JAMISON JERROD LEWIS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed April 10, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00076-CR
............................
JAMISON JERROD LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-32121-TQ
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OPINION
Before Justices FitzGerald, Richter, and Francis
Opinion By Justice FitzGerald
        On his plea of not guilty, a jury found Jamison Jerrod Lewis guilty of aggravated robbery and that he used a deadly weapon, a firearm. Lewis pleaded true to an enhancement paragraph. The jury assessed punishment at life imprisonment. Lewis brings eleven issues: the evidence is legally and factually insufficient to support the jury's guilty verdict (issues one and two); the trial court erred by denying his Batson   See Footnote 1  challenge to the State's peremptory strike of a venireperson (issue three); the trial court erred by admitting evidence of a second photo line-up (issue four); the trial court erred by denying his motion for mistrial on grounds that a police officer's testimony improperly indicated Lewis had been in police custody prior to this offense (issue five); the trial court erred by overruling his objection to two statements in closing argument during the guilt/innocence phase (issues six and seven); the trial court erred by admitting certain testimony at the punishment phase of the trial and by denying his motion for mistrial on the ground that this testimony was hearsay (issues eight and nine); and the trial court erred by denying his motion for mistrial on grounds that two statements in the State's closing argument during the punishment phase were improper (issues ten and eleven). For the reasons that follow, we resolve Lewis's issues against him and affirm the trial court's judgment.
I. BACKGROUND
        The indictment alleged that Lewis, on or about April 1, 2005, did unlawfully, while in the course of committing theft and with intent to obtain and maintain control of money belonging to Jane Doe,   See Footnote 2  without her consent and with intent to deprive her of it, did knowingly and intentionally threaten and place Doe in fear of imminent bodily injury and death, and Lewis used and exhibited a deadly weapon, a firearm.   See Footnote 3  Doe was an employee at a pizza restaurant. About 1:30 p.m. on April 1, 2005, she took an order from “J” and was directed to deliver the order to 818 Brianna Way in Glenn Heights. When she arrived at that address, she discovered it was an empty house. A man she identified as Lewis came up behind her car and pointed a gun through the window at her face. He told her to get out of the car and then directed her to walk to the yard behind the house, which was enclosed by a fence. Holding the gun to her throat, he raped her. He also took $17 from her. He directed her to drive away from the house, and then he got out of her car at an intersection.
        Later that day, Doe was interviewed at the hospital by a police officer, Lance Roberts. She described the perpetrator's gun; his clothes, shoes, hat, and earrings; and a tattoo. Roberts relayed the description of the perpetrator and his clothing to other police officers at the scene; they canvassed the neighborhood with the information. Al Gray, who lived at 822 Brianna Way, telephoned Roberts that, from the description, he suspected Lewis-his “god nephew” who lived with him.
        In the evening, Detective Kevin Howard presented a photo line-up to Doe. She was unable to recognize Lewis. Also that evening, about 10:30 p.m., the police went to Gray's house and retrieved from Lewis his clothing and a nine-millimeter firearm. They arrested Lewis. The next day, Howard and Rogers prepared another photo line-up, from which Doe immediately identified Lewis as the perpetrator. Material for DNA testing was taken from Doe by a vaginal swab during a rape exam and from Lewis by a buccal swab. There was testimony that the DNA profile from the vaginal swab matched Lewis's DNA profile. Further, there was testimony that the probability of a DNA match with another person among the African-American population was 1 in 9.29 billion.
        After the jury found Lewis guilty of aggravated robbery, it considered punishment. The second paragraph of the indictment alleged a previous conviction for burglary of a habitation. Lewis pleaded true to the allegation. Kenta Curlin testified that Lewis raped her in November 2001. The jury sentenced Lewis to life imprisonment.
        Lewis's motion for new trial was overruled by operation of law. This appeal followed.
II. GUILT/INNOCENCE PHASE
A. Sufficiency of the Evidence
        In his first and second issues, Lewis contends the evidence is legally and factually insufficient to support the jury's guilty verdict.          1. Standard of Review and Applicable Law
        In reviewing a challenge to the legal sufficiency of the evidence, we examine all the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider all evidence in the trial court record, whether admissible or inadmissible, when making a legal sufficiency determination. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. Under the legal sufficiency standard, we defer to the jury's credibility and weight determinations, while under the factual sufficiency standard we are permitted to substitute our judgment for the jury's on these questions “albeit to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (quoting Watson, 204 S.W.3d at 417). Under the factual sufficiency standard, we give “due deference” to the jury's determination of witnesses' credibility. Id. (quoting Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000)).
        A person commits the offense of robbery if he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death while in the process of committing theft and with intent to obtain or maintain control of the property. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). A robbery is aggravated if the person uses or exhibits a deadly weapon during the commission of a robbery. Id. § 29.03(a)(2). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A) (Vernon Supp. 2006); Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).
         2. Discussion
        Lewis argues the evidence is insufficient to show he was the perpetrator because: Doe's vision was “blurry” and she could not see clearly because she was crying; Doe misidentified Lewis's tattoos; Doe's description of the perpetrator's clothes was inconsistent with Lewis's clothing recovered by the police; although police officers testified that fingerprints were recovered from Doe's car, no evidence was presented that the fingerprints were Lewis's; and Lewis was cooperative when he was arrested and offered his clothing to police officers, which is behavior inconsistent with Doe's allegations he was the perpetrator.
        However, Doe positively identified Lewis in court as the person who raped and robbed her at gunpoint, and her identification was supported by the DNA evidence. This evidence is legally sufficient to identify Lewis as the perpetrator of the offense. See Green v. State, 510 S.W.2d 919, 922 (Tex. Crim. App. 1974) (in indecent exposure case, after rejecting argument that in-court identification should have been excluded, court holds “the positive identification of appellant was sufficient evidence connecting him with the offense”); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (testimony of victim, standing alone, even when victim is child, is sufficient to support a conviction for sexual assault); Harris v. State, 670 S.W.2d 284, 285 (Tex. App.-Houston [1st Dist.] 1983, no pet.) (in aggravated rape case, evidence legally sufficient when complainant positively identified appellant in court and pretrial line up and appellant's appearance consistent with complainant's description immediately after offense and thereafter). Accordingly, after examining all the evidence in the light most favorable to the judgment, we conclude a rational trier of fact could have found beyond a reasonable doubt that Lewis intentionally or knowingly threatened Doe or placed her in fear of imminent bodily injury or death while in the process of committing theft and with intent to obtain or maintain control of her property, and that he used or exhibited a deadly weapon during the commission of the robbery. See Tex. Pen. Code Ann. §§ 29.02(a)(2), .03(a)(2); Jackson, 443 U.S. at 319. Because the evidence is legally sufficient to support Lewis's conviction for aggravated robbery, we resolve his first issue against him.
        Lewis argues Doe testified the perpetrator was wearing gray nylon “wind pants,” but the pants Lewis gave the police were cotton. In addition, Doe testified she could not see the complete tattoo on the perpetrator's arm because her vision was “blurry” from crying. There was evidence that fingerprints obtained from the car were not identified as Lewis's, but Doe testified that Lewis opened the glove compartment with his shirt. Moreover, Doe described the gun the perpetrator used, and her description matched the gun recovered from Lewis.
        After reviewing all the evidence in this case, including that relied on by Lewis, and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude the great weight and preponderance of evidence contradicts the jury's verdict. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support Lewis's conviction. See Watson, 204 S.W.3d at 417. We resolve Lewis's second issue against him. B. Batson Challenge
        In his third issue, Lewis contends the trial court erred by denying his Batson challenge to the State's peremptory strike of Juror 5, Dianne Warren.
         1. Applicable Law and Standard of Review
        The following three-step process applies to a Batson challenge: (1) the defendant must make a prima facie showing the prosecutor exercised peremptory strikes on the basis of race, (2) the burden then shifts to the prosecutor to state a race-neutral reason for the strikes, and (3) the ultimate burden lies with the defendant to rebut the prosecutor's explanations or establish those explanations are merely a pretext for discrimination. Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003); Hernandez v. New York, 500 U.S. 352, 358 (1991) (plurality op.); Batson, 476 U.S. at 96-98. The critical question in determining whether a defendant has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for the peremptory strike. Miller-El, 537 U.S. at 338-39 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)). At this stage, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id. at 339 (quoting Purkett, 514 U.S. at 768). In that instance, the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Id. Credibility can be measured by, among other factors, the prosecutor's demeanor; how reasonable, or how improbable, the explanations are; and whether the proffered rationale has some basis in accepted trial strategy. Id.
        When reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous when, after searching the record, we are left with the definite and firm conviction that the trial court has made a mistake. Bausley, 997 S.W.2d at 315. If the record, including voir dire, the prosecutor's explanation of the peremptory challenges, any rebuttal, and any impeaching evidence supports the trial court's ruling, then the ruling is not clearly erroneous. Id.
         2. Discussion
        At voir dire, Lewis's counsel stated:
 
[T]he [S]tate, I believe, struck Juror 5, Diane Warren, a black female. And it's our position she was stricken for no other reason. No indication there was anything other that the fact that she was black. She had answered to the same effect with regards to all the questions than any other individuals they left on the jury. We would -- we believe this is -- under Batson that this was a racially motivated strike.
 
The court asked the State if it had a response. The prosecutor stated:
 
Yes, Your Honor. Myself and Mr. Skipper both noted she was the only member of the panel to sleep during part of your speaking with the jury and a little bit of mine. There was no other member on the panel seen sleeping.
 
        The court then stated: “Let the record reflect I did note that I noticed her several times with her eyes shut. I don't know if she was sleeping or not, but I made note of that. Anything else?” Lewis's counsel replied, “No, sir.” The court then overruled that challenge.
        Striking a potential juror for sleeping or inattentiveness is racially neutral. Dorsey v. State, 940 S.W.2d 169, 175 (Tex. App.-Dallas 1996, pet. ref'd); Ivatury v. State, 792 S.W.2d 845, 848 (Tex. App.-Dallas 1990, pet. ref'd). If a racially neutral explanation is tendered, the burden shifts to the defendant to offer evidence showing that the explanation is a sham or pretext for discrimination. Purkett, 514 U.S. at 768. “It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Id. (citing Batson, 476 U.S. at 98); see Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Here, Lewis offered no evidence or argument in the trial court that the prosecutor's reason for the strike was not race neutral or was a pretext for a racially motivated strike. See Purkett, 514 U.S. at 768; Ford, 1 S.W.3d at 693. We reject Lewis's argument that either the State or the trial court had the burden to determine the truthfulness of the State's reason for its strike.          The State rebutted any prima facie case when it gave a racially neutral reason for striking Warren, and Lewis offered no contradictory evidence. Because the record supports the trial court's overruling of Lewis's Batson challenge, we cannot conclude the trial court's decision is clearly erroneous. See Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 315. We overrule Lewis's third issue.
C. Admission of Evidence
         1. Photo Line-Up
        In his fourth issue, Lewis contends the trial court erred in admitting evidence of the second photo line-up because it was impermissibly suggestive. During Doe's direct examination, she identified Lewis as the perpetrator. Then, she testified she identified someone from the second photo line-up. She was shown Exhibit 25, the second photo line-up, and asked whether the picture she identified was the same person she had “just identified in court.” She replied affirmatively. The State then offered Exhibit 25. Lewis objected “to the concept of the second lineup.” Further, he argued: “State's not shown it was fair and impartial at this time.” The trial court overruled Lewis's objection and admitted Exhibit 25.
        Because Lewis did not object to Doe's in-court identification of him as the perpetrator or her testimony that she identified him from the second line-up, he has waived his right to complain on appeal that the photo line-up was suggestive. See Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986); Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex. Crim. App. 2003); Degarmo v. State, 922 S.W.2d 256, 268 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). We resolve Lewis's fourth issue against him.
         2. Prior Police Custody
        In his fifth issue, Lewis contends the trial court erred by denying his motion for mistrial on grounds that Howard's testimony improperly indicated Lewis had been in police custody before this offense. Specifically, in his testimony about how he constructed the first photo line up, Howard stated, “We logged on to the Dallas County system, which was adult information system, and looked up the defendant in this case. And I took one of the newest photos that he had, which was, I believe, from 2001.” Out of the presence of the jury, defendant's counsel objected to Howard's testimony and requested a mistrial on grounds that it indicated Lewis's picture came from the sheriff's office that he had a prior criminal record. The trial court sustained the objection and denied the request for a mistrial. After further argument, defendant's counsel stated he did not believe the problem could be cured by a limiting instruction and requested a mistrial, which the trial court again overruled. However, before the jury returned, the trial court instructed the witness to “make no mention where you got the photograph” or “[t]he fact you obtained the photograph, without going into detail where it came from.” After the jury returned, the State asked Howard why a three-year- old picture was used. He replied, “That was the only one we had at the time. Newest one I could find.”
                 a. Applicable Law and Standard of Review
        A witness's reference to a defendant's prior incarceration is improper because it violates the longstanding rule of evidence that prohibits the introduction of collateral offenses. Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (per curiam) (citing rule of evidence 404(b)).
        A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Id. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. Testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Ladd, 3 S.W.3d at 567.
                 b. Discussion
        Lewis argues the jury was left with a harmful impression regarding his prior incarceration. However, we note that the focus of Howard's testimony was on his involvement in the case after he was brought in: interviewing Doe at the hospital and a follow-up interview later at her house regarding a description of the incident. Immediately before the objected-to testimony, Howard was asked a general question about the first photo line-up, and he testified that “One of the officers, one of our other officers - he's not here - he thought he might have known who it was, someone that fit that description he had seen in the neighborhood before, and we got onto -.” Thus, the focus of the testimony was on how to identify Doe's attacker, not Lewis's prior criminal record. Lewis does not refer to any further mention of any criminal record. Accordingly, we cannot conclude that the objected-to testimony was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. See Kemp, 846 S.W.2d at 308. We resolve Lewis's fifth issue against him.
D. Closing Argument
        In his sixth and seventh issues, Lewis contends the trial court erred by overruling his objection to two statements in closing argument, indicated in the emphasized statements below.          1. Applicable Law and Standard of Review
        There are four permissible areas for closing argument: (1) summation of the evidence; (2) reasonable deductions drawn from the evidence; (3) answer to opposing counsel's argument; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). A prosecutor may answer jury arguments by the defense as long as the response does not exceed the scope of the invitation. Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988). Improper jury argument constitutes error only if, in light of the entire record, the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial new facts that are harmful to the accused. Hawkins v. State, 135 S.W.3d 72, 80 (Tex. Crim. App. 2004).
         2. Discussion
                a. First Statement
        In his closing statement, defendant's counsel reviewed the evidence and argued that, because there were inconsistencies, including the description of the perpetrator's clothing, in the evidence regarding “identification factors,” the State had not proved its case beyond a reasonable doubt. Counsel stated, in part: “[I]n this case there's that 1 percent. 99.9 percent doesn't get 'em there. Is she pretty close? Yes, pretty close.”
        The State began its closing argument:
 
        One question. I told you I would come back at the end of this and ask you one question: Is this the man that robbed her?
 
 
 
        That's it. What's your reasoning, what's your common sense tell you the answer is based on the evidence?
 
 
 
        [Defendant's counsel] got up here and told you reasonable doubt is 99.9 percent. You know what? He just made that up. That's an absolute and complete fabrication. That's not the law; he knows it.
 
        Defendant's counsel objected, and the trial court overruled the objection. The State resumed its closing argument:
 
        There's no definition says percent. Throw it out. Not true.
 
 
 
        Beyond a reasonable doubt is not beyond all doubt. It's not beyond a shadow of a doubt. Read the charge. Beyond a reasonable doubt. Doubt based on reason.
 
 
 
        Look at the evidence. What does your reasoning what does your common sense tell you? If that was the standard, hey, it we can find a minor inconsistency in a case, everyone would walk. Everyone would go free. We wouldn't have a single person convicted if you find one inconsistency in a case. There's no perfect case. There's always inconsistency. If that's the standard, everyone would go free.
 
 
 
        People are convicted down here every single day.
 
(Emphasis added.) Defendant's counsel stated: “Your Honor, we object to arguing outside the record and what takes place in other cases.” The State said, “It's invited argument.” The trial court overruled the objection.
        After reviewing the record, we conclude the State's argument in the underlined statement was permissible because it was in answer to defendant counsel's argument about reasonable doubt and did not exceed the scope of the invitation. See Jackson, 17 S.W.3d at 673; Andujo, 755 S.W.2d at 144. Accordingly, we conclude the trial court did not err in overruling defendant's objection. We resolve his sixth issue against him.
                 b. Second Statement
        The State said:
 
        Gray wind pants. Those are not wind pants; they're sweatpants. No question about it. There's reasonable doubt. Let him free? No. That wouldn't stand. Everyone would be free.
 
(Emphasis added.) Defendant's counsel stated: “Your Honor, we object he's arguing outside the record. Misinterpreting of the law with regard to the case.” The trial court overruled the objection.
        The failure to preserve error by making a timely objection each time the evidence is offered forfeits the right to complain. See Tex. R. App. P. 33.1. An objection is timely when it is made before the evidence is admitted or as soon as the objectionable nature of the evidence becomes apparent. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Posey v. State, 840 S.W.2d 34, 37 (Tex. App.-Dallas 1992, pet. ref'd) (“Defense counsel must object every time allegedly inadmissible evidence is offered.”). The record shows that the State had previously made this statement without objection, as shown by the italicized statements above. Accordingly, we conclude Lewis forfeited his right to complain on appeal as to the impermissibility of this statement. We resolve Lewis's seventh issue against him.
III. PUNISHMENT PHASE
A. Admission of Evidence
         1. Kenta Curlin
        In his eighth issue, Lewis contends the trial court erred by admitting the testimony of Kenta Curlin. The record shows that Lewis was charged in another case with the aggravated sexual assault of Kenta, a mentally retarded woman. At the beginning of the punishment phase, the trial court held a hearing outside the presence of the jury to determine Kenta's competency. Her mother Lois Curlin testified Kenta was twenty-four years old, with the mental ability of a five-year-old, and was hard of hearing.
                 a. Applicable Law and Standard of Review
        The Rules of Evidence presume that every person is competent to be a witness, except as otherwise provided in the rules. Tex. R. Evid. 601(a). “Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated” are incompetent to testify. Tex. R. Evid. 601(a)(2). Three elements must be considered in determining whether a witness is in fact competent to testify: (1) a capacity to observe intelligently at the time of the events in question; (2) a capacity to recollect; and (3) a capacity to narrate. Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App. [Panel Op.] 1980). The capacity to narrate involves both an ability to understand the questions and frame intelligent answers and the moral responsibility to tell the truth. Id. If a mentally or physically disabled person possesses sufficient intelligence to receive correct impressions of events she sees, retains clear recollection of them, and is able to communicate them through some means, there is no reason to reject her testimony. Id. at 870-71.
        We review a trial court's ruling on a witness's competency under an abuse of discretion standard. Id. at 871. In determining whether there has been an abuse of discretion, we review the child's entire testimony, rather than the preliminary qualification. Fields v. State, 500 S.W.2d 500, 503 (Tex. Crim. App. 1973). Inconsistencies in testimony alone would not render the child an incompetent witness. Id.
                 b. Discussion
        At the hearing outside the jury's presence, Kenta testified she knew the difference between the truth and a lie. Then, the State asked Kenta what color suit he was wearing, and she replied it was black. The State then asked, “So if I were to tell you this was a red suit would that be a lie or the truth?” Kenta replied, “Truth.” Then the State asked, “If I said it was red?” Kenta replied, “No, it's black. It not red.” The State asked, “If I said it's red, is that lie or truth?” Kenta replied, “A lie.” The State asked, “If I said it was black, is that the truth?” Kenta replied, “The truth.” We reject Lewis's argument that this evidence showed that Kenta did not understand her obligation to tell the truth and not lie.
        In the jury's presence, Lois testified she could not recall Kenta “making up anything” and Kenta was not sexually active and had never made up a story “like this at all.” Later, defense counsel asked Kenta where she learned the word “rape.” Kenta replied, “Well, I probably got raped before.” She testified further it happened when she “was living in downtown Dallas” and that she had told her mother. When asked, “You been raped any other times?” she replied, “I been raped every time. One time. Never raped all the time.” Later, defense counsel asked her, “Have you ever had sex with anybody else?” Kenta replied, “No.”
        However, Kenta testified about her basketball playing and replied in detailed answers to specific questions about Lewis's attack. Despite some inconsistency and contradiction in her testimony, we conclude there was evidence that Kenta possessed the capacity to observe intelligently at the time of Lewis's attack on her, the capacity to recollect, and the capacity to narrate. See Watson, 596 S.W.2d at 870-71. Accordingly, we reject Lewis's argument that the evidence showed Kenta was unable to relate events accurately. We conclude the trial court did not abuse its discretion in determining that Kenta had the capacity to testify pursuant to rule of evidence 601(a) and admitting her testimony. We resolve Lewis's eighth issue against him.
         2. Lois Curlin
        In his ninth issue, Lewis contends the trial court erred by denying his motion for mistrial on grounds that Lois Curlin's testimony was hearsay.
        In addition to Lois's testimony regarding Kenta's mental condition and hearing impairment, Lois testified to learning about Lewis's attack on Kenta. Specifically, the State asked Lois to describe Kenta's “demeanor” when she returned home after the attack. Lois responded, “She had been crying. She were saying she had got raped.” Lewis objected on hearsay grounds. The trial court sustained the objection. At Lewis's request, the trial court instructed the jury to “[d]isregard the last statement.” Lewis moved for a mistrial, which the trial court denied.
        When the trial court sustains an objection and instructs the jury to disregard objectionable statements, any error in the complained of statement is generally cured. Boyd v. State, 643 S.W.2d 700, 707 (Tex. Crim. App. [Panel Op.] 1982). The only exception is in rare situations where the argument was so extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that an instruction to disregard could not cure its prejudicial effect. Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991). A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Ladd, 3 S.W.3d at 567.
        The record shows that after Lois testified about Kenta's mental and physical condition, the State asked Lois, “Back in 2001, was your daughter the victim of a sexual assault?” Lois responded, “Yes.” The State then asked “about that night,” eventually culminating in the question and objected- to response. Considering that the jury had just heard that Kenta had been the victim of a sexual assault, we cannot conclude that the objected-to testimony is one of those “rare situations where the argument was so extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that an instruction to disregard could not cure its prejudicial effect.” See Hernandez, 819 S.W.2d at 820. Accordingly, we conclude the trial court did not abuse its discretion in overruling Lewis's motion for mistrial directed at Lois's testimony, and we resolve his ninth issue against him.
B. Closing Argument
         1. Parole
        In his tenth issue, Lewis contends the trial court erred by overruling his objections to a statement in closing argument regarding parole. Specifically, the State said:
 
I want to point something out in the charge. You can consider the existence of the parole law. Not how it applies to him specifically, but the existence. It's possible the length of time for which the time he will be imprisoned might be reduced by the parole board. The defendant will not become eligible for parole until actual time served equals one-half sentence imposed or 30 years, whichever is less. Without consideration of any good conduct time. (Emphasis added.) Defense counsel objected on grounds that “it's indicating to the jury should [sic] consider the parole laws with regard to assessing a sentence. Law says it should not be considered.” The trial court overruled the objection.
 
        On appeal, defendant argues the State applied the parole law specifically to Lewis, as indicated by the emphasized language above, in violation of article 37.07(4)(a) of the code of criminal procedure.
        Article 37.07, section 4(a) expressly prohibits a jury from considering parole eligibility for the defendant on trial. Specifically, it provides that the jury is charged as follows in relevant part:
 
        It is also 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 in 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 he may earn. . . .
 
* * * *
 
 
        You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
 
Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon 2006). Consequently, it is improper for a prosecutor to apply the law to the defendant on trial during jury argument. Perez v. State, 994 S.W.2d 233, 236-37 (Tex. App.-Waco 1999, no pet.); Taylor v. State, 911 S.W.2d 906, 911 (Tex. App.-Fort Worth 1995, pet. ref'd). However, it is acceptable to quote or paraphrase the court's charge to the jury. Perez, 994 S.W.2d at 237 (citing Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990)). This includes explaining or paraphrasing the parole law found in the charge. Id.
        The charge quoted article 37.07, section 4(a) almost in its entirety, including that part quoted above. The State's argument is a paraphrase of the statutory language, indeed, almost a direct quote. The statement did not apply the parole law to Lewis. In contrast, in Perez, 994 S.W.2d at 236-37, on which Lewis relies, the State's argument went beyond the statutory language, saying “It's in your charge, 30 years. What it's basically saying is, life, we say equals 60, half of that's 30. So, anything you give him over 60 years, he's eligible for parole after 30 years.” Discerning no abuse of discretion in this case, we overrule Lewis's tenth issue.
         2. “Capital Murder”
        In his eleventh issue, Lewis contends the trial court erred by denying his motion for mistrial on grounds that the State's argument that Lewis “aspires to commit capital murder” was improper. Specifically, the State, after describing Doe's testimony about the incident, said:
 
        Imagine what that was like for a moment for her. He's not done. He takes her, forces her in the car, makes her drive him. Tells her about his plan. She's lucky. He thought it was gonna be a guy. He was gonna strip him, kill him, leave his body in that abandoned house to rot.
 
 
 
        That's starting to tell you about the person who the defendant is. It's almost impossible for us to imagine. You can't think like him. He is not like me and he is not like you. He's not like us at all. You and I raise our children to pay our mortgages, he aspires to commit capital murder. He aspires to -.
 
(Emphasis added.) Defense counsel's objection and request to disregard were sustained, but his motion for mistrial was overruled.
                 a. Applicable Law and Standard of Review
        As mentioned above, two proper areas of jury argument are: (1) summary of the evidence presented at trial, and (2) reasonable deductions drawn from that evidence. See Jackson, 17 S.W.3d at 673.
        When the trial court sustains an objection and instructs the jury to disregard objectionable statements, any error in the complained of statement is cured. See Boyd, 643 S.W.2d at 707. The only exception is in rare situations where the argument was so extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that an instruction to disregard could not cure its prejudicial effect. See Hernandez, 819 S.W.2d at 820. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Ladd, 3 S.W.3d at 567.
                 b. Discussion
        At the guilt/innocence phase, Doe testified that, as they drove away from the house, Lewis told her, “I wouldn't have thought it was a girl to come to deliver. I would've thought it was a guy.” Doe testified Lewis “[m]ade comments if it was a guy, he would've made him take all his clothes off and robbed him and shot him.” Accordingly, we conclude the prosecutor's closing argument at the punishment was a summation of this evidence and a reasonable deduction as to commission of “capital murder.” See Jackson, 17 S.W.3d at 673; Andujo, 755 S.W.2d at 144. We further conclude an instruction to disregard would have cured any error, and this statement does not meet the Hernandez standard. See Hernandez, 819 S.W.2d at 820. Concluding the trial court did not abuse its discretion in overruling Lewis's motion for mistrial directed to the State's “capital murder” argument, we resolve Lewis's eleventh issue against him.
VIII. CONCLUSION
        Having resolved Lewis's eleven issues against him, we affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060076F.U05
 
 
 
 
Footnote 1 Batson v. Kentucky, 476 U.S. 79 (1986).
Footnote 2 See Tex. Code Crim. Proc. Ann. art. 57.02(b) (Vernon 2006) (providing for victim's pseudonym).
Footnote 3 The record does not contain the indictment, but it was read to the jury.