                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00347-CR

TREVEON DEON WILLIAMS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 27685


                           MEMORANDUM OPINION


      Treveon Williams appeals from a conviction for murder. TEX. PENAL CODE ANN.

§ 19.02. Williams complains that the trial court abused its discretion in the admission of

a video pursuant to Rule of Evidence 403, in admitting evidence of an extraneous offense

pursuant to Rule of Evidence 404(b), in allowing the State to improperly comment during

its closing argument, and erred by denying his motion for new trial based on juror
misconduct for failing to disclose information during voir dire. Because we find no

reversible error, we affirm the judgment of the trial court.

RULE 403

        In his first issue, Williams contends that the trial court erred during the guilt-

innocence phase of the trial by admitting a video recording over his objection that the

probative value was outweighed by the prejudicial effect. See TEX. R. EVID. 403. An officer

testified that he arrived at the scene after the shooting in response to a 911 call.

Approximately ten minutes of a video recorded by the officer's vehicle was offered in

evidence. Williams objected to the recording under rule 403, but the trial court overruled

the objection and allowed the State to publish the video to the jury. The video part of the

recording shows the officer driving to and arriving at the scene. Some people are seen

on the recording, but not the victim or the officer. The audio part of the recording

evidences the efforts made by the officer to revive the victim and the victim's efforts to

breathe can be heard in the background. Williams objected to the video on grounds that

there was no dispute as to the cause of death and therefore, it was not relevant to a

disputed fact. Additionally, Williams contended that the relevance of the video was

outweighed by the risk of unfair prejudice. The trial court overruled his objection and

admitted the video into evidence.

        We review the trial court's decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). The trial court


Williams v. State                                                                    Page 2
abuses its discretion when the decision falls outside the zone of reasonable disagreement.

Id. We may not substitute our own decision for that of the trial court. Moses v. State, 105

S.W.3d 622, 627 (Tex. Crim. App. 2003).

         Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise

relevant evidence when its probative value is substantially outweighed by a danger of

unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence. TEX. R. EVID. 403. Rule 403 favors the admission of

relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

         When undertaking a Rule 403 analysis, a trial court must balance (i) the inherent

probative force of the proffered item of evidence along with (ii) the proponent's need for

that evidence against (iii) any tendency of the evidence to suggest decision on an

improper basis, (iv) any tendency of the evidence to confuse or distract the jury from the

main issues, (v) any tendency of the evidence to be given undue weight by a jury that has

not been equipped to evaluate the probative force of the evidence, and (vi) the likelihood

that presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App.

2018).

         The probative force of evidence refers to how strongly it serves to make the

existence of a fact of consequence more or less probable. Gigliobianco v. State, 210 S.W.3d


Williams v. State                                                                    Page 3
637, 641 (Tex. Crim. App. 2006). The State contends that the audio portion of the

recording was probative to dispute Williams's self-defense claims because it showed that

the victim was unable to continue the altercation that led to the shooting because he was

fighting for his life. The State also contends that the evidence was probative to show that

Williams fled with the murder weapon after he shot the victim rather than to attempt to

assist him which establishes Williams's intent to kill the victim. The State argues that the

audio recording also corroborates the testimony of the officer regarding his actions at the

scene. Further, the State contends that because the officer had already described the

victim's condition to the jury, the jury would not have been excessively emotionally

impacted by the audio portion of the recording.

        The probative value of the video recording was not great nor was it significant in

the jury's determination of self-defense. On the other hand, at the time the recording was

admitted, the officer was the only witness that had testified. Prior to the admission of the

recording, the officer had described the condition of the victim in a fair amount of detail,

and the audio recording did corroborate his testimony regarding the severity of the

victim's condition and the actions he took to attempt to save him.

        Certainly the recording was prejudicial to Williams. However, Rule 403 is only

concerned with "unfair" prejudice. Gonzalez, 544 S.W.3d at 373. Evidence is unfairly

prejudicial if it has the capacity to lure the fact-finder into declaring guilt on a different

basis from proof specific to the offense charged. Id. While this evidence was somewhat


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graphic, the graphic portion of it was brief in time and was no less graphic than the

officer's description or the autopsy photographs which were later admitted into evidence

that showed the deceased victim and his injuries in great visual detail. We do not find

that the audio portion of the video recording would have led the jury to make their

decision on an improper basis, confused or distracted the jury, or that it tended to cause

the jury to give the evidence undue weight.       The record supports the trial court's

conclusion that the probative value of the video was not substantially outweighed by the

danger of unfair prejudice. We conclude the trial court's decision to admit the video was

within the zone of reasonable disagreement and was not an abuse of discretion. We

overrule Williams's first issue.

RULE 404(B)

        In his second issue, Williams complains that the trial court erred by admitting

evidence of an extraneous offense pursuant to Rule of Evidence 404(b). A friend of

Williams's who was the sister of the victim's girlfriend testified that she had seen

Williams with the gun used to shoot the victim previously "showing it around." Williams

objected, claiming that the testimony was evidence of an extraneous offense, unlawfully

carrying a weapon.

        After having the witness who saw the shooting describe what occurred, the

following exchange occurred:

        STATE:       And had you ever seen that gun before?


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        WITNESS:      Yes.

        STATE:        Where?

        WITNESS:      By him showing it around.

        STATE:        He showed it to you?

        WITNESS:      Yes.

        STATE:        The Defendant?

        WITNESS:      Yes.

        COUNSEL FOR WILLIAMS:              Your    Honor,    objection.   May    we
        approach?

        An objection is timely if it is made as soon as the ground for the objection becomes

apparent, in other words, as soon as the defense knows or should know that an error has

occurred. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). Generally, this occurs

when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.

1995). If a party fails to object until after an objectionable question has been asked and

answered, and he can show no legitimate reason to justify the delay, his objection is

untimely and error is waived. Id. Williams did not make an objection to the testimony

until after the answers that the gun was shown around by Williams. It is apparent from

the discussion at the bench that took place after Williams's objection that this testimony

was the subject of a motion in limine and the parties were aware that this evidence was

sought to be introduced by the State. The objection by Williams was not timely made,

and therefore, error was not preserved. We overrule issue two.
Williams v. State                                                                     Page 6
IMPROPER JURY ARGUMENT

          In his third issue, Williams complains that the trial court erred by overruling his

objection to improper argument by the State because it added facts that were not in the

record relating to the veracity of Williams's friend who was with him at the time of the

shooting. After describing Williams's gang membership in the Bloods, the prosecutor

stated:

          The only thing you have is [the witness], who miraculously remembered
          something he hasn't remembered in almost two years, when he took the
          witness stand the other day. I don't think his dad hit him in the head with
          a magic crowbar. I don't think that's the way this works. You don't
          magically remember things that you didn't remember before you had a
          brain injury. You know why? Because he made it up. He's a liar. I think
          from the minute I served him with a subpoena and I asked him those
          questions that I asked him again the other day, is everything you told the
          police the truth? Is there anything else that I need to know? He said yes,
          that he had told the police the truth, and he told me there was nothing else
          that I needed to know. He shook my hand and we said goodbye.

          COUNSEL FOR WILLIAMS:                Judge I'm going to object to him
          testifying to things that aren't in evidence.

          The trial court overruled Williams's objection. On appeal, Williams complains that

the prosecutor improperly included his personal opinion that the witness was "a liar" and

that the other comments constituted matters outside the record. To the degree that

Williams is complaining regarding the prosecutor referring to the witness as "a liar," we

find that his objection was not timely because it was not made immediately when the

prosecutor said it. Under Texas Rules of Appellate Procedure Rule 33.1(a)(1), a complaint

must be made to the trial court by a timely request, objection, or motion. TEX. R. APP. P.
Williams v. State                                                                        Page 7
33.1(a)(1); Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012). The requirement of

a timely complaint at trial is satisfied "if the party makes the complaint as soon as the

grounds for it become apparent." Lackey, 364 S.W.3d at 843. Typically this means "as

soon as the [objecting party] knows or should have known that an error occurred." Id.

Therefore, the portion of Williams's argument that the prosecutor improperly stated his

opinion of the veracity of the witness was not preserved.

        Williams does not specify in his brief what part of the prosecutor's statements in

the above section is outside of the record. Our review of the record shows that the only

part of the statement not found or alluded to in the record was that the witness and the

prosecutor shook hands and said goodbye after they spoke with each other. In the record

there is evidence that the witness had been hit in the head with a crowbar by his father

approximately a month before trial which resulted in some memory loss; the witness and

the prosecutor had spoken prior to the trial about what occurred; the prosecutor had

subpoenaed the witness; the prosecutor attempted to show that the witness's testimony

regarding things he had never mentioned prior to testifying at the trial were not credible

and likely false; and the witness agreed that he had told the prosecutor that he had told

the police the truth and that there was nothing else the prosecutor needed to know.

        Even if we were to find that the trial court erred in overruling Williams's objection

to the prosecutor's remark regarding shaking hands and saying goodbye that was outside

the record, we determine that any error was harmless. Improper argument is non-


Williams v. State                                                                      Page 8
constitutional error. Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008). Texas

Rules of Appellate Procedure Rule 44.2(b), which governs the harm analysis for non-

constitutional error, provides that any "error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). Determining

harm under that standard in improper argument cases requires balancing the following

three factors: (1) severity of the misconduct (prejudicial effect); (2) curative measures;

and (3) the certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998). Although no curative measures were made, the statement

was not prejudicial and the statement did not impact the certainty of the conviction. We

overrule issue three.

JUROR MISCONDUCT

        In his fourth issue, Williams complains that the trial court erred by denying his

motion for new trial based on juror misconduct. After the trial, Williams discovered that

the father of the foreperson of the jury was a former investigator of the district attorney's

office that prosecuted him. Williams complains that the juror failed to disclose her

father's former involvement in law enforcement, which precluded him from intelligently

exercising his peremptory challenges and denied him a fair trial.

        During voir dire, counsel for Williams asked the panel: "How about anybody here

in law enforcement, besides [prospective juror]? What do you do, sir?" The individual

answered that he was a state police officer. Counsel for Williams asked the prospective


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juror if his occupation would "kind of put the State a little bit ahead … in your thoughts?"

to which the prospective juror answered, "No." Counsel for Williams then asked the

following:

         Okay, anybody else over here, first row, second row, law enforcement,
        third row, fourth, fifth? Did I miss anybody?

        And the last question that I ask. You know, there are some people that think
        law enforcement—and again, I've had this come up before. You know
        what, I'm going to believe a police officer over somebody else. All my
        buddies are police officers. That's the way I feel. I've had police officers
        also to come up here and say I have buddies that are police officers, and I
        know that I don't believe in them over other people, so it can go both ways.
        Is there anybody here that thinks that they would believe the testimony of
        a law enforcement officer just a little bit more than anybody else?

        In response to this question, two prospective jurors mentioned that because they

had relatives that were in law enforcement, their decision would be affected in response

to Williams's counsel's question. No further questions were asked of the jury panel about

law enforcement connections.

        At the motion for new trial hearing, the State objected to the testimony of the

foreperson pursuant to Rule 606 of the Rules of Evidence and the trial court sustained the

objection. Williams was allowed to call the foreperson to testify in order to make an offer

of proof for appellate purposes. In that testimony, the foreperson testified that she raised

her hand in response to the question, "Do you know someone in law enforcement?"

although she did not recall the specific question that had been asked. The witness's

recollection was that no further questions were asked of the prospective jurors that raised


Williams v. State                                                                      Page 10
their hands. At the end of the motion for new trial hearing, appellate counsel for Williams

conceded that the panel was never specifically asked about relatives in law enforcement

during voir dire but still contended that the relationship should have been disclosed by

the foreperson in order for him to receive a fair trial.

        "The voir dire process is designed to insure, to the fullest extent possible, that an

intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned

to it." Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995) (per curiam). When

a juror withholds material information in the voir dire process, the parties are denied the

opportunity to intelligently exercise their challenges and obtain a disinterested and

impartial jury. Armstrong, 897 S.W.2d at 363. However, in that process, it is incumbent

upon defense counsel to ask questions calculated to bring out information that might

indicate a juror's inability to be impartial and truthful. Armstrong, 897 S.W.2d at 363-64.

Unless defense counsel asks such questions, the material information that the juror fails

to disclose is not "withheld." Id. at 364.

        Even if we were to assume that the trial court erroneously sustained the State's

objection to allow the foreperson to testify pursuant to Rule of Evidence 606 and were to

consider the foreperson's testimony, because Williams did not ask the jurors if they were

related to anyone in law enforcement, the information was not "withheld," and Williams

was not denied a fair and impartial jury on this basis. We overrule issue four.




Williams v. State                                                                      Page 11
CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed September 18, 2019
Do not publish
[CRPM]




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