Johntay Gibson v. State ( 2016 )


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  • Affirmed and Memorandum Opinion filed August 11, 2016.
    In The
    Fourteenth Court of Appeals
    NO. 14-14-00595-CR
    JOHNTAY GIBSON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 230th District Court
    Harris County, Texas
    Trial Court Cause No. 1378280
    MEMORANDUM                      OPINION
    A jury convicted appellant Johntay Gibson of capital murder. The trial court
    sentenced appellant to life in prison, without the possibility of parole. Appellant
    brings this appeal claiming: (1) the evidence is insufficient to support his
    conviction, (2) the trial court erred in denying his motion to suppress, (3) the jury
    charge was erroneous, and (4) reversible error occurred during his closing
    argument. We affirm.
    I.     THE EVIDENCE
    On February 18, 2013, Hamid Waraich, the owner of a Boost Mobile phone
    store in Harris County, Texas, was shot and killed. Waraich’s wife, Mirna Cortez,
    was present and witnessed the shooting, along with a customer, Rosemary Saldana
    and her two grandchildren.
    Cortez testified two men entered Boost and one remained at the door (the
    “lookout”) while the other approached her at the register (the “shooter”). Saldana
    was near the front door with the children. The shooter had on a mask that
    completely covered his face, a jacket and gloves, and a pistol in his hand. The
    lookout was also wearing a mask and gloves and had a gun, which he pointed at
    Saldana and the children. He told Saldana to get on the floor and demanded her
    purse. Saldana gave the lookout her bag which contained her bank debit card. The
    masks prevented Cortez from seeing the men’s faces but she described the shooter
    as a little taller and thinner than the lookout. Saldana described the two suspects as
    wearing all black from head to toe, including black masks, and one was
    significantly taller than the other. The shorter man was by the door and the taller
    man approached the cashier.
    The shooter took money from the register and three cellphones on top of the
    counter. One phone belonged to Cortez but the other two had not been activated.
    The shooter placed Cortez’s cellphone in the pocket of his jacket. He then pointed
    his gun at Cortez and demanded her jewelry. Cortez showed her hands, said she
    did not have any, and backed up. Cortez heard a gunshot and realized the man had
    shot Waraich. A fired cartridge case was recovered from behind the counter on
    which was printed, “PPU 380 auto.”1 Saldana also heard only a single shot which
    1
    “PPU” was identified as the brand of ammunition.
    2
    came from the counter. She testified the tall robber shot Waraich. The man at the
    door began screaming, “let’s go.” The two men ran out and Cortez called 911.
    Video footage from a nearby store, Melrose Family Fashions showed the
    suspects walking towards Boost before the robbery and then sprinting north toward
    the Payless shoe store afterward.
    Sergeant James Devereux2 and Officer Crank spoke to Monica Castro and
    Selene Gutierrez from Melrose and Elizabeth Diaz at Dollar Land and were given
    descriptions of each suspect’s height and race. Devereux and Crank proceeded to a
    nearby auto repair shop where Joel Montalvo gave them a description of the
    suspects’ vehicle – a black Pontiac Grand Prix with paper plates and license
    number “47K8036.”
    Gutierrez, the manager of Melrose, testified that about 4:30 p.m. on
    February 18, 2013, she saw two people walking toward Boost wearing black
    sweaters and hoodies. Their faces were uncovered and she could see the men were
    African-American. One man was taller than the other. Later, she saw the tall man
    run by followed by the other man, wearing a ski mask, in the direction of Payless.
    Castro, an assistant manager at Melrose, also noticed the two men walk by wearing
    dark clothing and hoodies. Castro saw their faces and they were African-American.
    Montalvo saw two people running to a car, an Oldsmobile or a Pontiac, with
    paper plates, backed into a spot in front of Payless. One went in the back on the
    driver’s side and the other went in the front on the passenger side. Montalvo was
    unable to give any description of the men.
    Sergeant Matthew Brady showed Gutierrez and Castro two sets of video
    lineups with possible suspects in them. In the first video, appellant was in position
    2
    All officers referred to in this opinion were from the Houston Police Department.
    3
    number three. Brandon Johnson was in position number two in the second video.
    When Brady showed Castro the first lineup, she stated that she was sixty to seventy
    percent certain that she saw number three (appellant) walk past her towards Boost
    and that he was the shorter one. When Brady showed Castro the second lineup, she
    did not recognize anyone.
    Brady showed the same lineups to Gutierrez. When she viewed the first one,
    Gutierrez said number three (appellant) or four could be the taller one. Brady
    testified that Gutierrez then viewed the second lineup and identified number one as
    the short suspect. Gutierrez testified that she tentatively identified appellant as the
    taller man she saw that day and identified Johnson as the shorter man.
    The day after the robbery, Saldana reported the theft to her bank of her debit
    card and discovered it already had been used. Bank records revealed unauthorized
    activity at a McDonald’s and Murphy’s gas station. At Murphy’s, someone
    attempted to use Saldana’s card three times with an invalid pin but the card was
    used successfully at McDonald’s.
    Officer Mark Stahlin obtained surveillance video from McDonald’s showing
    “a dark-colored Pontiac with a paper license plate” going through the drive-
    through. The car appeared to be a Grand Prix; the people inside were not visible
    but the first three digits of the license number were “47K.” According to the
    cashier, there were three people in the car. At Murphy’s, Stahlin retrieved video
    surveillance that showed the same black Pontiac at a gas pump. A person exited the
    car from the front right passenger seat and attempted to use a card. Stahlin
    identified the person on the video as appellant, “but he’s put on weight since then.”
    The man was wearing a large shiny earring in his ear that Stahlin testified was
    consistent with one appellant was wearing on February 20, 2013, at the homicide
    division.
    4
    Sergeant C. E. Elliott testified the McDonald’s video reflected the driver
    was wearing light-colored clothes, not necessarily white, but a very light color.
    Elliott identified the person in the surveillance videos from Murphy’s and
    McDonald’s as appellant and stated, “He had a big star-shaped earring in his ear
    and he was wearing it when he got arrested.”
    Cortez’s phone was tracked to a cellphone store in a Fiesta supermarket. The
    owner, Hein Bui testified a man sold him two cell phones on February 19, 2013.
    From surveillance video of the transaction, Elliott identified the seller as appellant.
    Elliott testified the black Pontiac Grand Prix was registered to Jermaine
    Green at apartment 102 of the Crescent Place Apartments at 10222 South Gessner,
    a location within walking distance of the Fiesta. Near apartment 102 were parked a
    black Grand Prix and a white Grand Prix, also with paper plates. Surveillance was
    established on both vehicles. A black male walked from the area of apartment 102
    and entered the white car. Officers Nathan Carroll and Cullen Duncan began
    following and after the driver committed several traffic violations, initiated a
    traffic stop.
    The driver was the only occupant and identified himself as Jermaine Green
    but produced no license. Carroll and Elliott identified appellant as the man in the
    car. According to Elliott, “he’s gained a lot of weight.” When he first made contact
    with the driver, Carroll observed the odor of marijuana. Carroll checked the name
    and date of birth the man gave him and, according to the Texas driver’s license
    photo, he was not that person. When Carroll confronted him, the man gave his
    name as Johntay Gibson and a different date of birth. Carroll then found appellant
    had three outstanding warrants.
    Appellant was dressed all in black and Elliott observed a black ski mask
    laying on the back seat. Appellant consented to a search of the vehicle and Duncan
    5
    recovered three small plastic bags of marijuana under the driver’s seat. Appellant
    was arrested, taken into custody, and transported to the homicide division.
    Elliott returned from the stop to Crescent Place and saw two people walk
    from the area around apartment 102 to the black Grand Prix. The taller of the two
    went “into the driver’s door. Close[d] it. . . . and then they walk[ed] away.” About
    five minutes later, that man entered a tan Buick Riviera parked nearby. Elliott
    radioed officers to follow and when the driver committed a traffic violation he was
    detained. The driver was Jermaine Green and he gave consent to search the
    vehicle. As a result of the investigation, Elliott eliminated Green as a suspect but
    believed Johnson and appellant were involved, as well as a third man, the lookout.
    The suspect developed as the lookout was a man known as “Little E.”
    The man that had been with Green watched the traffic stop but ran into
    apartment 102 when officers approached him. Officers “knocked and announced”
    and the man, Brandon Johnson, came to the door; he had changed his clothes.
    After consent was given, Officer Jamie Peoples searched the apartment.
    From the bedroom nightstand, Peoples took into evidence two blue “do-rags,” a
    black ski mask with face holes, and a blue and white bandana. On the floor by the
    bed, Peoples recovered a black do-rag. In the closet, Peoples found a safe as well
    as a duffle bag containing two ski masks with face holes, one blue and one black.
    Peoples also found a pair of black sweatpants in the dresser. Peoples recovered a
    box containing cellphones and credit cards, one in Johnson’s name. Two
    sweatshirts, one blue and hooded, and two pairs of sweatpants, one blue and one
    black, were found. An empty black gun holster was recovered along with a box
    containing ammunition – eight unfired PPU .380 auto rounds – a do-rag, a blue
    bandana, and appellant’s birth certificate. When the safe was opened, it contained a
    box of ammunition – thirty-four Monarch .380, copper-jacketed hollow-point
    6
    bullets; a ski mask, a bandana, a tax form for Green; credit cards in Green’s name,
    and a state identification card for appellant. Cortez, Saldana, and Gutierrez testified
    the ski masks found were similar to those worn by the robbers.
    Pursuant to a warrant, Officer Alton Holmes searched the black Grand Prix.
    He found a single black knit glove inside the map pocket of the driver’s door, and a
    pair of gray and black Ridell brand sports gloves and a Boost Mobile receipt for
    appellant’s phone in the glove box. Holmes also searched the white 1999 Pontiac
    Grand Prix and found a black knit beanie. In the tan Buick Riviera, Holmes found
    black Ridell sports gloves in the trunk.
    Chandler Bassett, a firearms examiner for the Houston Forensic Science
    Center, testified it was possible the bullet jacket and cartridge case recovered from
    Boost were fired from the same weapon. Further, Bassett testified, the recovered
    cartridge case and the ammunition found in both the apartment closet and the safe
    from the apartment were of the same brand and caliber.
    Officer Duplechain took custody of appellant and gave him the Miranda3
    warnings at approximately 4:30 p.m. Appellant acknowledged that he understood
    and agreed to waive his rights and give a statement, of which a visual and audio
    recording was made. Duplechain left the interview at approximately 5:15 p.m. and
    returned around 10:35 p.m. During the break, appellant was frequently asleep.
    During the interview conducted from 4:30 p.m. to 5:15 p.m., appellant stated
    he gave Green’s name and date of birth to the officers because there was a warrant
    out for his arrest. Appellant said he lived with Brandon Johnson. Appellant gave
    Duplechain permission to look in his phone for the number of the girl whose car he
    was driving, the white Grand Prix. Appellant said the black Grand Prix was
    3
    See Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).
    7
    Green’s car and Green also had an old brown car. Appellant denied driving or
    riding in the black Grand Prix on July 18 or 19.
    In the latter portion of the interview, appellant was shown a photo and
    admitted it was him pumping gas and the time stamp was accurate. Appellant
    confirmed that Johnson was there and eventually identified the third person
    involved as Eric. He said they called Eric “Lil” because “He shorter than me, he a
    midget.”
    According to appellant, it was “their” idea and he only offered to drive.
    Johnson and Eric were not wearing masks when they got out of the car but were
    wearing ski masks when they returned. They removed the masks when they
    returned. Appellant said he thought they were going to beat someone up until he
    heard a gunshot. They showed him the gun afterwards and Eric took it when he left
    the car. Appellant described it as black, a nine or 380, with a magazine. They said
    they robbed Boost, appellant was given $100 of the approximate $300 taken, but
    denied shooting anyone, claiming “they shot in the store.” Appellant knew from
    the news the man had been shot in the chest.
    According to appellant, he was the driver, Johnson sat in the front, and Eric
    sat in the back but he and Johnson switched places before they drove to
    McDonald’s. After he put gas in the car, appellant got back in the driver’s seat.
    Appellant admitted to selling Cortez’s phone but claimed Johnson gave it to him.
    Appellant denied calling his girlfriend, Kenisha, on the phone. At approximately
    11:30 p.m., appellant invoked his right to an attorney and Duplechain immediately
    concluded the interview.
    Duplechain then questioned appellant’s brother, Joseph Davis. Davis was
    unaware appellant had been taken into custody until he was interviewed by
    Duplechain. Davis said that appellant had spoken about the robbery and told Davis
    8
    that he “didn’t mean to kill him . . . it just happened . . . the plan wasn’t to go in
    and kill him.” Davis did not know who the shooter was.
    Washington was developed as a third suspect during that interview and
    Davis identified him from a photo spread. Duplechain testified that phone calls to
    Washington in the immediate aftermath of appellant’s arrest indicated a
    relationship between Washington and appellant. According to Duplechain,
    “Washington would have had the perfect vantage point to – to say who the shooter
    was because he entered the store with the shooter. . . . And he would have known
    who the shooter was and who the driver was.” Duplechain testified that
    Washington was the one person who had seen appellant pull the trigger.
    Phone records revealed that in the hours between the shooting and midnight,
    Johnson called appellant and then there were three calls between appellant and
    Johnson. Immediately after that, appellant accessed a news channel from his
    phone. From the phone records Duplechain concluded there was a close
    relationship between appellant and Washington. Further, appellant’s explanation
    that Johnson and Washington were close was not borne out because they had
    minimal contact with each other.
    According to appellant’s statement, only he, Washington or Johnson would
    have had access to Cortez’s phone. The surveillance video from Boost showed
    Cortez’s phone was placed in the shooter’s pocket. There had been a call from
    Cortez’s phone to appellant’s girlfriend, Kenisha, within three minutes after the
    phone was taken. Phone records revealed calls from both appellant’s and Johnson’s
    phones to Kenisha that Duplechain believed suggested Johnson was looking for
    appellant.
    Elliott testified that appellant is “[r]ight at six feet tall” and he was
    personally part of taking that measurement. Brandon Johnson is approximately five
    9
    feet eight inches. Eric Washington is approximately five feet three inches.
    Duplechain admitted that the State’s theory that Washington was the lookout
    meant that both Johnson and appellant were taller. Based upon his review of the
    various surveillance videos and photos and his contact with Johnson, Washington,
    and appellant, Duplechain developed the opinion that the shooter was appellant.
    Elliott testified the appearance of the men in the Melrose surveillance video
    going to and fleeing from Boost were consistent with appellant and Washington
    being those men. Washington gave three statements to Elliott. Elliott testified those
    statements did not change his mind regarding the suspects in the case. Charges
    were filed against appellant, Johnson, and Washington for capital murder.
    II.    SUFFICIENCY OF THE EVIDENCE
    In his first three issues, appellant asserts the evidence is insufficient to
    support his conviction for capital murder as either a principal, a party, or a co-
    conspirator. A person may be charged with an offense as a principal, a direct party,
    or a co-conspirator. See Tex. Penal Code Ann. § 7.01 (West 2011) (person is
    “criminally responsible” if offense is committed by his own conduct or by the
    “conduct of another for which he is criminally responsible”); Tex. Penal Code
    Ann. § 7.02(a)(2) (West 2011) (describing criminal responsibility for direct party);
    Tex. Penal Code Ann. § 7.02(b) (West 2011) (describing criminal responsibility
    for party as co-conspirator). As explained below, we conclude the evidence is
    sufficient to support appellant’s conviction as a principal.
    A. Standard of Review
    In determining sufficiency of the evidence, we consider all the evidence,
    both direct and circumstantial, and any reasonable inferences which can be drawn
    from the evidence. See Clayton v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim. App.
    10
    2007). The jury is the sole judge of the credibility of the witnesses and the
    evidence presented. See Villani v. State, 
    116 S.W.3d 297
    , 301 (Tex. App.—
    Houston [14th Dist.] 2003, pet. ref’d.). We view all evidence in the light most
    favorable to the verdict and determine, based on that evidence and any reasonable
    inferences therefrom, whether any rational fact finder could have found the
    elements of the offense beyond a reasonable doubt. Gear v. State, 
    340 S.W.3d 743
    ,
    746 (Tex. Crim. App. 2011). We do not sit as the thirteenth juror and may not
    substitute our judgment for that of the fact finder by re-evaluating the weight and
    credibility of the evidence. Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex. Crim. App.
    2010). We defer to the jury’s responsibility to fairly resolve conflicts in testimony,
    weigh the evidence, and draw all reasonable inferences from basic facts to ultimate
    facts. 
    Id. Our duty
    as reviewing court is to ensure the evidence presented actually
    supports a conclusion that the defendant committed the crime. Williams v. State,
    
    235 S.W.3d 742
    , 750 (Tex. Crim. App. 2007).
    B. Analysis
    To obtain a conviction for capital murder, the State was required to prove
    that appellant murdered the complainant and that the murder was intentionally
    committed during the course of a robbery. See Tex. Penal Code Ann.§ 19.03(a)(2)
    (West Supp. 2015). Appellant first argues that there is legally insufficient evidence
    that he caused the complainant’s death.
    Specifically, appellant points out neither Cortez nor Saldana identified him
    as the shooter. Elliott could not identify appellant as the shooter from the Boost
    surveillance video and the shooter wore light-colored gloves but those were not the
    gloves found in the white Grand Prix appellant was driving when arrested.
    Appellant refers to Duplechain’s failure to provide the specific heights of the
    suspects in his offense report. He further claims appellant was only an inch or two
    11
    taller than Johnson. Also, the lineup identifications by Castro and Gutierrez were
    inconclusive. Castro was only sixty to seventy percent certain she recognized
    appellant and said he was the short one, while Gutierrez was unsure as between
    appellant and another man as being the taller man she saw the day of the robbery.
    Appellant also argues the DNA evidence linking him to some of the evidence
    seized does not establish whether he touched those items before, during, or after
    the incident and fails to account for the fact all three suspects lived at the apartment
    and comingled their property. Lastly, appellant relies upon his admission that he
    acted as the driver for Johnson and Washington.
    The jury heard the evidence set forth above. To summarize, Cortez and
    Saldana testified that that the taller of the two men shot Waraich. Castro and
    Gutierrez testified the two men were African-American and Gutierrez noticed one
    was taller than the other. The jury heard evidence that appellant is six feet tall and
    Johnson is five feet eight, a difference of four inches. Although Washington is
    shorter than both men, there was other evidence from which a rational trier of fact
    could find appellant was the shooter.
    The shooter took Cortez’s cellphone and placed it in his pocket. Within three
    minutes of the robbery, a phone call was placed from Cortez’s cellphone to
    appellant’s girlfriend, Kenisha. Appellant sold Cortez’s cellphone to Bui the day
    after the robbery.
    Montalvo described the suspect’s vehicle as a black Pontiac Grand Prix
    with paper plates, license number 47K8036. Elliott testified that less than 29
    minutes after the vehicle fled the scene, Saldana’s credit card was used at
    McDonald’s and within 42 minutes of the shooting, appellant vacated the front
    right passenger seat of the black Grand Prix and tried to use Saldana’s card at
    Murphy’s gas station.
    12
    Appellant told Duplechain that he was one of the three men involved in the
    robbery, although he claimed he was only the driver. However, according to Davis,
    appellant felt bad about it and that “he didn’t mean to kill him, but he said it just
    happened. He didn’t know him . . . the plan wasn’t to go in and kill him.”
    During a search of the apartment where appellant lived with Johnson,
    officers found ammunition of the same caliber and manufacturer as the bullet
    recovered from Waraich’s body and the cartridge recovered from Boost. The
    ammunition was in a box with appellant’s birth certificate along with a bandana
    linked to appellant by his DNA. When appellant was stopped driving the white
    Grand Prix, a black ski mask was in the backseat and he gave a false name. Gray
    and black gloves, similar to the ones the shooter is shown wearing in the
    surveillance video from Boost, were found in the black Grand Prix and linked to
    appellant by DNA.
    Although appellant stated that the extent of his role in the crime was as
    driver for Johnson and Washington, the jury considered evidence to the contrary.
    Viewing all the evidence in the light most favorable to the verdict, we hold a
    rational trier of fact could have found beyond a reasonable doubt that appellant
    caused Waraich’s death. See 
    Gear, 340 S.W.3d at 746
    . We therefore overrule issue
    one.
    Having found the evidence legally sufficient to support appellant’s
    conviction as a principal, it is unnecessary to determine whether the evidence is
    legally sufficient to support his conviction as a party or co-conspirator. We
    therefore do not address issues two and three.
    III.   MOTION TO SUPPRESS
    In issues four and five, appellant contends the trial court erred in denying his
    13
    motion to suppress the second part of his videotaped statement because officers
    failed to re-warn him in accordance with Miranda v. Arizona, 
    384 U.S. 436
    , 86 S.
    Ct. 1602, 
    16 L. Ed. 2d 694
    (1966), and article 38.22 of the Texas Code of Criminal
    Procedure.4 Appellant’s written motion to suppress did not raise the issue presented
    on appeal. The record of the hearing on appellant’s motion to suppress reflects the
    issue was not raised at that time either. Rather, counsel stated to the trial court, “I
    just want to put in the record that I’m adopting the arguments made in my motion
    to suppress. That is my argument. I don’t think I need to read it to you or re-argue
    it. But those are my arguments and with that we rest.”
    “A motion to suppress is nothing more than a specialized objection to the
    admissibility of evidence.” Rothstein v. State, 
    267 S.W.3d 366
    , 373 (Tex. App.—
    Houston [14th Dist.] 2008, pet. ref’d) (citing Galitz v. State, 
    617 S.W.2d 949
    , 952
    n. 10 (Tex. Crim. App. 1981)). To preserve a complaint for appellate review, a
    party must have presented a timely request, objection, or motion to the trial court
    stating the specific grounds for the ruling desired. Id.; Tex. R. App. P. 33.1(a). The
    contention on appeal must comport with the specific objection made at trial. 
    Id. (citing Wilson
    v. State, 
    71 S.W.3d 346
    , 349 (Tex. Crim. App. 2002)). “An
    objection stating one legal theory may not be used to support a different legal
    theory on appeal.” 
    Id. (citing Broxton
    v. State, 
    909 S.W.2d 912
    , 918 (Tex. Crim.
    App. 1995). We will not consider errors, even of constitutional magnitude, that
    were not called to the trial court’s attention. 
    Id. Because appellant’s
    argument on appeal does not comport with any
    objection raised in the motion to suppress or at the suppression hearing, appellant
    4
    The trial court entered written findings of fact and conclusions of law regarding
    appellant’s motion to suppress.
    14
    has failed to preserve error on this issue. See Tex. R. App. P. 33.1(a). Appellant’s
    fourth and fifth issues are overruled.
    IV.    JURY CHARGE
    In his next two issues, appellant claims there was error in the court’s charge
    to the jury. In his sixth issue appellant argues the trial court erred in refusing to
    include his requested jury charge on whether his videotaped statement comported
    with article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a) and 3(a)(2)
    (West Supp. 2015).
    When we review a claim of jury-charge error, we first determine whether
    there is error in the charge. Barrios v. State, 
    283 S.W.3d 348
    , 350 (Tex. Crim.
    App. 2009). “[W]e review alleged charge error by considering two questions: (1)
    whether error existed in the charge; and (2) whether sufficient harm resulted from
    the error to compel reversal.” Ngo v. State, 
    175 S.W.3d 738
    , 744 (Tex. Crim. App.
    2005). Error that has been properly preserved must be reversed unless it is
    harmless. Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex. Crim. App. 1985). Error
    that has not been properly preserved is reversible only if it was so serious that the
    defendant did not have a “fair and impartial trial.” 
    Id. In other
    words, if a
    defendant has preserved his claim of jury-charge error, we must reverse if the
    defendant suffered “some harm” to his rights, but if the defendant has not
    preserved his claim, we must reverse only if the defendant suffered “egregious
    harm.” 
    Ngo, 175 S.W.3d at 743
    –44; 
    Almanza, 686 S.W.2d at 171
    .
    The record reflects appellant requested a more detailed voluntariness
    instruction than the one contained in the trial court’s charge. In his brief, appellant
    identifies only the alleged failure to re-warn him at 10:30 p.m. as grounds for such
    an instruction. Accordingly, that is the only ground we address.
    15
    Section 7 of article 38.22 provides that “[w]hen the issue is raised by the
    evidence, the trial judge shall appropriately instruct the jury, generally, on the law
    pertaining to such statement.” Tex. Code Crim. Proc. Ann. art. 38.22, § 7 (West
    Supp. 2015). “The issue” refers to compliance with the statutory warnings set out
    in sections 2 and 3 of article 38.22, and the voluntariness of the defendant’s waiver
    of rights. Oursbourn v. State, 
    259 S.W.3d 159
    , 176 (Tex. Crim. App. 2008); see
    also Aldaba v. State, 
    382 S.W.3d 424
    , 430 (Tex. App.—Houston [14th Dist.] 2009,
    pet. ref’d); Tex. Code Crim. Proc. Ann. art. 38.22 §§ 2, 3 (West Supp. 2015)
    (incorporating requirements of Miranda). For the issue to be “raised by the
    evidence,” there must be a genuine factual dispute. 
    Oursbourn, 259 S.W.3d at 176
    ;
    
    Aldaba, 382 S.W.3d at 430
    . We review the trial court’s refusal to submit such an
    instruction in the jury charge for abuse of discretion. See Wesbrook v. State, 
    29 S.W.3d 103
    , 122 (Tex. Crim. App. 2000).
    Here, there was no factual dispute raised by the evidence as contemplated by
    section 7 and appellant does not assert otherwise. Although appellant argued the
    latter part of his videotaped interview was a second interrogation that required
    additional warnings, the fact that the interview ceased and then resumed at 10:30
    p.m. with no additional warnings given was never in dispute. See Brownlee v.
    State, 
    944 S.W.2d 463
    , 467, 468 (Tex. App.—Houston [14th Dist.] 1997, pet.
    ref’d) (concluding issue of section 7 voluntariness was not raised by defendant’s
    testimony explaining the reason he talked to the police.”). Because no factual
    dispute was raised by the evidence to warrant an instruction under section 7, the
    trial court did not err in refusing the requested instruction. We therefore overrule
    appellant’s sixth issue
    Appellant further asserts in his seventh issue that the trial court erred by
    failing to sua sponte include an article 38.23 due process instruction because the
    16
    second part of his videotaped statement was taken at a time when he was in need of
    sleep. Appellant claims the police “exploited his sleepy condition” as evidenced by
    the fact that he slept in the interrogation room and was awakened by Officer
    Duplechain at 10:30 p.m.
    The trial court has a duty to give an article 38.23 instruction sua sponte if
    three requirements are met: (1) evidence heard by the jury raises an issue of fact,
    (2) the evidence on that fact is affirmatively contested, and (3) that contested
    factual issue is material to the lawfulness of the challenged conduct in obtaining
    the evidence. Contreras v. State, 
    312 S.W.3d 566
    , 574 (Tex. Crim. App. 2010).
    There must be a genuine dispute about a material issue of fact before an article
    38.23 instruction is warranted; if there is no disputed fact issue, the legality of the
    conduct is determined by the court alone, as a matter of law. Madden v. State, 
    242 S.W.3d 504
    , 509–10 (Tex. Crim. App. 2007). For there to be a conflict in the
    evidence that raises a disputed fact issue, there must be some affirmative evidence
    in the record that puts the existence of that fact in question. 
    Id. at 513.
    In the instant case, there was no contested question of fact – it was never
    disputed that appellant was asleep before his videotaped interview resumed. The
    mere fact that appellant was asleep does not, without more, raise a disputed fact
    issue as to whether he was “sufficiently awake to be interviewed.” See Contreras v.
    State, 
    312 S.W.3d 566
    , 576 (Tex. Crim. App. 2010) (in rejecting defendant’s
    contention that he was entitled to a jury instruction that lack of sleep, by itself,
    rendered his confession involuntary, the court concluded “that a lack of sleep
    would not, by itself, render a confession involuntary under due process”).
    Appellant does not refer this court to any evidence raising a disputed fact issue that
    would warrant an instruction under article 38.23. See Jackson v. State, 
    468 S.W.3d 189
    , 199-200 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding defendant
    17
    was not entitled to an article 38.23 instruction where there was no disputed fact
    issue on whether there was a reasonable alternative to impoundment). Accordingly,
    we overrule appellant’s seventh issue.
    V.     CLOSING ARGUMENT
    In appellant’s final issue he asserts that he was denied effective assistance of
    counsel when the trial court instructed counsel not to argue that the five-hour span
    between the first and second part of his videotaped statement rendered the second
    part involuntary for the purpose of the general voluntariness instruction given by
    the trial court pursuant to article 38.22, section 6. See Tex. Code Crim. Proc. Ann.
    art. 38.22 § 6 (West Supp. 2015). We first note that although appellant presents
    this as a claim of ineffective assistance it is, in fact, a claim that the trial court erred
    in instructing counsel that he would not be allowed to make such an argument.
    Proper jury argument encompasses a summation of the evidence presented at
    trial and reasonable deductions from that evidence. Guidry v. State, 
    9 S.W.3d 133
    ,
    154 (Tex. Crim. App. 1999). Additionally, argument must be limited to the proper
    scope of jury deliberation as defined by the court’s charge. Barragan v. State, 
    641 S.W.2d 380
    , 382 (Tex. App.—El Paso 1982, no pet.). Having found above that the
    trial court did not err in finding additional warnings were not required when the
    videotaped interview resumed at 10:30 p.m., and that the trial court did not err in
    its instructions to the jury, we cannot say the trial court’s restriction on argument
    was erroneous. See 
    id. Appellant’s eighth
    issue is overruled
    18
    VI.    CONCLUSION
    Having overruled all of appellant’s issues, we affirm the trial court’s
    judgment.
    /s/    John Donovan
    Justice
    Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
    Do Not Publish — Tex. R. App. P. 47.2(b).
    19