Opinion issued March 31, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00593-CR
———————————
BOBBY DEWAYNE EVANS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas *
Trial Court Case No. 12-14438
*
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred the appeal to this court. See Misc. Docket No. 13-9008 (Tex. Jan. 17,
2013); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases).
MEMORANDUM OPINION
A jury convicted appellant Bobby Dewayne Evans of aggravated robbery
and found that he used a deadly weapon in the commission of the offense. See TEX.
PENAL CODE § 29.03. The trial court assessed punishment at 50 years in prison.
Evans appealed, raising 13 issues. Within these issues, he challenges: (a) the
sufficiency of the evidence (issues 1 and 2); (b) the State’s failure to disclose
allegedly exculpatory evidence (issues 3 and 4), (c) the trial court’s failure to grant
an evidentiary hearing on his motion for new trial (issue 5), (d) statements made
during closing argument that he contends shifted the burden of proof and violated
his due-process rights (issues 6, 7, and 8), and (e) the trial court’s admission of
evidence that was the subject of a motion to suppress and the court’s related failure
to make certain rulings and findings in connection with the motion to suppress
(issues 9 through 13).
Because we conclude that the record reveals no reversible error, we affirm
the judgment of the trial court.
Background
Complainant Wingrove Felton Robinson needed some repairs at his rental
home, and his landlord suggested that he temporarily occupy a room in another of
her rental houses. Robinson moved into a room in a house where appellant Bobby
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Dewayne Evans lived with his girlfriend, Penzalla Winston. At the time, Robinson
was 75 years old and recovering from cancer treatment.
Robinson was lying in bed when Evans knocked on his door and asked to
use his hotplate. But upon entering the room, Evans demanded money. Robinson
refused, and Evans responded by pushing him, punching his right eye, tackling him
to the ground, and attempting to break his leg. At one point Evans left the room,
returning moments later with two aluminum baseball bats. He said, “I need that
money or I’m going to tap you in your head with these. . . . If you don’t give me
the money, I’m going to smash you.” Robinson again refused, and Evans hit him
on the head with a bat, causing him to bleed profusely. Robinson thought he “was
going to die.” He testified that Evans took his wallet, including a debit card and a
driver’s license. Evans dragged Robinson from the house, forbade him from
coming back inside, and left him alone, where he later asked a passerby to call 911.
Robinson never returned to the house because it was “too heartbreaking.”
Beaumont Police Department Officer D. Vaughn responded to the 911 call
and found Robinson standing outside, bleeding from his head and his eye.
Robinson told Officer Vaughn that his roommate hit him with a baseball bat after
he refused to give him money. An ambulance arrived and transported Robinson to
a Beaumont hospital, where he received 15 staples to his scalp. Ultimately surgery
was required to repair his fractured eye socket.
3
Officer Vaughn was unable to search the house immediately because nobody
answered when he knocked on the door. Meanwhile, Evans and Winston had left
the house, and they found a police officer about a mile away. That officer
contacted Officer Vaughn, who joined them. Evans provided a differing account of
what happened, saying that Robinson’s injuries were self-inflicted. Winston said
that she did not see anything that happened at the house. Evans was arrested on an
outstanding warrant, and later he was charged with committing aggravated robbery
against Robinson.
In addition to Robinson’s testimony at trial on the robbery charge, the State
proffered hospital records, which included descriptions of Robinson’s injuries and
the history he provided, i.e., that he was assaulted by his “neighbor,” who hit him
with a fist and a baseball bat after he refused a demand for money. Officer Vaughn
also testified, and Evans moved to suppress statements he made during the
officer’s investigation. At a hearing outside the presence of the jury, Officer
Vaughn testified that there might have been a patrol car videorecording of the
conversation at issue, but he suspected it was no longer available because of the
lapse of time and retention policies. The State announced that it would not ask
Officer Vaughn about statements Evans made to him during its case-in-chief. The
court concluded the hearing without ruling on the motion to suppress.
4
Evans testified in his own defense, and he disputed Robinson’s account.
According to Evans, he and Winston were in his room when Robinson came to the
door with his face covered in blood. He said that Robinson told him that a neighbor
had assaulted him. Evans further testified that Robinson hit him on the shoulder
with a skillet, and when he told Robinson to leave, he replied, “You’re going to
have to kill me.” Evans said that he escorted Robinson out of the house, returned
inside, and locked the door. He denied hitting Robinson, taking any of his property,
or demanding money. In apparent contradiction of his testimony that Robinson was
assaulted by a neighbor, Evans also testified that Robinson’s injuries were self-
inflicted.
Winston testified that she was in the bedroom with Evans when she heard a
noise that sounded like a “bump.” She said that she saw Robinson strike Evans
with a pot and heard him say, “You’re going to have to kill me.” She denied seeing
any blood or injuries on Robinson or hearing any cries for help. She testified that
she never saw Evans take any of Robinson’s belongings, and Robinson never
returned to the house. She admitted that she previously told police that she did not
see what happened.
On rebuttal, the State called Officer Vaughn back to the stand, and he
testified without objection that Evans told him Robinson’s injuries were self-
inflicted.
5
The jury found Evans guilty of aggravated robbery. The trial court assessed
punishment at 50 years in prison. Evans filed a motion for new trial, which the trial
court denied without holding an evidentiary hearing. Evans appealed.
Analysis
On appeal, Evans contends that the evidence was insufficient to support the
conviction. He also argues that some evidence was withheld from him and that
other evidence should have been suppressed at trial. He further argues that he was
unfairly prejudiced by the State’s improper closing argument and that the court
erred by denying his motion for new trial.
I. Sufficiency of the evidence
Evans’s first two issues challenge the legal sufficiency of the evidence to
support his conviction. He first argues that he and Winston were credible
witnesses—but Robinson was not—and that the evidence is insufficient when
viewed in the light most favorable to the defense theory of the case. He also argues
that there is no evidence of a completed theft.
When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The standard is
6
the same for both direct and circumstantial evidence cases. See Carrizales, 414
S.W.3d at 742; King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do
not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of
any witnesses, as this is the function of the trier of fact. See Adames v. State, 353
S.W.3d 854, 860 (Tex. Crim. App. 2011); Wiley v. State, 388 S.W.3d 807, 813
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
A person commits aggravated robbery if he commits robbery and causes
serious bodily injury to another person, uses or exhibits a deadly weapon, or causes
or threatens imminent bodily injury to a person who is 65 years of age or older or
disabled. TEX. PENAL CODE § 29.03. A person commits robbery if “in the course of
committing theft” and “with intent to obtain or maintain control of the property,”
he “intentionally, knowingly, or recklessly causes bodily injury to another” or
“intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death.” Id. § 29.02; see id. § 31.03(a) (theft); id. § 31.03(b)(1) (unlawful
appropriation).
A. Credibility of the witnesses
On appeal, we consider the evidence in the light most favorable to the
factfinder’s decision. This case was tried before a jury that was tasked with
assessing the credibility of the witnesses and determining all issues of fact,
including resolving inconsistencies in the testimony. Evans argues that he and
7
Winston were credible and that when their testimony is viewed in a positive
light—and Robinson’s testimony is rejected—there is insufficient evidence to
support the jury’s verdict. The jury, however, was free to draw its own conclusions
about the witnesses’ credibility. The verdict reflects the jury’s implicit conclusion
that Robinson was credible and the contrary testimony offered by Evans and
Winston was not. In any case, the credibility determination is purely the province
of the jury, and it may not be second-guessed on appeal. See Adames, 353 S.W.3d
at 860; Wiley, 388 S.W.3d at 813.
B. Lack of evidence of a completed theft
Evans also argues that the lack of evidence of a completed theft renders the
evidence in support of his conviction insufficient. This is incorrect. For the purpose
of robbery, “in the course of committing theft” means “conduct that occurs in an
attempt to commit, during the commission, or in immediate flight after the attempt
or commission of theft.” TEX. PENAL CODE § 29.01(1). The State is not required to
show “a completed theft” in order to “establish the underlying offense of robbery.”
Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003).
Robinson testified that Evans assaulted him with a baseball bat while trying
to take his money, i.e., while in the course of committing theft. Robinson also
testified about how he suffered serious bodily injuries and feared for his life, and
he specifically testified that Evans took his wallet. Thus, the evidence was
8
sufficient to show the essential elements of aggravated robbery, that Evans used a
deadly weapon to cause serious bodily injury to Robinson while in the course of
committing theft. See TEX. PENAL CODE § 29.01–.03; id. § 31.03. Accordingly, we
hold that the evidence was legally sufficient to support the jury’s verdict, and we
overrule issues one and two.
II. Motion to suppress
Evans moved to suppress evidence of certain statements that he made to
Officer Vaughn prior to his arrest. The suppression hearing was held mid-trial and
outside the presence of the jury. However, the court concluded the hearing without
ruling on the motion. Evans raises several issues related to his motion to suppress.
During the suppression hearing, Officer Vaughn testified that he did not
warn Evans of his Miranda rights. He said that at least two other officers were
present, and one of them most likely conducted a pat-down search prior to his
arrival. He testified that Evans spoke to him voluntarily for 10 or 15 minutes while
he checked for outstanding warrants, as he ordinarily does when speaking to
witnesses during an investigation. Evans told him that Robinson caused the injuries
to himself and then called the police to accuse him of a crime. Officer Vaughn did
not know whether Evans would have believed that he was free to leave or not to
answer questions, but he acknowledged that “any reasonable person could
probably be intimidated by at least two police officers standing there.” He denied
9
interrogating Evans and reiterated that he “basically asked him what his side of the
story was.” When the trial court asked if he spoke to Evans in a conversational
manner, he said, “I would have to go back and listen to my video.”
Evans’s attorney then asked about the videorecording. Officer Vaughn
testified that police “normally” record videos from their cars, but he did not know
if his equipment was turned on at the time. In response to a question from the trial
court, Officer Vaughn said that the normal protocol is to retain videos for six
months before the recording would be erased or recorded over. He said that the
incident in question occurred more than a year prior to trial. The court asked
Officer Vaughn to ascertain if the videorecording was available. No further
mention of the videorecording appears in the trial transcript.
At the conclusion of the suppression hearing, the trial court asked if the State
wanted to introduce the officer’s testimony. The State asked for a ruling as to
whether the testimony was “even admissible now,” to which the court responded,
“I think it is, but the question is do you really want it?” The State then informed
the court that it did not want to introduce the statements “at this point.” The court
observed that if the State wished to introduce the testimony, it “would make
findings on the record.” No such findings appear in the record.
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A. Failure to rule on motion to suppress
In issue nine, Evans argues that the court erred by admitting Officer
Vaughn’s rebuttal testimony without ruling on the motion to suppress. In
particular, Evans contends that the testimony that should have been suppressed
primarily concerned his statements to Officer Vaughn that Robinson had inflicted
injuries on himself.
Evans did not object to the court’s failure to rule on the motion to suppress,
nor did he reurge the motion or otherwise object when Officer Vaughn testified
during the State’s rebuttal case. In addition, some of the testimony challenged on
appeal was solicited by defense counsel on cross-examination. For those reasons,
we hold this issue was waived. See TEX. R. APP. P. 33.1; Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998).
B. Admission of statements elicited by police officer’s questions
The same logic applies to issues ten and eleven. In issue ten, Evans argues
that his statements to Officer Vaughn should have been suppressed because they
were the product of interrogation conducted without the warnings required by
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and the Code of
Criminal Procedure. Article 38.22 prohibits the use of an oral statement of an
accused made as a result of custodial interrogation unless the statement is made
voluntarily, after the accused is informed of his rights, and is electronically
11
recorded. TEX. CODE CRIM. PROC. art. 38.22 § 3. In addition, a copy of the
recording must be preserved and provided to the accused’s attorney at least 20 days
before trial. Id.
In issue eleven, Evans argues that the admission of Officer Vaughn’s
testimony violated his rights under Article 38.22 because the State did not provide
him with a copy of his recorded statement prior to trial. He further contends that
the court therefore erred by admitting Officer Vaughn’s testimony without ruling
on the motion to suppress.
As we explained with respect to issue nine, there was no objection to the
rebuttal testimony, no objection to the trial court’s refusal to rule, and some of the
challenged testimony was solicited on cross-examination by Evans’s trial counsel.
For the same reasons that we concluded issue nine was waived, we also conclude
that issues ten and eleven were waived. See TEX. R. APP. P. 33.1; Leday, 983
S.W.2d at 718.
C. Admission of statements elicited by police officer’s questions
In issues twelve and thirteen, Evans argues that the court erred by failing to
enter findings of fact on the suppression hearing and specific findings on whether
his statements were voluntary. On Evans’s motion, we abated the appeal so that the
trial court could enter findings of fact and conclusions of law as to the motion to
suppress. The trial court found that after the suppression hearing, the State
12
withdrew its proffer of Officer Vaughn’s testimony. Then Evans made no further
objections when Officer Vaughn later was presented as a rebuttal witness. The trial
court concluded that because it made no ruling on the motion to suppress, no
findings of fact or conclusions of law were required.
The record supports the trial court’s conclusion. Because there was no ruling
on the motion to suppress, the trial court was not obligated to make the findings of
fact and conclusions of law that would have been required had such a ruling been
made. See State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012)
(after court rules on motion to suppress, losing party may require the trial judge to
make explicit historical findings of fact); State v. Cullen, 195 S.W.3d 696, 699
(Tex. Crim. App. 2006) (trial court must make findings of fact upon which court of
appeals may review its ruling on a motion to suppress); cf. Leza v. State, 351
S.W.3d 344, 353 (Tex. Crim. App. 2011) (holding that appellant waived
Article 38.22 argument by failing to present it to trial court for ruling). Issues
twelve and thirteen are overruled.
III. Undisclosed evidence
In issues three and four Evans challenges the State’s failure to disclose (1) a
videorecording of statements made to Officer Vaughn and (2) a “call-out sheet”
from the Beaumont Police Department. Evans argues that the State’s failure to
disclose and provide this information violated both the Due Process Clause of the
13
Fourteenth Amendment to the United States Constitution and the Due Course of
Law clause in Article I, Section 19 of the Texas Constitution. However, Evans has
not provided argument or authority concerning the protection provided by the
Texas Constitution or how that protection differs from the protection provided by
the United States Constitution. “State and federal constitutional claims should be
argued in separate grounds, with separate substantive analysis or argument
provided for each ground.” Muniz v. State, 851 S.W.2d 238, 251–52 (Tex. Crim.
App. 1993) (citing Heitman v. State, 815 S.W.2d 681, 690–91 n.23 (Tex. Crim.
App. 1991)); Avilez v. State, 333 S.W.3d 661, 669 n.3 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d). We therefore confine our analysis to Evans’s federal
constitutional arguments.
“A prosecutor has an affirmative duty to turn over material, favorable
evidence to the defense.” Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App.
1999). “[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963); see also U.S.
v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381 (1985) (suppression of
exculpatory or impeachment evidence “amounts to a constitutional violation only
if it deprives the defendant of a fair trial.”). The withholding or suppression of
14
evidence is reversible only if the appellant shows that (1) the State failed to
disclose evidence, regardless of the prosecution’s good or bad faith; (2) the
withheld evidence is favorable to the accused; and (3) the evidence is material,
meaning that there is a reasonable probability that had the evidence been disclosed
the outcome of the trial would have been different. Pena v. State, 353 S.W.3d 797,
809 (Tex. Crim. App. 2011) (citing Hampton v. State, 86 S.W.3d 603, 612 (Tex.
Crim. App. 2002)); Higginbotham v. State, 416 S.W.3d 921, 924 (Tex. App.—
Houston [1st Dist.] 2013, no pet.).
The materiality prong includes a “requirement that the defendant must be
prejudiced by the State’s failure to disclose the favorable evidence.” Harm v. State,
183 S.W.3d 403, 406 (Tex. Crim. App. 2006). The defendant bears the burden to
show materiality, which in this case means that the withholding of the evidence
“undermines confidence in the outcome of the trial.” Bagley, 473 U.S. at 678, 105
S. Ct. at 3381; see Hampton, 86 S.W.3d at 612 (burden of proof). “Usually, a
determination concerning the materiality prong of Brady involves balancing the
strength of the exculpatory evidence against the evidence supporting conviction.”
Hampton, 86 S.W.3d at 613.
A. Videorecording
Evans contends that the State’s failure to disclose a videorecording of
statements he made to Officer Vaughn violated his constitutional rights. The State
15
argues that there is no such videorecording. Nothing in the record confirms that
such a recording ever existed. Officer Vaughn’s testimony was equivocal: he said
he did not know if his video recorder was on at the time he spoke to Evans and
Winston. The State would have no duty to disclose evidence that does not exist.
See Pena, 353 S.W.3d at 810.
Even if a recording existed at some time, Evans still has a burden to show
that such evidence was material. He assumes that the videorecording was “highly
material,” but he makes no argument and directs the court to no evidence that
would support such a conclusion. See TEX. R. APP. P. 38.1(i). Although he argues
that Winston’s statements might have been admissible, exculpatory evidence, the
“mere possibility that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612.
Finally, even with a showing of materiality, a defendant must show that he
was prejudiced by the alleged Brady violation. Evans first learned of the possible
existence of a videorecording during trial. Although his counsel asked Officer
Vaughn if it was possible for him to find out if such a video existed, he did not
seek a recess or continuance in order to obtain the evidence. When the existence of
undisclosed Brady material is first discovered during trial, a defendant must seek a
continuance to obtain the evidence or risk waiver of the issue because “failure to
16
request a continuance indicates that the tardy disclosure of the evidence was not
prejudicial.” State v. Fury, 186 S.W.3d 67, 73–74 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d) (citing Davis v. State, 992 S.W.2d 8, 12 (Tex. App.—Houston [1st
Dist.] 1996, no pet.)). Because Evans did not seek a continuance, we conclude that
the tardy disclosure of the possible existence of a videorecording that was not
shown to be material could not have resulted in prejudice.
B. Call-out sheet
Evans makes several references to the “call-out” sheet in his brief. Despite
the fact that Robinson is not mentioned, Evans asserts that this document, which
was attached as an exhibit to his motion for new trial, showed that Robinson
frequently complained to the Beaumont Police Department, including a false report
of theft a week before the robbery in this case. On appeal, Evans states that he was
not provided with this call-out sheet due to a lack of preparation by the
prosecution. He asserts that the call-out sheet indicated that Robinson was
“trumping up charges to get [him] in trouble” and therefore had to be disclosed as
exculpatory evidence. Unfortunately, the State’s appellate brief failed to respond to
this aspect of Evans’s argument.
Considering that the motion for new trial and its supporting memorandum
focused on the alleged videorecording and made no reference to the call-out sheet,
this issue arguably has not been preserved. See TEX. R. APP. P. 33.1, cf. Pena, 353
17
S.W.3d at 809 (despite failure of motion for new trial to reference a particular
Brady argument, issue held to be preserved for appeal because the issue
“dominated the motion hearing,” demonstrating that the trial court and the State
were both aware of the purported error). Moreover, Evans’s appellate brief
presents no cogent legal argument about the materiality of the call-out sheet,
instead only referring us generally to attachments to the motion for new trial,
without appropriate citations to the record. See TEX. R. APP. P. 38.1(i); Hampton,
86 S.W.3d at 612–13 (appellant must prove materiality of withheld evidence by
balancing the strength of the exculpatory evidence against the evidence supporting
conviction). In light of these failures to adequately present and argue the point in
the trial court or on appeal, we hold that Evans’s complaint about the State’s
failure to produce the “call-out” sheet—which does not even identify Robinson as
being responsible for any calls made to the Beaumont police—has been waived.
TEX. R. APP. P. 33.1 & 38.1(i).
We overrule issues three and four.
IV. Motion for new trial
In his fifth issue, Evans argues that the trial court abused its discretion by not
holding an evidentiary hearing on his motion for new trial. We review a trial
court’s denial of a hearing on a motion for new trial for an abuse of discretion, and
we will reverse only if the trial court’s decision was clearly wrong and outside the
18
zone of reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.
App. 2009). The purposes of a hearing on a motion for new trial are (1) to
determine whether the cause should be retried and (2) to prepare a record that
would enable the defendant to present issues on appeal if the court denies the
motion. Id. at 338. A criminal defendant does not have an “absolute right” to a
hearing on his motion for new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex.
Crim. App. 2009). For example, a hearing is not required when the matters raised
in the motion for new trial are subject to being determined from the record. Reyes
v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). When the grounds in the
motion are not already in the record, the motion must be supported by an affidavit
that sets forth the factual basis for the claim. Smith, 286 S.W.3d at 339. This
affidavit need not make out a prima facie case that the movant is entitled to a new
trial, but it must give rise to reasonable grounds in support of the claim. Id. As
such, “a trial judge abuses his discretion in failing to hold a hearing if the motion
and accompanying affidavits (1) raise matters which are not determinable from the
record and (2) establish reasonable grounds showing that the defendant could
potentially be entitled to relief.” Hobbs, 298 S.W.3d at 199 (citing Smith, 286
S.W.3d at 338–39).
In his motion for new trial, Evans argued that the evidence was legally
insufficient, that the court had erred by overruling objections to Robinson’s
19
testimony which was “largely and obviously self-serving in nature,” that the State
failed to disclose the alleged videorecording of his conversation with Officer
Vaughn, and that the court likewise erred by not assuring that the videorecording
was available to him. Attached to the motion for new trial was an affidavit from
Winston in which she expressed her belief in Evans’s innocence and an affidavit
from defense counsel attaching the Beaumont police department call-out sheet. As
we have observed, the motion for new trial did not mention the call-out sheet,
which itself did not identify any caller or indicate the resolution of the incidents.
The nature of each indicated call was described briefly as “theft,” “check welfare,”
“non specific diag or illness,” and “serve warrant.” Evans made no argument about
how the call-out sheet from the Beaumont police department or any other newly
discovered evidence undermined the evidence at trial that supported the jury’s
verdict. The trial court denied the motion for new trial without a hearing noting
that the motion raised “no issues of fact or law” that were not “fully developed in
the record of the case,” and that the “allegations in the motion, even if true, are
insufficient to require the granting of a new trial.”
On appeal, Evans asserts that the State’s failure to disclose the call-out sheet
was a Brady violation because it was newly discovered evidence. The argument
Evans makes on appeal to challenge the denial of a hearing—that the call-out sheet
was newly discovered Brady material that would have caused a different result at
20
trial—does not comport with the arguments made in his motion for new trial.
Although he attached the call-out sheet to his motion for new trial, that motion
itself does not mention the call-out sheet or inform the court of an assertion of
newly discovered evidence that might have warranted a hearing. As such, the
argument on appeal was not preserved for appellate review. See Sterling v. State,
800 S.W.2d 513, 521 (Tex. Crim. App. 1990) (“objection at trial which differs
from the complaint on appeal preserves nothing for review”).
In his motion for new trial, Evans argued that the failure of the prosecutor to
determine if a videorecording had been made and to provide his attorney with a
copy violated his due process rights and his right to pretrial disclosure of Brady
material. Implicit in this argument is an assertion that the videorecording would
have been favorable to Evans and material to guilt or punishment, i.e., had it been
disclosed the result of the trial would have been different. See Pena, 353 S.W.3d at
809; Higginbotham, 416 S.W.3d at 924. In his motion, Evans referred to Officer
Vaughn’s testimony that he might have made a videorecording and to statements
from the prosecutor that he had neither knowledge nor possession of such a video.
Although not set forth in the motion, the record shows that in response to questions
from the trial court, Officer Vaughn testified that the incident occurred more than a
year before trial and that his department’s retention policy required retention of
videorecordings for six months. He also testified that no one had asked him to
21
retain a video pertaining to this case. In a “Memorandum Supporting Motion for
New Trial,” Evans argued that if such a videorecording existed and showed his
demeanor shortly after the alleged aggravated robbery, the State was required to
provide him with a copy of it. He also argued that it should have been provided
because Winston’s statements “might have been” admissible and exculpatory and
“could have led to other evidence” because the incident was more fresh in her
mind.
The motion and the affidavits attached to it do not establish reasonable
grounds that Evans could be entitled to relief, i.e., a new trial based on his claim
that the State withheld Brady material. Although Evans was present for the
discussion captured on any existing recording, the conclusory statements in the
motion for new trial do not explain how or why any such videorecording could be
expected to be favorable to Evans or could have changed the outcome of the trial.
The affidavits attached to the motion for new trial do not mention the
videorecording at all. See Smith, 286 S.W.3d at 339 (an affidavit setting forth the
factual basis for a claim is a prerequisite to obtain a hearing on a motion for new
trial). Accordingly, we hold that the trial court did not abuse its discretion by
denying an evidentiary hearing on the grounds stated in the motion for new trial.
See id.
We overrule the fifth issue.
22
V. State’s closing argument
A. Trial court’s refusal to instruct jury to disregard comment about
reasonable doubt
In issues six and seven, Evans argues that the court erred by failing to
instruct the jury to disregard the State’s comment about reasonable doubt in its
closing argument. Although Evans’s objection to the comment was sustained, the
trial court refused to instruct the jury to disregard it.
“Contested jury argument must be extreme or manifestly improper to
constitute reversible error.” Bryant v. State, 340 S.W.3d 1, 13 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d). “In general, proper jury argument
encompasses one of the following: (1) summation of the evidence presented at
trial; (2) reasonable deductions drawn from that evidence; (3) answers to the
opposing counsel’s argument; and (4) pleas for law enforcement.” Id. (citing
Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999)). We consider three
factors when assessing the impact of the harm arising from jury-argument error:
(1) the severity of the misconduct (the magnitude of the prejudicial effect of the
prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the
efficacy of any cautionary instruction by the judge); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the
conviction). Berry v. State, 233 S.W.3d 847, 858–59 (Tex. Crim. App. 2007).
23
After the close of evidence, Evans had the first opportunity to deliver closing
remarks to the jury because the State waived its right to speak first. Defense
counsel argued that what happened to Robinson may have been an assault but was
not a robbery because Evans merely knocked the wallet to the floor and Robinson
never returned to the house to collect his belongings. He also argued that that the
State did not proffer testimony from other officers or EMS technicians who
responded to the 911 call or the detective who took statements from Evans and
Winston months after the incident. His trial counsel urged the jury to return a
verdict of not guilty, saying:
You said more was better but you got less and with that less, the State
is going to ask you to find Mr. Evans guilty beyond a reasonable
doubt. Well, erase your doubt. Bring those people in. Let them testify.
Let them be subject to cross-examination.
....
Ladies and gentlemen of the jury, I’m sorry. Your response to the
prosecutor is that I’m sorry this did not occur. The evidence simply is
not there. Bobby Dewayne Evans may be a demon. He may be a lot of
things, but he did not commit aggravated robbery. He’s not guilty.
Thank you very much.
The State addressed the jury last, arguing about the inconsistencies in or
implausibility of the testimony of Evans and Winston. The State also responded to
the defense argument that what happened to Robinson may have been an assault
but was not robbery:
24
The defense wants you to think there is no theft. Don’t be misled. I’ve
never seen a defense attorney come into court and tell you, yeah, there
is enough evidence. Find them guilty. Their job is to bring up
reasonable doubt.
Evans’s counsel objected to this statement, saying: “That is not what we’re
ethically bound to do.” The trial court sustained the objection and told the jury:
“Their job is to represent their client with zeal.” The court refused to instruct the
jury specifically to disregard the statement, but it said in open court in the presence
of the jury: “They’ve been instructed . . . that the final arguments do not constitute
evidence, and I trust the jury understands that and will follow that instruction.”
Evans argues that the State’s argument was improper because it suggested to
the jury that the defense had the burden of proof to show a reasonable doubt. In
determining whether an argument was improper, we consider the context of the
statement. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). The
State’s comment that “their job is to bring up reasonable doubt” is susceptible of
more than one meaning. Evans argues that it was an attempt to persuade the jury
that he had the burden of proof to show reasonable doubt. In context, however, it
also could be a response to the defense closing argument—to point out or “bring
up” in its closing argument possible areas for reasonable doubt. As such, the
comment would be a response to defense counsel’s argument and a proper subject
of closing argument. Bryant, 340 S.W.3d at 13; Guidry, 9 S.W.3d at 154.
25
Even to the extent the comment could have been understood differently, as
suggested by Evans, he still has not shown that he was harmed. First, the
prejudicial effect of the remark was limited because the prosecutor did not actually
state that Evans had the burden of proof as to reasonable doubt, and it was an
isolated instance. Second, the stated basis for the objection was that the State’s
comment did not accurately represent “what we’re ethically bound to do.”
Although the trial court did not specifically instruct the jury to disregard the
statement, the trial court did give an explanatory instruction by informing the jury
of defense counsel’s ethical duty to “represent their client with zeal.” The trial
court also reminded the jury that the arguments of counsel are not evidence and
that it was required to follow the previously given instructions. The court’s charge,
which was read to the jury just before closing arguments and given to the jury to
take into their deliberations, included the following instructions:
The presumption of innocence alone is sufficient to acquit the
defendant unless the jurors are satisfied beyond a reasonable doubt of
the defendant’s guilt after careful and impartial consideration of all
the evidence in the case. The prosecution has the burden of proving
the defendant guilty and it must do so by proving each and every
element of the offense charged beyond a reasonable doubt and if it
fails to do so, you must acquit the defendant. It is not required that the
prosecution prove guilt beyond all possible doubt. It is required that
the prosecution’s proof excludes all reasonable doubt concerning the
defendant’s guilt.
....
26
[Y]ou must be bound by and strictly follow the law contained in this
charge.
Third, the evidence supporting the conviction in this case was strong: Robinson
testified to the essential elements of the crime, and photographs and hospital
records showed that he suffered serious bodily injury. Though Evans agreed that
Robinson was seriously injured, his testimony and theory of the case was that the
injuries were self-inflicted. The jury was able to assess the credibility of the
witnesses based on their trial testimony, and it was also able to consider the
photographic and documentary evidence of the injuries in light of the alternative
explanations that were offered: aggravated robbery or self-inflicted wounds.
Evans has not shown that he was harmed by any impropriety in the
prosecutor’s closing argument, and we overrule issues six and seven.
B. Credibility of defense witnesses
In issue eight, Evans argues that his Fourteenth Amendment due-process
right to a fair trial was violated by the cumulative effect of the State’s argument
regarding the credibility of the defense witnesses and its comment about
reasonable doubt. Evans did not object to any portion of the State’s closing
argument pertaining to credibility of the witnesses, nor did he object to any
suggestion that Evans and Winston were not truthful. Aside from the statement of
issue eight, he makes no substantive argument pertaining to this issue. “A
defendant’s failure to object to a jury argument or a defendant’s failure to pursue to
27
an adverse ruling his objection 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 TEX. R. APP. P. 33.1(a). A defendant also waives his right to
complain of error on appeal if his trial objection does not comport with his
appellate issues. Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d).
Issue eight is overruled.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
28
Bobby Dewayne Evans v. State
Combined Opinion