Clifton Tommie Powers v. State ( 2008 )

Affirmed and Memorandum Opinion filed September 9, 2008

Affirmed and Memorandum Opinion filed September 9, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00637-CR

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CLIFTON TOMMIE POWERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1064723

M E M O R A N D U M   O P I N I O N

Appellant, Clifton Tommie Powers, was indicted on the felony offense of murder.  The jury convicted appellant, and the trial court sentenced him to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In two issues, appellant contends that the evidence supporting the verdict is factually insufficient, and that the trial court erred in overruling his objection to an improper jury argument made by the State at punishment.  We affirm.

Factual and Procedural Background

On the evening of April 8, 2006, the complainant, Willie Powers, attended a birthday party with her daughter, Keli Powers.  Keli drove the complainant to and from the party.  Keli testified that she dropped the complainant off at her home shortly after 9:00 p.m., and that, at this time, the complainant=s vehicle was Apulled straight in@ the driveway.

 At 9:56 p.m., Officer Dameon Wheeler of the Houston Police Department was dispatched to the complainant=s address in response to a shooting in progress.  When he arrived, he went to the front door of the complainant=s home.  He testified that the door was open, and he heard appellant screaming, AI shot my wife, somebody help me.@  Officer Wheeler entered the home and found appellant kneeling over the complainant, who was lying on the kitchen floor.  Officer Wheeler also observed a revolver at the complainant=s feet.  He picked up the revolver, removed four live rounds and one spent casing from the weapon, and then asked appellant what happened.

Appellant responded, AWe were arguing. I=ve been drinking all day.  I was playing with the gun.  It jumped out of my hand.  I caught it by the trigger and I shot her in the chest.@  Appellant demonstrated the motion for Officer Wheeler, who testified that appellant Ahad his hands out@ and was moving them up and down unevenly.

Paramedics eventually arrived at the scene and treated the complainant.  Officer Wheeler took appellant from the kitchen and placed him on the couch in the living room.  Appellant kept repeating his version of events to Officer Wheeler.  At one point, appellant added, AI=m a gun man.  I should know better because I=m a gun man, I know about guns, but it jumped out of my hand and I caught it by the trigger and shot her in the chest.@ Appellant also repeatedly asked Officer Wheeler about the condition of the complainant, and whether she was dead.  Officer Wheeler testified that, at one point, appellant remarked, AIf she=s dead, just take your gun and shoot me right now.@

Sergeant K.L. Barnes arrived at the scene just before paramedics transported the complainant to Ben Taub Hospital.  When Sergeant Barnes entered the home, she observed appellant seated on the couch with other officers surrounding him.  Sergeant Barnes overheard appellant telling the officers that the shooting was an accident, that it happened when he was Ajuggling the gun,@ and that he was telling his wife Ato look how pretty it was.@  Appellant also explained that as he was juggling the revolver, he threw it too high in the air, and when it came down, he caught it, and it went off accidentally. Sergeant Barnes then asked appellant how long he had owned the revolver. Appellant responded that he had owned it Afor about ten years.@  Sergeant Barnes then asked appellant why, if he had owned the revolver for ten years, it was necessary to bring it out that night and show it to the complainant.  Sergeant Barnes testified that appellant just shrugged his shoulders, and did not answer the question.

Sergeant Barnes then moved appellant from the couch to a chair located on the front porch.  Appellant then told Sergeant Barnes that he wanted to tell her what really happened.  Appellant related that he and the complainant had been drinking, and that they had been arguing.  He explained that he wanted to leave the house, but the complainant did not want him to leave.  He also explained that he went and retrieved the revolver in order to show the complainant that he had protection, and that he would be safe if he left the house.  Appellant was then handcuffed and placed in the back of a patrol car.

Officer Xavier Budd arrived at the scene shortly thereafter. Sergeant Barnes assigned responsibility for appellant and the revolver to Officer Budd.  Officer Budd then transferred appellant to the back of his patrol car, and awaited the arrival of detectives from the Homicide Division.

Sergeants G. Gonzales and John Roberts of the Homicide Division then arrived at the scene.  Sergeant Roberts directed Officer Budd to transport appellant downtown, where he was to be questioned.  Officer Budd testified that, during the drive downtown, appellant Aseemed somewhat distraught,@ Awas crying,@ Aasked about his wife,@ and maintained that he was playing with the gun, and that the shooting was an accident. Appellant also stated that he feared telling his children that he had killed their mother.  Officer Budd testified that these statements were volunteered, and that he did not question or otherwise encourage appellant to speak or to make any statements.

When they arrived, Officer Budd took appellant to an interview room, removed his handcuffs, and awaited the arrival of Sergeants Gonzales and Roberts.  In the interview room, appellant repeated his version of the events to Officer Budd.  Appellant stated that he had been drinking most of the day, and that he and the complainant had an argument Aearlier in the day.@  Appellant specified that he and the complainant  were not arguing, and that he was Anot mad,@ at the time of the shooting.  He explained that he was playing with the revolver, that it went off accidentally, and that he knew it wasn=t a good idea to handle a gun when he had been drinking.

Appellant demonstrated how he was Aplaying@ with the gun to Officer Budd, who testified that appellant Amoved his hands back and forth and up and down to motion that he was juggling the gun.@  Officer Budd also testified that appellant=s palms Awere open, facing up, up and down@ during his demonstration, and that appellant made no motion as if he were Aspinning@ the gun. Appellant explained to Officer Budd that the gun had Aslipped,@ and that it had fired when he tried to Acatch@ it against his body.  He stated that he put one hand underneath the revolver and Agrasped@ it against his body with the other hand.

Appellant also demonstrated how he claimed to have caught the revolver against his body. Officer Budd testified that, during his demonstration, appellant put his left hand in a cupping motion, and placed his right hand at the level of his chest.  Officer Budd also testified that appellant never made any statements to him regarding catching the revolver with his finger on the trigger.

Appellant told Officer Budd that he was very sorry about the incident, and that he was afraid to tell his children about what had happened because he feared they would be upset.  Officer Budd testified that, at one point, appellant asked him for his revolver because he wanted to shoot himself.  According to Officer Budd, during the time appellant was in his custody, appellant cried off and on, Aoccasionally@ asked about the complainant=s welfare, and was Avisibly upset,@ Aemotional@ and Adistraught.@

Sergeants Gonzales and Roberts later arrived at the interview room and took custody of appellant.  Sergeant Gonzales read appellant his legal warnings, while Sergeant Roberts prepared the audio and video equipment in the next room for recording. Sergeants Gonzales and Roberts then took turns interviewing appellant.  While one asked questions, the other watched and listened in the adjoining room.  Appellant=s interview was recorded on videotape without his knowledge.

During the interview, appellant presented his version of the events of the evening.  He explained that the complainant had gone to a birthday party, and that he had been drinking alcohol and sitting in the complainant=s vehicle listening to music while she was gone.  He claimed that he had gotten the revolver out because he was home alone, and he had been Athreatened@ by people in the past.  He stated that after the complainant had returned home, the two of them sat in the kitchen having drinks, talking, and watching television.  He denied having an argument with the complainant, and claimed that the complainant had told him to remove the revolver from the kitchen.  He described having attempted to Atwirl@ the revolver with his finger in the trigger guard before accidentally shooting the complainant.  He specified that he was approximately two to three feet from the complainant when she was shot.

Appellant also attempted two demonstrations of how the shooting occurred:  one to Sergeant Roberts, and the other to Sergeant Gonzales.  Sergeant Roberts testified that, in his first demonstration, appellant Awas bent over almost completely at the waist,@ at a 90-degree angle.  Sergeant Roberts explained that, during appellant=s initial demonstration, the revolver was Aagainst his waist@ and pointed forward, and that had the revolver been fired from that position, the direction of travel of the bullet would have been horizontal, Aalmost parallel to the ground.@ Sergeant Roberts also testified that, in appellant=s second demonstration, he stood at a different angle, which he described as Aa little more straight up,@ with his knees bent, and held the revolver such that the barrel was pointed Aat a slightly downward angle.@  Appellant claimed that the revolver was Atrigger happy,@ and stated that he never thumb-cocked the revolver because one time it accidentally discharged in the back yard when he left it thumb-cocked.  He specified that he had not thumb-cocked the revolver the night of the shooting, and that it was his catching the weapon that caused it to accidentally discharge.

After the interview was over, Sergeant Roberts requested appellant=s t-shirt for testing.  Sergeant Roberts then informed appellant that the complainant had died, and directed Officer Budd to drive appellant home.  After arriving home, appellant called Joseph Dawson, the complainant=s father, to inform him of the shooting.  Dawson testified that appellant told him, AI had an accident.  I was cleaning my gun and it accidentally hit [the complainant]. And I would like to C I don=t know where she=s at.@  Dawson then drove to appellant=s house, and the two went to Ben Taub Hospital, where they confirmed that the complainant had, in fact, died from her injuries.

Appellant was subsequently indicted on the felony offense of murder.  At trial, the State presented the testimony of Keli Powers, appellant=s daughter.  Keli testified that she had witnessed appellant hit the complainant several times throughout her lifetime, and specified that she had seen appellant hit the complainant on the back of the head, slap, and push her.  She also stated that she had personally observed black eyes, a busted lip, and other bruises on the complainant.  She recalled that the complainant had left appellant in July 2006 due to this physical abuse, but that she returned after being gone for only one day. 

Keli also testified that she had seen appellant with a gun before, and that five years earlier, appellant had threatened to shoot her after the two Aexchanged words.@  According to Keli, appellant threatened, ABitch, you can leave my house or I will kill you.@  She explained that he did not have a gun in his hand when making this threat, but that he was going to get one, and that she saw him with a gun after she had already left the house.  Finally, Keli explained that, when the complainant=s vehicle was backed into the driveway, it meant that appellant had been sitting in it, drinking, and listening to music.

The State also presented the testimony of Don Parrott, appellant=s next-door neighbor of twenty years.  Parrott stated that he had seen appellant sitting in the complainant=s vehicle, drinking alcohol, and listening to music on several occasions.  He testified that, on the night of the shooting, the complainant=s vehicle was backed into the driveway, and he had heard music being played earlier in the evening.  He also testified that he did not hear any arguments between appellant and the complainant the night of the shooting, and that he did not otherwise see anything going on between the two that night.

Parrott also stated that, approximately one month before the shooting, he had observed appellant playing with the revolver while sitting in the complainant=s vehicle and drinking alcohol.  Parrott explained that, on this occasion, appellant Ahad his finger in the trigger guard@ and was Atwirling it.@  Parrott stated that he immediately went back into his house, but later heard Aloud voices@ coming from the doorway of appellant=s and the complainant=s home.  Parrot went outside, and heard appellant ask the complainant, ADo you want me to kill you?@  Parrott testified that he was unable to see whether appellant had the revolver while making this statement to the complainant.

Parrott also testified that, during the time they were neighbors, he heard appellant get Arowdy,@ Abelligerent,@ and Adisagreeable,@ that he had seen appellant in an intoxicated condition, and that he was Aworried@ about the complainant.  He specified that he never witnessed appellant physically abuse the complainant, and that he never observed any bruises, black eyes, or other injuries on the complainant.  Parrott also explained that, despite his concern for the complainant and appellant=s Aangry@ behavior, he never called the police because he knew the complainant Adid not want to leave,@ and nothing would happen even if he had informed the authorities.

Finally, the State presented the testimony of Dr. Morna Gonsoulin, the assistant medical examiner, and Mohamed Al-Mohamed, the firearms examiner.  Dr. Gonsoulin testified that the complainant had been shot just beneath her left collarbone, and that the path of the bullet within the complainant=s body was left to right, downward, and front to back.  She explained that the characteristics of the wound were consistent with someone who had been shot while seated in a chair, directly facing the firearm, which was held at an angle directly over their body.  Dr. Gonsoulin also testified that, based on the distribution of soot particles on the complainant=s skin from the muzzle of the revolver,^[1] she estimated that the complainant was shot from a distance of approximately six to eighteen inches.  Dr. Gonsoulin opined that the complainant was most likely shot from a distance of twelve inches, and specified that the distance was not greater than eighteen inches because soot particles like those observed on the complainant=s skin are Anot typically seen beyond 18 inches from the muzzle.@

Al-Mohamed testified that the revolver fired appropriately and was in good working condition, and that nothing was out of working condition with the hammer or the trigger.  He explained that the revolver has two safetiesCboth of which prevent the revolver from firing in the event of an accidental impactCand that the revolver would not fire unless someone simultaneously Apulled@ and Asqueezed@ the trigger.  He stated that he performed a trigger analysis, and that between 13 and 13.5 pounds of pressure would be required to pull the trigger if the hammer of the revolver were not cocked.^[2] He also explained that the trigger must travel almost one inch to the rear position to cause the hammer to cock and fall back, firing the bullet.

Al-Mohamed also testified that, based on ballistics tests conducted with the revolver and a sample of fabric taken from the complainant=s robe, he estimated that the complainant was shot from a distance of approximately eighteen to thirty-six inches.  Al-Mohamed acknowledged that these tests were performed under Acompletely different condition[s] than the crime scene.@  He also stated that he examined the t-shirt worn by appellant the night of the shooting, and that he did not find any gunshot residue particles on the shirt.

The jury convicted appellant, and the trial court sentenced him to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  This appeal followed.

Issues on Appeal

In two issues, appellant challenges his conviction for murder.  In his first issue, appellant contends that the evidence supporting the verdict is factually insufficient.  He asserts that the shooting of the complainant was an accident, and argues that the contrary evidence presented at trialCnamely circumstantial and scientific evidence he alleges is consistent with his claim of an accidental shootingCrenders the verdict clearly wrong and manifestly unjust, and against the great weight and preponderance of the evidence.  In his second issue, appellant contends that the trial court erred in overruling his objection to an improper jury argument made by the State at punishment.  We analyze appellant=s issues in the order he has presented them.

Analysis of Appellant=s Issues

I.        The Evidence Supporting the Verdict is Factually Sufficient

In his first issue, appellant contends that the evidence supporting the verdict is factually insufficient.  Appellant asserts that evidence presented at trial demonstrated (1) he had no financial motive for shooting or taking the complainant=s life; (2) he was Adistraught@ and Aupset@ after the shooting; (3) he was not intoxicated at the time of the shooting; (4) he did not flee the scene, he called 911 twice, and he did not attempt to hide the revolver; (5) there were no signs of struggle or violence at the scene; (6) firearms can sometimes accidentally discharge; (7) someone Atwirling@ a revolver in the manner described by appellant could Alose control over it@; (8) the complainant was shot only once; and (9) the  bullet wound was Anot to a portion of [the complainant=s] body that one would normally associate with a fatal wound, such as the head or heart area.@  He argues that this contrary evidence presented is consistent with his claim of an accidental shooting, and that it renders the verdict clearly wrong and manifestly unjust, and against the great weight and preponderance of the evidence.

In contrast, the State contends that the evidence supporting the verdict is factually sufficient.  The State asserts that appellant repeatedly varied his explanation of how the shooting occurred and contradicted himself about the circumstances surrounding the event, and that the physical evidence presented at trial contradicted each of appellant=s various accounts.  The State argues that, in light of the appellant=s varied explanations and the physical evidence, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, or against the great weight and preponderance of the evidence.

A.      Standard of Review and Applicable Law

When reviewing the factual sufficiency of the evidence, we begin with the presumption that the evidence supporting the verdict is legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 2006).  We view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134. We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). While we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence).  Thus, while we are permitted to substitute our judgment for that of the jury when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

A person commits the offense of murder if he (1) intentionally or knowingly causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code _ 19.02(b)(1), (2).  Intent can be inferred from the acts, words, and conduct of the defendant. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); see also Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring).  Knowledge can also be inferred from such evidence. Martinez v. State, 833 S.W.2d 188, 196 (Tex. App.CDallas 1992, pet. ref=d).

B.      Application of Law to the Facts

Viewing all of the evidence in a neutral light, we conclude that the evidence supporting the verdict is factually sufficient.  The evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414B15.

First, although appellant claims that the shooting was accidental, testimony presented at trial contradicts his claim.  Appellant gave at least three inconsistent accounts of the shooting to investigating officers:  (1) the version in which appellant claimed that he was Aplaying@ with the revolver, it Ajumped@ out of his hand, he Acaught it by the trigger,@ and accidentally shot the complainant in the chest, as told to Officer Wheeler; (2) the version in which appellant claimed that he was Ajuggling@ the revolver, he Athrew@ it too high in the air, he Acaught@ it against his body, and it fired accidentally, as told to a group of officers at the scene and to Officer Budd; and (3) the version in which appellant claimed that he was Atwirling@ the revolver with his finger in the trigger guard and accidentally shot the complainant, as told to Sergeants Gonzales and Roberts. 

Appellant also gave at least three inconsistent accounts of the circumstances surrounding the shooting:  (1) the version in which appellant claimed that he was showing the revolver to the complainant to show her Ahow pretty it was,@ as told to a group of officers at the scene; (2) the version in which appellant claimed to have retrieved the revolver to show the complainant that he had Aprotection@ and would be Asafe@ if he left the house, as told to Sergeant Barnes; and (3) the version in which appellant claimed to have shot the complainant while Acleaning@ the revolver, as told to Dawson.  In addition, appellant repeatedly contradicted himself regarding whether he had been arguing with the complainant the night of the shooting.  He also admitted to Sergeant Barnes that he had owned the revolver for ten years, yet could not explain why he was showing the complainant Ahow pretty it was@ the night of the shooting.

Next, scientific evidence presented at trial contradicted appellant=s claim of how the shooting occurred.  Appellant=s repeated demonstrations on videotapeCwhich themselves varied from one to the nextCindicate that the revolver was fired from the height of his waist, and that the bullet=s direction of travel would have been nearly parallel to the ground.  Appellant also claimed to have been a distance of two to three feet from the complainant when the shooting occurred.  However, Dr. Gonsoulin testified that the characteristics of the complainant=s injury were consistent with someone who had been shot by a firearm held at an angle directly over their body, at a distance of no more than eighteen inches.  Furthermore, although appellant claimed that the revolver was not thumb-cocked, and that it accidentally discharged when he Acaught@ it against his body, Al-Mohamed testified that the revolver would only fire from this position if someone simultaneously pulled and squeezed the trigger, applying between 13 and 13.5 pounds of pressure and moving the trigger a distance of approximately one inch to the rear position.

Finally, while there was testimony presented at trial that appellant was financially dependent on the complainant for support, that he was Adistraught@ and Aupset@ after the shooting, that he called 911 twice, did not flee the scene, and did not attempt to hide the revolver, and that there were no signs of struggle or violence at the scene, there was also testimony presented at trial that appellant physically abused the complainant multiple times throughout the course of their relationship, that he had threatened his own daughter with a gun approximately five years earlier, and that he had threatened to kill the complainant approximately one month before the shooting.  We are mindful that we must exercise appropriate deference to the jury=s conclusions, and must exercise appropriate deference to avoid substituting our judgment for theirs. Drichas, 175 S.W.3d at 799; Watson, 204 S.W.3d at 414. 

Based on a neutral review of the evidence, we cannot conclude that the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence.  Therefore, we hold that the evidence supporting the verdict is factually sufficient. See Ramirez v. State, 229 S.W.3d 725, 728B30 (Tex. App.CSan Antonio 2007, no pet.) (concluding that evidence supporting appellant=s murder conviction was factually sufficient where appellant gave multiple inconsistent accounts of the shooting, and scientific evidence refuted appellant=s claim that complainant accidentally shot himself); Pieringer v. State, 139 S.W.3d 713, 720B23 (Tex. App.CFort Worth 2004, no pet.) (concluding that evidence supporting appellant=s murder conviction was factually sufficient where appellant gave multiple inconsistent accounts of the day of the murder, and scientific evidence refuted appellant=s claim that she had an innocent reason for her presence at crime scene); see also Salinas v. State, No. 01-04-01079-CR, 2006 WL 488669, at *3B4 (Tex. App.CHouston [1st Dist.] Mar. 2, 2006, pet. ref=d) (mem. op., not designated for publication) (concluding that evidence supporting appellant=s murder conviction was factually sufficient where appellant gave multiple inconsistent accounts of the shooting, and scientific evidence refuted appellant=s claim that complainant was shot accidentally).

We overrule appellant=s first issue.

II.       The State=s Jury Argument at Punishment Was Not Improper

In his second issue, appellant contends that the trial court erred in overruling his objection to an improper jury argument made by the State at punishment.  Appellant asserts that the State=s argument Ainferred [its] knowledge of studies indicating that a domestic partner is more likely to harm one at home than a stranger@ and therefore advised the jury of prejudicial facts that were outside the record.  Appellant argues that the trial court erred when it Afailed to respond@ to his motion to disregard the objectionable portion of the State=s argument, and asks this Court to remand the cause for a new punishment hearing.

In contrast, the State contends that the trial court committed no error.  The State asserts that the trial court actually sustained appellant=s objection to the allegedly improper argument.  The State further asserts that its argument was a summation of the evidence presented at both phases of trial and a reasonable deduction from that evidence, and argues that even if the argument were improper, any error in its admission was harmless.

A.      Applicable Law

Proper jury argument includes four areas:  (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel=s argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); LaHood v. State, 171 S.W.3d 613, 623 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Jackson, 17 S.W.3d at 673B74 (citing Gaddis v. State, 753 S.W.2d 396 (Tex. Crim. App. 1988); Everett v. State, 707 S.W.2d 638, 640 (Tex. Crim. App. 1986)).

B.      Application of Law to the Facts

During the State=s final argument at punishment, the following exchange occurred:

[The State]:            [Appellant] deserves to be punished.  The message should be loud and clear and resounding. Domestic violence is not acceptable.  We grow up in a world where our fathers tell us:  Be careful when you go to the grocery store, be careful when you go to the gas station, be careful when you go out at night and be careful of the strangers.  My dad never told me be careful of the person who loves you.  The facts are the person who loves you, the person you=re living with in your home behind closed doors is more likely to be a threat to youC

[Defense Counsel]: Judge, this is improper argument.

[The Court]:           Sustained. Move away from that line of argument.

[Defense Counsel]: Motion to disregard, Your Honor.

[The State]:            Domestic violenceC

[Defense Counsel]: Motion to disregard, Your Honor.  Motion for mistrial.

[The Court]:           That would be denied.

Appellant=s issue apparently challenges the following portions of the State=s argument at punishment:  (1) AThe facts are the person who loves you, the person you=re living with in your home behind closed doors is more likely to be a threat to you@; and (2) ADomestic violence.@

Here, the record contains evidence that appellant physically abused the complainant on multiple occasions throughout her lifetime, and had threatened to kill her approximately one month before the shooting.  In addition to the testimony of Keli and Parrott, presented at guilt/innocence and outlined above, the State offered the testimony of Clifton Powers, Jr.Cappellant=s sonCat punishment. Clifton testified that he had lived at home with the complainant and appellant until he was twenty-five years of age because he was Aworried@ about the complainant and Adidn=t want nothing to happen to her.@  Clifton explained that he had seen appellant Abeating@ on the complainant numerous times throughout his lifetime, and specified that appellant would Aslap@ and Abeat@ the complainant when he Agot to drinking.@  Clifton also testified that he had witnessed bruises and black eyes on the complainant Athe majority of the time@ he visited the complainant=s home.  We hold that the State=s argument was a summation of the evidence presented at trial and a reasonable deduction drawn from that evidence. See LaHood, 171 S.W.3d at 624 (concluding that State=s closing argument was reasonable deduction from the evidence presented at trial; record contained evidence that appellant committed violent crimes against the complainant, and that he had physically and sexually assaulted another woman); see also Watkins v. State, 946 S.W.2d 594, 598B99 (Tex. App.CFort Worth 1997, pet. ref=d) (concluding that State=s closing argument was a summation of evidence presented at trial with a reasonable deduction from that evidence; argument was based on testimony admitted at trial, and contained reasonable inferences drawn from that testimony); Bonier v. State, 738 S.W.2d 726, 730 (Tex. App.CHouston [14th Dist.] 1987, no pet.) (concluding that State=s closing argument was summation of evidence presented at trial and reasonable deductions from that evidence; argument did not inject prejudicial or incriminating facts that were not in the record, and was based on testimony admitted at trial). Therefore, the State=s jury argument at punishment was not improper.

Thus, assuming that the trial court overruled appellant=s objection to the State=s jury argument at punishmentCa question we need not and do not decideCwe conclude that the trial court committed no error.  We overrule appellant=s second issue.

Conclusion

Having addressed and overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/      Frank C. Price

Senior Justice

Judgment rendered and Memorandum Opinion filed September 9, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.*

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

_______________________________

* Senior Justice Frank C. Price sitting by assignment.

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^[1]  Dr. Gonsoulin described the distribution of soot particles from the muzzle of the revolver as Astippling.@

^[2]  Al-Mohamed testified that between 4.2 and 4.75 pounds of pressure would be required to pull the trigger if the hammer were cocked.