CLAVIN JONES, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRMED; Opinion Filed May 27, 2008.

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00410-CR
No. 05-07-00411-CR

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CLAVIN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F05-73360-RL and F05-73361-RL
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OPINION
Before Justices Morris, FitzGerald, and Lang
Opinion By Justice Lang
        Appellant Clavin Jones was found guilty by a jury on two counts of aggravated assault with a deadly weapon for the shootings of Bridgida McGaughy and Tracy Cooks. The jury assessed punishment at 50 years confinement and a fine of $10,000. Appellant brings seven issues. In issue one, appellant asserts the trial court improperly sustained the State's challenge of a prospective juror for cause. In issues two through five, he contends the evidence is both legally and factually insufficient to support appellant's conviction for aggravated assault in each case. In issue six, appellant contends the trial court abused its discretion in admitting a witness statement made by a witness for the State. In issue seven, he asserts the trial court abused its discretion by not declaring a mistrial when the prosecutor misstated evidence at the punishment phase of the trial. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

        On the evening of August 12, 2005, appellant allegedly shot Tracy Cooks and Bridgida McGaughy. Before the shooting, there was an altercation between several women in front of Tommie Johnson's house. Tracy Cooks' husband, David Cooks, tried to keep appellant's sister, Mia Miles, from joining in the fight by holding her back. Mia “clawed” David and he pushed her. Mia lost her balance and fell. Mia claims David threw her into the street. Mia was angry and, according to David, told him, “You're gonna wish you hadn't never touched me. I'm going to get my brother and I'm coming back, and I'm going to shoot you.” Other witnesses testified similarly regarding her comments and a threat that she would return to “shoot” him or have her brother “shoot” him. The fight ended and Mia left. Tommie Johnson called the police to make a report about the fight that had occurred outside of her house and the threat Mia Miles had made.
        Fifteen to thirty minutes after the police left, Mia drove up to Johnson's house in a white vehicle and parked on the street in front of the house. The vehicle was identified by some witnesses as a “Suburban.” Mia was driving the vehicle and appellant was in the front passenger seat. Cedric Miles, a cousin of both Mia and appellant, was in the backseat behind Mia. “Jay,” a friend of Mia and appellant, was in the backseat on the passenger-side. According to Tommie Johnson, Mia screamed, “David, I told you I'll be back.”
        Bridgida McGaughy testified she approached the “Suburban” from the passenger-side to talk to Mia about the fight. She saw appellant in the passenger seat. Appellant was between Bridgida and Mia as they talked, but appellant did not say anything. Bridgida did not see a gun before she was shot, but she noticed appellant “kind of lean[ed] back and raise[ed] his arm” before she was shot. She saw a flash and felt herself getting hit, being thrown or “flipped,” and hitting the ground.
        Tommie Johnson testified that she saw a flash of fire come from what “looked like” the front passenger-side window and then Bridgida flipping in the air and hitting the ground. She testified the front windows of the vehicle were down and the backseat windows remained rolled up during the entire time Bridgida was near the vehicle.
        Tracy Cooks, the other shooting victim, testified that Mia was “ranting and raving” when she drove up to the house. The front driver-side and passenger-side windows were down. The back windows were up and Tracy could not see through them because they were tinted. Tracy testified that Mia was angry and said, “I ought to shoot your mother-f****** ass myself.” Tracy could not clearly see the passenger in the front seat of the vehicle. Tracy then saw Bridgida “go up in the air” and yell, “I'm hit.” Tracy saw that Bridgida had been shot in the chest. Tracy was shot in the leg. She could not identify who had shot her or Bridgida.
        Bridgida McGaughy's son, Rodney McGaughy, testified he went to Johnson's house and saw Mia, with appellant in the front passenger seat, parked in front of the house. Rodney approached the passenger-side of the vehicle and saw appellant load a “clip” into a gun. Rodney spoke to appellant, but appellant did not respond. Rodney then walked to the driver-side window to talk to Mia. While he was talking to Mia, Rodney saw Bridgida at the passenger window. Rodney saw appellant lean back, raise his arm, and fire the gun. Rodney testified the gun appeared to be a nine- millimeter and was black. While Mia drove away, appellant continued firing out the window.
        Faith Shamlin testified she had known Mia since she was little and is Mia's best friend. Appellant was Faith's first boyfriend. She did not want to testify against them. Faith testified that Bridgida walked up to the “Suburban” and said, “This is not necessary. You all can leave. It's all over with.” Then, Faith heard Bridgida say, “No, no, no,” and shots were fired. Faith testified she saw appellant shoot both Bridgida and Tracy. However, she testified on cross-examination that she did not see appellant with a gun. She said the shots came from the passenger-side of the vehicle, but she did not know who fired the shots.         The testimony of Mia Miles and Cedric Miles regarding the shooting is in conflict with much of the testimony above. Cedric testified he was seated in the backseat behind Mia and “Jay” was seated beside him on the passenger-side. Cedric saw Bridgida approach the “truck” to talk to Mia. He noticed the window on the back passenger-was side down. The next thing he knew, he heard gunshots from right next to him. Cedric ducked and the vehicle drove off. According to Cedric, “Jay” was shooting repeatedly and was the only person shooting. Cedric testified that he did not see appellant or Mia with a gun that day. When Mia drove them back to her grandmother's house, “Jay” got into his car and left.
        According to Mia, neither she nor appellant had a gun. Mia began to drive off because the discussion “wasn't getting nowhere.” As she did so, “Jay” started shooting. According to Mia, “Jay” was the only person in the vehicle with a gun. Appellant was not the shooter and Mia did not see appellant with a gun while in the “Suburban.”
II. RULING ON CHALLENGE FOR CAUSE

        In his first issue, appellant argues the trial court abused its discretion in granting the State's challenge of a prospective juror for cause. Appellant asserts the juror met the standard of ability to read and write that is required for jury service. The State responds that the potential juror did not demonstrate an ability to read and write English sufficient to serve on the panel.

A. Standard of Review

        When reviewing a trial court's decision to grant or deny a challenge for cause we look at the entire record to determine if there is sufficient evidence to support the court's determination. Feldman v. State, , 744 (Tex. Crim. App. 2002); Patrick v. State, , 488 (Tex. Crim. App. 1995) (en banc). The appellate court must give “great deference” to the trial court's decision on a challenge for cause “because the trial court is present to observe the venireperson, including the demeanor and tenor of voice of the venireperson.” Pyles v. State, , 106 (Tex. Crim. App.), cert. denied, 109 S. Ct. 543 (1988); see also Saldano v. State, , 91 (Tex. Crim. App. 2007), cert denied, 128 S. Ct. 1446 (2008). The determination of whether a potential juror satisfies the statutory literacy requirement belongs to the trial court. Allridge v. State, , 483-84 (Tex. Crim. App. 1991) (en banc). We will reverse a trial court's ruling on a challenge for cause “only if a clear abuse of discretion is evident.” Saldano, 232 S.W.3d at 91 (quoting Colburn v. State, , 517 (Tex. Crim. App. 1998)). “There is no abuse if the record supports the trial court's decision.” Flores v. State, , 718 (Tex. Crim. App. 1993) (en banc).

B. Applicable Law

        The Texas Code of Criminal Procedure provides that a prospective juror may be challenged for cause as incapable or unfit to serve on a jury if the juror cannot read or write. Tex. Code Crim. Proc. art. 35.16(a)(11) (Vernon 2006); see also Tex. Gov't Code Ann. § 62.102(5) (Vernon Supp. 2007). “[A] limited ability to read and write will not meet the literacy requirement for qualification as a juror.” Goodwin v. State, , 736 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2913 (1991). The literacy requirement contemplates that the prospective juror can express his ideas in words on paper. Allridge, 850 S.W.2d at 483 (citing Hernandez v. State, , (Tex. Crim. App. 1974)).
        Courts have interpreted the literacy requirement to mean that a person must be able to read and write the English language. Pineda v. State, 2 S.W.3d 1, 8 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (citing Wright v. State, 12 Tex. App. 163, 167 (1882) (“the words 'read and write' employed in the statute must be held to mean an ability to read and write the English language”)). Traditionally, courts have focused on the prospective juror's ability to complete the juror questionnaire and understand special issues and instructions likely to be presented to the jury. Allridge, 850 S.W.2d at 484; compare Goodwin, 799 S.W.2d at 735-36 (evidence sufficient to sustain a challenge where venireperson needed help to fill out the juror questionnaire), with Hodge v. State, 896 S.W.2d 340, 343 (Tex. App.-Amarillo 1995, pet ref'd) (juror was qualified where he successfully completed the written juror questionnaire, stated he was able to understand all testifying witnesses at trial, was able to communicate verbally, and was able to answer questions asked by the trial judge).
C. Application of Law to Facts

        The prospective juror, Jose Cano, stated twice on the record that he could only understand 50-60% of what the attorneys had said during voir dire. However, he also stated he understood the questions asked of him when the attorneys were examining him further on his ability to read and write English. He was born in Mexico, but had been in the United States for twenty years. Despite the fact that he was a United States citizen, he stated that he had difficulty in understanding spoken and written English. When filling out the juror questionnaire, he left some questions blank because he was confused by some words. He required help from another prospective juror to translate the juror questionnaire into Spanish because he couldn't understand some of the questions as they were written in English. Mr. Cano stated of the person who helped him, “he help me to write exactly [sic] these things say.”
        The record shows that Mr. Cano had difficulty with understanding communication in English. The record does not demonstrate that the prospective juror could “express his ideas in writing.” See Allridge, 850 S.W.2d at 483. The trial judge granted the State's challenge to the potential juror for his inability to read and write English, and there is evidence in the record to support this ruling. See id. at 483-84; Goodwin, 799 S.W.2d at 735-36; Flores, 871 S.W.2d at 718. We cannot conclude the trial court abused its discretion in granting the State's challenge of the prospective juror for cause.
        We decide against appellant on his first issue.
III. LEGAL AND FACTUAL SUFFICIENCY

        In issues two through five, appellant challenges the legal and factual sufficiency of each conviction for assault with a deadly weapon. The State responds that the evidence is both legally and factually sufficient to support both convictions.

A. Standards of Review

        Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Marshall v. State, , 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007); Lee v. State, 186 S.W.3d 649, 654 (Tex. App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall, 210 S.W.3d at 625 . The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. Rollerson v. State, , 724 (Tex. Crim. App. 2007) (quoting Marshall, 210 S.W.3d at 625).
1. Legal Sufficiency

        In assessing the legal sufficiency of the evidence to support a criminal conviction, “we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Rollerson, 227 S.W.3d at 724 (citing Hooper v. State, , 13 (Tex. Crim. App. 2007); see also Jackson v. Virginia, , 318-19 (1979). A review of the evidence for legal sufficiency does not involve re-weighing the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; Lee, 186 S.W.3d at 654. “The fact finder is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence.” Lee, 186 S.W.3d at 654 (citing Jones v. State, , 647 (Tex. Crim. App. 1996)). The jury is free to accept or reject any and all of the evidence presented by either side. Wilkerson v. State, , 325 (Tex. Crim. App. 1994). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. Clayton v. State, , 778 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625.

2. Factual Sufficiency

        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. Roberts v. State, , 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, , 415 (Tex. Crim. App. 2006). “Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.” Roberts, 220 S.W.3d at 524; see also Berry v. State, , 854 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625. “A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” Berry, 233 S.W.3d at 854.
        When conducting a factual sufficiency review, an appellate court considers all of the evidence. Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625. Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. Marshall, 210 S.W.3d at 625; see also Roberts, 220 S.W.3d at 524; Johnson, , 9 (Tex. Crim. App. 2000) (factual sufficiency review requires reviewing court to afford “due deference” to jury's determinations). However, “the existence of contrary evidence is not enough to support a finding of factual insufficiency.” Lee, 186 S.W.3d at 655 (citing Goodman v. State, , 287 (Tex. Crim. App. 2001)). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson, 23 S.W.3d at 8; see also Clayton, 235 S.W.3d at 778.
B. Applicable Law

        A person commits an assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2007). If the person uses or exhibits a deadly weapon during the commission of the assault, the person commits the offense of aggravated assault. Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2007). The offense of assault with a deadly weapon is a second degree felony. Tex. Penal Code Ann. § 22.02(b) (Vernon Supp. 2007).
C. Application of Law to Facts

         Appellant's arguments point to conflicts in the evidence. Tommie Johnson, Bridgida McGaughy, Tracy Cooks, Rodney McGaughy, and Faith Shamlin all gave testimony indicating the gunshots came from the front passenger-side of the vehicle where appellant was sitting. Bridgida McGaughy identified appellant as the person in the front passenger seat and testified to his body movements right before she was shot. Rodney McGaughy unequivocally testified he saw appellant shooting the gun and described the type of gun appellant used. It is undisputed that appellant was sitting in the front passenger seat of the vehicle. Several witnesses testified that the back windows of the vehicle remained closed during the shooting. However, Cedric Miles and Mia Miles testified that “Jay,” who was sitting in the back passenger seat, was the shooter. It is within the exclusive province of the jury to reconcile the conflicts in the testimony presented by all of the witnesses. See Jones, 944 S.W.2d at 647. The jury, as fact finder in this case, was in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625; Johnson, 23 S.W.3d at 8. The jury was free to accept or reject any of the evidence presented by either side. See Wilkerson, 881 S.W.2d at 325.
        Viewing the evidence in the light most favorable to the verdict, we conclude that there is evidence from which a rational fact-finder could have found that appellant intentionally, knowingly, or recklessly used a gun to cause bodily injury to Bridigida McGaughy and Tracy Cooks. See Rollerson, 227 S.W.3d at 724. Viewing the evidence in a neutral light, we conclude there is evidence from which a fact-finder could rationally conclude beyond a reasonable doubt that appellant was guilty of aggravated assault. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625. The evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor is the adverse finding against the great weight and preponderance of the evidence. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625.
        Having reviewed the evidence under the proper standards, we conclude it is legally and factually sufficient to support both of appellant's convictions for assault with a deadly weapon. Because the evidence that appellant was the shooter is both legally and factually sufficient, we do not need to address appellant's argument challenging the sufficiency of finding appellant guilty as a “party” to the offense, if the jury believed “Jay” had been the actual shooter.
        We decide against appellant on issues two through five.

IV. EVIDENTIARY CHALLENGE

        In his sixth issue, appellant asserts the trial court abused its discretion in admitting State's Exhibit 40, a witness statement made by Rodney McGaughy, because there was no predicate established that would allow the admission of a prior consistent statement. The State responds the statement was properly admitted under the rule of optional completeness because defense counsel had read a portion of the statement during cross-examination.

A. Standard of Review

        A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. McDonald v. State, , 576 (Tex. Crim. App. 2005); Willover v. State, , 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion as long as the decision to admit evidence is within the “zone of reasonable disagreement.” Montgomery v. State, , 391 (Tex. Crim. App. 1991) (en banc). The appeals court may not substitute its own decision for that of the trial court. Moses v. State, , 627 (Tex. Crim. App. 2003). If the record supports the decision to admit evidence, there is no abuse of discretion, and the decision of the trial court will not be reversed. Osbourn v. State, , 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.

B. Applicable Law

        Otherwise inadmissible evidence may be admitted if the opposing party “opens the door” to the evidence. Schutz v. State, , 71 (Tex. Crim. App. 1997) (en banc). When a party introduces evidence revealing a portion of some act, the opposing party may inquire into the whole subject matter and introduce evidence of any other act necessary to fully explain the evidence. See Tex. R. Evid. 107 (the rule of optional completeness); Wright v. State, , 535-36 (Tex. Crim. App. 2000). Rule of evidence 107 is the rule of optional completeness and provides, in part:
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. . . .

Tex. R. Evid. 107. Rule 107 is “designed to guard against 'the possibility of confusion, distortion or false impression that could rise from use of a portion of an act, writing, conversation, declaration or transaction out of proper context.'” Grunsfeld v. State, 813 S.W.2d 158, 163 (Tex. App.-Dallas 1991), aff'd, (Tex. Crim. App. 1992), (quoting Livingston v. State, , 331 (Tex. Crim. App. 1987)). In other words, the purpose of the rule is to “correct any potentially misleading impression created when only a portion of evidence is introduced.” Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.-San Antonio 2001, no pet.) (citing Roman v. State, 503 S.W.2d, 252, 253 (Tex. Crim. App. 1974)).
        There are two threshold requirements for the application of the rule of optional completeness. First, some portion of the matter sought to be “completed” must have actually been introduced into evidence. Mendiola, 61 S.W.3d at 545 (citing Washington v. State, , 186 (Tex. Crim. App. 1993)). Merely referring to a statement or quotation from a document does not invoke the rule. Goldberg v. State, 95 S.W.3d 345, 386-87 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Second, the party seeking to complete the matter “must show the remainder being offered under Rule 107 is on the same subject or necessary to fully understand or explain the topic.” Mendiola, 61 S.W.3d at 545; see also Roman, 503 S.W.2d at 253. “Rule 107 is properly invoked when an opposing party reads part, but not all, of a statement into evidence.” Goldberg, 95 S.W.3d at 386 (citing Livingston, 739 S.W.2d at 331-32). When properly invoked, the rule allows the “remainder of the statement 'on the same subject' to be admitted to 'reduce the possibility of the fact finder receiving a false impression.'” Goldberg, 95 S.W.3d at 386-87 (quoting Roman, 503 S.W.2d at 253).

C. Application of Law to Facts

        During cross-examination, appellant's attorney questioned Rodney McGaughy regarding the witness statement he made to police and read a portion of it into the record. The State later offered the entire witness statement into evidence under the rule of optional completeness. After appellant objected to admission of the statement, the trial judge stated, “This is the document that you yourself read from, to cross examine the witness.” Appellant's attorney replied, “I read portions of the testimony. That is correct.” The witness statement was then admitted into evidence.
        Appellant argues that it was improper to admit the witness statement because it was a “prior consistent statement which served only to bolster the testimony of a key witness.” However, because the witness statement was not merely referred to during the testimony, but portions of the statement were actually read aloud on the record by appellant's attorney, the rule of optional completeness may be invoked. See Goldberg, 95 S.W.3d at 386-87; Mendiola, 61 S.W.3d at 545. The rest of the witness statement was properly offered into evidence under the rule of optional completeness because it relates to the same subject - the shooting that the witness observed. See Mendiola, 61 S.W.3d at 545; Wright, 28 S.W.3d at 535-36. Furthermore, allowing the rest of the witness statement into evidence would fully explain the portion of the statement introduced by appellant's attorney by providing the proper context in which the statement was made. See Grunsfeld, 813 S.W.2d at 163.
        We decide against appellant on his sixth issue.

V. DENIAL OF MISTRIAL

        In his seventh issue, appellant argues the trial court abused its discretion in denying his motion for a mistrial after an alleged improper argument by the prosecutor. The State responds that the point has not been preserved for appeal and the prosecutor's argument was permissible as a summation of the evidence.

A. Standard of Review

        An appellate court reviews a trial court's ruling on a motion for mistrial under an abuse of discretion standard. Wead v. State, , 129 (Tex. Crim App. 2004); Edwards v. State, 106 S.W.3d 833, 838 (Tex. App.-Dallas 2003, pet. ref'd). We must affirm the trial court's decision if it is within the “zone of reasonable disagreement.” Wead, 129 S.W.3d at 129.
B. Applicable Law

        The “'traditional and preferred procedure' for a party to preserve error is to (1) object in a timely manner; (2) request an instruction to disregard; and (3) move for a mistrial if the instruction to disregard seems insufficient, [but] such a sequence is not essential to preserve complaints for appellate review.” Cruz v. State, , 548 (Tex. Crim. App. 2007) (citing Young v. State, , 69 (Tex. Crim. App. 2004)). The purpose of an instruction to disregard is to “attempt[] to cure any harm or prejudice resulting from events that have already occurred” and the desired effect “is to enable the continuation of the trial by an impartial jury.” Id.; Young, 137 S.W.3d at 69-70. In most instances, an instruction to disregard the remarks will cure the error. Wesbrook v. State, , 115 (Tex. Crim. App. 2000). In order to preserve error on the denial of a motion for mistrial, the objecting party must request an instruction to disregard any events that could have been “cured” by such an instruction. Young, 137 S.W.3d at 70. “A request for an instruction to disregard is essential to the preservation of error only when such an instruction could have had the effect desired by the requesting party.” Cruz, 225 S.W.3d at 548.
        However, if an instruction to disregard “would not be sufficient -- that is, if the harm caused by the objectionable statements is incurable -- then the defendant is entitled to a mistrial, and the denial of the motion for mistrial is sufficient by itself to preserve error for appellate review.” Cruz, 225 S.W.3d at 548 (citing Young, 137 S.W.3d at 69; Barnett v. State, (Tex. Crim. App. 2006)). “The harm arising from improper jury argument is incurable if the argument (1) is extreme, improper, injects new and harmful facts into the case, or violates a mandatory statutory provision and (2) as a result, is so inflammatory that its prejudicial effect cannot reasonably be cured by an instruction to disregard.” Thompson v. State, 89 S.W.3d 843, 851 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (emphasis in original) (citing Long v. State, , 267 (Tex. Crim. App. 1991)); see also Wesbrook, 29 S.W.3d at 115.

C. Application of Law to Facts

        Appellant argues the trial court abused its discretion in denying his motion for mistrial. During closing argument of the punishment phase, appellant objected to the prosecutor's remarks as a “misstatement of the evidence.” Appellant admits that after the objection was sustained, no instruction to disregard was requested or given. Because no request for an instruction to disregard the prosecutor's remarks was made, we must first determine whether appellant's complaint on the denial of his motion for mistrial was preserved for appellate review. To determine if this point was preserved for review, we must determine if any harm or prejudice resulting from the comment was “incurable.” See Cruz, 225 S.W.3d at 548; Young, 137 S.W.3d at 69.
        During the punishment phase of trial, appellant's grandmother testified appellant had been “at the wrong place at the wrong time” in regard to a previous aggravated robbery conviction. Appellant testified that he had been found guilty of aggravated robbery by a jury in 2001, but did not remember if he had pleaded guilty to a subsequent aggravated robbery charge. Further, he testified he was in the “wrong place at the wrong time” in regard to his prior convictions and these convictions for aggravated assault, and asserted he was innocent of the charges. The prosecutor argued “[appellant said] 'I didn't do it. I just plead to it back then.' Or whatever he said he did.” While this is not exactly what appellant said, the gist of appellant's testimony was that he did not commit any of the crimes of which he had been convicted. The prosecutor's argument highlighted appellant's pattern of denying responsibility for the crimes of which he had been convicted.
        We cannot conclude any harm or prejudice from the prosecutor's comment was “incurable.” See Thompson, 89 S.W.3d at 851; Wesbrook, 29 S.W.3d at 115. Instructing the jury to disregard the comment could have enabled the trial to continue with an impartial jury. See Young, 137 S.W.3d at 69-70. Assuming, without deciding, that the prosecutor's argument was improper, we conclude the point has not been preserved for appeal because appellant did not request an instruction to disregard and any harm or prejudice arising from the argument could have been cured by such an instruction. See Cruz, 225 S.W.3d at 548; Young, 137 S.W.3d at 69-70.
        We decide against appellant on his seventh issue.
VI. CONCLUSION

        The trial court did not abuse its discretion in granting the State's challenge of the prospective juror for cause or in admitting Rodney McGaughy's witness statement under the rule of optional completeness. Further, the evidence is legally and factually sufficient to support appellant's conviction for assault with a deadly weapon in both cases. Appellant has not preserved for review his complaint on the trial court's denial of his motion for mistrial. The judgment of the trial court is AFFIRMED.

                                                          DOUGLAS S. LANG
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
070410F.U05

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