Frank Henderson Brown v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00154-CR

Frank Henderson Brown, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-14-200998, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING

MEMORANDUM OPINION

After an undercover police officer, Officer Michael Fickel, saw the driver of a car

engage in some suspicious activity in the parking lot of a hotel and after seeing Frank Henderson

Brown get into the passenger side of that car, Officer Fickel followed the car after it left the parking

lot and later witnessed the driver of the car commit several traffic violations. Officer Fickel relayed

his observations to members of his unit, and some of the officers initiated a traffic stop of the

vehicle. During the traffic stop, the officers discovered that Brown had a gun in his waistband.

Ultimately, Brown was arrested and charged with the unlawful possession of a firearm by a felon.

See Tex. Penal Code § 46.04(a) (setting out elements of offense), (e) (stating that offense is third-

degree felony). In addition, the indictment contained two enhancement paragraphs alleging that

Brown had previously been convicted twice of burglary of a habitation. See id. § 30.02(a) (listing

elements of offense of burglary of habitation), (c)(2) (providing that offense is second-degree
felony). At the end of the first phase of the trial, the jury found Brown guilty of the charged offense.

Brown elected to have the district court assess his punishment, and the district court found the two

enhancement allegations to be true. At the end of the punishment phase, the district court imposed

a sentence of 25 years’ imprisonment. See id. § 12.34 (listing permissible punishment range for

third-degree felony), .42(d) (enhancing permissible punishment range for individual convicted of

felony if he “has previously been finally convicted of two felony offenses, and the second previous

felony conviction is for an offense that occurred subsequent to the first previous conviction having

become final”). In three issues on appeal, Brown contends that the district court erred by allowing

the State to present hearsay evidence, that his attorney provided ineffective assistance of counsel,

and that the State “committed misconduct during closing argument.” We will affirm the district

court’s judgment of conviction.

DISCUSSION

Hearsay

In his first issue on appeal, Brown contends that the district court erred when it

allowed Officer Fickel “to present hearsay evidence that [Brown] was found in a location known

for higher criminal activity.”

When reviewing a trial court’s ruling on the admission of evidence, appellate courts

use an abuse-of-discretion standard of review. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim.

App. 2010). Under that standard, a trial court’s ruling will only be deemed an abuse of discretion

if it is so clearly wrong as to lie outside the zone of reasonable disagreement, Lopez v. State,

86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is arbitrary or unreasonable, State v. Mechler,

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153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that

the trial court’s decision “is reasonably supported by the record and is correct under any theory of

law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

Turning to the testimony at issue, Officer Fickel described the circumstances leading

up to Brown’s arrest. Specifically, he explained that his unit was patrolling “the I-35 corridor, the

hotel district in particular to the north and south.” When the State asked whether there was

“anything that had prompted that specific focus that day,” Brown objected and stated as follows:

Judge, I believe that that question is going to encourage the statement that there had
been some complaints or he had received some complaints or he was acting on some
reports all of which is hearsay in which I believe Mr. Popper, the previous attorney,
had requested documentation of any corroboration of any of these complaints and
there is none that the State could provide, so this is simply eliciting hearsay testimony
which is improper.

...

And I’m assuming that the officer is going to respond that we had received
complaints from Holiday Inn and about the Travel Lodge and that has not been
documented by any proof or anything; and Mr. Popper had asked for records or any
kind of documentation to verify that and there has been none.

After listening to Brown’s objection, the district court ruled that it would allow

Officer Fickel to answer the question. When the questioning resumed, the State asked Officer Fickel

if there was “any particular reason that you focused your attention on that area that particular day,”

and the officer responded, “Yes, ma’am. I had received a tip.” Immediately after Officer Fickel

answered the question, Brown stated, “Objection, Your Honor, hearsay. That’s exactly the objection

I made at the bench.” In response to the objection, the district court instructed the witness, “Okay.

You may answer the question, but I would instruct the witness to answer the question generally, not

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something that someone else told you, specifically, words.” The Officer then explained that he had

received some information that had focused his attention to that area.

After providing that answer, Officer Fickel continued to answer questions on a range

of topics, including describing where he was on the day in question, what the buildings looked like

in the area, and whether he noticed any unusual activity. Following those questions, the State asked

Officer Fickel, “In terms of that specific I-35 business corridor that goes through your region, what’s

been your experience kind of, generally, with the level of crime that’s going on in that,” and Brown

objected “to the relevance of that question because it has nothing to do with the facts of this case.”

After Brown made his objection, the district court ruled that it would allow Officer Fickel to answer

the question. Once the district court made its ruling, Officer Fickel testified as follows:

The particular hotels, the reason we were run[ning] this operation, besides our tips,
is because those hotels are a common place for people to commit activities that they
don’t want to do at their house. So if you are checking in to a hotel on the I-35
district and you have a car there that returns to an address in Austin and you stayed
at the hotel for one day increments over the past couple of months, that usually sends
up a flag to us.

Immediately after Officer Fickel answered the question, Brown asked “to take the

witness on voir dire in regards to those last statements, because otherwise the statements are

irrelevant,” but the district court denied the request and overruled the objection. On appeal, Brown

contends that the portions of Officer Fickel’s testimony in which he stated that he was patrolling in

the area at issue because he had received a tip and that it was common for people to use the hotels

in that area for activities that they do not want to undertake at their homes were hearsay under

Rule of Evidence 801(d). See Tex. R. Evid. 801(d).

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Testimony Regarding Tip Received by the Police

As discussed previously, Brown asserts that the portion of Officer Fickel’s testimony

in which he related that the police had received a tip regarding misconduct in the area was improper

hearsay. As a preliminary matter, we note that after the district court made its ruling, Officer Fickel

mentioned in his testimony several more times that the police had received a tip, and Brown did not

request a running objection and made no objection to that subsequent testimony. See Trung The Luu

v. State, 440 S.W.3d 123, 127 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (providing that party

must object every time inadmissible evidence is offered or request running objection and that any

error in admission of evidence is cured when evidence comes in without objection). Even assuming

that Brown’s failure to object to the later portions of Officer Fickel’s testimony did not waive any

alleged error, we would still be unable to conclude that the district court abused its discretion by

overruling Brown’s hearsay objection.

Hearsay is a statement that “the declarant does not make while testifying at the current

trial or hearing” and that “a party offers in evidence to prove the truth of the matter asserted in that

statement.” Tex. R. Evid. 801(d). Moreover, “extra-judicial statements [are] not inadmissible hearsay”

if “they are admitted not to prove the truth of the matter asserted, but rather to explain how the

defendant came to be a suspect.” Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995).

Stated differently, “[a]n officer’s testimony is not hearsay when it is admitted, not for the truth,

but to establish the course of events and circumstances leading to the arrest.” Thornton v. State,

994 S.W.2d 845, 854 (Tex. App.—Fort Worth 1999, pet. ref’d). In fact, “it is permissible for a

police officer to testify that he was acting in response to information received” and “may explain

their presence and conduct.” Id.; see also Poindexter v. State, 153 S.W.3d 402, 408 n.21 (Tex. Crim.

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App. 2005) (stating that, in general, “testimony by an officer that he went to a certain place or

performed a certain act in response to generalized ‘information received’ is normally not considered

hearsay because the witness should be allowed to give some explanation of his behavior”), overruled

in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015).

In the portion of Officer Fickel’s testimony at issue leading up to Brown’s objection,

Officer Fickel explained that his unit was focused in a particular region of the City of Austin and that

the unit was paying particular attention to the hotel district in that region in response to a tip that they

had received, but Officer Fickel provided no further information regarding the alleged tip. In light

of the record before the district court at the time that it made the ruling, see Willover v. State,

70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (explaining that “an appellate court must review the

trial court’s ruling in light of what was before the trial court at the time the ruling was made”), we

must conclude that the district court did not abuse its discretion by determining that the testimony

at issue was not inadmissible hearsay because it helped to explain Officer Fickel’s presence in the

area and to describe the events leading up to Brown’s arrest, because it did not reveal any content

of the alleged tip given to the police regarding criminal activity in the area and was not offered to

prove the truth of that tip, and because the testimony was “a general description of possible

criminality” and not “a specific description of the defendant’s purported involvement or link to that

activity,” see Poindexter, 153 S.W.3d at 408 n.21.

Testimony Regarding Crime in Area

As set out above, Brown also contends on appeal that the district court erred by

overruling his hearsay objection to the testimony from Officer Fickel in which the Officer related

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that “those hotels are a common place for people to commit activities that they don’t want to do at

their house.” However, as pointed out by the State, Brown did not raise a hearsay objection to this

portion of Officer Fickel’s testimony. See Tex. R. App. P. 33.1(a) (stating that to preserve error for

appeal, record must show that complaint was made to trial court and that trial court ruled on request

or refused to rule and that “complaining party objected to the refusal”). Although the record shows

that Brown made a hearsay objection to earlier portions of Officer Fickel’s testimony, Brown did not,

as set out above, request a running objection to Officer Fickel’s testimony on hearsay grounds, nor

did he raise a hearsay objection to the testimony at issue. See Lane v. State, 151 S.W.3d 188, 193

(Tex. Crim. App. 2004) (explaining that “‘to preserve error in admitting evidence, a party must . . .

object each time the inadmissible evidence is offered or obtain a running objection. An error [if

any] in the admission of evidence is cured where the same evidence comes in elsewhere without

objection’” (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003), with alteration in

Lane)); Ethington v. State, 819 S.W.2d 854, 859-60 (Tex. Crim. App. 1991) (providing that

objection to testimony was waived when defense counsel objected to first question but did not ask

for running objection or “hearing out of the jury’s presence so he would not have to constantly

object” and witness continued to provide “detailed testimony” on topic). Instead, Brown argued to

the district court that the testimony at issue was not relevant to the facts of the current case. See

Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (stating that “the point of error on

appeal must comport with the objection made at trial”); Broxton v. State, 909 S.W.2d 912, 918

(Tex. Crim. App. 1995) (noting that objection stating one legal theory may not be used to support

different legal theory on appeal); cf. Webb v. State, No. 01-14-00174-CR, 2015 WL 5315332, at *3

(Tex. App.—Houston [1st Dist.] Sept. 10, 2015, pet. ref’d) (mem. op., not designated for publication)

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(declining to address merits of argument that “may (or may not) be a relevance issue” because

defendant only objected on hearsay grounds). Accordingly, we must conclude that Brown did not

preserve any hearsay complaint regarding this portion of Officer Fickel’s testimony.

Assuming for the sake of argument that Brown’s first appellate issue can be read as

asserting that the district court erred by overruling his relevancy objection, we would be unable to

sustain this portion of his first issue on appeal. “Evidence is relevant if . . . it has any tendency to

make a fact more or less probable than it would be without the evidence” and “the fact is of

consequence in determining the action.” Tex. R. Evid. 401; see id. R. 402 (providing that “[r]elevant

evidence is admissible unless” prohibited by Rules of Evidence, “other rules prescribed under

statutory authority,” statute, or “the United States or Texas Constitution”). Testimony regarding

how an officer “happened upon the scene of a crime or accident” is “[a]lmost always . . . relevant.”

Kimball v. State, 24 S.W.3d 555, 564 (Tex. App.—Waco 2000, no pet.). In his testimony, Officer

Fickel explained that the reason that he was at the hotel where he observed the suspicious activity

that ultimately led to Brown’s arrest was because the hotels in that area of the City were being used

as a place to engage in criminal conduct and because his unit was focusing on the hotels in that area

in an effort to combat that criminal activity. Accordingly, we would be unable to conclude that the

district court abused its discretion when it overruled Brown’s relevancy objection.1

1
Although we need not further address the matter, we note that even if Brown had raised a
hearsay objection to the testimony at issue and even if the district court had overruled the objection,
we would be unable to conclude that the district court abused its discretion because, as set out
above, the testimony was not offered for the truth of the matter asserted but instead to show how
Brown became a suspect. See Thornton v. State, 994 S.W.2d 845, 854 (Tex. App.—Fort Worth 1999,
pet. ref’d).

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 For all these reasons, we overrule Brown’s first issue on appeal.

Effectiveness of Counsel

In his second issue on appeal, Brown insists that his trial attorney provided ineffective

assistance of counsel by referring to him “as a ‘bad guy’ during closing argument” in the first phase

of the trial. Specifically, Brown is referring to the following portion of his trial attorney’s closing

argument in which his attorney stated that he was “not a good guy”:

What the State is doing is, the State is waiving a scary gun at you and saying this man
is a bad man, so don’t worry about anything else. That’s what the State is doing.
Yeah, we saw on the video, he had that gun. He’s not a good guy. I’m going to say
it. I’m not hiding anything, but I’m also not hiding page 3, paragraph five; and that
says that you are instructed that before an officer has the right to make a temporary
investigative detention, traffic stop, the officer must have a reasonable suspicion
that a violation of the law is occurring or has occurred. So that’s where everything
begins and ends. Because if you’re convinced beyond a reasonable doubt that there
was a traffic violation at any point, then you convict him. I’m sorry, if you have a
reasonable doubt, you don’t convict him. If you don’t have any reasonable doubt,
then you convict him. So that’s what you focus on, and that’s not an easy thing to do.

(Emphasis added.) In light of this portion of his trial attorney’s closing argument, Brown asserts that

his lawyer’s decision to describe him in that manner could not have been the result of a reasonable

trial strategy because “[t]here was no evidentiary benefit to be gained from the statement.” Similarly,

Brown contends that his trial attorney’s actions likely affected the jurors in this case by encouraging

them to convict and, therefore, prejudiced his defense.

To succeed on an ineffectiveness claim, a defendant must overcome the strong

presumption that his trial “counsel’s conduct falls within the wide range of reasonable professional

assistance” and must show that the attorney’s “representation fell below an objective standard of

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reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). “[A]n appellant’s failure to satisfy

one prong of the Strickland test negates a court’s need to consider the other prong.” Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Evaluations of effectiveness are based on “the totality

of the representation,” Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); see also

Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref’d) (providing that assessment

should consider “cumulative effect” of counsel’s deficiencies), and allegations of ineffectiveness

must be firmly established by the record, Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

Furthermore, even though a defendant is not entitled to representation that is error-free, a single error

can render the representation ineffective if it “was egregious and had a seriously deleterious impact

on the balance of the representation.” Frangias, 450 S.W.3d at 136.

In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness

claims because the record for that type of claim is usually undeveloped. Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett, 65 S.W.3d at 63 (stating that in

majority of cases, “the record on direct appeal is undeveloped and cannot adequately reflect the

motives behind trial counsel’s actions”). In addition, before their representation is deemed ineffective,

trial attorneys should be afforded the opportunity to explain their actions. Goodspeed, 187 S.W.3d

at 392 (stating that “counsel’s conduct is reviewed with great deference, without the distorting

effects of hindsight”). If that opportunity has not been provided, as in this case, an appellate court

should not determine that an attorney’s performance was ineffective unless the conduct at issue “was

so outrageous that no competent attorney would have engaged in it.” See Garcia, 57 S.W.3d at 440.

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 As a preliminary matter, we note that the record does not contain any information

regarding why Brown’s attorney elected to characterize his client in the manner that he did. Cf.

Mallett, 65 S.W.3d at 64-65 (stating that “speculation on counsel’s strategy is immaterial to our

determination that counsel has not been proven ineffective” when record is silent). However, we

also note that his attorney explained to the district court in a hearing outside the presence of the jury

that the overall trial strategy was to challenge the propriety of the traffic stop rather than attack the

evidence of the charged offense, and his attorney’s questioning of the State’s witnesses and argument

were consistent with that strategy. Moreover, given that the State was able to present evidence of

the charged offense through the testimony of several police officers who testified that Brown had a

weapon on him and attempted to flee from the officer who searched him but also through a video

recording of the incident, Brown’s trial attorney’s strategy to attack the lawfulness of the traffic stop

seems reasonable. In addition, Brown’s trial attorney made the comments at issue after the jury had

already been presented with evidence establishing that Brown had previously been convicted of a

state-jail felony “for attempted evading arrest serious bodily injury.” Accordingly, Brown’s trial

attorney may have determined that acknowledging Brown’s criminal past in the manner that he did

might establish credibility with the jury when asking the jury to ignore Brown’s prior criminal

behavior and focus on whether there was a proper basis for the traffic stop in accordance with the

overarching trial strategy. Cf. West v. State, 474 S.W.3d 785, 791 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (determining that trial counsel’s references to his client “as a ‘bad guy’ and a ‘criminal

generally’ who ‘traded drugs for the use of this car’” “may have been part of defense counsel’s strategy

to provide an alternative explanation of how appellant gained possession of the stolen vehicle” and

did “not necessarily rise to the level of ineffective assistance of counsel”).

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 For all of these reasons, we must conclude that the record is not sufficiently

developed to evaluate whether Brown’s attorney’s decision to characterize Brown in the manner

that he did was part of reasonable trial strategy because his attorney has not “been given an

opportunity to respond to” the claims, see Goodspeed, 187 S.W.3d at 392, 394, that Brown has

failed to overcome the presumption of reasonably professional assistance, and that Brown has not

demonstrated that his trial attorney’s alleged mistake was so outrageous that no competent attorney

would have made that mistake.

Having determined that Brown has not shown that his trial attorney provided

ineffective assistance of counsel on the grounds alleged above, we need not further address the

matter, but we do emphasize that ineffectiveness challenges are considered in light of “the totality

of the representation” provided by the attorney. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999); see also Simmons v. State, Nos. 03-11-00229-CR, -00230, 2012 WL 3629864,

at *4 (Tex. App.—Austin Aug. 22, 2012, pet. ref’d) (mem. op., not designated for publication)

(determining that “[t]he critical weakness” in ineffectiveness claim was “its failure to consider

the totality of trial counsel’s representation”). Moreover, we note that during voir dire Brown’s

attorney discussed the presumption of innocence and the State’s burden, went over the defendant’s

right to remain silent, asked the panel members whether they would hold it against Brown if he did

not testify, inquired into any potential biases that the panel members might have, moved successfully

to exclude several panelists for cause, and exercised peremptory challenges. During the trial, Brown’s

attorney cross-examined the State’s witnesses, objected successfully to the admission of a video

recording during the testimony of Officer Fickel, and made other objections to the State’s witnesses’

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testimonies. In the jury-charge conference, Brown’s attorney successfully moved to include an

instruction under article 38.23 of the Code of Criminal Procedure explaining that the jury could not

consider evidence if it determined that the evidence was obtained unlawfully. See Tex. Code Crim.

Proc. art. 38.23(b). In his closing arguments during the guilt-or-innocence phase, Brown’s attorney

emphasized the State’s burden and asserted that there was insufficient evidence establishing that the

traffic stop was proper. During the punishment phase, Brown’s attorney called Brown’s mother to

the stand, and she testified regarding Brown’s tumultuous upbringing and asked the district court

to help Brown rather than lock him away. Finally, in his closing argument during the punishment

phase, Brown’s attorney asked for the minimum sentence possible.

For all of these reasons, we overrule Brown’s second issue on appeal.

Exceeding Scope of Permissible Jury Argument

In his final issue on appeal, Brown urges that the State improperly exceeded the

scope of permissible closing argument in the guilt-or-innocence phase “by arguing with facts not in

evidence.” In particular, Brown refers to the following exchange during the State’s closing:

Ladies and gentlemen, I’m going to stand right here and I’m going to pull up the
camera function on my iPhone and I’m going to take a picture of the Judge right here.
In that photograph, you see the Judge, but you do not see the lovely Kim Lee who is
sitting to his right. Although I hope that you all will agree with me, that as we are
sitting here today all facing the same general direction, that we all can see the Judge
and Ms. Kim Lee. I would submit to you that that is the source of a lot of the issues
that [Brown] wants you to focus on in this case here today.

Following that exchange, the State criticized Brown’s arguments suggesting that the

jury should not consider the recording admitted into evidence and played for the jury in which

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Officer Fickel can be heard describing his observations of the car that Brown was riding in because

the actual alleged traffic violation purportedly described by Officer Fickel was not captured on the

video portion of the recording. Further, the State emphasized that the officers who testified as

witnesses related that they saw the traffic violation and that they were able to see the violation occur

because they had a different vantage point.

In this issue, Brown asserts that the State “created demonstrative evidence, using her

cell phone to demonstrate her opinion that the police camera was similarly situated, and therefore

unable to capture the unfolding events.” In addition, Brown notes that “[t]here was no testimony

presented at trial involving cell phones, or any similarity between taking cell phone photographs or

film.” Further, Brown argues that “[b]y creating the demonstrative evidence, the [State] has unfairly

used unsworn testimony to argue” its position and exceeded the permissible scope of jury argument.

See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (setting out four types of

permissible jury argument); McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985) (explaining

that “the prosecutor may argue his opinions concerning issues in the case so long as the opinions are

based on the evidence in the record and not as constituting unsworn testimony”).

Although Brown urges on appeal that the State exceeded the scope of permissible

jury argument, Brown did not raise an objection during the trial. To preserve for appellate review

an issue regarding allegedly improper jury argument, a defendant must object to the jury argument

and pursue the objection to an adverse ruling. See Estrada v. State, 313 S.W.3d 274, 303 (Tex.

Crim. App. 2010); see also Tex. R. App. P. 33.1(a) (discussing preservation for appellate review).

In other words, a defendant must make a contemporaneous objection to the argument, ask the trial

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court to instruct the jury to disregard the argument if the objection is sustained, and request a mistrial

if the court instructs the jury to disregard the statement. See Cook v. State, 858 S.W.2d 467, 473 (Tex.

Crim. App. 1993). If a defendant fails to make an objection to the argument or fails to pursue an

adverse ruling to his objection, the defendant forfeits his ability to challenge the jury argument on

appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Even in circumstances in which

the error was so egregious that it could not be cured by an instruction to disregard, a defendant must

still object and request a mistrial. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002).

Because Brown failed to object to the allegedly improper jury argument and to pursue

the objection to an adverse ruling, he has failed to preserve any error relating to the jury argument.

Accordingly, we overrule Brown’s third issue on appeal.

CONCLUSION

Having overruled all of Brown’s issues on appeal, we affirm the district court’s

judgment of conviction.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: June 3, 2016

Do Not Publish

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