Robert Martinez v. State

• Court: Court of Appeals of Texas
• Decided: November 10, 2009
• Docket: 14-08-00345-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 10, 2009.

In The

Fourteenth Court of Appeals

___________________

NO. 14-08-00345-CR

Robert Martinez, Appellant

V.

The State of Texas, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1119772

M E M O R A N D U M   O P I N I O N

A jury found appellant, Robert Martinez, guilty of aggravated robbery and assessed appellant’s punishment at twenty years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).  In five issues, appellant challenges (1) the legal and factual sufficiency of the evidence, (2) the trial court’s denial of appellant’s motion for an instructed verdict, (3) whether he received effective assistance of counsel, (4) the trial court’s decision to overrule appellant’s hearsay objection, and (5) improper statements made by the State during closing argument.  We affirm. 

Factual and Procedural Background

I.         Complainant’s Story

            On April 24, 2007, the complainant was performing community service at a community center for children and the elderly.  The complainant was working at the center because of a traffic ticket he received.  At approximately two in the afternoon, when the complainant was leaving for the day, an elderly female asked him for a ride home.  The complainant agreed and the female directed him to her home because he was unfamiliar with that part of town.  The complainant dropped the female off and began his trip home.  When he stopped at a stop sign to exit her neighborhood, he was approached by appellant who asked the complainant if he could give appellant a ride to the Metro station down the street.  The complainant agreed and appellant got into the complainant’s vehicle.  Once they reached the Metro station, appellant asked the complainant if he could instead give him a ride to appellant’s friend’s house down the street.  The complainant drove appellant to a house that appellant claimed was his friend’s house.  When they were stopped outside the house, appellant pulled out a gun and stuck it in the complainant’s side and said “give me all you have.”  The complainant testified the gun was a black revolver with a brown grip.  The complainant gave appellant all the cash he had in his wallet—thirty-five dollars.  Appellant then snatched the complainant’s wallet out of his hand.  Next, appellant got out of the vehicle, continuing to point the gun at the complainant and demanded the complainant get into the passenger seat while appellant got into the driver’s seat. 

            Appellant drove complainant’s vehicle to a nearby gas station.  Once they reached the gas station appellant demanded they get out of the vehicle and go to the ATM machine inside the gas station.  Appellant held a gun to the complainant’s side as they walked to the ATM machine in the gas station.  The complainant testified there were two clerks and one customer inside the store when they entered.  Eventually, the complainant withdrew eighty dollars from one of his accounts.  After withdrawing the money, the complainant demanded his keys back from appellant in exchange for the eighty dollars.  The complainant testified he was yelling and trying to get the clerk’s attention.  Appellant and the complainant then went to the front of the store and appellant asked the complainant if he would like anything to drink.  The complainant said he would like a Sprite; appellant went to retrieve the Sprite.  While appellant was getting the Sprite, the complainant tried to signal to the clerk that he needed the clerk to call 9-1-1.  The clerk did not make the call.  Appellant returned and purchased the Sprite with the complainant’s money.  Next, appellant tried to get the complainant to leave the store with him, but the complainant refused.  Eventually, appellant left the store alone in the complainant’s vehicle.  The complainant called the police on his cellular phone and they arrived at the gas station shortly thereafter.  The police attempted to take the complainant back to the house where the complainant picked up appellant, but the complainant testified the police were not following his directions and were unable to locate the house.  The complainant was dropped off back at the gas station where a family member picked him up.  Police officers testified they never recovered a surveillance video from the gas station. 

II.        Appellant’s Story

            On April 24, 2007, appellant testified he left his house early in the morning to go to work.  When he left his house, he was carrying approximately six hundred dollars in cash for his rent and other bills.  He finished work around noon and went to his mother’s house.  Many of his family members were at his mother’s house.  Everyone was outside in the front yard, talking and working on a vehicle.  Eventually, a red vehicle began circling the house.  After the vehicle had circled the house three or four times, appellant flagged the vehicle down to determine what it was doing.  Complainant was driving the vehicle and apparently asked appellant whether appellant could procure drugs for him.  Appellant said he knew where to find drugs and that he would help the complainant.  Appellant got in the passenger seat of the complainant’s vehicle and they drove to the gas station.  Appellant testified they went to the gas station because it was near the apartment complex where appellant could buy drugs and he wanted to drop the complainant off.  He explained he did not want the complainant coming with him to buy the drugs.  Appellant testified the complainant voluntarily agreed that appellant would take the complainant’s vehicle to the apartment complex to buy drugs.  Appellant testified they never entered the gas station nor went to an ATM machine.

            Appellant drove to the apartment complex where he believed he could buy drugs for the complainant.  When he arrived at the apartment complex, he ran into a girl who led him to an apartment.  When he got inside the apartment, he sat on a couch and waited for her to come back with the drugs.  She never returned and the next thing he knew he was being jumped and robbed by three or four individuals.  Appellant lost consciousness and suffered serious injuries requiring reconstructive surgery.  When appellant regained consciousness, he called his mother and then saw police standing outside of the apartment.  He spoke with the police and relayed to them what happened.  An ambulance was called and it transported appellant to the hospital.  Appellant denied ever carrying a gun or threatening the complainant. 

III.      Police Testimony   

            Officer T. Dougherty of the Houston Police Department testified that on April 24, 2007, he received a dispatch about a possible prowler at an apartment complex in his patrol area.  When he arrived at the apartment complex, he observed appellant walking down from an apartment covered in blood.  The reportee identified appellant as the prowler.  Appellant told Officer Dougherty that he had just been beat up in the apartment upstairs.  Officer Dougherty was not aware of the robbery recently reported by the complainant at the time he spoke with appellant.  After the ambulance left with appellant, Officer Dougherty searched the apartment for appellant’s attackers.  Officer Dougherty did not find anyone in the apartment nor any weapons.      

            Officer James Rachel of the Houston Police Department testified he conducts follow-up investigations on reported incidents and that he was assigned to the robbery incident reported by complainant.  Officer Rachel visited the gas station where the complainant was allegedly robbed and then visited the apartment complex where the complainant’s vehicle was recovered.  Officer Rachel previously received a supplemental incident report informing him that the stolen vehicle had been recovered at an apartment complex.  At this time Officer Rachel was unaware of the assault incident involving appellant that had taken place at the same apartment complex.  After speaking with the apartment manager regarding the vehicle found at the complex, he was informed about the assault incident involving appellant.  Officer Rachel obtained a copy of the incident report involving appellant and subsequently developed appellant as a possible suspect in the complainant’s robbery incident.  Officer Rachel told the jury that he compiled a photospread using a jail booking photo of appellant.  Another police officer showed the photospread to the complainant and the complainant immediately identified appellant as the person who robbed him. 

      Appellant was arrested and charged with aggravated robbery.  A jury found appellant guilty of the felony offense of aggravated robbery and assessed punishment at twenty years’ confinement.  See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).  This appeal followed.   

Discussion

I.         Factual and Legal Sufficiency

            In his first issue, appellant contends the evidence is factually and legally insufficient to sustain his conviction.  In his second issue, appellant contends the trial court erred by denying his motion for an instructed verdict, asserting the evidence was insufficient to convict appellant as charged in the indictment.  We construe appellant’s first and second issues together because the law is well settled that a challenge to the denial of a motion for an instructed verdict is a challenge to the legal sufficiency of the evidence.  Gabriel v. State, 290 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.).  Appellant’s primary contention is the evidence is both legally and factually insufficient to support his conviction for aggravated robbery because there is insufficient evidence appellant used a deadly weapon, namely a firearm.  

            A.        Standard of Review  

            When reviewing legal sufficiency, we view all the evidence in the light most favorable to the verdict and then determine whether a rational juror could have found the essential elements of the crime beyond a reasonable doubt.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  The jury, as the trier of fact, is the sole judge of the credibility of witnesses.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  The jury chooses whether or not to believe all or part of a witness’s testimony.  See id.  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

            In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730–31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  Id. at 731.  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met.  Id.  In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court may harbor a subjective level of reasonable doubt to overturn the conviction.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  We may not simply substitute our judgment for the fact finder’s.  Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given the evidence.  Johnson, 23 S.W.3d at 8. 

            B.        Analysis

            A person commits the offense of aggravated robbery if, in the course of committing theft, he (1) intentionally, or knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death, and (3) uses or exhibits a deadly weapon.  See Tex. Penal Code Ann. §§ 29.02(a)(1)–(2), 29.03(a)(2) (Vernon 2003). 

            Appellant contends the complainant’s testimony that the weapon used was a “gun”
 is insufficient to support a finding that a “firearm” was used, as alleged in the indictment.  Although a person commits the first degree felony of aggravated robbery if he uses or exhibits a deadly weapon in the commission of a robbery, when the State alleges a specific component that is descriptive of the essential elements of the crime, it must prove the specific component as alleged.  See Cruz v. State, 238 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  Thus, when the State alleges in an indictment for aggravated robbery that the deadly weapon used by the defendant was a firearm, as it did in this case, it is required to prove the use of a firearm beyond a reasonable doubt.  Id.     

            The complainant testified that when he and appellant arrived at the location appellant claimed was his friend’s house, appellant pulled a gun out of his right pocket and stuck it to complainant’s side and said: “[g]ive me all you have.”  The complainant explained he was not too familiar with guns, but knew appellant’s gun was a revolver and was black with a brown grip.  Appellant allegedly demanded that the complainant give him all of the complainant’s money.  The complainant handed over his money and appellant grabbed the complainant’s wallet out of his hand.  Next, while still pointing his gun at the complainant, appellant demanded they switch seats in the vehicle.  Appellant, still holding the gun, got out of the vehicle and entered the driver’s side, while the complainant crawled over the center console into the passenger’s seat.  The complainant testified that he feared appellant would shoot him if he did not comply with appellant’s demands.

            Appellant then drove the vehicle to a nearby gas station with an ATM machine inside.  Appellant and complainant walked into the gas station together, while appellant held the gun pressed against the complainant’s body.  Appellant ordered the complainant to withdraw money from the ATM machine inside.  The complainant withdrew eighty dollars from the ATM machine and then asked appellant if he could have his keys in exchange for the eighty dollars.  Apparently, they got into an argument and appellant put the gun back into his pocket.  The complainant testified he did not try to run out of the store when he had a chance, because he was afraid appellant would shoot him. 

            The defense presented four witnesses—appellant, his mother, his wife, and his aunt—who testified they did not see a gun on the day of the incident, nor had they ever seen appellant with a gun.  Appellant’s story of the events that took place on April 24, 2007 is drastically different from the complainant’s story.  Importantly, appellant argues he never had a gun, never went inside the gas station, and voluntarily was given permission to take the complainant’s vehicle to conduct a drug transaction on complainant’s behalf. 

            We recognize that the term “gun” may be a much broader term than “firearm” when taken out of context, and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns.  O’Briant v. State, 556 S.W.2d 333, 335–36 (Tex. Crim. App. 1977).  Courts also have  recognized, however, that the fact finder may draw reasonable inferences and make reasonable deductions from the evidence as presented to it within the context of the crime.  Cruz, 238 S.W.3d at 388.  Absent any specific indication to the contrary at trial, the jury should be able to make the reasonable inference from the complainant’s testimony that the “gun” used in the commission of the crime, was, in fact, a firearm.  Id. 

            Appellant’s threatening the complainant with the gun in itself suggests that it is a firearm rather than merely a gun of the non-lethal variety.  See Riddick v. State, 624 S.W.2d 709, 711 (Tex. Crim. App. 1981); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.).  Additionally, the complainant testified he was in fear for his life because of the gun.  See Davis, 180 S.W.3d at 286.  There is nothing in the record to suggest the gun used by appellant was a toy or anything other than a firearm.  The jury, as the fact-finder, was free to make reasonable inferences from the context of the crime.  It was reasonable for the jury to find that the “gun” the complainant testified to, was, in fact, a firearm.  Moreover, the jury was free to believe or disbelieve any portion of the witnesses’ testimony.  Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  The jury’s choice to believe the State’s case over the entirely different case presented by the defense was within its sole province.  See id.

            From this evidence, the jury could have concluded, beyond a reasonable doubt, that the gun complainant saw was a firearm.  Accordingly, the evidence is legally sufficient to show the gun appellant used was a firearm.

            Appellant points to no contrary evidence suggesting that the gun used was anything other than a firearm.  Instead, his only evidence to the contrary disputes the very existence of the gun.  Viewing the relevant evidence in a neutral light, favoring neither the State nor appellant, and with appropriate deference to the jury’s credibility determinations, we conclude that the evidence supporting the jury’s finding that the gun used was a firearm is not too weak to support the verdict; nor is the weight of the evidence contrary to the finding so strong that the State could not have met its burden of proof.  See Cruz, 238 S.W.3d at 389.  Accordingly, we hold that the evidence is factually sufficient to support the jury’s finding that the gun appellant used was a firearm. 

            For the above reasons, we overrule appellant’s first and second issues. 

II.        Ineffective Assistance of Counsel

            In the issues presented section of his brief, appellant lists nine different bases for his ineffective assistance claim: (1) counsel failed to request a pre-trial hearing and failed to obtain rulings on motions filed prior to trial, (2) counsel failed to object to statements by the trial court during voir dire that appellant was facing a fifteen to life sentence rather than a five to life sentence, (3) counsel failed to prepare a witness to testify, allowing that witness to testify to a conflicting alibi defense, (4) counsel failed to object to improper impeachment of appellant as to a non-final theft charge during guilt/innocence, (5) counsel failed to object to improper impeachment of defense witnesses as to non-final convictions, (6) counsel failed to object to police officer’s allegedly non-responsive statement that they obtained a jail booking photo of appellant to put in the photospread, (7) counsel failed to object to the State’s improper argument that the complainant had no criminal record where there was no testimony about his criminal history, (8) counsel erred by advising appellant to stipulate and plead “true” to a conviction not alleged in an enhancement paragraph during punishment, and (9) counsel failed to object to the State’s improper punishment argument to consider parole. 

            In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel’s representation was deficient in that it fell below that standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.  Id.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). 

            An accused is entitled to reasonably effective assistance of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).  When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption that counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  To overcome the presumption of reasonably professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 813.  When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel’s conduct, as in this case, a finding that counsel was ineffective would require impermissible speculation by the appellate court.  Stults, 23 S.W.3d at 208.  Absent specific explanations for counsel’s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 

            B.        Analysis

                        1.         Failure to request, file, and urge pretrial hearings and rulings

            Appellant argues his counsel was ineffective for failing to request a pretrial hearing and for failing to obtain rulings on motions filed prior to trial.  There were various pretrial motions filed, including appellant’s pro se motions to dismiss indictment for improper grand jury procedures, for production and inspection of grand jury minutes, for pretrial hearing, for discovery of witnesses, and for discovery and inspection of evidence.  The record does not reflect that appellant’s counsel obtained rulings on these motions.  However, appellant has not shown that any of the motions were meritorious, or that the failure to obtain rulings on the motions resulted in any harm.  Trial counsel may have believed the pro se motions had no merit.  Appellant has not met his burden to show error or harm.  See Wills v. State, 867 S.W.2d 852, 857 (Tex. App.—Houston [14th Dist.] 1993, writ ref’d) ([i]f failure to file pretrial motions is not ineffective assistance, it necessarily follows that failing to obtain a ruling is also not ineffective assistance.”); Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.—Houston [14th Dist.] 1992, no writ) (“[f]ailure to file pretrial motions, in itself, does not result in ineffective assistance of counsel.”). 

                        2.         Failure to object during voir dire

            Appellant claims counsel failed to object to the trial court’s statements during voir dire that appellant was facing a fifteen-to life-sentence rather than a five- to life- sentence.  In his summation of the facts, appellant states: “During voir dire, Judge Godwin told the panel that [a]ppellant was a second offender, rather than using a ‘hypothetical’ situation while qualifying the veniremen on punishment.”  This is a false representation of the facts.  The Judge never went beyond the hypothetical realm; he merely explained how the minimum punishment increases if the jury chooses to believe a defendant has been convicted of a previous felony.  He never mentioned or even implied he was talking about the specific defendant in the case at hand.  Accordingly, appellant’s attorney had no obligation to object.  Thus, this is not ineffective representation.

                        3.         Failure to prepare witnesses

            Appellant contends there is a reasonable probability that the results would have been different if counsel had conducted an adequate investigation.  Specifically, he claims if counsel had talked to his witnesses before they testified, he could have avoided what looked like lies.  The testimony of appellant’s mother and his wife directly conflicted with the testimony of his aunt.  Without giving trial counsel an opportunity to explain his actions, we cannot assume trial counsel had no reasonable trial strategy when he presented these witnesses, despite their conflicting testimony.  See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).  Additionally, appellant has not shown that had counsel prepared the witnesses there is a reasonable probability the result would have been different.  Id.  We cannot predict what the witnesses would have said on the stand.  Without testimony from trial counsel, an appellate court must presume counsel had a plausible reason for his actions.  Mata v. State, 226 S.W.3d 425, 430–32 (Tex. Crim. App. 2007).   

                        4.         Failure to object to improper impeachment about a non-final                                           theft conviction of appellant during guilt/innocence

            Appellant fails to point out where in the record appellant was improperly impeached regarding a theft incident.  Moreover, this issue was not addressed in the body of appellant’s argument.  This issue is inadequately briefed and therefore will not be considered.  Tex. R. App. P. 38.1(i); Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003). 

                        5.         Failure to object to improper impeachment of witnesses as to                                           non-final convictions 

            Appellant fails to address this issue in the body of his argument.  It is not clear which witness he is referring to.  This point is inadequately briefed and therefore will not be considered.  Tex. R. App. P. 38.1(i); Jones, 119 S.W.3d at 784.

                        6.         Failure to object to “jail booking photo” statement

            In the issues presented section appellant complains counsel was ineffective for failing to object to a police officer’s “non-responsive statement” that he used a jail booking photo to compile a photospread.  In the body of the argument, appellant complains counsel was ineffective for failing to object to the use of the jail booking photo in the photospread, which was entered into evidence.  As to the latter argument, counsel did object to the photospread and the trial court held a hearing outside the jury, ultimately overruling counsel’s objection to the photospread.  Thus, appellant’s latter argument is groundless. 

            As for counsel’s failure to object to the police officer’s reference to appellant’s jail booking photo, appellant has failed to overcome the presumption that trial counsel’s actions were reasonable.  It is conceivable trial counsel decided not to object in order to avoid calling attention to the source of the photo.  Without giving trial counsel an opportunity to explain his decisions, we will not speculate that he acted without a reasonable trial strategy.  Mata, 226 S.W.3d at 431.  Therefore, appellant has failed to rebut the presumption that trial counsel’s actions were reasonable.  Id. 

                        7.        Failure to object to improper bolstering of complainant

            Appellant argues counsel was ineffective for failing to object to the State’s improper argument that the complainant had no criminal record, when there was no testimony about his criminal history.  During the guilt/innocence stage closing arguments the State argued: “[w]ho do you believe? The convicted felon who is trying to save his own skin, or the college student with no criminal history at all, who has nothing to gain by coming down and lying to you?” 

            To be proper, jury argument must fall within one of the following four categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement.  See Todd v. State, 598 S.W.2d 286, 296–97 (Tex. Crim. App. 1980).  The general rule is that in closing argument the State may not bolster the credibility of its witnesses with unsworn testimony.  Johnson v. State, 987 S.W.2d 79, 84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).  However, if the State’s argument is a reasonable deduction from, or summation of, the evidence, it is permissible jury argument.  See id.; Richards v. State, 912 S.W.2d 374, 379 (Tex. App.—Houston [14th Dist.] 1995, writ ref’d).

            In the instant case, the prosecutor implied the complainant was credible because he had no criminal history.  Appellant argues this was improper argument because there was no previous testimony about appellant’s criminal history.  However, during cross-examination of appellant, defense counsel asked the complainant whether he had ever been convicted of any kind of drug offense.  The complainant confirmed that he had not.  Thus, defense counsel placed the complainant’s criminal history in evidence.  Therefore, the State’s closing argument falls within the category of summation of the evidence.  See Johnson, 987 S.W.2d at 84.  Because the State’s argument falls within one of the four permissible categories of proper jury argument, an objection was improper.  Id. at 85.  Counsel’s performance, therefore, satisfied the first prong of the Strickland test and no further inquiry is required.  Id. 

                        8.         Advising appellant to stipulate and plead true to a conviction not                                    alleged in the enhancement paragraph during punishment

            Appellant contends counsel suggested that appellant stipulate that he was convicted of a felony, possession of codeine, not stated in the enhancement paragraph of the indictment.  Appellant voluntarily stipulated to two previous convictions.  There is nothing in the record reflecting counsel advised appellant to do so.  Appellant has not overcome the presumption that trial counsel’s actions were reasonable.  Rylander, 101 S.W.3d at 110.

                        9.         Failure to object to State’s punishment argument to consider                                           parole

            Appellant fails to address this issue in the body of his argument.  Appellant has presented no argument or authority in support of this claim.  Appellant  therefore has failed to adequately brief this issue and it will not be considered.  Tex. R. App. P. 38.1(i); Jones, 119 S.W.3d at 784.

            Accordingly, appellant’s third issue is overruled.

III.      Hearsay Objection

            Appellant argues the trial court erred in overruling counsel’s hearsay objection to Officer Dougherty’s testimony because it admitted evidence of an extraneous offense.

            A.        Standard of Review

            An appellate court reviews a trial court’s decision to admit or exclude evidence under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).  An abuse of discretion will be found only when the trial judge’s decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). 

                        1.        Extraneous Offense Testimony

            During the State’s case in chief it presented the testimony of Houston Police Officer T. Dougherty.  Officer Dougherty became involved in this case when he was called to the apartment complex where appellant was found after allegedly having been assaulted.  The complained-of testimony is the following:

            STATE:                                  Now, you said that the original call was about a prowler                                                         and once you arrived you found he [appellant]                                                                                     was a victim of assault.  Were you ever able to confirm                                                         he was, indeed, the prowler that was called on?

           OFFICER:                              Yes.  According to reportee, she did say –

            DEFENSE COUNSEL:         I object to hearsay according to what the reportee said.

            THE COURT:                        That will be overruled.  He may answer, again, not for                                                           the truth of it, but just to show the context of what he                                                              was doing and what information he had.  You may                                                                 answer the question.

            OFFICER:                              When I spoke to the reportee, she had said he was in                                                               her house or her apartment.  She had left, came back,                                                                         and he was there.  She did not know who he was.

            Appellant argues the trial court erred by allowing “backdoor hearsay” testimony of an extraneous offense by artful questioning by the prosecutor.  During trial, appellant’s objection to this testimony was based on hearsay.  On appeal, appellant argues the testimony was inadmissible because it constitutes extraneous offense evidence.  To preserve a complaint for appellate review, a party must make timely, specific objections in the trial court.  Tex. R. App. P. 33.1.  The objection must state the grounds for the ruling that the complaining party sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context.  Id.  The complaining party must obtain an adverse ruling from the trial court.  Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).  The point of error on appeal must correspond to the objection made at trial.  Id.  Where an objection does not comport with the complaint on appeal, the appellant does not preserve any error.  Barley v. State, 906 S.W.2d 27, 37 (Tex. Crim. App. 1995).  Appellant did not properly preserve an objection on the basis of extraneous offense testimony and has waived this argument on appeal.  See id.

                        2.         Hearsay

            Additionally, appellant argues the trial court erred by failing to sustain the objection as to hearsay.  Officer Dougherty received a dispatch reporting an intruder at an apartment complex.  When Officer Dougherty arrived at the scene, appellant was identified as the possible suspect; however, appellant claimed to have been assaulted and an ambulance transported him to the hospital.  Appellant contends the testimony by Officer Dougherty relaying the reportee’s identification of appellant as the prowler is inadmissible hearsay.  The trial court admitted the testimony over appellant’s objection because it found the statements were not being offered to prove the truth of the matter asserted. 

            A police officer’s testimony is not hearsay when it is offered for the purpose of explaining how a defendant became a suspect rather than for the truth of the matter asserted.  See Dickins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995).  Furthermore, an 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 defendant’s arrest.  Thorton v. State, 994 S.W.2d 845, 854 (Tex. App.—Fort Worth 1999, pet. ref’d).  Such testimony may assist the jury’s understanding of events by providing context for the police officer’s actions.  Davis v. State, 169 S.W.3d 673, 676 (Tex. App.—Fort Worth 2005, no pet.).  Officer Dougherty’s testimony was not offered to show that appellant “burglarized a woman’s apartment.”  The testimony established the investigation that linked appellant to the apartment complex where the complainant’s vehicle was found.  Eventually, this investigation led to appellant being a suspect in the current case.  We agree with the trial court that this testimony was not offered to prove the truth of the matter asserted and, therefore, is not hearsay.   See id. at 675.   

            Accordingly, appellant’s fourth issue is overruled. 

IV.      Improper Prosecutorial Argument

            In his fifth issue, appellant contends the State improperly argued facts not in evidence, improperly bolstered the credibility of the complainant, and improperly emphasized parole during closing arguments in both the guilt/innocence stages and punishment stages of trial.  Appellant concedes he did not object to any of these statements.

A.          Applicable Law

The Court of Criminal Appeals has held a defendant’s failure to object to a jury argument or a defendant’s failure to pursue to 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).  The Court of Criminal Appeals has applied this holding to closing arguments that allegedly violate the defendant’s due process rights.  See Ladd v. State, 3 S.W.3d 547, 569–70 (Tex. Crim. App. 1999).

B.           Analysis

            Appellant admits he did not object to the complained of arguments.  The record also confirms this.  In light of the Court of Criminal Appeals’ holding in Cockrell, we hold appellant has forfeited his right to complain of the improper closing arguments. 

            Accordingly, appellant’s fifth issue is overruled.      

Conclusion

            Having overruled each of appellant’s issues, we affirm the judgment of the trial court.

                                                                        /s/        John S. Anderson

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).