Opinion issued October 24, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00297-CR ———————————
JACOBI IVAN DIXON-HOLMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1534421 MEMORANDUM OPINION
After the juvenile court waived jurisdiction and certified appellant, Jacobi
Ivan Dixon-Holman, to stand trial as an adult in criminal district court,1 a jury
convicted him of the offense of aggravated robbery2 and assessed his punishment at
confinement for 18 years. The trial court entered an affirmative finding that
appellant used or exhibited a deadly weapon, namely, a firearm, during the
commission of the offense. In three issues, appellant contends that the trial court
erred in (1) admitting hearsay testimony during the guilt-innocence phase of trial,
(2) restricting his direct examination of a witness during the punishment phase, and
(3) denying his motion for mistrial during the punishment phase.
We affirm.
Background
In October 2015, the complainant, Ricardo Navarro-Carbajal, was living at
the Pine Creek Apartments on Maxey Road in Houston. On October 4, 2015, the
complainant’s wife, Doris Ramirez, and children were visiting the complainant. At
around noon, the complainant drove his family to a nearby store. When they
returned, the family got out of the car and paused near the parking lot to take pictures
together. The complainant testified that he saw a red truck being driven into the lot
1 See TEX. FAM. CODE § 54.02. Appellant was age 16 at the time of the offense. 2 See TEX. PENAL CODE § 29.03(a). 2 and parked. He then saw a Hispanic man and an African-American man get out of
the truck. As the complainant and his family were walking toward the complainant’s
apartment, the men approached them from behind. The Hispanic man, who was later
identified as appellant’s co-defendant, Kevin Cardenas, placed a firearm on the
complainant and said, “Give me your wallet. Otherwise, I will shoot you.” The
complainant surrendered his wallet to Cardenas. The African-American man, who
was later identified as appellant, attempted to remove Ramirez’s purse from her arm.
She turned around to face him, however, and refused to release her purse. Appellant
then took the firearm from Cardenas and fired it into the air, fired at a nearby
apartment staircase, and shot the complainant in the stomach. Cardenas and
appellant then ran back to the red truck, got in, and sped away. The complainant
positively identified Cardenas and appellant in photographic arrays. And, he
identified appellant in the array and at trial as the shooter.
Ramirez testified that, when she refused to surrender her purse, appellant
grabbed the firearm from Cardenas and fired a shot into the air, fired a shot toward
her as she ducked under a staircase, then shot the complainant in the stomach.
During the gunshots, Ramirez released her purse to appellant. Ramirez noted that
she feared for her life and for the lives of her two children, then ages two and five,
who were standing next to the complainant when he was shot. She also noted that
Cardenas had a picture of red lips tattooed on the side of his neck.
3 Sakendra Dennis, a resident at the Pine Creek Apartments, testified that, at
around 11:00 a.m. on Sunday, October 4, 2015, she returned home from church with
her mother. Shortly after, Dennis heard gunshots. She went outside and saw an
African-American man, whom she identified in a photographic array and at trial as
appellant, holding a firearm and running toward a red Chevrolet truck. She saw
appellant climb into the passenger side and saw the truck speed away.
Houston Police Department (“HPD”) Officer R. Pena testified that he was
dispatched to the scene to investigate. Pena found the complainant sitting hunched
in a stairway clutching his abdomen, and it appeared that he had been shot. The
complainant was transported by ambulance to a hospital. Pena noted that two shell
casings from a .22-caliber pistol were found at the scene. A witness, Yanira
Hernandez, provided a photograph of the red truck and its license plate. The trial
court admitted the photograph into evidence at trial.
HPD Officer R. Adams testified that, while on patrol on October 6, 2015, he
saw a truck matching that depicted in the photograph traveling on Maxey Road. He
saw the driver park the truck at an apartment complex located next to the Pine Creek
Apartments. Adams saw a Hispanic male with red lips tattooed on his neck, later
identified as Cardenas, get out of the driver’s seat. Adams confronted Cardenas, and
Cardenas repeated: “I didn’t do this by myself. I’m not taking this.”
4 HPD Investigator D. Garcia testified that, based on information obtained from
Cardenas, he developed appellant as a suspect. During an interview, Cardenas said
that he committed the robbery with appellant, that there was a “gun” involved in the
robbery, that appellant was the last person to have the gun, and that Cardenas heard
gunfire as he was running back to the truck.
After the jury found appellant guilty of aggravated robbery as charged in the
indictment, appellant’s father and grandmother each testified during punishment that
appellant, if granted adult community supervision, was capable of complying with
the attendant rules and conditions. They each noted, however, that appellant had
committed the instant offense while on juvenile probation for a prior robbery. When
defense counsel attempted to question appellant’s mother’s friend, Kimberli Clay,
regarding whether she knew the terms and conditions of adult community
supervision and whether appellant could comply with such terms, as discussed
below, the trial court sustained the State’s objections. The jury assessed appellant’s
punishment at confinement for 18 years.
Admission of Testimony
In his first issue, appellant argues that the trial court erred during the
guilt-innocence phase by admitting hearsay testimony from Officer Garcia.
Appellant complains that Garcia was allowed to testify about certain statements that
appellant’s non-testifying co-defendant, Cardenas, made during a police interview.
5 Appellant further asserts that the admission of such testimony violated his Sixth
Amendment right to confront the witnesses against him.
A. Hearsay
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990). We will not reverse a trial court’s evidentiary ruling
unless it falls outside the “zone of reasonable disagreement.” Green v. State, 934
S.W2d 92, 102 (Tex. Crim. App. 1996). We will uphold a trial court’s evidentiary
ruling if it is correct on any theory of law applicable to the ruling. De La Paz v.
State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Hearsay is a statement, other than one made by the declarant while testifying
at a trial or hearing, offered in evidence to prove the truth of the matter asserted.
TEX. R. EVID. 801(d). Hearsay is generally not admissible unless an exception
provided by the Texas Rules of Evidence or another rule or statute applies. TEX. R.
EVID. 802. An erroneous admission of hearsay constitutes non-constitutional error.
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). We must disregard
non-constitutional error if it does not affect a defendant’s substantial rights. TEX. R.
APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). We
6 may not reverse a defendant’s conviction for non-constitutional error if, after
examining the record as a whole, we have fair assurance that the error did not have
a substantial and injurious effect or influence in determining the jury’s verdict.
Garcia, 126 S.W.3d at 927. An erroneous admission of evidence is rendered
harmless if other properly admitted evidence proves the same fact. Brooks v. State,
990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Bourque v. State, 156 S.W.3d 675,
677 (Tex. App.—Dallas 2005, pet. ref’d).
Here, appellant complains that Officer Garcia testified that Cardenas said that
he committed the robbery with appellant, that there was a “gun” involved in the
robbery, that appellant was the last person to have the gun, and that Cardenas heard
gunfire as he was running back to the truck. Appellant objected that this testimony
constituted inadmissible hearsay. The trial court overruled his objections.
Even were we to conclude that the trial court erred in admitting the
complained-of testimony, however, other properly admitted evidence proved the
same facts. See Brooks, 990 S.W.2d at 287; Bourque, 156 S.W.3d at 677. The
record shows that the complainant positively identified appellant in a photographic
array and at trial as the shooter. The complainant testified that appellant took the
firearm from Cardenas and fired it into the air, fired at a nearby apartment staircase,
then shot the complainant in the stomach. Ramirez also testified that she saw
appellant grab the firearm from Cardenas, fire a shot into the air, fire a shot toward
7 her, then shoot the complainant in the stomach. Dennis also positively identified
appellant in a photographic array as the shooter. Dennis testified that she heard
gunshots and then saw appellant holding a firearm and running to the red truck.
After examining the entire record, we have fair assurance that the error, if any, did
not have a substantial and injurious effect or influence in determining the jury’s
verdict at the punishment phase. See Garcia, 126 S.W.3d at 927; Brooks, 990
S.W.2d at 287; Bourque, 156 S.W.3d at 677.
B. Confrontation Clause
Appellant also argues that the trial court’s admission of the complained-of
testimony violated his Sixth Amendment right to confront the witnesses against him
because Cardenas did not testify at trial. The State argues that appellant waived this
complaint because he did not object to the testimony at trial based on a violation of
the Confrontation Clause.
The Confrontation Clause of the Sixth Amendment guarantees an accused the
right “to be confronted with the witnesses against him” by having an opportunity to
cross-examine the witnesses. U.S. CONST. amend. VI; see also Delaware v. Van
Arsdall, 475 U.S. 673, 678 (1986); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.
App. 2000). The Confrontation Clause bars the admission of testimonial statements
of a witness who does not appear at trial unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine him. Crawford v. Washington,
8 541 U.S. 36, 59 (2004); Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App.
2005). Error based on violations of the Confrontation Clause must be preserved.
See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding
defendant failed to preserve error on Confrontation Clause ground because, although
he objected at pretrial hearing to admission of statement on Confrontation Clause
ground, he did not assert that objection at trial).
The record shows that appellant objected to Officer Garcia’s testimony on the
ground that it constituted inadmissible hearsay. Confrontation and hearsay are
distinct objections; confrontation raises constitutional issues, while hearsay invokes
an evidentiary rule. See id.; Ford v. State, 179 S.W.3d 203, 207 (Tex. App.—
Houston [14th Dist.] 2005, pet, ref’d). Because appellant does not direct us to any
place in the record in which he objected to the admission of Garcia’s testimony on
Confrontation Clause grounds, we hold that appellant has waived his complaint. See
Paredes, 129 S.W.3d at 535 (holding defendant who complained on hearsay ground
did not preserve Confrontation Clause issue); see also TEX. R. APP. P. 33.1.
We overrule appellant’s first issue.
Exclusion of Testimony
In his second issue, appellant argues that the trial court erred during the
punishment phase in restricting his direct examination of a witness regarding the
likelihood of appellant’s compliance with the terms and conditions of adult
9 community supervision. The State argues that appellant did not preserve this issue
because he did not make an offer of proof or bill of exception.
To preserve error as to an exclusion of evidence, the proponent must perfect
an offer of proof or bill of exception that informs the trial court of the substance of
the excluded evidence, unless its substance is apparent from the context. TEX. R.
EVID. 103(a)(2); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009);
Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). A party may make
the offer either by presenting testimony through question and answer or by stating a
concise and reasonably specific summary of the evidence and the reasons for its
relevance. Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009); see also
Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (stating that offer of proof
must show that excluded evidence is relevant and admissible). The offer gives a trial
court an opportunity to reconsider its ruling in light of the proffered evidence and
enables an appellate court to decide whether the exclusion of the evidence was
erroneous and harmful. Holmes, 323 S.W.3d at 168. Absent a showing of what such
testimony would have been, or a statement concerning what the excluded evidence
would have shown, nothing is presented for review. TEX. R. EVID. 103(a)(2); Guidry
v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999).
During his direct examination of Clay at punishment, defense counsel asked
Clay whether she was generally familiar with the terms and conditions of community
10 supervision. Clay answered, “Some parts of it.” Defense counsel then asked Clay
whether appellant was “the kind of person who could comply with the terms and
conditions of probation as it stands today.” The State objected on the ground that
Clay’s testimony showed that she was not familiar with the terms and conditions of
community supervision, and thus whether appellant could comply was beyond her
actual knowledge. The trial court sustained the objections. After stating only that
the trial court was “impermissibly restricting [his] ability to defend [appellant] by
asking these questions,” appellant pursued a new line of questioning. He does not
direct us to any place in the record in which he made an offer of proof or bill of
exception regarding his proposed questions or the anticipated testimony.
Because appellant did not make an offer of proof as to how Clay would have
answered defense counsel’s questions regarding appellant’s suitability for
community supervision and the substance of her answers is not apparent from the
context, appellant has not preserved this issue for our review. See Roberts v. State,
220 S.W.3d 521, 532 (Tex. Crim. App. 2007); Mims v. State, 434 S.W.3d 265, 271–
72 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Without these details, we could
only speculate as to the potential relevance or admissibility of Clay’s testimony,
which is not a proper basis for appellate review. See Mims, 434 S.W.3d at 272.
We overrule appellant’s second issue.
11 Mistrial
In his third issue, appellant argues that the trial court erred by denying his
motion for mistrial during the punishment phase because the State, in its closing
argument, discussed the application of parole law to appellant. The State argues that
appellant did not preserve this issue because he did not request a limiting instruction.
Standard of Review and Applicable Legal Principles
Proper jury argument generally falls within one of four categories:
(1) summation of the evidence; (2) reasonable deductions from the evidence;
(3) answers to argument of opposing counsel; and (4) pleas for law enforcement.
Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Arguments that
exceed the bounds of these areas do not constitute reversible error unless, in light of
the record as a whole, the argument is extreme or manifestly improper, violates a
mandatory statute, or injects new facts harmful to the accused into the trial
proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The
remarks must demonstrate a willful and calculated effort on the part of the State to
deprive appellant of a fair and impartial trial. Id.
“The right to a trial untainted by improper jury argument is forfeitable.”
Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018). To preserve error
with respect to improper jury argument, a defendant must contemporaneously object
to the statement and, if sustained, request that the jury be instructed to disregard the
12 statement. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). Ordinarily,
an instruction to disregard the remark is sufficient to cure error. Wesbrook, 29
S.W.3d at 115. However, if the “objectionable events are so emotionally
inflammatory that curative instructions are not likely to prevent the jury from being
unfairly prejudiced against the defendant,” then the defendant should request a
mistrial. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011); see also
Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004) (“Only in extreme circumstances, where the
prejudice is incurable, will a mistrial be required.”).
When a trial court instructs the jury to disregard improper argument, our
review is limited to whether the trial court abused its discretion by denying the
motion for mistrial. Williams v. State, 417 S.W.3d 162, 175 (Tex. App.—Houston
[1st Dist.] 2013, pet. ref’d); see also Archie, 340 S.W.3d at 738–39. We do not
review for harm under Texas Rule of Appellate Procedure 44.2(a). Archie v. State,
221 S.W.3d 695, 700 (Tex. Crim. App. 2007). “Nevertheless, whether a mistrial
should have been granted involves most, if not all, of the same considerations that
attend a harm analysis.” Id. To evaluate whether a trial court abused its discretion
in denying a motion for mistrial based on improper jury argument during the
punishment phase, we balance (1) the severity of the misconduct, (2) curative
measures, and (3) the certainty of the punishment assessed absent the misconduct.
13 Hawkins, 135 S.W.3d at 77. We uphold the trial court’s ruling if it lies within the
zone of reasonable disagreement. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.
App. 2009).
A trial court is statutorily required to include in its punishment charge certain
instructions regarding the applicable parole law. See TEX. CODE CRIM. PROC. art.
37.07, § 4(a). In accordance with these instructions, counsel may inform jurors
about parole law in the abstract and ask them to take such into account in assessing
punishment. Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007). Counsel
may not, however, discuss the manner in which parole law will operate with respect
to a particular defendant. See id.
Analysis
Here, the trial court instructed in its punishment charge to the jury:
It is possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. Under the law applicable to this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time the defendant my earn . . . . Eligibility for parole does not guarantee that parole will be granted. It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities. You may consider the existence of the parole law . . . . You are not to consider the manner in which the parole law may be applied to this particular defendant. 14 (Emphasis added.)
Appellant complains that the following portion of the State’s closing
argument improperly addressed parole law and its application to appellant:
[The State]: . . . . I’m going to ask you to sentence [appellant] to real prison time. And you understand through the charge on this type of offense he’s potentially eligible for parole after half of that time. I’m going to ask you to sentence him to 40 years in prison to ensure that for at least the next 20 years [appellant]— [Defense Counsel]: Judge, I’m sorry. I’m going to object to counsel specifically arguing the parole law and its application with this jury—when the Court’s instruction is going to be to this jury that they are not to consider nor do exactly what counsel is doing right here. THE COURT: Sustained. Defense counsel: Your Honor, I’d ask for a mistrial. THE COURT: Mistrial denied. You may proceed. [The State]: I’m going to ask that you sentence him to 40 years to keep the next bullet from coming out of his gun and finding a more vital target, to keep someone from dying.
Again, the State may explain the existence of parole law. Taylor, 233 S.W.3d
at 359. In Taylor, after the trial court read the jury a punishment charge similar to
that in the instant case, the State argued during closing: “A 40–year sentence means
the defendant becomes eligible for parole after serving 20 years . . . . A 60–year
sentence means he becomes eligible after 30 years. A sentence of life or 75 still
15 means he becomes eligible after 30 years.” Id. at 358. The court of criminal appeals
concluded that the State “did not convey any information beyond what was properly
contained in the charge when [it] explained how the parole eligibility rules set out in
the charge worked with forty, sixty and seventy-five year sentences.” Id. at 359.
Similarly, here, the portion of the State’s argument, emphasized above, that
“through the charge on this type of offense [appellant’s] potentially eligible for
parole after half of that time” did not convey any information beyond what was
properly contained in the charge and explained how the parole eligibility rules set
out in the charge worked. See id. Thus, this portion of the complained-of argument
was not improper. See id.
Appellant complains that the State went further, however, and specifically
applied parole law to him. As emphasized above, the State argued: “I’m going to
ask you to sentence him to 40 years in prison to ensure that for at least the next 20
years [appellant]—.” The State argues on appeal that appellant did not preserve this
issue because he did not request a limiting instruction after the trial court sustained
his objection. The State asserts that the complained-of argument was curable.
A party may dispense with requesting a limiting instruction and immediately
move for a mistrial only if an instruction would not have prevented or cured the harm
resulting from the error. See Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App.
2013). The court of criminal appeals has held that “if a curative instruction would
16 have sufficed, it cannot be said that the trial court abused its discretion to deny
[appellant’s] final mistrial request.” Lee v. State, 549 S.W.3d 138, 145 (Tex. Crim.
App. 2018); see also Ocon, 284 S.W.3d at 885 (“Though requesting lesser remedies
is not a prerequisite to a motion for mistrial, when the movant does not request a
lesser remedy, we will not reverse the court’s judgment if the problem could have
been cured by the less drastic alternative.”).
In Helleson v. State, the State argued to the jury, “[Y]ou can consider the
existence of the parole law. That’s also in the Court’s Charge. And it says
one-quarter. You can do the math. One quarter of 25 years.” 5 S.W.3d 393, 397
(Tex. App.—Fort Worth 1999, pet. ref’d). After the trial court sustained defense
counsel’s objection, defense counsel requested a limiting instruction. Id. The trial
court instructed the jury to “disregard the comment of you can do the math and the
one quarter.” Id. On appeal, the State conceded that the argument at issue was
improper. Id. at 398. The court of appeals held the trial court’s limiting instruction
cured the improper remark. Id.
Here, the State’s similar argument applying parole law to appellant was not
of such nature that a curative instruction would not have remedied the error. See id.;
see also Brown v. State, 769 S.W.2d 565, 567 (Tex. Crim. App. 1989) (holding that
improper jury argument applying parole law to defendant was remedied by trial
court’s curative instruction). Because a lesser remedy would have cured the error
17 and was not requested, we hold that the trial court did not abuse its discretion in
denying appellant’s motion for mistrial. See Lee, 549 S.W.3d at 145.
We overrule appellant’s third issue.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).