                                                                                 PD-1381-15
                            PD-1381-15                          COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 10/23/2015 7:10:01 AM
                                                               Accepted 10/23/2015 12:44:39 PM
                                                                                 ABEL ACOSTA
                     IN THE COURT OF CRIMINAL APPEALS                                    CLERK
                          FOR THE STATE OF TEXAS

  ALBERTO JOSE MEZA
      APPELLANT

                     V.            COA NO. 02-14-00277-CR
                                   TRIAL COURT NO. CR 17201
  THE STATE OF TEXAS,
       APPELLEE




       APPEALED FROM CAUSE NUMBER CR 17201, IN THE 271ST
  DISTRICT COURT, WISE COUNTY, TEXAS; THE HONORABLE JOHN
  FOSTEL, JUDGE PRESIDING.
                                .


       APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                           WILLIAM H. "BILL" RAY
                           TEXAS BAR CARD NO. 16608700
                           ATTORNEY FOR APPELLANT

                           LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
October 23, 2015           512 MAIN STREET, STE. 308
                           FORT WORTH, TEXAS 76102
                           (817) 698-9090
                           (817) 698-9092, FAX
                           bill@billraylawyer.com

  ***ORAL ARGUMENT IS NOT REQUESTED**




  PETITION FOR DISCRETIONARY REVIEW, PAGE 1
                  IDENTITY OF PARTIES AND COUNSEL

ALBERTO JOSE MEZA                           APPELLANT
    c\o Texas Dept. of Criminal
    Justice, Institutional
    Division, Huntsville, Texas

HONORABLE ABE FACTOR                        ATTORNEYS FOR APPELLANT
HONORABLE ERIC LABOVITZ                     AT TRIAL
    5719 Airport Freeway
    Haltom City, Texas 76117

HONORABLE WILLIAM H. RAY                    ATTORNEY FOR APPELLANT
    512 Main Street, Ste. 308               ON APPEAL
    Ft. Worth, Texas 76102

HONORABLE GREG LOWERY                       DISTRICT ATTORNEY
    Wise County Courthouse                  WISE COUNTY, TEXAS
    Decatur, Texas 76234

HONORABLE PATRICK BERRY                     WISE COUNTY DISTRICT
HONORABLE LINDY BORCHARDT                   ATTORNEY'S OFFICE
    Wise County Courthouse
    Decatur, Texas 76234

HONORABLE JOHN FOSTEL                       JUDGE, 271ST DISTRICT
    Wise County Courthouse                  COURT OF
    Decatur, Texas 76234                    WISE COUNTY, TEXAS

HONORABLE LISA McMINN                       STATE PROSECUTING
    P.O. Box 13046                          ATTORNEY
    Austin, Texas 78711




PETITION FOR DISCRETIONARY REVIEW, PAGE 2
                            TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                         2

INDEX OF AUTHORITIES                                    4

STATEMENT CONCERNING ORAL ARGUMENT                      5

STATEMENT OF THE CASE                                   5

STATEMENT OF THE PROCEDURAL HISTORY                     6

GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE                            7

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      REFUSING TO SUBMIT A JURY INSTRUCTION ON THE
      ISSUE OF SPOILIATION CONCERNING THE
      DESTRUCTION OF AN IN CAR POLICE VIDEO

GROUND FOR REVIEW NUMBER TWO                            9

      THE TRIAL COURT ERRED BY DENYING A MOTION
      FOR MISTRIAL BASED ON REPEATED AND
      CUMULATIVE IMPROPER COMMENTS BY THE
      PROSECUTOR TO THE JURY AND FINAL ARGUMENTS
      IN THE GUILT AND PUNISHMENT PHASES OF THE TRIAL


PRAYER                                                  12

CERTIFICATE OF SERVICE                                  13

CERTIFICATE OF COMPLIANCE                               13




PETITION FOR DISCRETIONARY REVIEW, PAGE 3
                          INDEX OF AUTHORITIES
Cases                                                                   Page

Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex.Crim.App. 1973)        9

Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333,                      7
      102 L.Ed.2d 281 (1988)

Freeman v. State, 276 S.W 3d 630, at 634 (Tex.App.–Waco 2008),          7
     vacated 286 S.W.3d 370 (Tex.Crim.App. 2009)

Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort Worth,            9
     1996, no pet.)

Magana v. State, 177 S.W.3d 670 (Tex.App.–Houston                       9
    [1st Dist] no pet.)
McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992),           9
    cert.denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993)

Robinson v. State, 764 S.W.2d 367, 374                                  9
     (Tex.App.--Dallas 1989, pet. ref’d)




PETITION FOR DISCRETIONARY REVIEW, PAGE 4
               STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not necessary in this case.

                         STATEMENT OF THE CASE

      This is an appeal from a felony conviction and sentence for the offense of

Possession of a Controlled Substance. Appellant was charged by indictment in

cause number CR17201 with the offense of Possession of a Controlled Substance,

namely cocaine of four grams or more but less than two hundred grams. The jury

found Appellant guilty. CR, Pages 28-30; RR-3, Pages 36-37.

      Appellant elected for the jury to assess punishment. The jury sentenced

Appellant to twenty years in the Institutional Division of the Texas Department of

Criminal Justice, and no fine. CR, Pages 28-30; RR-3, Pages 69-71.

      On direct appeal, the Court of Appeals for the Second Appellate District in

Fort Worth affirmed Appellant’s conviction. The opinion was not designated for

publication.




PETITION FOR DISCRETIONARY REVIEW, PAGE 5
     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant was sentenced on November 17, 2015. Notice of Appeal was

timely filed. Appellant timely filed his brief in the Court of Appeals on December

3, 2014. The State timely filed its brief on March 4, 2015.

      The case was submitted to the Court of Appeals, without oral argument, on

August 24, 2015. The Court of Appeals affirmed Appellant’s conviction on

October 1, 2015. That opinion is not designated for publication.

      This Petition for Discretionary Review is timely filed.




PETITION FOR DISCRETIONARY REVIEW, PAGE 6
                     GROUND FOR REVIEW NUMBER ONE

             THE TRIAL COURT ABUSED ITS DISCRETION BY
           REFUSING TO SUBMIT A JURY INSTRUCTION ON THE
                ISSUE OF SPOILIATION CONCERNING THE
               DESTRUCTION OF AN IN CAR POLICE VIDEO

       The right to a spoilation instruction depends on: (1) whether the evidence

would have been subject to discovery or disclosure; (2) whether the State had a

duty to preserve the evidence; and (3) if the State breached a duty to preserve, what

consequences should flow from the breach. See Freeman v. State, 276 S.W 3d

630, at 634 (Tex.App.–Waco 2008), vacated 286 S.W.3d 370 (Tex.Crim.App.

2009), for determination of whether the appellant had preserved his Texas due

course of law complaint.1 In this case, Appellant urged his request pursuant to

both the Texas and United State’s constitutions. RR-3, Page 11. The failure to

preserve evidence is not a due process violation unless the defendant can show bad

faith. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281

(1988).

       There is no question that the VCR video would be subject to disclosure and

there was a duty to preserve the VCR video. What is in question is what the

consequences should be when the video has malfunctioned, and the police have

       1
        On remand to the Waco Court of Appeals, that court held the complaint was not
preserved and the judgment was affirmed, and a pro se Petition for Discretionary Review was
denied. Freeman v. State, No. 10-07-00363-CR, January 10, 2010, Pet. Ref’d., 2010.

PETITION FOR DISCRETIONARY REVIEW, PAGE 7
taken no steps to have it repaired or otherwise available. To simply be allowed to

say “we don’t know what happened to it” is unacceptable, or it should be.

      Appellant did not request that the instruction advise the jury that an adverse

inference could be drawn, rather, only that the jury be told that the fact that the

State lost or destroyed the evidence does not in itself require an acquittal, rather, it

is a factor to consider. RR-3, Pages 6-8. The trial court, in denying Appellant’s

request, even noted that the evidence could be looked at in the light that the

absence of the video could be suspect, but then, in his own factual determination,

found such was not the case. RR-3, Page 8. This is exactly what Appellant was

asking, that the jury be given the instruction that they, too, could determine if the

lack of the video was in fact suspect.

      The Court of Appeals held that Appellant did not show that the video was

exculpatory and did not show that the State acted in bad faith. Opinion, pages 3-4.

      Therein is the error, the trial court should have provided the instruction, and

to not do so, violated both the state and federal constitutions, as specifically

brought to the attention of the trial judge, and pursuant to Freeman, supra. RR-3,

Page 11. The jury should have been given the opportunity to make its own factual

determination concerning whether the police and/or stated acted in bad faith, and

the failure of the trial court to make the requested instruction was improper.


PETITION FOR DISCRETIONARY REVIEW, PAGE 8
                     GROUND FOR REVIEW NUMBER TWO

            THE TRIAL COURT ERRED BY DENYING A MOTION
                FOR MISTRIAL BASED ON REPEATED AND
              CUMULATIVE IMPROPER COMMENTS BY THE
           PROSECUTOR TO THE JURY AND FINAL ARGUMENTS
          IN THE GUILT AND PUNISHMENT PHASES OF THE TRIAL

        Proper jury argument is in one of four areas. They are summations of the

evidence, reasonable deductions from the evidence, a plea for law enforcement,

and a response to opposing counsel. Alejandro v. State, 493 S.W.2d 230, 231-232

(Tex.Crim.App. 1973). The jury argument must be extreme or manifestly

improper, or inject new and harmful facts into evidence to constitute reversible

error. McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992),

cert.denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993), Hernandez v.

State, 931 S.W.2d 49, 50 (Tex.App.--Fort Worth, 1996, no pet.); Robinson v.

State, 764 S.W.2d 367, 374 (Tex.App.--Dallas 1989, pet. ref’d). To determine

whether an argument falls within one of the four categories, the entire record is

considered. Magana v. State 177 S.W.3d 670 (Tex.App.–Houston [1st Dist] no

pet.)

        The prosecutor’s comments in the present case were not necessarily

individually improper. However, they were repetitive, continuous, and cumulative.

Most of the subjects of the prosecutor’s final argument were objected to and the


PETITION FOR DISCRETIONARY REVIEW, PAGE 9
objections were sustained. Although the trial court has broad discretion, Appellant

submits that the discretion was abused, given the number and frequency of the

improper arguments.

      The prosecutor’s initial rhetoric asked what appellant was involved in,

followed by alleging that the facts showed Appellant as a distributor of drugs. This

was clearly outside the record and the rhetorical question was directed at no one

but Appellant. Trial counsel objected, noting the specific reasons of the objection.

RR-3, Pages 30-31.

      Ten lines later in the record, the prosecutor went right back to the questions

directed to no one but Appellant, stating it was unreasonable to think that

Appellant didn’t know about them after having them in there two weeks. The trial

court sustained the objection and instructed the jury to disregard the prosecutor’s

statements, but denied a mistrial. RR-3, Pages 31-32.

      Twenty lines later, once again, the prosecutor specifically mentioned the

Defendant’s testimony, (which there was none), and then surmised what witnesses

that could have been called by the Defendant to disprove that the State had

presented. Further, mentioning that the other person in the car could have come to

court and testified, and then commenting that the Defendant did not do so. This

line drew a bad faith objection towards the prosecutor, and the trial court sustained


PETITION FOR DISCRETIONARY REVIEW, PAGE 10
and denied a mistrial. RR-3, Pages 32-33.

      The prosecutor continued at the punishment stage of the trial, initially

making a comment that Appellant could have been charged and tried for a more

serious charge, and therefore Appellant had already been given mercy. Appellant

objected based on speculation and outside the record, which was sustained, and the

trial court refused to instruct the jury. RR3, Pages 63-64. The very next sentence

mentioned that Appellant wanted the jury to think that the other occupant of the car

was the person responsible. The implication in the argument was that Appellant

could have dispelled this implication. This objection for failure to testify was

sustained and a request to disregard was denied. RR-3, Pages 64. Finally, in the

next thought, the prosecutor gave an improper analysis of the parole law. This

objection was sustained and the trial judge gave an instruction that probably would

have cured this error, if it was the only one, however the arguments were numerous

and improper. RR-3, Pages 63-66.

      The Court of Appeals held that the arguments were not error individually,

and therefore not improper. Opinion, at pages 4-8.

      Appellant submits that the prosecutor’s statements were not in response to

Appellant’s argument, were either outside the facts of the case, or commented on

the failure of Appellant to present evidence or testify, both at the guilt and


PETITION FOR DISCRETIONARY REVIEW, PAGE 11
punishment phases of the trial. Appellant respectfully disagrees with the Court of

Appeals that otherwise improper error in a singular fashion cannot become

cumulatively error. Appellant submits that the cumulativeness of the prosecutor’s

comments was improper.

      Appellant received the maximum possible sentence in this case, twenty

years. It was therefore harmful.

                              PRAYER FOR RELIEF

      Appellant Prays that this Honorable Court reverse his conviction and remand

the case for a new trial.

                            RESPECTFULLY SUBMITTED,

                            /S/ WILLIAM H. “BILL” RAY
                            WILLIAM H. "BILL" RAY
                            TEXAS BAR CARD NO. 16608700
                            ATTORNEY FOR APPELLANT

                            LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                            512 MAIN STREET, STE. 308
                            FORT WORTH, TEXAS 76102
                            (817) 698-9090
                            (817) 698-9092, FAX
                            bill@billraylawyer.com




PETITION FOR DISCRETIONARY REVIEW, PAGE 12
                         CERTIFICATE OF SERVICE

      I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the office of Mr. Greg Lowery,
Wise County District Attorney, Wise County Courthouse, Decatur, Texas 76234
on the date of this document’s filing.
      I certify that a true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Corrections, on the date of this document’s filing.
      I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.

                                /S/ WILLIAM H. “BILL” RAY
                                WILLIAM H. “BILL” RAY

                         CERTIFICATE OF COMPLIANCE
       Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that this Petition for Discretionary Review filed in this case, has 2134 words
contained therein. This count was obtained via the WordPerfect computer
program.
                                  /S/ WILLIAM H. "BILL" RAY
                                  WILLIAM H. “BILL” RAY




PETITION FOR DISCRETIONARY REVIEW, PAGE 13
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00277-CR

Alberto Jose Meza                          §    From the 271st District Court

                                           §    of Wise County (CR17201)

v.                                         §    October 1, 2015

                                           §    Opinion by Justice Meier

The State of Texas                         §    (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By /s/ Bill Meier
                                           Justice Bill Meier
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00277-CR


ALBERTO JOSE MEZA                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CR17201

                                     ----------

                         MEMORANDUM OPINION1

                                     ----------

                                 I. INTRODUCTION

      Appellant Alberto Jose Meza appeals his conviction for possession of a

controlled substance in the amount of more than four but less than 200 grams.

In two points, Meza argues that the trial court erred by overruling his request for




      1
       See Tex. R. App. P. 47.4.
a spoliation jury instruction and that the trial court erred by overruling his motions

for mistrial. We will affirm.

                                  II. BACKGROUND

      The facts of this case are not in dispute. Officer Brody Brown of the Boyd

Police Department testified that on July 17, 2012, at roughly 2:30 a.m., he pulled

Meza over for speeding. Upon approaching Meza’s vehicle, Brown noticed the

strong smell of marijuana emitting from the vehicle, and he saw an open liquor

container. In the search of Meza’s vehicle that followed, Brown found loose

marijuana strewn about the vehicle’s cabin, three boxes of plastic baggies in its

backseat, and scales with white residue on them in the vehicle’s console. After

Brown and a fellow officer noticed that the dashboard of the vehicle appeared

loose, they searched behind the dashboard and found twelve grams of cocaine

and slightly less than one gram of methamphetamine.

      Significant to Meza’s points on appeal, the in-car video camera in Brown’s

patrol vehicle was an “old-fashioned VHS recorder in the trunk of his car.”

According to Brown, when he attempted to remove the tape at the end of his

shift, it tangled in the machine. Brown said that he attempted to manually rewind

the tape but that it was beyond repair. Brown noted the problem in his report and

placed the tape in his sergeant’s box. By Brown’s account, he did not know what

ultimately became of the tape.

      A jury returned a verdict of guilty on the State’s indictment that Meza

possessed a controlled substance and sentenced him to twenty years’


                                          2
incarceration.   The trial court entered judgment accordingly, and this appeal

followed.

                                    III. DISCUSSION

      A.     No Spoliation Instruction Required

      In his first point, Meza argues that the trial court erred by denying his

request for a spoliation jury instruction regarding the missing in-car videotape.

The State argues, among other things, that Meza has not shown that the State

failed to produce the videotape from Brown’s patrol vehicle in bad faith and thus

the trial court did not abuse its discretion by denying Meza’s requested

instruction. We agree with the State.

      In criminal cases involving the State’s failure to preserve evidence, the

defendant is required to show some bad faith on the part of the State for

potentially useful evidence or some indication that the evidence would have been

exculpatory in order to be entitled to a spoliation-type jury instruction. See Snell

v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 2010, no pet.); White v.

State, 125 S.W.3d 41, 43–44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d);

Gutierrez v. State, No. 11–10–00276–CR, 2011 WL 4135743, at *1 (Tex. App.—

Eastland Sept. 15, 2011, no pet.) (mem. op., not designated for publication)

(holding that where the defendant could show only that the lost evidence might

have been exculpatory and could not show bad faith on the part of the State, the

trial court did not err by refusing the spoliation instruction).




                                            3
      Here, Meza has alleged, but not shown, that the videotape of his arrest

from the vantage of Brown’s patrol vehicle might have been exculpatory. But he

has not alleged, or shown, that the State acted in bad faith by being unable to

produce the videotape.       Indeed, the only evidence of what became of the

videotape came from Brown’s testimony that the tape was an older-style VCR

tape whose internal tape snagged on the equipment when he took the tape out of

the recorder and that he did not know what became of the tape after he had

attempted to repair it. In short, Meza has not shown that the State acted in bad

faith regarding the videotape. See Chavis v. State, No. 13-10-00547-CR, 2012

WL 592998, at *4–5 (Tex. App.—Corpus Christi Feb. 23, 2012, no pet.)

(mem. op., not designated for publication) (holding that trial court did not err by

denying requested spoliation instruction because appellant had not shown bad

faith on the part of State regarding unproduced in-car video). Thus, the trial court

did not err by denying Meza’s requested spoliation jury instruction. We overrule

Meza’s first point.

      B.     Denial of Meza’s Motions for Mistrial

      In his second point, Meza argues that the trial court abused its discretion

by denying his motions for mistrial.           Specifically, Meza argues that “[t]he

prosecutor continually interjected matters outside the record and commented on

the failure of [Meza] to call a witness or testify.”   After we briefly set out the law

and standard of review, we will discuss these “matters” in turn.




                                           4
            1.    Standard of Review on Motion for Mistrial

      We review a trial court’s denial of a motion for mistrial under an abuse of

discretion standard and “must uphold the trial court’s ruling if it was within the

zone of reasonable disagreement.” Archie v. State, 221 S.W.3d 695, 699 (Tex.

Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App.

2004)). “Only in extreme circumstances, where the prejudice is incurable, will a

mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004). 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. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999),

cert. denied, 529 U.S. 1070 (2000)).

            2.    The “Errors”

      The first statement Meza complains about is that during closing

arguments, at the guilt-innocence phase of trial, and after having just explained

that police found “baggies both for the cocaine and . . . separate baggies for

marijuana” in Meza’s vehicle, the prosecutor asked the rhetorical question to the

jury, “What is this guy involved in?” To which Meza objected at trial on the

grounds that the prosecutor was commenting on Meza’s failure to testify. The

trial court overruled the objection.   Now on appeal, Meza argues that this

comment was “clearly outside the record and the rhetorical question was directed

at no one but” him. To the extent that Meza is now arguing that the prosecutor’s


                                        5
statement was “clearly outside the record,” we need not address this argument

because Meza’s objection at trial does not comport with the argument he now

raises on appeal; he has forfeited our review of this objection. See Tex. R. App.

P. 33.1(a); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied,

522 U.S. 827 (1997). And to the extent that Meza’s argument is to be somehow

construed as raising an issue pertaining to the prosecutor having commented on

his failure to testify, we decline to address the issue because Meza has not cited

any authority nor has he provided any analysis as to how the prosecutor’s

comment involved an improper question “directed at no one but” him.          See Tex.

R. App. P. 38.1(i); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004)

(“Because appellant does not provide any argument or authority in support of this

contention, it is inadequately briefed.”).

      Meza next complains about two instances in which the trial court sustained

Meza’s objections during the State’s closing arguments at guilt-innocence,

instructed the jury to disregard the statements, but denied Meza’s motions for

mistrial. Meza, however, points to no evidence that the jury failed to follow the

trial court’s instructions to disregard the prosecutor’s statements, even assuming

they were improper.       Thus, we presume the jury followed the trial court’s

instructions and that the trial court did not abuse its discretion by denying Meza’s

motions for mistrial. See Orr v. State, 306 S.W.3d 380, 405 (Tex. App.—Fort

Worth 2010, no pet.) (“In the absence of evidence that it did not, we presume the

jury followed the trial court’s instruction to disregard the improper question.”).


                                             6
      The next statements Meza complains about occurred at the punishment

phase of trial wherein the trial court sustained Meza’s objections that the

prosecutor had speculated outside of the record. Much like the complained-of

statements above, Meza has not cited any authority nor has he provided any

analysis as to how the prosecutor’s comments were speculative, outside the

record, or otherwise improper. See Tex. R. App. P. 38.1(i); Hankins, 132 S.W.3d

at 385 (“Because appellant does not provide any argument or authority in support

of this contention, it is inadequately briefed.”).

      Finally, Meza argues that the prosecutor “gave an improper analysis of the

parole law” during closing arguments at punishment.            But like the other

objections that Meza preserved, the trial court instructed the jury to disregard the

prosecutor’s statement, we presume that the jury followed the instruction, and

Meza has pointed to no evidence that it did not. See Orr, 306 S.W.3d at 405.

      C.     No Cumulation

      Meza’s overall second point on appeal is that the cumulative effect of

these complained-of statements entitle him to a new trial. Meza concedes that

the “prosecutor’s comments in the present case were not necessarily individually

improper.” We conclude that there is no cumulative error.

      Cumulative error concerns performance of a harm analysis only when

multiple errors have been established. See Chamberlain v. State, 998 S.W.2d

230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000). But having

already determined that Meza either forfeited review, failed to establish error, or


                                            7
failed to show that the trial court did not cure any perceived error, there can be

no cumulative error or harm. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000) (rejecting appellant’s argument that cumulative effect of errors at trial

denied him the right to a fair trial where the court had previously rejected each of

appellant’s individual arguments). We overrule Meza’s second point.

                                 IV. CONCLUSION

      Having overruled both of Meza’s points on appeal, we affirm the trial

court’s judgment.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 1, 2015




                                         8
