FFlR’1; Opinion Filed October 30, 2012.




                                               In The
                                     ttntrt øf Appiah
                         FifIIi   Oistrirt nf ixa             at 1a1taa
                                       No. 05-1 1-00604-CR


                              JOSE ARREZ RANGEL, Appellant

                                                 V.

                               TIlE STATE OF TEXAS, Appellee


                       On Appeal from the 195th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F09-53959-N


                                           OPINION
                            [3efore Justices Bridges, Francis, and Myers
                                     Opinion By Justice Myers

       Appellant Jose Arrez Range! was convicted of murder and sentenced to life imprisonment.

In two points of error, he contends the trial court abused its discretion by (1) denying his motion to

suppress and (2) overruling his motion for mistrial. We affirm.

                           BACKGROUND AND PROCEDURAL HISTORY

       Santos Lozano, Sr. (Santos) spent the afternoon and evening of Sunday, April 19, 2009, at

a rodeo and then a discotheque called Two-Thousand-One.              He was accompanied by the

complainant, Antonio Sanchez, his two sons, Daniel Lozano and Antonio Sanchez, Jr. (Junior), and

several of the complainant’s friends. After they left the nightclub, the group drove in four cars to

Morelia’s Restaurant, which was located at the corner of Jefferson and Plymouth Streets in Dallas,
l’exas. Santos and the complainant rode in the rear seat of a black Hummer driven by Daniel,

fl.llowed by a Yukon, a 13MW, and a Jeep. Junior was riding in the Yukon. When the group arrived

at the restaurant, Santos got out of the Hummer to open the gate to the restaurant’s parking lot. 1-Ic

heard gunshots. Santos initially believed the complainant was tiring his gun in celebration, but he

soon discovered that both Daniel and the complainant had been shot. Daniel and Junior returned lire

at the shooters, as did Juan Sarli, also known as “Paco,” the complainant’s bodyguard. Santos

reached for his cell phone and called 91 1.

        Santos testified that he saw two men dressed all in black and carrying high-caliber rifles run

toward the back of the restaurant. They had been firing at the Hummer from inside the restaurant’s

parking lot, and Santos suspected one of the shooters had been injured during the gunfight. Daniel,

the complainant, and the complainant’s bodyguard were shot. The complainant died from multiple

gunshot WOUndS.

        Another witness, Brian Keith Fry, lived in an apartment complex that was located behind the

restaurant. lie testified that he was standing on the balcony of his second floor apartment on April

20, 2009, at approximately 3 am., when he heard gunshots. A moment or two after that, Fry saw

a “Spanish gentleman come down the fence next to the apartments.” The individual’s right leg “was

injured in some kind of way,” and he was limping. He walked along a nearby fence towards an

alleyway near “a bunch of limestone rocks.” The individual “went down the rocks” and Fry “didn’t

see where he went after that.” Fry added that, shortly before this individual walked down the

alleyway, he saw another individual walking in the same direction. Fry recalled that the two

individuals were “[pjrobably a minute apart.” Fry testified that he later walked “down that same

area, and on top of one of the big limestone rocks there was a small puddle of blood.”

        The police arrived at the scene just as the suspects were fleeing. Officer Thaddeus Hasse of




                                                 —2—
the Dallas Police Department testified that, at   approximately   3: I ()   a.m. on   April 20, 2(J0. he was

on patrol approximately five blocks from the restaurant when he “heard what I knew was a gun

battle, and I heard large-caliber rifles, pistols going off.” Hasse suspected the gunfire was coining

from a club located across the street from the restaurant, because a murder had recently occurred

there. When he got to the club, however, he noticed it was closed, so he looked across the street to

the restaurant and “could literally see the smoke from the gun battle.” Arriving at the crime scene,

liasse saw the complainant’s body lying in the street near the Hummer, which was “riddled with

bullets.” There “was a lot of blood around the complainant’s body,” as well as numerous tired

cartridge casings and bullet fragments. Hasse noticed a “small bag with a white powder substance”

lying in the street, which he stated “could have been” cocaine.

        Witnesses told Hasse that the suspects had tied to the back of the restaurant. Hasse pursued

the suspects and “saw an individual wearing all black with a black hoodie run right in front of these

apartments” behind the restaurant. Hasse was very familiar with the area, including a small creek

located near the restaurant, and knew that a nearby six foot flnce     was    difticult to climb. When he

reached the creek, l-lasse saw bloody footprints that were “fresh and glistening.”

       After waiting for backup, Hasse and another officer followed the footprints to the creek,

where they “disappeared into the water.” The officers looked underneath the bridge that crossed the

creek and saw an individual “half-ways hiding behind a pillar, a big concrete pillar underneath the

bridge.” He appeared to be “trying to make himself look as small as possible behind this pillar.”

Both officers pointed their weapons at the individual and ordered him to “show his hands,” but he

did not comply. Kasse testified that the individual, who Hasse later learned did not speak English,

had a “nonchalant look on his face” like it “was another day in the office. Basically, no response.”

Hasse said the individual “wasn’t listening,” and they “took him to the ground and effected an




                                                  ——
arrest.” As the otticers escorted him tip the creek embankment, [lasse noticed the individual was

“bleeding profusely” t’rom his foot, and that he was wearing “black, zip-up, military-style hoots.”

Hasse said they were the type ot hoots police officers and military personnel wear. Hasse identi tied

appellant in court as the individual they arrested.

        1-lasse testified that after they took appellant into custody, 1-fasse followed the trail left by the

bloody footprints and found a discarded black “hoodie” on a fence in the area where 1-lasse first saw

appellant. Gloves were found inside the hoodie. Hasse continued to follow the bloody footprint trail

and found an abandoned black hat and an assault rifle, and then followed the trail “[aill the way back

to the offense location.” Hasse testified that blood droplets were found near the bloody footprints,

and he believed the droplets came from a wound on appellant’s head.

        After appellant was taken into custody, he was placed in an ambulance and driven to the

Methodist Dallas Medical Center. The physician who treated appellant, Dr. Robert Glatz, testified

that appellant suffered an “[un and out” gunshot wound to his right ankle, a dislocated shoulder, and

an injury to his torehead. Because of the “in and out” nature ot the gunshot wound, no bullet was

recovered. Appellant was treated and discharged from the hospital that same day.

        When he was discharged from the hospital, appellant was brought to the police headquarters

for questioning. Detective Eduardo Ibarra, a Special Investigations Unit officer who spoke fluent

Spanish, interviewed appellant. Ebarra testified that, at the time he spoke to appellant, appellant was

not under arrest but had been “detained to further investigate his involvement as to how he got shot

and why he was found in the general vicinity of that shooting.” Ibarra added that appellant “was

detained with the possibility of arrest,” but no arrest warrant had been issued “at that time.” Ibarra

interviewed appellant in Spanish. An English transcription of the interview was admitted at trial.

        During the interview, appellant told Ibarra, according to Ibarra’s testimony, that he had been




                                                    -4-
 in the country tor three days and had flhmily in Houston and Chicag
                                                                     o. Appellant also said he had no
 thmily in Dallas, Appellant told ibarra he was in Dallas to
                                                             meet with a man named “Juan.” who
 appellant had allegedly known for years. because he knew
                                                          ofajob for appellant at a local restaurant.
 Appellant was supposed to meet Juan (he did not know this individ
                                                                   ual’s last namel at that restaurant,
 but appellant was not sure of its name or location. Appellant
                                                               contended he was wandering around
 the area during the early morning hours of April 20, 2009,
                                                            because he was trying to find the
 restaurant. Appellant denied using a tirearm on the day in questio
                                                                    n or being close to anyone who
 had tired a gun.

         Appellant told Ibarra that, when he was shot, he was looking
                                                                      in some store windows at a
shopping center located across the street from the restaurant, near
                                                                    a Blockbuster store. The distance
 from the restaurant’s parking lot gate to the area where appella
                                                                  nt claimed to have been standing
when he was shot was ninety-seven feet. Appellant told the detecti
                                                                   ve that, after he was shot, he ran
north on Plymouth Street and onto Davis Street. Appellant said
                                                               he did not wait for an ambulance
because he did not want the police to think he was involved in
                                                               the shooting.
        Ibarra also questioned appellant about the contents of several
                                                                       small pieces of paper found
inside appellant’s wallet. One piece of paper contained the name
                                                                 “Ruben” followed by a telephone
number with a “972” Dallas area code. Hospital staff had taken
                                                               the wallet and given it to the police
officers that transported appellant from the hospital to police
                                                                headquarters. Ibarra testified that he
received the wallet after it was transferred to him by the officers
                                                                    that transported appellant to police
headquarters. The wallet was “within [appellant’sl property,”
                                                              according to Ibarra. Ibarra said he
examined the contents of the wallet because the police “wanted
                                                               to make sure that, one, we were
dealing with the person who he claimed he was. So that would
                                                             have been a source to contact to
make sure that he is who he said he was and to confirm if that
                                                               person was supposed to meet the
detindant.” Until Ibarra asked appellant about the name “Ruben” and the L)allas telephone number,

appellant maintained he did not know anyone in Dallas. Another witness, Dallas Police Department

homicide detective Scott Sayers, noted that the police were still investigating a “person of interest”

by the name of “Ruben Galvan,” who was in federal custody. Ibarra testified that, following the

interview, appellant was charged with murder.

           Police found no physical evidence to corroborate appellant’s contention as to where he was

standing when he was shot, or where he allegedly went after he was shot. Dallas Police detective

Richard Dodge testified that there was no physical evidence to corroborate appellant’s contention

that he was shot as an innocent bystander on the Blockbuster side of the street. Other evidence

showed that the bullets were fired from inside the restaurant’s parking lot, towards the Hummer.

The distance from where the shooting occurred to where appellant claimed he was standing, on the

other side of the Street, was ninety-seven feet.

           Forensic evidence indicated that two assault-style rifles had been used in the shooting. Police

recovered from the crime scene .9 millimeter cartridge casings, .45 caliber cartridge casings, .38

caliber cartridge casings, and thirteen 7.62-X-39 millimeter cartridge casings. According to Lanny

Emanuel, a firearms and toolmark examiner with the Southwestern Institute of Forensic Sciences

(SWIFS), the assault rifle that was found by the police had fired five of the recovered 7.62 millimeter

shell casings. A similar type of weapon fired the other eight shells. The two shell casings recovered

from the complainant during the autopsy were “consistent with a 7.62 rifle,” which is an AK-47-style

weapon. One of the shells was fired by the weapon recovered by the police; the other was fired by




      The record is unclear as to precisely how much time elapsed between the capture of appellant and the search ofhis wallet. Appellant’s medical
records from the Methodist Hospital show he was examined at4: IX am, on April 20, 2009. and discharged at 7:42 am, that day. The video recording
of appellant’s interrogation (which was transcribed for the jury) started at 8:27 am, on the morning of April 20. according to Ibarra’s testimony.
Ibarra recalled that he entered the interrogation room at 10:08 am.




                                                                      -6—
 a similar type otweap(rn. Vicki Hall, a trace evidence examiner
                                                                 with SW IFS, testitied that most

 handguns would      eXpel   gunshot particles “out to about 5 to 7 feet,” and that ritles or
                                                                                              shotguns would
 expel particles “a little hit further,” but no more than ten feet.
                                                                    ibarra testified that, based on
 appellant’s version ot events, there was “no way” he could have
                                                                 had gunshot residue on him if he
 was standing   SO   thr away from the crime scene.

         The hat, hoodie, and gloves found at the crime scene tested positive
                                                                              for blood and gunshot
 residue. Courtney Ferreira, a DNA analyst with SWIFS, testified that
                                                                      DNA testing showed the blood
matched appellant. Hall testified that gunshot residue was found
                                                                 on appellant as well as on the hat,
hoodie, and gloves. According to Hall’s written report, the presen
                                                                   ce of such gunshot particles on
an individual’s clothing could have been due to either (1) tiring a tirearm
                                                                            , (2) handling a tirearm or
firearm component that had been fired, (3) being in the proximity of
                                                                     a firearm when it was tired, or
(4) wiping a firearm or firearm component on the garment.

                                                 1)1 SC USSI ON

                                              Ippellant ‘s Wallet

        In his tirst point of error, appeHant argues the trial court erred when
                                                                                it denied his motion to
suppress the contents of the wallet because the search was illegal
                                                                   and violated the Fourth
Amendment. The State responds that the search was lawful inciden
                                                                 t to appellant’s arrest.
       According to the record, the defense objected to admission of
                                                                     a photocopy of the several
small pieces of paper that were found in appellant’s wallet. Defense
                                                                     counsel argued that the exhibit
was the “product of an illegal search and seizure, and at that time no
                                                                       arrest having been made.” The
trial court overruled the defense’s objection and admitted the docum
                                                                     ent.
       In reviewing a trial court’s ruling on a motion to suppress eviden
                                                                          ce, we apply a bifurcated
standard of review. Carinouche v. State, 10 S.W.3d 323, 327
                                                            (Tex. Crim. App. 2000). We give
almost total tlefrence to the trial court’s determinations on all fact questions and on

;lpplieat1on-()l-laWtO—Iact questions that turn on an evaluation of credibility and demeanor. Johnson

v.State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002). On all other application-otlaw-to-fact

questions, we apply a de novo standard of review, Id. at 652-53. We view the record and all

reasonable inflrences from the record in the light most ftivorableto the trial court’s ruling and sustain

the ruling if it is reasonably supported by the record and is correct under any theory of law applicable

to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The trial court’s

ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law

applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

        A search incident to arrest is an exception to the Fourth Amendment’s warrant requirement.

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crirn. App. 2003). The police may search a suspect’s

personal effects, including a wallet, as part of a search incident to an arrest. See Dew v. State, 214

S.W.3d 459. 462 (Tex. App.—Eastland 2005, no pet.) (citing Snyder v. State, 629 S.W.2d 930, 934

(Fe. (‘rim .App. 1982)). For a search to he considered “incident to arrest,” it must take place

contemporaneously with the defendant’s custodial arrest. United States v. Robinson, 414 U.S. 218,

225-27 (1973); Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); Giles v. State, No.

01-08-00410-CR, 2010 WL 2133893, at *9 (Tex. App.—Kouston [1st Dist.j May 27, 2010, pet.

ref’d) (not designated for publication).

        In this case, however, we need not address the State’s argument that the search was lawful

incident to appellant’s arrest because, even if we assume the trial court erred, the error, if any, was

harmless, We review the harm resulting from a trial court’s erroneous denial of a motion to suppress

and subsequent admission of evidence obtained in violation of the Fourth Amendment under the

harmless error standard found in rule 44.2(a). See TEx. R. App. P. 44.2(a); Hernandez v. State, 60




                                                  —8-
   S.W3d 106, 108 (Fex, Crim. App. 200
                                       1):        Long    v. State, 203 S.W3d 352, 353 (Te
                                                                                           x. Crirn. App.
    2006). “It’ the appellate record in a crim
                                                  inal case reveals constitutional erro
                                                                                          r that ts subject to
   harmless error review, the court ot’ appeals
                                                    must reverse a judgment of conviction
                                                                                                 or punishment
   unless the court determines beyond a reas
                                                   onable doubt that the error did not
                                                                                             contribute to the
   conviction or punishment.” TEX. R. APP
                                                . p. 44.2(a). “If there is a reasonable
                                                                                           likelihood that the
   error materially affected the jury’s deliber
                                                ations, then the error is not harmless bey
                                                                                             ond a reasonable
  doubt.” McCanhv v. State, 65 S.W.3d 47,
                                                  55 (Tex. Crim. App. 2001); see also
                                                                                          Langharn v. State,
  33 1 S.W.3d 87, 89 (Tex. App.—Eastland 201
                                                     0, pet. ref’d). “[Tihe appellate court sho
                                                                                                  uld calculate
  as much as possible the probable impact
                                               of the error on the jury in light of the
                                                                                          existence of other
  evidence.” We.vbrook v. State, 29 S.W.3d
                                               103, 119 (Tex. Crim. App. 2000). One
                                                                                          determination that
  must be made is whether “there was a reas
                                              onable possibility that the error, either
                                                                                        alone or in context,
  moved the jury from a state of nonpersua
                                              sion to one of persuasion as to the issu
                                                                                         e in question.” Id.
          The jury’s verdict in this case is suppor
                                                      ted by overwhelming evidence. A wit
                                                                                                  ness saw an
  Hispanic individual with an injured righ
                                              t leg limp away from the crime sce
                                                                                       ne shortly after the
 shooting. After talking to witnesses, Has
                                             se found a trail of bloody footprints that
                                                                                         he followed to the
 area where appellant was hiding, underneath
                                                  a bridge near the crime scene. Appella
                                                                                            nt had a gunshot
 wound to his right ankle. Hasse followed
                                             the bloody footprint trail back to the sce
                                                                                        ne of the shooting,
 and discovered a black hoodie, gloves, hat, and
                                                    an assault rifle discarded along the trai
                                                                                              l. Appellant’s
 DNA was found on the hoodie, hat, and gloves
                                                    , as was gunshot residue. Gunshot resi
                                                                                                due was also
found on appellant. Testimony showed that
                                                appellant could not have been standin
                                                                                        g across the street
from the restaurant at the time of the shootin
                                               g, as he told the police. No physical evid
                                                                                            ence was found
on that side of the street to corroborate app
                                                  ellant’s assertions, and testimony also
                                                                                                showed that
gunshot residue could not have ended up on
                                                 appellant at that distance, which was
                                                                                        ninety-seven feet



                                                   —9--
from the crime scene. Other testimony showed that gunshot residue could have traveled, at most,

ten feet—even with the use of a rifle or shotgun. The only evidence provided by the slips of paper

found in appellant’s wallet was that he knew someone named “Ruben” who had a “972” Dallas

telephone number. This evidence may have aided the police in challenging appellant’s story and

determining the identity of another suspect in the case. We conclude, however, that there is no

reasonable possibility the disputed evidence “moved the jury from a state of nonpersuasion to

persuasion as to the issue” of appellant’s guilt. See Wesbrook, 29 S. W.3d at 119. Accordingly, the

error, if any, was harmless. We overrule appellant’s first point.

                                        Motion J1r Mistrial

       In his second point of error, appellant contends the trial court abused its discretion by failing

to declare a mistrial following allegedly improper punishment argument. The relevant portion of the

record reads as follows:

               [PROSECUTOR1: Mr. Rangel was in this state for three days, and [defense
       counsell tells you that he doesn t even want to be here. Well. I want to make sure
       that everyone understands, he was not invited to this place. He came into this place
       in the dead of the night to do a job. It \vasnt by our invitation. We don’t want him
       here either. He came here to kill Antonio Sanchez.
               Now, it couldn’t be any clearer, unless you had a neon blinking sign over that
       Hummer that says “cartel hit.”

               [DEFENSE COUNSELj: Judge, objection. Cartel is outside the evidence in
       the record. We object to that.

               THE COURT: Sustained.

               [DEFENSE COUNSEL]: We ask the jury to disregard that.

               THE COURT: The jury will recall the evidence as they heard it.

               [DEFENSE COUNS ELI: Move for a mistrial, Judge.

               THE COURT: Overruled.




                                                —10—
 Appellant argues the trial court abused its discretion because the
                                                                    prosecutor’s “cartel hit” statement
 was not based on the evidence presented, was inflammator           ,   and was “manifestly unfair.”

          We review a trial court’s ruling on a motion for mistrial for an abuse
                                                                                 of discretion and uphold
 the court’s ruling if it was within the zone of reasonable disagreement.
                                                                          Arcliie v. State, 221 S.W3d
 695,699 (Tex. Crint App. 2007). A mistrial is appropriate only for
                                                                    highly prejudicial and incurable
 errors. Simpson v. State. 119 S.W.3d 262, 272 (Tex. Crim. App.
                                                                2003). “A mistrial is the trial
 court’s remedy for improper conduct that is so prejudicial that expend
                                                                        iture of further time and
 expense would he wasteful and futile.” Hawkins v. State, 135 S.W.3d
                                                                     72, 77 (Tex. Crim. App.
 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
                                                                  1999)). “Only in extreme
 circumstances, where the prejudice is incurable, will a mistrial be require
                                                                             d.” Hawkins, 135 S.W.3d
 at 77. In most instances, an instruction to disregard will cure the
                                                                     error even when the prosecutor
argues facts outside the record or interjects his personal opinion. See
                                                                        Weshrook, 29 S.W.3d at 115-
 16; Martinez vState, 17 S.W.3d 677, 69! (Tex. Crim. App. 2000); Guidrv
                                                                        v. State, 9 S.W.3d 133,
 154 (fex. Crirn. App. 1999); Wilkerson v. State, 8I S.W.2d 321, 327
                                                                     (Tec Crim. App. 1994).
         Properjury argument generally ftills within one of four areas: (1
                                                                           )sumrnation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to an argument
                                                                      of opposing counse          l; and (4)
plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex.
                                                                    Crim. App. 2008). “Improper
references to facts that are neither in evidence nor inferable from the eviden
                                                                               ce are   generally designed
to arouse the passion and prejudice of the jury and, as such, are inappr
                                                                         opriate.” Freeman v. State,
340 S.W.3d 717, 728 (Tex. Crim. App. 2011).               When facts not supported by the record are

interjected into an argument, “such error is not reversible unless, in
                                                                       light of the record, the argument
is extreme or manifestly improper.” Guidry, 9 S.W.3d at 154. “The
                                                                  remarks must have been a
willful and calculated effort on the part of the State to deprive appella
                                                                          nt of a fair and impartial trial.”




                                                   —ii—
IVe.vhrook,   2k.)   S.W.3d   .it   115. I’o determine whether there has been an improper jury argument, we

consider the context in which the remark was made. Gaddis v.State, 753 S.W2d 396, 398 (Tex.

Crim. App. 19%X).

        When determining whether improper jury argument warrants a mistrial, we balance three

factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the

certainty of the punishment assessed absent the misconduct (likelihood of the same punishment

being assessed). Hawkins, 135 S.W.3d at 77 (citing Martinez, 17 S.W.3d at 693-94); see also

l’1oslev v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

         Beginning with the question of whether the State’s jury argument was proper, appellant

points out that, other than “conjecture and unsupported opinions,” there was no evidence he was in

a cartel “or even what a cartel is.” But counsel is allowed wide latitude in drawing inferences from

the evidence that are reasonable, fair, legitimate, and otfered in good thith. See Shannon v. State.

942 S.W2d 591. 597 (Tex. Crim. App. 1996); Gaddis, 753 S.W.2d at 398. The prosecutor’s remark

was   consistent      with the acknowledgment in his opening statement that the complainant was not a

“pillar of the community,” that he “was involved in the drug trade,” and he had          “connections   with

the cartel.” The evidence showed that the shooters laid in wait for the multi-car caravan and were

armed with high-caliber military-style assault rifles. Several of the caravan’s occupants, including

the complainant’s bodyguard, also carried weapons, and exchanged gunfire with the shooters. When

he first arrived at the crime scene, Hasse noticed a “small bag with a white powdery substance” lying

in the street. which he stated “could have been” cocaine. During the closing arguments at the end

of the guilt-innocence phase, defense counsel described the shooting as a “Mexican shootout” and

a “drug deal gone awry.” Although there was no direct evidence the shooting was a “cartel hit,” we

conclude the prosecutor’s remark was a reasonable deduction from the evidence. The trial court




                                                         —   I 2—
   need not have sustained appellant’s objecti
                                               on, and appellant was not entitled to the
                                                                                         instruction about
   which he now complains.

           Yet, even if we were to assume tbr the sak
                                                      e of argument that the prosecutor’s com
                                                                                              ment was
   improper. the trial court did not abuse its disc
                                                    retion by overruling the motion for mis
                                                                                            trial. Applying
  the relevant factors, the first question is
                                                 not whether the prosecutor’s statement
                                                                                            had prejudicial
  consequences. hut the extent to which it did
                                                  , that is, the “severity” or “magnitude”
                                                                                           of the prejudice
  it likely caused .5cc Archie v, State, 34()
                                                      S.W.3d 734, 741 (Tex. Crim. App
                                                                                            . 2011). The
  complained-of comment was only a small
                                                part of the prosecutor’s closing argument.
                                                                                            After the court
 sustained appellant’s objection, the court
                                                promptly instructed the jury, and the
                                                                                        prosecutor did not
 repeat the comment. The prosecutor’s com
                                                 ment cannot be seen as having such
                                                                                       a prejudicial effect
 that it caused appellant incurable harm,

         As for curative measures taken by the
                                               trial court, appellant argues the court’s
                                                                                         instruction to
  the jury was not curative. We see nothing
                                               in the record, however, to suggest the
                                                                                        court’s instruction
 was insutficint to cure any harm caused
                                                by the prosecutor’s comment, or
                                                                                   that the jury failed to
 lillow the instruction. See Jackson v. State,
                                                 50 S.W.3d 579, 590 (Tex. App.—Fort Wo
                                                                                             rth 2001, pet.
 ref’d) (court’s instruction to “recall the evid
                                                 ence” was instruction to disregard that
                                                                                          cured improper
jury argument): see also Long v State, X23 S.W
                                                    .2d 259, 267 (Tex. Crim. App. 199 l)(a
                                                                                           lthough court
overruled objection, instruction that juro
                                            rs “recall the evidence as you heard it..
                                                                                      .  what the lawyers
say is not evidence” was sufficient to cure
                                               any error from prosecutor’s commen
                                                                                      t).
        Turning to the third factor, whether the
                                                 punishment would have been the sam
                                                                                          e absent the
improper argument, thejury’s verdict is sup
                                            ported by overwhelming evidence. As
                                                                                     noted earlier, the
evidence showed that the shooters laid in
                                          wait for the caravan and were armed
                                                                                  with military-style
assault weapons. DNA and gunshot power
                                           residue, as well as a bloody footprint
                                                                                  trail near the crime



                                                  I 3-
scene, linked appellant to the ottense. The complainant died from multiple gunshot wounds. Given

the evidence and the nature of the oftènse, we cannot conclude the prosecutor’s remark contributed

to the punishment assessed. Under the facts of this case, we cannot say the trial court abused its

discretion by denying the motion tbr mistrial. We resolve appellant’s second point against him.

       We affirm the trial court’s judgment.


                                                      LANA MYERS
                                                      JUSTICE

Do Not Publish
TEx. R, APP. P. 47
I 10604F.U05




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                                      JUDGMENT
JOSE ARREZ RANGEL, Appellant                       Appeal from the 195th Judicial District
                                                   Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-00604-CR          V.                     F09-53959-N).
                                                   Opinion delivered by Justice Myers, Justices
THE STATE OF TEXAS, Appellee                       Bridges and Francis participating.


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



Judgment entered October 30, 2012.




                                                   LANA MYERS
                                                   JUSTICE
