ANTONIO MARQUEZ HICKS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed December 4, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-00645-CR
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ANTONIO MARQUEZ HICKS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F04-25768-SL
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OPINION
Before Justices Morris, Whittington, and Lang
Opinion By Justice Lang
        Antonio Marquez Hicks appeals his conviction by a jury for aggravated robbery. Punishment, enhanced by a prior felony conviction, was assessed by the jury at confinement for life. Appellant raises four issues on appeal: (1) the trial court erred by admitting evidence of an extraneous offense because the prejudicial effect of that evidence greatly outweighed its probative value; (2) trial counsel rendered ineffective assistance to the extent appellant's first issue was not preserved for review; (3) the trial court erred by not granting a mistrial after the State argued improperly during the guilt/innocence phase of trial; and (4) the trial court erred by admitting photographs of a victim's injuries during the punishment phase of trial because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice.         We conclude the trial court did not abuse its discretion in admitting evidence of an extraneous offense. In addition, we determine the trial court did not err by denying appellant's request for a mistrial because the trial court reasonably could have believed that its instruction to the jury to disregard the prosecutor's improper argument was effective and that appellant suffered no prejudice. Further, the trial court's decision to admit photographs of a victim's injuries fell within the zone of reasonable disagreement. Finally, appellant's second issue of ineffective assistance of counsel anticipated an assertion by the State that appellant's first issue was not preserved at trial. Because the State did not raise failure to preserve, the second issue is moot and we need not address it. We decide appellant's first, third, and fourth issues against him. The judgment of the trial court is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Aamir Masih testified that on the morning of January 3, 2004, he was working as a cashier at a “One Stop” convenience store on Saturn Road in Garland. Shortly after 9:00 a.m., a man entered the store, walked up to the counter, and demanded money. The man's face was covered by a mask, and only his eyes were visible to Masih. When Masih asked the man if he was kidding, the man pulled a gun from his jacket and again demanded Masih open the register and give him money. Because Masih was fearful of being hurt or killed, he gave the man approximately $500 from the register. The man then jumped over the counter and took some bags of change from a desk in the store office. The man stuffed the change into the pockets of his jacket and left the store. The robbery was captured on videotape by the store's surveillance cameras.
        Cornell Cooper testified he was doing his laundry that morning at Speedy Coin Laundry, located next door to the convenience store. While smoking a cigarette outside the laundry, Cooper saw a black man come around the corner of the building. Despite the warm weather, the man was wearing a heavy jacket. Cooper saw the man pull what appeared to be a handkerchief over his face and then walk into the convenience store. Moments later, Cooper saw the man jump over the counter inside the store.
        Cooper ran to the door of the laundry and told one of the employees to call the police. Cooper then turned around and saw the man come out of the convenience store, carrying what Cooper later described as a “long gun.” As the man headed in Cooper's direction, Cooper ran behind the laundry. Cooper saw the man run toward a nearby apartment complex, jump into a white car, and drive down a dead-end street. As Cooper continued to watch, the man turned the car around at the dead end and drove back toward the laundry. Although the man was slouched down in the driver's seat, Cooper was able to see his full face. As the car passed by, Cooper wrote down the license plate number.
        Aleo Guerra, who worked at Speedy Coin Laundry, testified he was mopping the floor inside the laundry on the morning of January 3, 2004, when one of his customers yelled to him to call the police. As Guerra hurried outside to see what was happening, he stepped into the path of a dark- skinned man who was running. The man's face was covered and he had his hand under his coat. Guerra moved out of the way, and the man ran past him, heading toward a nearby apartment complex. When the man reached the apartment complex, he turned and pointed a gun at Guerra. Guerra described the gun as “like a caribine [sic] or kind of shotgun that had been cut.” Guerra saw the man run to a white car parked in the parking lot of the apartment complex and drive toward the closed end of a dead-end street. As the car turned around at the dead end and came back toward the laundry, Guerra saw the uncovered face of the driver, who was the car's only occupant. Guerra wrote the car's license plate number on his hand.
        Later that day, as Guerra was finishing his shift at the laundry, he saw a young white woman drive up to the convenience store in a white car that looked like the car Guerra had seen the dark- skinned man drive away in. Guerra also noticed the license plate of the car the woman was driving matched the license plate number he had written down earlier. Guerra testified that he went to the convenience store, informed the cashier, and the police were called.
        Detective William Ellstrom investigated the One Stop robbery for the Garland Police Department. He spoke to the owner of the white car, Christopher Laliberte, who lived in the apartment complex adjacent to the One Stop store. Laliberte told Detective Ellstrom that on the morning of the robbery, he lent his car to an acquaintance known to him only as “Teflon.” When Teflon failed to return the car after several hours, Laliberte went to Teflon's apartment to get it back. Laliberte found his car parked across the street from the apartment complex where Teflon lived. After retrieving his car, Laliberte drove home and then sent his wife to the One Stop for a pack of cigarettes. She returned home on foot a short time later, telling Laliberte that the store owner was claiming someone had used the car in a robbery that morning.
        Laliberte gave Detective Ellstrom the address of the apartment where Teflon was staying. The apartment was leased to a person named Kendrick Johnson. Further investigation led Detective Ellstrom to Johnson's roommate, appellant. When shown appellant's photograph in a lineup prepared by Detective Ellstrom, Laliberte identified appellant as “Teflon,” the person who had borrowed his car on the morning of the robbery. The same photo lineup was also shown to Guerra, who identified appellant as the man who had pointed the gun at him outside the laundry. In addition, both Laliberte and Guerra identified appellant in open court at trial.
        Cooper identified someone other than appellant as the robber in the photo lineup prepared by Detective Ellstrom, but later identified appellant as the robber in court. Cooper explained he had been unable to recognize appellant's photograph in the lineup because all the photographs looked so similar and he had viewed the lineup at work, where he had been distracted. Masih viewed the same photo lineup, but was unable to identify any of the photographs because he never saw the robber's face. Masih was also unable to make an identification at trial.         During trial, over appellant's objection, the court allowed the State to present evidence of a robbery that occurred at an Auto Zone store on December 26, 2003, eight days before the One Stop robbery. The Auto Zone store was located approximately three miles from the One Stop store. Daniel Spencer Hall, a manager-in-training at the Auto Zone at the time of the robbery, testified he was completing a transaction at the cash register shortly after noon when a black man wearing a hooded sweatshirt and a bandanna over his mouth and nose approached the counter and pointed a 30.30-caliber, lever-action rifle toward the register. The butt end of the rifle had been broken or sawed off and the end had been wrapped with black electrical tape. The man told Hall to give him the money in the register. Although Hall tried to open the register, he was unable to do so because the previous transaction had not yet been completed. The man then demanded Hall's wallet, which Hall placed on the counter. However, instead of taking the wallet, the man put the rifle up to Hall's chest and said, “I'm going to count to three and I'm going to kill you if you don't open it.”
        At that moment, a customer briefly distracted the gunman, and Hall attempted to wrestle the rifle away from the man. Hall's manager came over during the struggle and tried to help Hall. However, the gunman maintained his hold on the rifle and again demanded that the register be opened. When the manager explained that was impossible, the gunman raised the rifle and pulled the trigger. The gun jammed. As the man attempted to clear the jam, Hall turned and ran toward the store office. Before Hall could reach the office, he was shot in the arm. The robber then fled. The entire incident was recorded by the store's surveillance cameras.
        On January 14, 2004, police searched the apartment where appellant was living with Kendrick Johnson. In the living room, police found a 30.30-caliber rifle that was missing its stock. Police also found live 30.30-caliber cartridges in the kitchen of the apartment. In a written statement, Johnson told police the rifle belonged to appellant. Johnson also stated that about three weeks prior, appellant told him he had gotten into a “tussle” with a man at an Auto Zone because the man would not open the cash register. According to Johnson, appellant said the man had grabbed the rifle, but appellant recovered it and shot the man in the arm. At trial, Johnson repudiated his statement, claiming he had only signed it because he felt pressured by police.
        Appellant was arrested on outstanding tickets on the same day police searched Johnson's apartment. On January 15, 2004, Hall identified appellant's photograph in a lineup and indicated he was “70 percent” certain appellant was the Auto Zone robber. Hall positively identified appellant in person at trial.
        Through ballistics testing, a misfired cartridge found inside the Auto Zone was matched to the rifle recovered from Johnson's apartment. The rifle was admitted into evidence at trial and identified by Hall as the gun used by appellant during the Auto Zone robbery. The same rifle was also identified by Cornell Cooper and Aleo Guerra as similar to the gun they had seen appellant holding outside of the One Stop convenience store.
        Appellant pleaded not guilty and did not testify at trial. After hearing the evidence, the jury found appellant guilty of the offense of aggravated robbery. Appellant then pleaded true to one enhancement paragraph, and the jury was instructed to find that enhancement true. During the punishment phase of trial, over appellant's objection, the State presented fourteen photographs of wounds sustained by Hall during the Auto Zone robbery. The photographs were accompanied by the testimony of Dr. Michael Foreman, the trauma surgeon who treated Hall following the robbery. At the conclusion of the punishment phase, the jury assessed appellant's punishment at confinement for life. This appeal followed.
                                         II. IMPROPER ADMISSION OF EVIDENCE
 
        In his first and fourth issues, appellant asserts rule 403 of the Texas Rules of Evidence precluded the admission of certain evidence presented by the State. First, appellant contends the trial court erred in admitting evidence of the extraneous Auto Zone offense because its prejudicial effect greatly outweighed its probative value. In addition, appellant contends the photographs of injuries sustained by Daniel Hall during the Auto Zone robbery should have been excluded by the trial court because the photos were “unfairly inflammatory and prejudicial.”
        The State responds that the trial court's decision to admit the contested evidence was within the zone of reasonable disagreement. The State argues the Auto Zone evidence was highly probative on the issue of identity and was not so inflammatory that the jury would have been unable to comply with the trial court's limiting instruction. In addition, the State asserts the photographs of Hall's injuries were not unfairly prejudicial and, moreover, any error in admitting the photographs was harmless.
A. Applicable Law and Standard of Review
 
         Rule 403 of the Texas Rules of Evidence provides:
        Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
 
Tex. R. Evid. 403.
        Rule 403 favors admissibility of relevant evidence. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991). Relevant evidence is presumed more probative than prejudicial. Id. In examining a claim that evidence should be excluded under rule 403, courts should consider the following factors: (1) the strength of the evidence to make a fact of consequence more or less probable; (2) the potential of the evidence to impress the jury in some irrational but indelible way; (3) the time required to develop the evidence; and (4) the proponent's need for the evidence. Id. at 389-90. See also Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002); Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). The last inquiry includes three subparts: (i) whether the proponent has other available evidence to show the fact of consequence that the contested evidence is relevant to show; (ii) the strength of that other evidence; and (iii) whether the fact of consequence is related to an issue that is in dispute. Montgomery, 810 S.W.2d at 390.
        An appellate court should reverse a rule 403 ruling “rarely and only after a clear abuse of discretion.” Id. at 392. See also Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.-Dallas 2005, no pet.). A trial judge does not abuse his discretion as long as his decision to admit evidence is within the “zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 391. We may not substitute our own decision for that of the trial judge. Moses, 105 S.W.3d at 627.
 
B. Admission of Extraneous Offense Evidence
 
        First, we address appellant's contention that the trial court erred in allowing the State to present evidence of the Auto Zone robbery committed on December 26, 2003. At a preliminary hearing outside the presence of the jury to determine admissibility of the Auto Zone offense, the State proffered Daniel Hall's testimony describing the events of the Auto Zone robbery, identifying appellant as the perpetrator, and identifying State's Exhibit 31 as the rifle used by appellant during that robbery. Also, the State proffered the Auto Zone surveillance tape, evidence concerning the discovery of State's Exhibit 31 in the apartment shared by Kendrick Johnson and appellant, Johnson's voluntary statement to police, and ballistics evidence linking State's Exhibit 31 to the ejected cartridge found inside the Auto Zone.
        Appellant objected to the admission of this evidence, stating that “its prejudicial effect outweighs its probative value at this stage.” Appellant contended the evidence would be “misleading and very, very confusing” to the jury and the parties would “end up trying the Auto Zone case . . . instead of the One Stop Shop robbery.” The State argued that the Auto Zone robbery evidence was admissible for the purpose of proving identity and, because of the similarities between the two crimes, the probative value of the evidence would outweigh any prejudicial effect. The trial court ruled the evidence would be admissible for the limited purpose of proving identity and the jury would be instructed accordingly.
1. Probative Value of Extraneous Evidence
 
 
 
The first factor of the rule 403 balancing test addresses how compellingly the extraneous
 
offense serves to make a fact of consequence more or less probable. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). This factor is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense. Id.
        Appellant acknowledges the evidence showing he committed the Auto Zone robbery was “fairly strong.” A cartridge found at the scene of the Auto Zone robbery was found to have come from the rifle found in appellant's apartment. Hall described the gun used in the Auto Zone robbery as a lever-action 30.30-caliber rifle with the butt end broken off and said that State's Exhibit 31 appeared to be the same gun. Hall picked appellant's photograph out of a lineup and indicated he was “70 percent” certain appellant was the gunman.
        In addition, appellant does not dispute the Auto Zone robbery was probative on the issue of identity. See Montgomery, 810 S.W.2d at 389-90. In both offenses, the perpetrator wore a bandanna covering his nose and mouth. He entered each store in daylight during business hours, went directly to the counter, showed the cashier a gun, and demanded that the cashier open the register. Moreover, there was evidence suggesting the same gun may have been used in both offenses. Finally, the Auto Zone robbery was committed only eight days before the One Stop robbery, the two stores were only three miles apart, and each was only three miles away from appellant's apartment.
        Nonetheless, appellant argues the probative value of the Auto Zone robbery should weigh against admissibility because the State had other compelling and undisputed evidence that appellant committed the One Stop robbery. Appellant asserts that both Cornell Cooper and Aleo Guerra identified him as the person they saw running from the convenience store. State's Exhibit 31, recovered from the apartment in which appellant was living, was identified as similar to the rifle those witnesses had seen the perpetrator carrying. In addition, Christopher Laliberte identified appellant as the person to whom he lent his car on the morning of the One Stop robbery.
        Appellant cites Booker v. State, 103 S.W.3d 521 (Tex. App.-Fort Worth 2003, pet. ref'd), in support of his argument. In Booker, a robbery victim identified the defendant as the perpetrator, both in a photo lineup and again at trial. Id. at 535. The court, in deciding that the first rule 403 balancing factor weighed against the admissibility of an extraneous offense, noted that “neither the limited defense cross-examination . . . nor the alibi testimony . . . significantly detracted from [the victim's] testimony.” Id.
        The facts of Booker are distinguishable from this case. Here, the victim of the charged robbery, Aamir Masih, was unable to identify anyone as the perpetrator. He testified as to the robber's approximate height and weight and the fact that the robber was wearing a leather jacket, a cap that might have had something written on it, and a mask covering his face. However, Masih was unable to provide the race of the robber or identify the robber in a photo lineup. Further, neither Cooper nor Guerra was inside the One Stop during the robbery, and both underwent substantial cross-examination by the defense aimed at undermining the credibility of their identification testimony. For these reasons, the probativeness factor of the balancing test weighs in favor of admissibility of the extraneous offense evidence in this case.
2. Potential for Irrational Impression on Jury
 
        The second factor of the rule 403 balancing test addresses whether the evidence has the potential to impress the jury in some irrational but nevertheless indelible way. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Rule 403 does not exclude all prejudicial evidence, but rather focuses only on the danger of “unfair prejudice.” Id. Unfair prejudice refers to the tendency of the evidence to “tempt the jury into finding guilt on grounds apart from proof of the offense charged.” Id.
        Appellant argues that because the Auto Zone robbery “involved far more aggravating circumstances than the indicted offense,” the evidence related to the Auto Zone robbery “very likely impressed the jury in some indelible way” to convict him based upon the extraneous evidence instead of the indicted offense. He asserts Hall was not shot during the struggle for the rifle, but rather when he was “helpless and defenseless.” As a result of his injuries, Hall was hospitalized for approximately twelve days and underwent seven surgeries. Appellant argues that “[a]s frightening as the convenience store robbery may have been, a juror could view the Auto Zone robbery as a living nightmare for Hall that could have, in addition to the emotional trauma, life-long implications related to the physical trauma.” As a result, appellant contends, the jury could have been moved to convict him “based on outrage at his conduct” during the Auto Zone offense and “based on sympathy for the surviving victim of that offense.”
        Further, appellant asserts the Auto Zone evidence showed the rifle used in the One Stop robbery was at one time functional, and demonstrated the robber's willingness to actually fire the gun. On the other hand, appellant argues, “no one was shot or injured” in the One Stop robbery. Therefore, appellant contends, but for the extraneous offense, the jury could have concluded the One Stop robber was incapable of firing his weapon.
        To support his argument, appellant relies on Booker, 103 S.W.3d at 535-36, and Russell v. State, 113 S.W.3d 530, 545 (Tex. App.-Fort Worth 2003, pet. ref'd). However, the facts of those cases distinguish them from the case at hand. In Booker, the charged offense was aggravated robbery with a deadly weapon. Booker, 103 S.W.3d at 525. The extraneous offense found to be inadmissible involved a kidnapping and a sexual assault. Id. at 535. The Booker court noted that sexually related misconduct is “inherently inflammatory.” Id. (citing Montgomery, 810 S.W.2d at 397). Likewise, the defendant in Russell was charged with murder in the course of a robbery. Russell, 113 S.W.3d at 533. The excluded evidence involved the offenses of burglary/robbery, sexual assault, attempted murder, and murder. Id. at 534. As stated by the Russell court, the extraneous offense evidence “involved not only inherently inflammatory sexually related misconduct but a horrifying nightmare told emotionally-demonstrated by '(weeping)' parentheticals in the reporter's record- by a victim of this terror.” Id. at 545.
        Here, the extraneous offense did not involve sexually related misconduct, but rather was a store robbery that began in manner similar to the charged offense. Appellant argues evidence of the Auto Zone robbery was unfairly prejudicial because it showed the robber's capability and willingness to actually fire the weapon. However, Masih testified that although he initially thought the robber was kidding, he realized when he saw the gun that if he did not do what the man said, he would probably be killed. Because appellant used his weapon to threaten Masih during the One Stop robbery, it is unlikely the jury would have been so inflamed by appellant's actual firing of the same weapon during the Auto Zone robbery as to be incapable of rationally deciding the issues before them.
        In addition, the trial court instructed the jury that it could consider the extraneous offense evidence only in determining the identity of the defendant in connection with the charged offense “and for no other purpose.” Such an instruction is presumed effective, and appellant does not show evidence in the record to indicate otherwise. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (unless appellant shows otherwise, court generally presumes jury follows trial court's instructions in the manner presented). See also Lane, 933 S.W.2d at 520 (court did not perceive any reason a limiting instruction would be any less effective than in other cases in which identity was an issue). Accordingly, the second factor of the rule 403 balancing test weighs in favor of admissibility of the Auto Zone robbery evidence.
3. Time Needed to Develop Extraneous Offense Evidence
 
        The third factor of the rule 403 balancing test looks to the time needed by the proponent to develop the evidence, during which time the jury is distracted from consideration of the charged offense. Mechler, 153 S.W.3d at 441. Appellant argues the extraneous offense evidence more than doubled the length of the guilt/innocence phase of the trial from slightly more than a day to three days. He contends that although the State “virtually completed its evidence on the indicted offense after the first day of evidence,” the testimony continued for another two days. He asserts that the only evidence presented during those two days, apart from the extraneous offense evidence, was concerned with establishing that the rifle recovered from appellant's apartment looked similar to the rifle Cooper and Guerra saw the One Stop gunman carrying. That evidence, appellant contends, “could have been easily presented in half a day.”
         In excluding extraneous offense evidence in Russell, the court considered both the amount of time devoted to the offense and the “nature of the testimony and evidence adduced with regard to that offense.” Russell, 113 S.W.3d at 530. The record in this case shows that, of the 280 pages of testimony regarding the Auto Zone robbery, about forty pages concerned the events of that robbery. The remainder of the Auto Zone evidence consisted of the testimony of detectives, patrol officers, a crime scene investigator, and a firearms examiner who worked the Auto Zone case. Such testimony was aimed not only at showing that the rifle recovered from appellant's apartment looked similar to the one seen by Cooper and Guerra, but also at establishing a connection between appellant and the recovered rifle. Because such a connection related directly to the State's theory regarding the identity of the perpetrator of the One Stop robbery, we conclude evidence of that connection would not have distracted the jury from consideration of the charged offense. Accordingly, the third factor of the rule 403 balancing test, the time needed to develop the extraneous evidence, does not weigh against admissibility.
4. State's Need for the Extraneous Evidence
 
        The fourth factor of the rule 403 balancing test looks to “the force of the proponent's need for [the extraneous offense] evidence to prove a fact of consequence.” This inquiry includes three subparts: (i) whether the proponent has other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show; (ii) the strength of that other evidence; and (iii) whether the fact of consequence is related to an issue that is in dispute. Montgomery, 810 S.W.2d at 390.
        Appellant does not dispute identity was an issue in this case. Rather, appellant argues the State “had other probative evidence available to help establish its case.” However, the record shows Masih, the complainant, was not able to identify the robber. The only forensic evidence recovered from the scene consisted of a partial palm print and a shoe print, neither of which turned out to be usable by police. Further, although Cooper and Guerra identified appellant as the man they saw outside the One Stop with the gun, neither witness was inside the store during the robbery. In addition, Cooper identified someone other than appellant in a photo lineup he viewed twelve days after the robbery.
        Based on the record, we determine the State had a need for evidence of the Auto Zone robbery in order to prove appellant's identity as the perpetrator in the charged offense. See Lane, 933 S.W.2d at 520-21 (holding State's need to offer extraneous offense evidence was strong where identity was contested). Therefore, the fourth factor weighs in favor of admitting the extraneous offense evidence.
        The above analysis of the relevant criteria leads us to conclude the trial judge did not abuse his discretion in determining that the probative value of the Auto Zone evidence on the issue of identity was not substantially outweighed by the danger of unfair prejudice. See Montgomery, 810 S.W.2d at 391 (as long as trial court's ruling was at least within zone of reasonable disagreement, appellate court will not intercede). Appellant's first issue is decided against him.
C. Admission of Photographs of Victim's Injuries
 
        In his fourth issue, appellant argues the photographs depicting injuries sustained by Daniel Hall during the Auto Zone robbery should have been excluded pursuant to rule 403 because they were “so horrifying and appalling that an average juror would have difficulty deciding the issues rationally after viewing them.” Appellant contends the fourteen photographs had a “substantial and injurious effect or influence on the jury's verdict,” as shown by the jury's assessment of a life sentence.
        At the time the photographs at issue were offered into evidence, appellant objected on the ground that the exhibits were “designed to inflame.” The trial court examined the photographs and overruled appellant's objection. The exhibits were then published to the jury.
        Dr. Michael Foreman testified that the photographs showed a “skin splitting injury” to Hall's forearm. Foreman explained that a standard firearm would not usually cause such an injury and that the splitting was the result of the “explosive process that occurs with soft tissue cavitation from a high velocity weapon going through tissue and causing intervention.” Foreman described Hall's injuries as “very extensive” and unusual in the sense that rifle wounds were usually fatal.
        As a general rule, a photograph is admissible if verbal testimony regarding what is depicted in the photograph is also admissible and the probative value of the photograph is not substantially outweighed by it possible prejudicial effect as determined by the rule 403 balancing factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004). Appellant argues that because Hall had already testified regarding his injuries, the probative value of the photographs was “very limited.” However, as asserted by the State, the photographs aided the jury in tailoring an appropriate sentence for the indicted offense by showing the violent nature of appellant's prior criminal acts. “The fact that the jury had also heard testimony regarding the injuries depicted does not necessarily reduce the relevance of the visual depiction.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Accordingly, the first factor of the rule 403 balancing test weighs in favor of admissibility of the photographs.
        Proceeding to the second factor of the balancing test, we disagree with appellant's contention that the “inflammatory potential was great.” In determining the proclivity of pictures to spur emotional decision-making, the court should examine the “number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, [and] whether they are close-up.” Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). Although the size of the photographs admitted at trial, as well as whether those photographs were in color, is unclear from the record, the photographs at issue were admittedly gruesome. However, “[a] trial court does not err merely because it admits into evidence photographs which are gruesome.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). “[W]hen the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence.” Id. The photographs of Hall's injuries were no more gruesome than would be expected in light of the testimony already presented at the time the photographs were admitted. See Shuffield, 189 S.W.3d at 788 (holding photographs showing damage from a shotgun blast to victim's head and face were not improperly admitted where they showed only the injuries the victim received and were “no more gruesome than would be expected”). Therefore, the photographs were unlikely to cause a juror of normal sensitivity to have difficulty rationally assessing punishment. See Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992) (concluding juror of normal sensitivity would not necessarily encounter difficulty rationally deciding critical issues of case after viewing photographs of injuries to dead victim's head and face). We determine the second factor of the rule 403 balancing test does not weigh against admissibility.         Appellant does not address the amount of time required to present the contested photographs. Because the record shows that only fifteen of the sixty pages of testimony presented during the punishment phase of appellant's trial concerned the photographs, we conclude this factor does not weigh against admissibility. See Hall v. State, 137 S.W.3d 847, 855 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (time to develop testimony regarding photographs of victim's gunshot wounds was reasonable, where such testimony constituted six pages out of total of twenty-nine pages).
        Finally, we consider the State's need for the photographs. Although Hall had already testified regarding his injuries at the time the contested exhibits were admitted, the photographs constituted probative evidence of the violent nature of the offense and went beyond verbal testimony in that they enabled the State to show the level of damage caused by the rifle bullet and to specifically explain Hall's extensive injuries. See Dunklin v. State, 194 S.W.3d 14, 25 (Tex. App.-Tyler 2006, no pet. h.) (although State could have proved victim's injuries without contested photographs, the jury could more fully comprehend the nature of the injuries by reviewing such photographs). Therefore, the fourth factor of the rule 403 balancing test weighs in favor of admissibility.
        In sum, after consideration of the appropriate criteria, we conclude the trial court's decision that the probative value of the photographs was not outweighed by their prejudicial effect was within the zone of reasonable disagreement. Therefore, the trial judge did not abuse his discretion in admitting the photographs of Hall's injuries. Appellant's fourth issue is decided against him.
 
I                                                 II. IMPROPER JURY ARGUMENT
 
        In his third issue, appellant argues the trial court erred by not granting a mistrial after sustaining appellant's objection to allegedly improper jury argument by the State regarding appellant's motive for committing the charged robbery. Appellant contends the trial court's instruction to disregard was insufficient, and he asserts he was harmed because the improper and inflammatory argument had a substantial and injurious effect or influence on the jury's verdict. The State argues the trial court could have reasonably believed that its instruction to disregard was effective and that appellant suffered no prejudice from the prosecutor's remark.
A. Standard of Review
 
        The denial of a motion for mistrial, which is appropriate for “highly prejudicial and incurable errors,” is reviewed under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). See also Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005). The factors to be considered in determining whether the trial court abused its discretion in denying a mistrial are: (1) the severity of the misconduct (magnitude of the prejudicial effect); (2) measures adopted to cure the misconduct (efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). See also Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
B. Applicable Law
 
        A mistrial is the trial court's remedy for improper conduct that is “so prejudicial that expenditure of further time and expense would be wasteful and futile.” Hawkins, 135 S.W.3d at 77 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Id. The harm analysis is conducted in light of the trial court's curative instruction. Id. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Id. at 77.
C. Application of Law to Facts
 
        State's Exhibit 42, which was admitted without objection, consisted of a City of Dallas complaint dated December 8, 2003, alleging appellant “unlawfully and knowingly possessed with intent to use drug paraphernalia to introduce into the human body a controlled substance.” Based on that exhibit, during final arguments in the guilt/innocence phase of trial, the State argued as follows:
        We may never know why Antonio Hicks committed the One Stop convenience store robbery. We may never know that and we don't have to prove motive. I do suggest and submit as argument that perhaps State's Exhibit 42, which were then his warrants for which the police were able to arrest him for on January 14th, might be some insight: possessing drug paraphernalia and the like. Perhaps he had to rob to support a drug addiction. It's not . . . uncommon.
 
Appellant objected that the prosecutor's statement was “not in evidence.” The trial court sustained the objection, instructed the jury to disregard the argument, and overruled appellant's request for a mistrial.
         Appellant argues the prosecutor's “highly prejudicial allegation” was “extreme and manifestly improper.” He asserts that while “[a]n armed robber might act rationally before firing a weapon, . . . a drug-addicted armed robber could be seen to act impulsively, irrationally, and violently.” He further contends that “[t]he possibility appellant was a drug addict might cause a juror to act less rationally and to act not in accordance with the presumption of innocence but in accordance with the principle that it is better to be safe than sorry.” In addition, appellant argues that the prosecutor's remark injected new and “highly harmful” facts to the jury and may have given them the impression that “the prosecutor hit upon some true information that the trial judge did not want them to consider.”
         The record shows the prosecutor's improper argument was limited to a single remark and was not repeated. See Coble v. State, 871 S.W.2d 192, 206 (Tex. Crim. App. 1993) (improper argument not harmful where prosecutor did not emphasize issue or refer to it again). In addition, the prosecutor's use of the words “perhaps” and “might” indicated to the jury he was not presenting new facts. Therefore, based on the entire record, we conclude the misconduct in this case was isolated and not egregious. See Hawkins, 135 S.W.3d at 85.
        Further, we presume the trial court's instruction to disregard was complied with by the jury and was sufficient to cure any potential harm. See Hawkins, 135 S.W.3d at 75 (improper jury argument may be cured by an instruction to disregard unless, in light of the record as a whole, it was extreme or manifestly improper, violative of a mandatory duty, or injected new and harmful facts); Perez v. State, 187 S.W.3d 110, 113 (Tex.App.-Waco 2006, no pet. h.) (only offensive or flagrant improper conduct warrants reversal when there has been an instruction to disregard). Appellant does not cite evidence in the record showing otherwise. See Colburn, 966 S.W.2d at 520.
        Finally, the record indicates the certainty of appellant's conviction absent the alleged misconduct was substantial. Both witness testimony and physical evidence directly linked appellant to the One Stop robbery. Additionally, because motive was not an element of the charged offense, it is unlikely the jury's conviction of appellant was influenced by the possibility that he was a drug addict.
        Based on the above analysis, the trial court reasonably could have believed its instruction to disregard was effective and appellant suffered no prejudice from the prosecutor's remark. See Hawkins, 135 S.W.3d at 85. Accordingly, the trial court did not abuse its discretion in denying appellant's request for a mistrial. We decide against appellant on his third issue.
 
IV. CONCLUSION
 
        Applying the appropriate standard of review and the criteria relevant to analysis of a rule 403 decision, we conclude the trial court did not abuse its discretion in admitting extraneous offense evidence or photographs of a victim's injuries over appellant's objection. In addition, we determine the trial court did not err by overruling appellant's request for a mistrial based on improper argument by the State. We conclude no need to address appellant's second issue. See Tex. R. App. P. 47.1.
 
 
 
Appellant's first, third, and fourth issues are decided against him. The trial court's judgment is affirmed.
        
                                                
 
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                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
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Tex. R. App. P. 47
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