Affirm and Opinion Filed July 29, 2013




                                         S  In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00631-CR

                         JZACQUANE HICKMAN, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F10-60332-P

                             MEMORANDUM OPINION
                         Before Justices FitzGerald, Francis, and Lewis
                                  Opinion by Justice Francis
       A jury convicted Jzacquane Hickman of capital murder, and the trial court assessed a

mandatory life sentence without parole. In his sole issue, appellant contends the trial court

reversibly erred by allowing the prosecutor to make an improper jury argument. We affirm.

        In the early morning hours of September 6, 2010, fifteen-year-old Sasha Bernal and her

ex-boyfriend, Kenneth Moore, were shot multiple times; Moore died from his wounds. At trial,

Bernal testified Moore was a drug dealer who sold “weed.” She said she was in the back

bedroom when someone came into the house. She could hear Moore talking to someone and,

after a couple of minutes, she heard gunshots. In an attempt to hide, Bernal knelt beside the bed.

Moore ran into the bedroom; he was bleeding and had been shot. The shooter followed him and
shot Bernal in the head. Bernal was also shot two more times, and Moore was shot several more

times. Bernal and Moore were lying beside each other on the floor, and a second man came into

the room. The men checked Moore’s pockets and left. Bernal did not get up immediately

because she was scared. At some point, Moore stopped breathing. Bernal said she then tried to

walk to her friend’s house down the street to get help. She collapsed, and a man helped her and

called the police. Bernal was taken to the hospital.

       While in the hospital, Bernal said she talked to the police and told them she could

identify the person who shot her. She described him as “bright,” or having “light skin,” and said

he had a BMR tattoo on his left forearm. She told the police she recognized him as someone she

had seen several times in the neighborhood; at trial, she said she had also seen him before at

Moore’s house. The police showed her a photographic lineup, and she selected appellant’s

photograph. At trial, Bernal identified the appellant.

       Bernal said she knew Moore as “Marvin,” “Jaw,” and “Rude Boy,” but she did not know

him by “Jamaican Marvin.” She acknowledged that “all he did” was “sling dope.” She also

acknowledged Moore had been robbed at some point before his murder. She was asked about

inconsistencies between her testimony and her statement to the police. Specifically, in her police

statement, she said she was in the back bedroom when she heard the door open. She said she

walked in the kitchen and saw a black man, who she identified at trial as appellant, talking to

Moore. In the statement, she said the man pulled a gun and shot twice at Moore. She said

Moore ran into the bedroom and pushed her down. At trial, Bernal clarified she never left the

bedroom during the shooting but could see appellant shoot Moore from where she was seated on

the bed. She said Moore did not push her down when he came in the room, because she was

already kneeling on the floor. Bernal said she might not have been “clear on everything” in the




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statement because she was unable to write. Bernal said she would never forget the person who

shot her because she was looking at him. She acknowledged BMR stands for “Blood Money

Records,” and said she “guess[ed] so” when asked if Moore had a lot of enemies. Bernal said

that at the time of the shootings, Moore had a gun on the bed. She called it a “chopper” because

it was “big.”

          A crime scene analyst testified he found two types of cartridge casings in the house,

meaning two different weapons were used in the shootings. Cartridge casings were found in the

living room, kitchen, near the bedroom door, and in the bedroom itself. The medical examiner

testified Moore sustained seven gunshot wounds to his aorta, lung, liver, and stomach.

          Detective Steven David testified he met with Bernal while she was in the hospital and

took her statement. He put together a photographic lineup for Bernal. He selected photographs

of men who looked like appellant rather than people from the neighborhood who had a BMR

tattoo but looked nothing like appellant. Once Bernal identified appellant, he prepared an arrest

warrant. When appellant was arrested five days after the murder, his BMR tattoo had been

recently covered by a fresh tattoo. Detective David could tell the tattoo was recent because of

the “little blood scabs” on his arm. He agreed with defense counsel’s characterization of Moore

as a “pretty notorious dope slinger.” When asked by defense counsel if the police had a “long

list of suspects” that had been interviewed in the case that “had nothing to do with BMR” with

“motives and reasons” to kill Moore, Detective David acknowledged he had talked to numerous

people.     He also agreed that his notes showed “a whole bunch of names” with “different

motivations” to kill Moore. But, other than appellant, none of the other people he talked to had a

BMR tattoo on his forearm nor did any have a fresh tattoo covering a BMR tattoo. Finally,

Detective David believed a robbery was in progress when Moore was shot, given the information




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provided by Bernal. The gun, or “chopper,” that was on the bed at the time of the shootings was

missing. Detective David believed it was an AK-47 assault rifle. He was never able to identify

the second suspect.

       Detective Barrett Nelson testified he worked in the Dallas gang unit for fourteen years.

He was familiar with BMR, or “Blood Money Records,” which he said was a “[s]mall group of

individuals.” During the murder investigation, Detective David contacted him for assistance in

locating appellant to serve the arrest warrant. Detective Nelson said he talked to appellant’s

family and friends and printed out wanted posters, which he placed throughout the neighborhood

and in locations where BMR members were likely to hang out. He found appellant five days

later and arrested him. At the time, he said appellant had Vaseline over the area of a fresh tattoo

that was covering up his BMR tattoo.

       In his sole issue, appellant contends the trial court reversibly erred by overruling his

objection to the following closing argument by the prosecutor:

                Ladies and gentlemen, “greed,” for lack of a better word, is good.

                Mike Douglas said that in a movie, Wall Street. That’s what this case is
       about.

              This case is about Jamaican Marvin slinging dope as an outsider in a
       neighborhood he didn’t really belong in.

               And I’ll tell you what they did: They warned him three times, robbed him
       three times, and then they finally killed him.

                You know why? Greed. He’s taken their money.

              That’s the whole motivation behind this case. You want a motive that we
       don’t have to give you? There it is. Who’s controlling the money in the
       neighborhood? Certainly not this outsider, certainly not this Jamaican Marvin.
       Why would BMR let him in there to sell?

               [DEFENSE COUNSEL]: Judge, this is outside the record and we object
       to his argument.




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The trial court overruled the objection, and the prosecutor moved on to arguing about proving the

elements of the case and whether Bernal was a credible witness.

       Proper jury argument must fall within one of four general areas: summation of the

evidence, reasonable deduction from the evidence, answer to argument of opposing counsel, and

pleas for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A

prosecutor may not use closing arguments to present evidence that is outside the record.

Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1099

(2012). Improper references to facts that are neither in evidence nor inferable from the evidence

are generally designed to arouse the passion and prejudice of the jury and, as such, are

inappropriate. Id.

       Here, the evidence showed Moore was a drug dealer, and Detective David agreed with

defense counsel’s characterization that Moore was a “pretty notorious dope slinger.” Although

police talked with other suspects “who had nothing to do with BMR,” only appellant had a BMR

tattoo and was identified by Bernal.     Detective Nelson, who worked in the Dallas Police

Department’s gang unit for fourteen years, was familiar with BMR, which stood for “Blood

Money Records.” Other evidence showed that Moore had been robbed in the past and that the

incident resulting in his death involved a robbery. Before the shooters left, they checked

Moore’s pockets and also took a weapon that was on the bed. Given this evidence, we cannot

conclude the prosecutor made an unreasonable deduction from the evidence when she argued

Moore was killed by members of the BMR gang because of money.

       But even if the argument was improper, the error is not reversible. Improper argument of

this type is nonconstitutional in nature, and a nonconstitutional error “that does not affect

substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b); Freeman, 340 S.W.3d at 728.




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To determine whether appellant’s substantial rights were affected, we balance the severity of the

misconduct, that is, the prejudicial effect, any curative measures, and the certainty of conviction

absent the misconduct. Freeman, 340 S.W.3d at 728.

       Initially, we note the trial court admonished the jury before arguments began that

“anything that the attorneys say in closing arguments is not evidence. Arguments are meant to

reflect what they understand the evidence to be.” The complained-of argument here was brief.

Its substance went to appellant’s motivation, which, as the prosecutor noted, was not an element

of the offense or something the State had to prove. Once the trial court overruled the objection,

the prosecutor immediately moved on to another subject. Viewing the argument as a whole, we

cannot conclude appellant was prejudiced by the prosecutor’s comments.

       Further, the objection to this particular argument was overruled, so no curative instruction

was given. However, the evidence in this case was strong and included eyewitness testimony

that appellant was the shooter. This was not the first time Bernal had seen appellant; she

recognized appellant from seeing him several times in the neighborhood and at Moore’s house.

Bernal identified him in a photographic lineup and at trial.        Although she did not know

appellant’s name, she was able to give police a distinguishing feature: the BMR tattoo on his

forearm. When appellant was arrested five days after the shooting, he had tried to cover up his

tattoo with a fresh tattoo. Given the brevity of the comments, the lack of prejudice, and the

strength of the evidence in this case, we cannot conclude the prosecutor’s argument regarding

appellant’s motivation for killing Moore substantially influenced the jury’s verdict against

appellant. Consequently, appellant’s substantial rights were not affected. See TEX. R. APP. P.

44.2(b). We overrule appellant’s sole issue.




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       We affirm the trial court’s judgment.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120631F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

JZACQUANE HICKMAN, Appellant                      On Appeal from the 203rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-12-00631-CR        V.                      Trial Court Cause No. F10-60332-P.
                                                  Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                      Justices FitzGerald and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 29, 2013




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE




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