David Alberto Dozal v. State ( 2015 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-13-00478-CR
    DAVID ALBERTO DOZAL                                                 APPELLANT
    V.
    THE STATE OF TEXAS                                                        STATE
    ----------
    FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
    TRIAL COURT NO. CR12-0232
    ----------
    MEMORANDUM OPINION 1
    ----------
    In six points, appellant David Alberto Dozal appeals his convictions for two
    counts of aggravated robbery.     He contends that the trial court abused its
    discretion by denying his motion for mistrial, by sustaining two of the State’s
    evidentiary objections, and by overruling his objections during jury arguments.
    We affirm.
    1
    See Tex. R. App. P. 47.4.
    Background Facts
    Doris Geer and her husband Joe Geer live at a home in Weatherford. One
    evening in March 2012, Doris was watching television there when a doorbell
    rang.    When Joe answered the door, two men who were displaying guns,
    including Daniel Anderson, entered the home by force and commanded Joe to lie
    on the floor while threatening to “blow [his] . . . head off.” The other robber,
    identified by Doris and Joe at trial as appellant, saw Doris, held a gun to her
    head, took her iPhone, and asked, “Where is your money?”
    Doris gave appellant her wallet.       Joe gave Anderson his wallet, which
    contained credit cards and about $100. Eventually, the men instructed Doris to
    lie on the floor close to Joe as they retrieved items (including jewelry and guns)
    from a safe that Doris had opened. After the men also took Doris’s purse and
    Joe’s cell phone and appellant loaded items into a car, Jacki Martin, with whom
    appellant had a romantic relationship, drove the robbers away from the Geers’
    home. Doris got up and called 911. Later that night, a gas station’s surveillance
    system recorded the presence of appellant, Anderson, and Martin together.
    The police received “pings” from Doris’s cell phone that indicated that the
    phone was taken to the block where appellant lived.          Other evidence linked
    Anderson to the robberies, and while talking to the police, he admitted his
    participation and implicated appellant in committing them.       The police found
    items from the robberies in appellant’s house. During a custodial interview, when
    an officer told appellant that the police had “nailed [him] down” on the robberies,
    2
    he nodded. Stemming from the incident at the Geers’ home, Anderson pled
    guilty to two counts of aggravated robbery, was convicted, and was sentenced to
    thirty years’ confinement for each count.
    A grand jury indicted appellant with two counts of aggravated robbery. 2
    After he pled not guilty and the parties presented the case to a jury, 3 for each
    count, the jury convicted him and assessed his punishment at seventy years’
    confinement. The trial court sentenced appellant in accordance with the verdicts
    and ordered the sentences to run concurrently. Appellant brought this appeal.
    Exclusion of Evidence
    In his second and third points, appellant argues that the trial court erred by
    sustaining the State’s objections to two of his questions to Martin. Concerning
    appellant’s second point, during his guilt-phase cross-examination of Martin, she
    testified that she was a recovering drug addict. Appellant asked her how long
    she had been addicted, and the State objected to the question on the ground that
    2
    For trial, the court consolidated these counts with a burglary charge from
    another cause number. The jury found that appellant was not guilty of burglary
    but convicted him of theft in that case. Appellant filed a notice of appeal in both
    cases but later sought to withdraw the notice of appeal as to the theft conviction.
    We granted appellant’s request and dismissed his appeal of the theft conviction.
    See Dozal v. State, No. 02-13-00477-CR, 
    2013 WL 5674990
    , at *1 (Tex. App.—
    Fort Worth Oct. 17, 2013, no pet.) (mem. op., not designated for publication).
    Therefore, this appeal concerns only appellant’s convictions for aggravated
    robbery. Accordingly, we focus our brief summary of the facts on evidence
    related to appellant’s aggravated robbery convictions.
    3
    Anderson and Martin testified at trial about appellant’s involvement in the
    robberies. Martin was confined and was awaiting trial for the Geers’ robberies at
    the time of her testimony.
    3
    it was irrelevant and was an improper form of impeachment.        The trial court
    overruled the State’s objection, and Martin testified that she had been addicted
    “[a]bout five years.”   When appellant asked Martin whether she had ever
    requested treatment for her addiction, she answered, “No, sir.”     Immediately
    afterwards, the State again objected as to relevance. Appellant argued that the
    question was relevant because an untreated drug addiction could have impacted
    Martin’s ability to perceive and recollect facts. 4 The trial court sustained the
    State’s objection but did not instruct the jury to disregard the answer to the
    question.
    Assuming, without deciding, that the trial court erred by sustaining the
    State’s objection, such an error is not reversible unless it harmed appellant by
    affecting his substantial rights. See Tex. R. App. P. 44.2(b); Walters v. State,
    
    247 S.W.3d 204
    , 219 (Tex. Crim. App. 2007) (“The erroneous exclusion of
    evidence offered under the rules of evidence generally constitutes non-
    constitutional error and is reviewed under Rule 44.2(b).”); Elmore v. State, 
    116 S.W.3d 809
    , 815 (Tex. App.—Fort Worth 2003, pets. ref’d) (explaining that we
    review the exclusion of evidence under rule 44.2(b)’s nonconstitutional harm
    standard where the exclusion “is the result of misapplication of the rules of
    evidence and its admission is not claimed to be required by the United States or
    4
    Martin had already testified without objection that she had not received
    treatment for her drug addiction in “any kind of a psychiatric or medical . . .
    location.”
    4
    state constitutions”). 5   A substantial right is affected when the error had a
    substantial and injurious effect or influence in determining the jury’s verdict. King
    v. State, 
    953 S.W.2d 266
    , 271 (Tex. Crim. App. 1997).
    When a witness answers a question and the trial court later sustains an
    objection to the question but does not instruct the jury to disregard the answer,
    the answer remains “before the jury” to be freely considered. See Estrada v.
    State, 
    313 S.W.3d 274
    , 313 (Tex. Crim. App. 2010), cert. denied, 
    131 S. Ct. 905
    (2011); Hicks v. State, Nos. 02-10-00075-CR, 02-10-00076-CR, 
    2011 WL 2436818
    , at *1–2 (Tex. App.—Fort Worth June 16, 2011, pet. ref’d) (mem. op.,
    not designated for publication) (citing Wills v. State, 
    867 S.W.2d 852
    , 855 (Tex.
    App.—Houston [14th Dist.] 1993, pet. ref’d)). Thus, because the jury could have
    considered Martin’s answer that she had not requested treatment for her
    addiction despite the trial court’s sustaining of an objection to the question
    leading to that answer, we cannot conclude that the record establishes harm
    under rule 44.2(b). See Tex. R. App. P. 44.2(b); Hicks, 
    2011 WL 2436818
    , at *1–
    2; see also Smith v. State, 
    355 S.W.3d 138
    , 152 (Tex. App.—Houston [1st Dist.]
    2011, pet. ref’d) (“Generally, no harm results when a jury is not instructed to
    disregard a witness’s answer after an objection is sustained.”); Rodriguez v.
    State, 
    903 S.W.2d 405
    , 410 (Tex. App.—Texarkana 1995, pet. ref’d) (“Where an
    5
    Appellant does not expressly argue that we should review harm on this
    point under rule 44.2(a)’s standard for constitutional error. See Tex. R. App. P.
    44.2(a).
    5
    objection is made and sustained, but no motion is made to strike the answer or to
    instruct the jury not to consider, the testimony is before the jury for whatever it is
    worth. Because this portion of the evidence was not excluded from the jury’s
    consideration, Rodriguez was not damaged by the court’s ruling.” (footnote
    omitted)). We therefore overrule appellant’s second point.
    Relating to appellant’s third point, during the punishment phase of the trial,
    the State recalled Martin to testify. In appellant’s cross-examination of her, he
    asked about the offense for which she was previously confined in jail. The State
    objected on the ground that the question sought improper impeachment under
    rule of evidence 609. Appellant argued that the State had opened the door for
    such testimony. The trial court did not rule on the objection; instead, appellant
    withdrew the question.     Then appellant asked Martin, “What had you been
    convicted of?”    The State again objected, and the trial court sustained the
    objection.
    Appellant contends on appeal that Martin’s answer to the question would
    have been material and relevant because it would have affected her credibility.
    He also argues that the exclusion of the answer “contributed to the near
    maximum punishment assessed” against him.             But the State contends that
    appellant failed to preserve this point because he did not prove what Martin’s
    answer would have been through a bill of exception or an offer of proof.
    To preserve error when evidence is excluded, the substance of the
    excluded evidence must be shown unless it is apparent from the context of the
    6
    questions asked. Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Holmes v. State,
    
    323 S.W.3d 163
    , 168 (Tex. Crim. App. 2009) (“The primary purpose of the offer
    of proof is to enable an appellate court to determine whether the exclusion was
    erroneous and harmful.”); Mays v. State, 
    285 S.W.3d 884
    , 889–90 (Tex. Crim.
    App. 2009). Error may be preserved by an offer of proof in question and answer
    form or in the form of a concise statement by counsel. Tex. R. Evid. 103(b);
    
    Holmes, 323 S.W.3d at 168
    .         Error is not preserved if the offer of proof is
    inadequate. 
    Holmes, 323 S.W.3d at 171
    ; see also 
    Mays, 285 S.W.3d at 890
    –91
    (holding that error was not preserved when a defendant failed to proffer, with
    some degree of specificity, the substantive evidence he intended to present).
    Here, the record does not disclose what Martin’s answer to appellant’s
    question about her previous confinement would have been, nor does the context
    of the question disclose the answer. Thus, we conclude that appellant failed to
    preserve error as to this point, and we overrule it. See Tex. R. Evid. 103(a)(2);
    
    Mays, 285 S.W.3d at 890
    –91; Roberts v. State, 
    220 S.W.3d 521
    , 532 (Tex. Crim.
    App.), cert. denied, 
    552 U.S. 920
    (2007); Bundy v. State, 
    280 S.W.3d 425
    , 428–
    29 (Tex. App.—Fort Worth 2009, pet. ref’d).
    Denial of Motion for Mistrial
    In his first point, appellant argues that the trial court erred by denying his
    motion for mistrial. We review a trial court’s denial of a motion for mistrial under
    an abuse of discretion standard and uphold the trial court’s ruling if it is within the
    zone of reasonable disagreement. Marchbanks v. State, 
    341 S.W.3d 559
    , 561
    7
    (Tex. App.—Fort Worth 2011, no pet.). “Only in extreme circumstances, where
    the prejudice is incurable, will a mistrial be required.” 
    Id. A mistrial
    is appropriate
    only for a narrow class of highly prejudicial and incurable errors and may be used
    to end trial proceedings when the error is so prejudicial that expenditure of further
    time and expense would be wasteful and futile. 
    Id. at 561–62;
    see Whitney v.
    State, 
    396 S.W.3d 696
    , 703–04 (Tex. App.—Fort Worth 2013, pet. ref’d) (mem.
    op.).
    In the guilt phase of the trial, the State’s direct examination of Martin
    included questions concerning her and appellant’s activities on the day of the
    robberies. During her testimony, while responding to an open-ended question by
    the State, she began to explain that appellant knew a friend “from TDC.”
    Appellant interrupted the testimony by objecting under rules of evidence 401
    through 404. He argued that the testimony violated a motion in limine and that it
    was unresponsive. The trial court sustained the objection to the extent that the
    testimony was unresponsive, denied appellant’s motion for mistrial, and
    instructed the jury to disregard Martin’s answer. 6 On appeal, appellant argues
    that Martin’s “TDC” reference violated his motion in limine and that “evidence
    showing [he] was a criminal could not help but [have impacted] the jury’s verdict.”
    An instruction to disregard testimony regarding extraneous offenses is
    sufficient to cure an alleged harm “unless it appears the evidence was so clearly
    6
    Appellant appears to be mistaken in arguing that a “request for an
    instruction to disregard . . . [was] denied.”
    8
    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.” Drake v. State, 
    123 S.W.3d 596
    , 603–04 (Tex. App.—Houston [14th Dist.]
    2003, pet. ref’d) (quoting Kemp v. State, 
    846 S.W.2d 289
    , 308 (Tex. Crim. App.
    1992), cert. denied, 
    508 U.S. 918
    (1993)); see Ovalle v. State, 
    13 S.W.3d 774
    ,
    783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt instruction to disregard will
    cure error associated with an improper question and answer, even one regarding
    extraneous offenses.”). We will generally presume that a jury has followed an
    instruction to disregard testimony that should not have been presented. Gardner
    v. State, 
    730 S.W.2d 675
    , 696 (Tex. Crim. App.), cert. denied, 
    484 U.S. 905
    (1987); see also 
    Kemp, 846 S.W.2d at 308
    (holding that a State’s witness’s
    reference to the defendant’s prior incarceration was rendered harmless by a
    curative instruction); Barney v. State, 
    698 S.W.2d 114
    , 124–25 (Tex. Crim. App.
    1985) (holding that a witness’s answer that a victim did not like the defendant
    because “he was an ex-con,” which violated the defendant’s motion in limine,
    was improper but was cured by a jury instruction).
    We have applied this principle. In Hill v. State, we held that a trial court did
    not abuse its discretion by denying Hill’s motion for mistrial because an
    instruction to disregard was sufficient to cure the harm caused by an officer’s
    testimony about extraneous offenses. No. 02-06-00357-CR, 
    2007 WL 2792863
    ,
    at *6 (Tex. App.—Fort Worth Sept. 27, 2007, pet. ref’d) (mem. op., not
    designated for publication).   There, the officer gave an unresponsive answer
    9
    about “previous burglaries” when the State asked about the officer’s actions after
    seeing a car in the driveway of a house. Id. Hill, who had filed a motion in limine
    concerning extraneous offenses, immediately objected.            
    Id. This objection
    stopped the testimony, and the trial court promptly instructed the jury to disregard
    the officer’s statement and denied Hill’s motion for mistrial. 
    Id. Hill claimed
    that
    the evidence was not relevant and was prejudicial, but we concluded that the
    instruction to disregard cured any harm or prejudice caused by the testimony. 
    Id. Similarly, the
    unrepeated, undeveloped testimony here was not “so clearly
    calculated to inflame the minds of the jury or . . . of such damning character as to
    suggest it would be impossible to remove the harmful impression from the jury’s
    mind.” See 
    Drake, 123 S.W.3d at 603
    –04. Therefore, the trial court successfully
    cured any harm caused by Martin’s unresponsive statement regarding
    appellant’s connection to “TDC” by instructing the jury to disregard the statement.
    See Fuller v. State, 
    827 S.W.2d 919
    , 926 (Tex. Crim. App. 1992) (“[R]eference
    by a witness to a defendant’s prior incarceration in the penitentiary, . . .
    oftentimes colloquially referred to as ‘TDC,’ is improper . . . . Nevertheless, this
    Court has held that generally a prompt instruction to disregard cures the error.”);
    see also Molina v. State, No. 14-96-00197-CR, 
    1998 WL 208812
    , at *2 (Tex.
    App.—Houston [14th Dist.] Apr. 30, 1998, pet. ref’d) (not designated for
    publication) (“[T]he unembellished and uninvited reference to appellant’s TDC
    card, although inadmissible, was not so inflammatory as to undermine the
    efficacy of an instruction to disregard . . . .”). We hold that the trial court did not
    10
    abuse its discretion by denying appellant’s motion for mistrial on this basis. See
    
    Marchbanks, 341 S.W.3d at 561
    . Thus, we overrule appellant’s first point.
    Alleged Improprieties During Jury Arguments
    Appellant’s fourth through sixth points concern alleged improprieties during
    closing arguments. 7 We review a trial court’s decision to overrule an objection to
    a closing argument for an abuse of discretion. See Montgomery v. State, 
    198 S.W.3d 67
    , 95 (Tex. App.—Fort Worth 2006, pet. ref’d). To be permissible, the
    State’s jury argument must generally fall within one of the following areas:
    (1) summation of the evidence, (2) reasonable deduction from the evidence,
    (3) answer to argument of opposing counsel, or (4) plea for law enforcement.
    
    Whitney, 396 S.W.3d at 704
    . Even when an argument exceeds these approved
    areas, “such will not constitute reversible error unless, in light of the record as a
    whole, the argument is extreme or manifestly improper, violative of a mandatory
    statute, or injects new facts harmful to the accused into the trial proceeding.”
    Wesbrook v. State, 
    29 S.W.3d 103
    , 115 (Tex. Crim. App. 2000) (plurality op.),
    cert. denied, 
    532 U.S. 944
    (2001).
    In his fourth point, appellant contends that the State’s jury argument on his
    guilt improperly referred to his decision to not testify.     While the State was
    7
    Although appellant alleges in these points that the trial court erred by
    overruling motions for mistrial, appellant did not request a mistrial concerning the
    facts of these points.
    11
    making its initial closing argument on appellant’s guilt, the following exchange
    occurred:
    [THE STATE:] When we talked about aggravated robbery, we
    had to prove to you some certain things, and I want to go through
    some elements. The first one’s going to be on or about March 9th,
    2012. That’s what you’re going to see in the charge. I would submit
    to you that with respect . . . to the testimony of Joe Geer and Ann
    Geer and all the cops and the 911 call, nobody questions we’re
    talking about March 9th, 2012.
    The second one’s going to be in Parker County, Texas.
    Again, I know it seems repetitive to y’all to some extent. We asked
    multiple witnesses, you know what, is your home . . . in Parker
    County, Texas? Yes, sir, it is. . . . I’d submit to you there is zero
    evidence to the contrary, okay? So we’re past one and two.
    [DEFENSE COUNSEL]: Your Honor, we’re going to object to
    the zero evidence to the contrary as being a comment on our client’s
    failure to testify, and we object.
    THE COURT: Overruled.
    The State cannot “comment on the failure of an accused to testify. Such a
    comment violates the privilege against self-incrimination and the freedom from
    being compelled to testify contained in the Fifth Amendment of the United States
    Constitution and Article I, § 10, of the Texas Constitution.” Bustamante v. State,
    
    48 S.W.3d 761
    , 764 (Tex. Crim. App. 2001) (footnote omitted); see Tex. Code
    Crim. Proc. Ann. art. 38.08 (West 2005). To violate the defendant’s right against
    compelled self-incrimination, however, the
    offending language must be viewed from the jury’s standpoint and
    the implication that the comment referred to the defendant’s failure
    to testify must be clear. It is not sufficient that the language might be
    construed as an implied or indirect allusion. The test is whether the
    language used was manifestly intended or was of such a character
    12
    that the jury would necessarily and naturally take it as a comment on
    the defendant’s failure to testify.
    
    Bustamante, 48 S.W.3d at 765
    (footnotes omitted). A mere indirect or implied
    allusion to the accused’s failure to testify does not violate the accused’s right to
    remain silent. Wead v. State, 
    129 S.W.3d 126
    , 130 (Tex. Crim. App. 2004).
    From appellant’s opening statement forward, his defensive theory was not
    that the robberies had not occurred on the date and in the place alleged by the
    State but that he was not involved in them to the extent alleged. Thus, viewing
    the State’s argument in the specific context it was made and within the record as
    a whole, we conclude that a reasonable jury would not likely consider it as a
    comment on appellant’s decision to not testify but would instead tend to view it
    only as a statement that the date and place of the offenses were uncontested
    issues.
    Moreover, the place and date of the robberies were not facts exclusively
    within the knowledge of appellant; other witnesses could have offered testimony
    on these issues that contradicted the allegations in the indictment. See Myers v.
    State, 
    573 S.W.2d 19
    , 20–21 (Tex. Crim. App. [Panel Op.] 1978) (“[A]n indirect
    comment that labels certain evidence as uncontroverted, unrefuted, or
    uncontradicted is impermissible if only the defendant could offer the rebutting
    evidence.”); Pollard v. State, 
    552 S.W.2d 475
    , 477 (Tex. Crim. App. 1977) (“A
    statement that certain evidence is uncontroverted or unrefuted or uncontradicted
    does not constitute a comment on the accused’s failure to testify where the
    13
    record indicates that persons other than the accused could have offered
    contradictory testimony.”); see also Fuentes v. State, 
    991 S.W.2d 267
    , 275 (Tex.
    Crim. App.) (“Calling attention to the absence of evidence which only the
    defendant could produce will result in reversal only if the remark can only be
    construed to refer to appellant’s failure testify and not the defense’s failure to
    produce evidence.”), cert. denied, 
    528 U.S. 1026
    (1999). The most reasonable
    view of the State’s comment is simply that those witnesses did not do so.
    Therefore, we cannot conclude that the trial court abused its discretion by
    overruling appellant’s objection, and we overrule his fourth point.               See
    
    Montgomery, 198 S.W.3d at 95
    ; see also Goff v. State, 
    931 S.W.2d 537
    , 548
    (Tex. Crim. App. 1996) (“Where the statement does not refer to evidence which
    can only come from the defendant, then it is not a direct comment on a
    defendant’s failure to testify.”), cert. denied, 
    520 U.S. 1171
    (1997).
    Concerning appellant’s fifth point, during his closing argument on guilt, the
    following colloquy occurred:
    [DEFENSE COUNSEL:] The evidence is clear, as I told you in
    opening statement, that property from that burglary was at his home,
    that he is in receipt of stolen property, and therefore he is guilty of
    theft. Theft and burglary are different offenses. Theft is not charged
    in the indictment against him in this case. So we’re going to --
    [THE STATE]: Judge, I’m going to object that his statement is
    a misstatement of the law in that sudden, unexplained possession of
    property alone is enough to prove burglary of a habitation.
    [DEFENSE COUNSEL]: Your Honor, I object. That is
    contrary to the Court’s instructions. It is not in the Court’s Charge, it
    14
    is not a rule of evidence before a jury, and there’s no reference to
    that in this record.
    THE COURT: Objection overruled.
    Assuming that the State’s comment was improper, we cannot conclude
    that it was harmful. The comment concerned only appellant’s burglary charge.
    As explained above, he was not convicted of that charge and has not appealed
    the theft conviction related to that charge. Appellant does not explain how the
    comment harmed him with respect to the aggravated robbery convictions at
    issue.    Therefore, we overrule his fifth point.   See Tex. R. App. P. 44.2(b);
    
    Wesbrook, 29 S.W.3d at 115
    ; Martinez v. State, 
    17 S.W.3d 677
    , 692–93 (Tex.
    Crim. App. 2000).
    Finally, regarding appellant’s sixth point, during the State’s rebuttal
    argument on appellant’s guilt, the following exchange occurred:
    [THE STATE:] If you will watch [the gas station surveillance] video,
    who’s there? Three people; the female, a guy in a hoodie, same
    hoodie that you see right here in the defendant’s bedroom. You can
    look at it.
    [DEFENSE COUNSEL]: Your Honor, object. I object. There
    is no evidence that the hoodie on the video is the hoodie in the
    photograph.
    [THE STATE]: They can see it for themselves, Judge.
    THE COURT: Overruled.
    [THE STATE]:        Watch the video.      Three people.     It
    corroborates a whole lot of evidence here.
    15
    On appeal, appellant argues that the State’s statement about the hoodie was
    “wholly outside the record and was an attempt by the [State] to inject new, and
    harmful, evidence before the jury.”
    Directing us to testimony and exhibits admitted at trial, the State contends
    that its argument about the hoodie from the surveillance video matching the
    hoodie from appellant’s bedroom was a reasonable deduction from the evidence.
    See 
    Whitney, 396 S.W.3d at 704
    . We need not decide that issue, however,
    because we conclude that even if the State’s argument was improper, it was not
    harmful. See Tex. R. App. P. 44.2(b); 
    Wesbrook, 29 S.W.3d at 115
    ; see also
    Logan v. State, 
    698 S.W.2d 680
    , 681–82 (Tex. Crim. App. 1985) (“[N]ot every
    improper argument by a prosecuting attorney will cause a conviction to be
    reversed.”); Ortiz v. State, 
    999 S.W.2d 600
    , 605–06 (Tex. App.—Houston [14th
    Dist.] 1999, no pet.) (stating that an argument inviting speculation about matters
    not in evidence is reviewed under the harm analysis for nonconstitutional error).
    In determining whether the argument above affected               appellant’s
    substantial rights, we consider, in context of the entire record, the prejudicial
    effect of the prosecutor’s remarks and the certainty of the conviction absent the
    argument. 
    Martinez, 17 S.W.3d at 692
    –93. Here, the prejudicial effect was low
    and the certainty of conviction was high; appellant’s convictions did not hinge on
    whether the hoodie in the surveillance video matched the hoodie from his
    bedroom. Instead, to acquit appellant, the jury would have had to reject the
    testimony of the Geers, Anderson, and Martin, all who directly linked appellant to
    16
    the robberies. 8 We conclude that it is unlikely that the jury was inclined to reject
    (or was unsure about accepting) the testimony of these four witnesses but
    decided to believe them only when hearing the State’s argument about the
    hoodie. Also, when confronted with the allegation that he had committed the
    robberies during a custodial interview, appellant appeared to admit his guilt by
    nodding and asking for a “guarantee” if he cooperated with the police.
    Because we conclude that the State’s argument did not harm appellant
    when viewed in context with the entire record, we overrule his sixth point. See
    Tex. R. App. P. 44.2(b); 
    Martinez, 17 S.W.3d at 692
    –93.
    Conclusion
    Having overruled all of appellant’s points, we affirm the trial court’s
    judgments.
    PER CURIAM
    PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: January 8, 2015
    8
    As mentioned above, circumstantial evidence, including stolen property in
    his possession, also linked appellant to the robberies.
    17