a prospective juror is challengea-ble for cause. Id. at 182-83.

The question at issue in the present case is: “Do you feel that children likely will make up sexual abuse or unlikely?” In considering the first prong of the Stande-fer test, we conclude that this is not a commitment question. The question does not ask the venire members to resolve, or to refrain from resolving, an issue a certain way after being informed of a particular set of facts. See Standefer, 59 S.W.3d at 179. Rather, the question merely asks the prospective jurors whether they think it is likely or unlikely that children generally will fabricate allegations of sexual abuse. See Vrba v. State, 151 S.W.3d 676, 678-79 (Tex.App.-Waco 2004, pet. ref'd) (holding that question “What are some signs that somebody is intoxicated?” is not commitment question because “it seeks only the jurors’ general views on signs of intoxication”). “An improper commitment question attempts to create a bias or prejudice in the venireman before he has heard the evidence, whereas a proper voir dire question attempts to discover a venireman’s preexisting bias or prejudice.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim.App.2005). Here, the State’s question attempts to discover whether any of the prospective jurors harbor a pre-exist-ing bias or prejudice concerning the likelihood of children in general fabricating sexual abuse allegations. The question does not ask the prospective jurors to commit to any particular set of facts — let alone the facts of this ease — and thus it is not an improper attempt to bind the jurors under Standefer. Accordingly, we overrule McDonald’s first issue.

Improper Jury Argument

In his second and third issues, McDonald contends two portions of the State’s closing argument during the guilt-innocence phase of trial were improper and violated his right to a fair trial. McDonald first contends the following jury argument misrepresented Texas law: “Then what other evidence might we want? What about those porno tapes? Well, we can’t get those. We can’t get a search warrant to go in his house and get the porno tapes. Porno tapes aren’t illegal to have.” According to McDonald, this statement misrepresents Texas law because the State could have seized the tapes if they had been instruments used in the commission of the crime.

McDonald, however, did not object to this argument. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex.R.App. P. 33.1(a)(1). “[A] defendant’s failure to object to a jury argument ... forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996); see also Bias v. State, 937 S.W.2d 141, 144 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (holding that there is no issue presented for review when no objection is made, even though jury argument might be incurably harmful).

Citing to Burke v. State, 652 S.W.2d 788 (Tex.Crim.App.1983), McDonald asserts that the State’s jury argument requires reversal because it is “manifestly improper.” The Texas Court of Criminal Appeals, however, recently rejected a similar argument in Threadgill v. State, 146 S.W.3d 654 (Tex.Crim.App.2004). In Threadgill, the appellant relied on Janecka v. State, which the Texas Court of Criminal Appeals decided after Cockrell, and in which the court stated, “ ‘[w]ithout timely and specific objections, the question of allegedly improper closing arguments is not preserved for review unless manifestly improper.’” Threadgill, 146 S.W.3d at 670 (quoting Janecka v. State, 937 S.W.2d 456, 474 (Tex.Crim.App.1996)). The Threadgill court observed that “[i]f the Court had intended in Janec-ka to reinstate the pre-Cockrell rule just five days after the mandate issued in Cock-rell, it would have expressly stated so. This Court has followed Cockrell many times.” Id. (citation omitted). After noting that the statement in Janecka was mere dictum, the Court of Criminal Appeals announced that “Cockrell remains the law.” Id. Accordingly, we follow Cock-rell and hold that, by failing to object, McDonald forfeited his right to complain about the State’s jury argument on appeal.

In his third issue, McDonald contends the following portion of the State’s closing argument was improper, inflammatory, and prejudicial:

Sometimes one or two of you may try to take the easy way out. You get an idea. I’ve heard it happen before, seen it happen before.
We’re going to say not guilty, let the guy go. But we’ll tell that prosecutor, hey, we believe the child. We just didn’t think it was beyond a reasonable doubt. And could you please tell him we believe him so he doesn’t feel bad.
Don’t do that. You want to come out here and tell me afterwards when we talk that, hey, we thought he was a big liar, he made up the whole thing, that’s why we found him not guilty. That’s fine. That’s what you’re supposed to do. You think he’s lying, let this guy go.
Don’t say, we knew it happened, we believed it happened, we believed the child. But we didn’t think it was beyond a reasonable doubt.
Because if you believe it happened, that means the evidence, the testimony that you heard which is evidence is beyond a reasonable doubt. It was strong enough to convince you, to make you believe it happened. So that is beyond a reasonable doubt. That’s what it means. Okay.
You either say, [complainant], we don’t believe you. We think you’re a liar. We don’t care what you’ve been through. We don t care about all of you. Just get out of here, we don’t want to see you again.
Or you can say we appreciate you having the courage to come forth. We’re sorry for everything you’ve been through. And we do believe you and we’re going to return a verdict that does justice in this case.

McDonald contends this argument was improper because it inflamed the jurors’ emotions and “beseech[ed] them to render a verdict based on [the] emotional effect it would have on a young boy rather than on the evidence.”

Again, however, McDonald failed to object to this jury argument. In his brief, McDonald acknowledges that he failed to object, but asserts that the failure to object is not fatal when the State’s argument is so prejudicial that no instruction could cure the harm.

The Texas Court of Criminal Appeals rejected this argument in Cockrell. Specifically, the court held as follows:

In this case, appellant’s complaint, on appeal is that the prosecutor’s ... arguments exceeded the permissible, bounds of jury argument and that the error in these arguments could not have been cured by an instruction to disregard. However, a defendant’s “right” not to be subjected to incurable erroneous jury arguments is one of those rights that is forfeited by a failure to insist upon it. Therefore, we hold a defendant’s failure to object to a jury argument ... forfeits his right to complain about the argument on appeal. Any prior cases to the contrary ... are expressly overruled. Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.

Cockrell, 933 S.W.2d at 89 (emphasis added) (internal citations omitted); accord Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App.2002) (expressly declining to overrule Cockrell although appellant asserted State’s reference to him as “despicable piece of human trash” in closing argument was so inflammatory and prejudicial that it could not be cured by instruction to disregard and thus it would be “pointless” to require appellant to object to preserve r error); Boston v. State, 965 S.W.2d 546, 549 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (relying on Cockrell to reject appellant’s assertion that objection was not necessary to preserve error because State’s argument was so prejudicial that instruction to disregard could not have cured harm).

Therefore, we hold that McDonald forfeited his right to complain about the State’s closing argument by failing to object at trial. Accordingly, we overrule McDonald’s second and third issues.

Conclusion

We conclude that McDonald’s complaints on appeal are without merit and therefore affirm the judgment of the trial court.

      . A prospective juror may be subject to challenge for cause if he indicates that he could not convict the defendant based on the testimony of one witness, even though he believes that witness beyond a reasonable doubt. Lee v. State, 176 S.W.3d 452, 460 (Tex.App.-Houston [1st Dist.] 2004, pet. granted) (citing Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App.1995)).

      . "Delayed outcry” means that in some cases, victims of sexual abuse do not reveal the abuse to anyone until much later. See Gurka v. State, 82 S.W.3d 416, 419-20 (Tex.App.Austin 2002, pet. ref'd) (citing testimony regarding reasons for delayed outcry by young victims of sexual abuse).

      . We note that in Standefer, the Texas Court of Criminal Appeals approved a question similar to the one at bar. See Standefer v. State, 59 S.W.3d 177, 183 n. 28 (Tex.Crim.App.2001) (observing that “a question in a child-molestation case which inquires whether the juror believes that no child could/would lie about such a thing” is proper) (internal quotation omitted).


author: SHERRY RADACK, Chief Justice.

text:
    Gilbert Garcia CAMPOS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00601-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 23, 2005.

      Dionne S. Press, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, William J. Del-more, III, Chief Prosecutor, Appellate Division, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

A jury convicted appellant, Gilbert Garcia Campos, of robbery and assessed punishment at 47 years’ confinement. Appellant pled true to the enhancement paragraphs in the indictment. In four points of error, appellant contends the trial court improperly admitted four out-of-court statements into evidence as excited utterances, which he claims violated both (1) the Confrontation Clause of the Sixth Amendment to the United States Constitution and (2) the Texas Rules of Evidence. We affirm.

BACKGROUND

On July 14, 2003, appellant bound, gagged, and robbed the complainant at an apartment complex in Harris County, Texas. Approximately 30 minutes after appellant left the apartment, the complainant freed herself and walked to the apartment of her neighbor, Paul Carrizales, to ask for help. At this time, the complainant was still partially bound and visibly upset. While at Carrizales’s apartment, the complainant described the attack to Carrizales and called 911. Approximately 13 minutes after the complainant entered Carrizales’s apartment, or five minutes after the complainant called 911, Houston Police Officers Pool and Barringer responded to the call and questioned the complainant. The officers found and arrested appellant later that evening.

At trial, the complainant did not testify. The State first called Carrizales, who testified as to the authenticity of the 911 tape. Appellant objected to the admission of the 911 tape on the grounds that it was hearsay and that it violated the Sixth Amendment’s Confrontation Clause. The trial judge admitted the 911 tape as an excited utterance and ruled that it did not violate the Sixth Amendment. Both the complainant’s and Carrizales’s voices are recorded on the 911 tape. During the first few seconds of the call, the complainant says, “Hello? ... Yes, ma’am. I ... I ... can you help me? [Inaudible]. He can talk to you, cause I’m nervous.” After that, Carrizales began speaking with the 911 operator and answering her questions.

Carrizales also testified as to the complainant’s statements made to him detailing the attack. Appellant objected only on hearsay grounds to .Carrizales’s testimony. The trial court also overruled this objection. The State then called Officers Bar-ringer and Pool, whose testimony related the complainant’s responses to their questions regarding the attack. Appellant objected to the testimony of both officers on hearsay grounds only, and the trial court overruled those hearsay objections, holding that the statements made by the complainant to the officers were admissible as excited utterances. See Tex.R. Evm 803(2). We address each admitted statement under the Confrontation Clause challenge first and the hearsay challenge second.

CONFRONTATION CLAUSE

In appellant’s four points of error, he contends that the out-of-court statements admitted by the trial court violate his Sixth Amendment right to confront the witnesses against him. In deciding the constitutional issue of whether the admission of a statement of another violates a defendant’s Sixth Amendment confrontation right, appellate courts review the trial court’s ruling de novo. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999) (stating that courts should “independently review” whether out-of-court statements violate the Confrontation Clause); Muttoni v. State, 25 S.W.3d 300, 304 (Tex.App.-Austin 2000, no pet.).

The Confrontation Clause of the Sixth Amendment to the United States Constitution states “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. This right applies to state as well as federal criminal prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). The Supreme Court recently interpreted the Confrontation Clause to “demand” that out-of-court testimonial statements by witnesses are barred unless (1) the witnesses are unavailable to testify and (2) defendants had a prior opportunity to cross examine the witnesses regardless of whether such statements are deemed reliable by the court. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). The Supreme Court in Crawford declined to give a comprehensive definition of testimonial hearsay; however, the court did state that the term applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [responses] to police interrogations.” Id. When the Court in Crawford discussed the applicability of the Confrontation Clause to police interrogations, it expressly stated that it was using the term “interrogation” in the colloquial sense rather than the legal sense. Id. 541 U.S. at 53 n. 4,124 S.Ct. at 1365 n. 4.

The 911 Tape

In his first point of error, appellant contends that the admission of the 911 tape into evidence violates the Confrontation Clause under the- Sixth Amendment to the United States Constitution. Specifically, appellant complains of two sets of statements on the tape: those made by the complainant .to the operator and those made by the complainant to Carrizales, which he later recounted to the operator. Under the two-part Crawford test, because the complainant was not available to testify, and because appellant did not have a prior opportunity to cross-examine her, the controlling issue we decide is whether the statements made by the complainant and Carrizales on the 911 tape were testimonial.

We first address those statements made by the complainant to the 911 operator. On the 911 tape, the complainant can be heard saying, “Hello?... Yes, ma’am. I... I... can you help me? [Inaudible]. He can talk to you, cause I’m nervous.” Crawford states there are a “core class of ‘testimonial’ statements”: (1) ex parte in-court testimony, (2) affidavits, (3) depositions, (4) confessions, (5) custodial examinations, and (6) statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. 541 U.S. at 51-52,124 S.Ct. at 1364. Apart from the two questions the complainant makes, her only statement was that she was nervous. Under any reading of Crawford, the complainant’s statements simply cannot be considered testimonial. We find that the trial court did not err in admitting this part of the 911 tape.

Next, we must address those statements made by Carrizales in response to the 911 operator’s questioning. The majority of Carrizales’s statements were responses to questions as to what had occurred, whether the complainant required medical attention, and how the police could reach the complainant. Appellant complains specifically about those statements made by complainant to Carrizales, which he later recounted to the 911 operator. Thus, we must address the Crawford challenge at two levels: (1) the statements made by complainant to Carrizales and (2) Carri-zales recounting of that information to the operator.

We first address those statements made by complainant to Carrizales. Testimonial statements include those “that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. 541 U.S. at 52, 124 S.Ct. at 1364. The complainant sought the assistance of Carri-zales, a helping neighbor, in the middle of the night. We cannot conclude that when complainant knocked on Carrizales’s door at 3:00 a.m. in a frantic state and relayed any information to him, that she reasonably expected her statements to be used at a later trial. We hold that the statements of the complainant to Carrizales were not testimonial; thus, Crawford does not apply-

Next, we must address Carrizales’s recounting of the events of that night to the 911 operator. Crawford bars the admission of out-of-court testimonial statements unless (1) the witnesses are unavailable to testify and (2) defendants had a prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. Id. 541 U.S. at 68, 124 S.Ct. at 1374. Regardless of whether his statements were testimonial, Carrizales was available to testify at trial; thus, Crawford’s bar does not apply to any statements that Car-rizales made to the 911 operator recounting the events of that night. Accordingly, the trial court did not err in admitting this portion of the 911 tape.

Carrizales’s Testimony

In his second point of error, appellant contends that the admission of Carri-zales’s testimony violates the Confrontation Clause under the Sixth Amendment to the United States Constitution because it allowed the complainant’s out-of-court statements to be admitted without appellant having an opportunity to confront her in court. However, because appellant objected only to Carrizales’s testimony on hearsay grounds, and not constitutional grounds, he did not preserve this argument on appeal. Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App.2004); see Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.App.1990); see Thacker v. State, 999 S.W.2d 56, 60-61 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).

Hearsay objections and objections to violations of the Confrontation Clause are neither synonymous, nor necessarily coextensive. Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App.1991); Thacker, 999 S.W.2d at 61; Tapia v. State, 933 S.W.2d 631, 633 (Tex.App.-Dallas 1996, writ ref'd). The right of confrontation is vital to an ordered criminal justice system, but it is nonetheless a trial right, and a defendant waives his right to confront witnesses if he does not object at trial. Briggs, 789 S.W.2d at 924; Thacker, 999 S.W.2d at 61; Saldivar v. State, 980 S.W.2d 475, 496 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); see Mallory v. State, 752 S.W.2d 566, 569 (Tex.Crim.App.1988). Because appellant did not object to Carrizales’s testimony on Sixth Amendment grounds at trial, he waived review of that claim on appeal.

Officer Barringer’s and. Officer Pool’s testimony

In his third and fourth points of error, appellant claims that the admission of Officer Barringer’s and Officer Pool’s testimony into evidence violated the Confrontation Clause under the Sixth Amendment to the United States Constitution. Because appellant objected only to Bar-ringer’s and Pool’s testimony on hearsay grounds and not Sixth Amendment grounds, he has waived his Sixth Amendment challenge on appeal. See Briggs, 789 S.W.2d at 924; see Thacker, 999 S.W.2d at 61; see Saldivar, 980 S.W.2d at 496.

Accordingly, we overrule appellant’s confrontation clause challenges to the four out-of-court statements.

EXCITED UTTERANCE

Appellant next asserts that the trial court violated the Texas Rules of Evidence in admitting the four out-of-court statements because they constitute inadmissible hearsay. The State responds by arguing that these statements are admissible under the excited utterance exception to the hearsay exclusion. See Tex.R. Evid. 803(2).

The admissibility of out-of-court statements allowed under a hearsay exception is delegated to the trial court’s discretion, and the trial court’s decision to admit such statements should be reversed only upon a showing of a clear abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003); Lawton v. State, 913 S.W.2d 542, 553-54 (Tex.Crim.App.1995); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). An abuse of discretion occurs “when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).

'[12,13] Statements that qualify as hearsay are inadmissible at trial unless an applicable exclusion applies. Tex.R. Evid. 802. ’An excited utterance is one such exclusion, defínéd as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001). In determining whether a hearsay statement is admissible as an excited utterance, the court may look at the time that elapsed between the event and" the statement, as well as whether the statement was in response to a question; however, neither of those two factors is dispos-itive. See Lawton, 913 S.W.2d at 553; Penry v. State, 903 S.W.2d 715, 750-51 (Tex.Crim.App.1995). The critical factor in determining whether a statement is an excited utterance is whether the declarant was still dominated by the emotions, fear, excitement, or pain of the event at the time of the statement. Zuliani, 97 S.W.3d at 596.

911 Tape

In addition to the confrontation clause challenge, appellant contends that, even if the admission of the tape did not violate the Sixth Amendment, it is inadmissible under the Texas Rules of Evidence because it does not constitute an excited utterance. See Tex.R. Evid. 803(2). We disagree.

The admission of out-of-court statements is reviewed for abuse of discretion, and the trial court’s decision will not be reversed unless it falls outside the zone of reasonable disagreement. Zuliani, 97 S.W.3d at 595; Cantu, 842 S.W.2d at 682. The critical factor in determining whether a statement is an excited utterance is whether the declarant was dominated by the emotions of the event at the time of the statement. Zuliani, 97 S.W.3d at 596.

Here, the tape establishes that the complainant was upset and nervous when she spoke with the operator. Given the complainant’s shaken and excited demeanor, reasonable people could disagree about whether the complainant was still dominated by the emotions of her attack when she made the statements on the tape. See id. at 595-96; see Cantu, 842 S.W.2d at 682. Therefore, we hold that the trial court did not abuse its discretion by admitting the 911 tape into evidence as an excited utterance. See Tex.R. Evid. 803(2).

Carrizales’s Testimony

In his second point of error, appellant contends that the admission of Carrizales’s testimony of complainant’s statements as an excited utterance violated the Texas Rules of Evidence. Under the applicable abuse-of-discretion standard, the trial court’s decision will not be reversed unless it falls outside the zone about which reasonable people might disagree. Zuliani, 97 S.W.3d at 595; Cantu, 842 S.W.2d at 682. In this instance, Carri-zales testified that, when the complainant came to his apartment, she was crying and still partially bound by the wire used by her attacker, and seemed “pretty upset.” Approximately 30 minutes had passed between the time the complainant’s attacker left her apartment and the time that she made her statements to Carrizales; time lapse is only one factor in determining whether a statement constitutes an excited utterance. Salazar, 38 S.W.3d at 154. The primary consideration is whether the complainant was still dominated by the emotions of the event. Zuliani, 97 S.W.3d at 596. Here, considering the complainant’s shaken and excited demeanor when she spoke with Carrizales, reasonable people could conclude that the complainant was dominated by the emotions of the event when speaking with Carrizales. See id. at 595-96; see Cantu, 842 S.W.2d at 682. Therefore, we hold that the trial court did not abuse its discretion by admitting into evidence Carrizales’s testimony regarding complainant’s excited utterance. See Tex.R. Evid. 803(2).

Officer Barringer’s and Officer Pool’s testimony

In his third and fourth points of error, appellant claims that the admission of Officer Barringer’s and Officer Pool’s testimony into evidence violated the Texas Rules of Evidence. Specifically, appellant contends that Barringer's and Pool’s testimony depicting the complainant’s response to the officers’ questioning about the event was inadmissible hearsay because it did not constitute an excited utterance.

For the same reasons that the complainant’s statements to Carrizales qualified as excited utterances, the complainant’s statements to Officers Pool and Barringer similarly qualify as excited utterances. Although 13 minutes had lapsed-between the officers’ conversations with the complainant compared to Carrizales’s conversation with the complainant, this time lapse is only one factor in determining whether the complainant was still dominated ■ by the fear of the event. See-Lawton, 913 S.W.2d at 553. In addition to the time factor, the trial court should have considered that these statements to the officers were made in response to questioning. Id. However, neither of these factors is conclusive. Id. The officers’ testimony that the complainant was crying, upset, and frightened when speaking with the officers suggest the complainant was still dominated by the emotions of the event. See Zuliani, 97 S.W.3d at 595-96. Therefore, we hold that the trial court did not abuse its discretion by admitting the officers’ testimony into evidence regarding the complainant’s excited utterance. See Tex.R. Evid. 803(2).

Accordingly, we overrule appellant’s hearsay challenges to the four out-of-court statements.'

CONCLUSION

We affirm the judgment of the trial court.

      . Appellant was the complainant’s boyfriend, and it is unclear whether he broke into the apartment or was let in by the complainant. Appellant's purpose in committing the robbery was to steal $400 and the complainant’s van.

      . The complainant was appellant’s girlfriend, and she reunited with him after he was charged, at which time she stopped cooperating with the State.