                          NUMBER 13-12-00320-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JOSHUA ALLEN SCHMUDE,                                                       Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 24th District Court
                         of Jackson County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       Appellant Joshua Allen Schmude challenges his conviction for tampering with

evidence, a third-degree felony. See TEX. PENAL CODE ANN. § 37.09(c), (d)(1) (West,

Westlaw through 2013 3d C.S.). By fifteen issues, which we reorganize and renumber

as seven, appellant argues that: (1) the trial court erred in denying appellant's motion to
dismiss or quash the amended indictment (the "re-indictment"); (2) the trial court erred in

excluding evidence about appellant's booking at the police station; (3) his conviction

violated his double-jeopardy rights; (4) the trial court erred in denying his motions to

suppress; (5) reversible error occurred when the State failed to respond to appellant's

discovery request; (6) the evidence is insufficient to support his conviction; and (7) the

trial court abused its discretion in overruling appellant's objection to the State's closing

argument. We affirm.

                                             I. Background

        The following facts are undisputed. In the late evening of May 16, 2008, appellant

was driving from Houston to Corpus Christi on U.S. Highway 59. During the drive,

appellant and his passenger, Daniel Meltvedt, shared at least one marihuana cigarette.

Texas Department of Public Safety Officers Justin Nixon and Donald Bolton stopped

appellant for speeding in Jackson County. The officers testified that when appellant

opened his car door, they smelled the odor of burnt marihuana. The officers asked

appellant and Meltvedt to step out of the vehicle. Both denied smoking marihuana in the

car. Appellant also stated that there was nothing illegal in the car and consented to a

search of the car, which revealed no illegal substances. Finally, appellant allowed the

officers to look in his mouth1; the officers testified that they saw the residue of chewed

marihuana leaves in appellant's teeth and gums. Appellant and the State disputed the

remaining details of the traffic stop—such as, whether appellant admitted to eating the




        1   The exact timing and details of the officers' searches of appellant's mouth are provided below in
Part V.C.
                                                      2
marihuana "roach" and the behavior and demeanor of the officers. After they searched

appellant's mouth, the officers arrested appellant and took him to the Jackson County

Detention Center in Edna, Texas, at which time he was booked on misdemeanor

marihuana possession charges. The details of appellant's booking at the jail are also

disputed. Appellant alleged at pre-trial hearings that the DPS officers threatened him

with more serious charges when he stated that he intended to fight the misdemeanor

possession charge. The officers denied the threat.

       Appellant was subsequently indicted for tampering with physical evidence. See

id. The indictment was later amended to read as follows:

       [O]n or about the 16th Day of May, A.D., 2008, . . . . [appellant] did then and
       there

                                          COUNT 1
                                         Paragraph 1

       knowing that an offense, to-wit: Possession of Mari[h]uana, had been
       committed, did then and there intentionally or knowingly alter or destroy or
       conceal a thing, to-wit: mari[h]uana, with intent to impair its verity or legibility
       or availability as evidence in a subsequent investigation or official
       proceeding related to the offense and that the thing concealed was not
       privileged or the work product of the parties to the investigation or official
       proceeding.

                                         Paragraph 2

       And . . . knowing that an investigation or official proceeding was pending or
       in progress, to-wit: Possession of Mari[h]uana, had been committed, did
       then and there intentionally or knowingly alter or destroy or conceal a thing,
       to-wit: mari[h]uana, with intent to impair its verity or legibility or availability
       as evidence in a subsequent investigation or official proceeding related to
       the offense and that the thing concealed was not privileged or the work
       product of the parties to the investigation or official proceeding.

Appellant pleaded not guilty to the re-indictment.


                                                3
       Before trial, appellant filed numerous motions challenging the re-indictment. In

those motions, appellant argued the re-indictment should be quashed because: (1) it

was procured using a false and misleading report from the DPS officers; (2) it was the

product of the alleged threat by the officers to indict appellant on a felony offense if he

"fought" the misdemeanor possession charge; (3) it misjoins two separate offenses in one

count, see TEX. CODE CRIM. PROC. ANN. art. 21.24(b) (West, Westlaw through 2013 3d

C.S.); (4) the disjunctive language used in both paragraphs, with regard to the proscribed

conduct and culpable states of mind, is "contrary to the level of certainty required under

Texas law," see id. art. 21.11 (West, Westlaw through 2013 3d C.S.); (5) "the State's

attorney failed to endorse on it" the names of the witnesses who testified before the grand

jury, see id. art. 20.20 (West, Westlaw through 2013 3d C.S.); and (6) appellant was not

allowed to testify before the grand jury before the re-indictment was handed down. See

id. art. 20.04 (West, Westlaw through 2013 3d C.S.). Each of the motions was denied

by the trial court.

       Appellant also filed two pre-trial motions to suppress, arguing that he was in

custody at the time he made certain statements at the scene and at the time Officer Bolton

looked in his mouth. Because he was in custody and had not been read his rights at the

time, appellant argued that the evidence of what he said and what was in his mouth was

inadmissible. After a hearing, the trial court denied the motions.

       Finally, before trial, Meltvedt was interviewed by an investigator for the State, at

which time he gave the investigator incriminatory information about appellant. A month

before trial, appellant's counsel sent the following letter to the prosecutor:


                                              4
       Dear Mr. Bell:

               Please refer to our telephone conversation yesterday . . . .

               If the interview between your Investigator (Craig?) and Mr. Meltvedt
       was recorded, please furnish me with a copy of it for investigative and/or
       trial purposes. (This request should fall under the requirements of Brady
       and its progeny about which I had written you earlier.) In addition, I spoke
       with Mr. Meltvedt and [appellant] after our conversation and believe that you
       may have been mis or under informed of the matter of circumstances about
       which you advised me.

              Since I will not be ready for trial if Mr. Meltvedt is absent on February
       6, I am requesting, for protective purposes with the Court, that a Subpoena
       be issued for him.

               Thank you for your cooperation.

No response from the State appears in the record, and appellant did not raise the matter

of the investigator's recording again until after trial.

       At trial, there was testimony by Officers Bolton and Nixon detailing the facts set

forth above. Meltvedt also testified for the State. He testified that he watched appellant

eat "the roach" when he realized they were being pulled over by law enforcement.

Meltvedt admitted that, because of his friendship with appellant, he initially lied to the

officers about whether appellant ate the marihuana. Meltvedt testified that he decided

to "tell the truth" because he had "tried to turn his life around" by joining the military and

that he did not want to risk his military career by lying. Meltvedt testified that when he

told appellant he was not going to lie and was going to testify for the State, appellant was

not "happy" about that. On cross-examination, Meltvedt admitted that he had changed

his story several times and, in the past, had a habit of lying, but throughout the cross-

examination, insisted that he had seen appellant eat the marihuana. Defense counsel


                                                5
also asked Meltvedt whether he had lied on the stand when he testified that appellant ate

the marihuana, to which Meltvedt responded that he had not.

       At the close of the evidence, the trial court submitted only the first paragraph of the

indicted offense to the jury. The jury found appellant guilty, and after a hearing on

punishment, the jury sentenced appellant to ten years' incarceration but recommended

that the imposition of the sentence be suspended and that appellant be placed on

community supervision. The trial court implemented the jury's recommended sentence.

       After trial, appellant's counsel sent the prosecutor a letter inquiring into the

recording made by the State's investigator of his pre-trial interview with Meltvedt; counsel

noted that he had never received a response from the State and requested that the State

respond "as soon as practicable." Appellant then filed a motion to compel exculpatory

information, in which he argued that the State failed to comply with his pre-trial request to

produce the recording of the investigator's interview of Meltvedt. Appellant asked the

trial court to compel production of that recording and any other exculpatory material. No

ruling on the motion to compel appears in the record.

                                  II. The Re-indictment

       By his first issue, appellant complains that the trial court erred in failing to quash

and dismiss the re-indictment for three reasons:         (1) despite the fact that the re-

indictment included substantive changes from the original indictment, the grand jury did

not hear testimony from a fact witness before handing down the re-indictment; (2) it was

the product of the alleged threat by the officers to indict appellant on a felony offense if

he "fought" the misdemeanor possession charge; and (3) appellant was not allowed to


                                              6
testify before the grand jury before the re-indictment was handed down.

A. Necessity of a Fact Witness

       Appellant argues that the re-indictment was not a "true bill" that conferred

jurisdiction on the trial court because no fact witness testified before the second grand

jury. Appellant argues that this violated article 20.20 of the code of criminal procedure

and article 1, section 10 of the Texas Constitution because the grand jury did not

adequately perform its "screening" role.     See TEX. CONST. art. I, § 10 (providing, in

relevant part, that "no person shall be held to answer for a criminal offense, unless on an

indictment of a grand jury"); TEX. CODE CRIM. PROC. ANN. art. 20.20 ("The attorney

representing the State shall prepare all indictments which have been found, with as little

delay as possible, and deliver them to the foreman, who shall sign the same officially, and

said attorney shall endorse thereon the names of the witnesses upon whose testimony

the same was found."); see also Lehman v. State, 792 S.W.2d 82, 85 n.2 (Tex. Crim.

App. 1990) ("Texas, unlike some other states, also limits the power of a felony prosecutor

by requiring a grand jury to screen all felony charges unless the defendant waives his

right to indictment.").

       We construe this argument as a challenge to the sufficiency of the evidence

supporting the indictment. And it is settled law that defendants cannot challenge the

sufficiency of the evidence to support a grand-jury indictment. See Costello v. United

States, 350 U.S. 359, 362–64 (1956); Brooks v. State, 642 S.W.2d 791, 795–96 (Tex.

Crim. App. 1982). In rejecting such challenges, courts have stated that an indictment

returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to


                                             7
call for trial of the charge on the merits. See Costello, 350 U.S. at 362–64; Brooks, 642

S.W.2d at 795–96. Appellant's argument clearly goes to the evidence supporting the

indictment, and not to the facial validity of the indictment or any bias on the part of the

grand jury. Nothing in the record persuades us that appellant's case did not receive the

grand jury screening required under the law. See, e.g., Tarpley v. State, 565 S.W.2d

525, 532 (Tex. Crim. App. 1978) (holding that even if a grand jury had only considered

the testimony of the prosecuting attorney, no reversible error would have occurred so long

as an indictment was returned by a legally constituted and unbiased grand jury). We will

therefore not reverse the trial court's ruling on this basis.

C. The Threat

       Appellant's next argument is that his re-indictment should have been quashed and

dismissed because it was sought by Officer Bolton in retaliation for appellant stating he

intended to "fight" a misdemeanor marihuana possession charge.                 Appellant cites

Blackledge v. Perry in support of this argument. See 417 U.S. 21, 27–29 (1974); see

also Thigpen v. Roberts, 468 U.S. 27, 30–31 (1984). In Blackledge, the defendant was

convicted of assault in district court, the first step in a two-tier system under North Carolina

law under which he was entitled to appeal his conviction to the superior court. 417 U.S.

at 22. In such an appeal, the district-court conviction is erased, and the defendant is

entitled to a trial de novo in the superior court.       Id.    The defendant in Blackledge

exercised his right to appeal his district-court conviction, and during the pendency of the

appeal, the prosecutor filed a felony indictment against the defendant based on the same

facts. Id. at 23. The United States Supreme Court concluded that the sequence of


                                               8
events "pose[d] a realistic likelihood of vindictiveness" on the part of the prosecutor,

reasoning that

      [a] prosecutor clearly has a considerable stake in discouraging convicted
      misdemeanants from appealing and thus obtaining a trial de novo in the
      Superior Court, since such an appeal will clearly require increased
      expenditures of prosecutorial resources before the defendant's conviction
      becomes final, and may even result in a formerly convicted defendant's
      going free. And, if the prosecutor has the means readily at hand to
      discourage such appeals—by "upping the ante" through a felony indictment
      whenever a convicted misdemeant pursues his statutory appellate
      remedy—the State can insure that only the most hardy defendants will
      brave the hazards of a de novo trial.

Id. at 27–28; see United States v. Goodwin, 457 U.S. 368, 373 (1982) ("[I]n certain cases

in which action detrimental to the defendant has been taken after the exercise of a legal

right, the Court has found it necessary to 'presume' an improper vindictive motive. Given

the severity of such a presumption, however—which may operate in the absence of any

proof of an improper motive and thus may block a legitimate response to criminal

conduct—the Court has done so only in cases in which a reasonable likelihood of

vindictiveness exists."). In short, "Blackledge prohibits prosecutors from bringing more

serious charges on retrial when there is a 'realistic likelihood of vindictiveness.'" Lopez

v. State, 928 S.W.2d 528, 533 (Tex. Crim. App. 1996).

      The relevant facts in this case are as follows. Appellant testified at the hearing on

the relevant motion to quash that, at the time of his booking at the Jackson County

Detention Center, Officer Bolton threatened to pursue felony charges if appellant "fought"

the misdemeanor possession charge:

      [Defense counsel]: All right. Now, was there a conversation between you
                         and the officers?


                                            9
       [Appellant]:          Yes, there was.

       [Defense counsel]: And do you recall what was said?

       [Appellant]:          Basically, it was along the lines of, you know, I said,
                             "Why are you doing this to me?" And Officer Bolton
                             responded with, "because you have a felony," and
                             that's when I told him that that was a Class A
                             misdemeanor. He was bringing up a juvenile charge
                             that happened when I was 16 years old.

                             After that I told him that I was going to fight this
                             because they continued to press the issue, okay, go
                             ahead, tell us when did you eat the dope again. And I
                             said, "I'm not going to incriminate myself. I want a
                             lawyer." That's when Officer Bolton approached me
                             and said, "If you tell that to Bobby Bell,"—I didn't know
                             who Bobby Bell was at the time; he's the D.A.—"you'll
                             get more than just probation. You're going to get a
                             third degree felony—tampering with physical
                             evidence." He named the charge.

Appellant testified that Officer Nixon then made a "hand gesture" toward Officer Bolton,

which appellant believed was meant as a warning to Officer Bolton to stop threatening

appellant. In his testimony at the same hearing, Officer Nixon denied Officer Bolton was

inside the jail at the time of appellant's booking. Officer Bolton also testified that he never

went inside the jail.

       The timing and circumstances of the complained-of conduct in this case are clearly

distinguishable from Blackledge. Blackledge involved a re-filing of more serious charges

after the defendant, whom the prosecutor had already succeeded in convicting,

proceeded to have his "slate . . . wiped clean" by filing his demand for a de novo trial in

the superior court. 417 U.S. at 22. Here, the felony charges were the first charges

formally filed against appellant.     Appellant seems to ask this Court to extend the


                                               10
reasoning of Blackledge to this earlier stage—the prosecutor's initial decision to charge.

We decline to do so. Under Blackledge, the presumption of prosecutorial vindictiveness

arises when the prosecutor, who has a "considerable stake in discouraging convicted

misdemeanants from appealing and thus obtaining a trial de novo," "'up[s] the ante'" by

bringing more serious charges on retrial. Thigpen, 468 U.S. at 30 (quoting Blackledge,

417 U.S. at 27–28); see Lopez, 928 S.W.2d at 533. We do not believe the variety of

prosecutorial vindictiveness identified in Blackledge is presented by the facts of this case,

wherein the complaint centers on the conduct of the officers who arrested appellant.

       In fact, in a later opinion, the Supreme Court stated that "[t]here is good reason to

be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a

pretrial setting." Goodwin, 457 U.S. at 381.

       In the course of preparing a case for trial, the prosecutor may uncover
       additional information that suggests a basis for further prosecution or he
       simply may come to realize that information possessed by the State has a
       broader significance. At this stage of the proceedings, the prosecutor's
       assessment of the proper extent of prosecution may not have crystallized.
       In contrast, once a trial begins—and certainly by the time a conviction has
       been obtained—it is much more likely that the State has discovered and
       assessed all of the information against an accused and has made a
       determination, on the basis of that information, of the extent to which he
       should be prosecuted. Thus, a change in the charging decision made after
       an initial trial is completed is much more likely to be improperly motivated
       than is a pretrial decision.

Id. "[T]he mere fact that a defendant refuses to plead guilty and forces the government

to prove its case is insufficient to warrant a presumption that subsequent changes in the

charging decision are unjustified." Id. at 382–83. "[S]o long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute, the

decision whether or not to prosecute, and what charge to file or bring before a grand jury,

                                             11
generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978). "[T]he conscious exercise of some selectivity in enforcement is not in itself a

federal constitutional violation so long as the selection was [not] deliberately based upon

an unjustifiable standard such as race, religion, or other arbitrary classification." Id. at

364–65 (internal quotations omitted).

        We cannot conclude that a presumption of prosecutorial vindictiveness was raised

by appellant. That appellant allegedly communicated to Officer Bolton that he would fight

a misdemeanor charge—in other words, plead not guilty—does not create a presumption

that the felony tampering charges eventually brought by the State were unjustified. See

Goodwin, 457 U.S. at 382–83. Appellant does not dispute that the State had probable

cause to believe that he committed a tampering offense, and at the stage of the

proceedings about which appellant complains, the prosecutor still retained considerable

discretion to bring any charge supported by the evidence. See id.; Bordenkircher, 434

U.S. at 364–65.        For the foregoing reasons, we are not persuaded by appellant's

prosecutorial vindictiveness argument and, as such, cannot conclude that the felony

tampering indictment was a violation of appellant's due process rights and should have

been quashed for this reason.2

D. Denial of Appellant's Request to Testify

        Finally, appellant argues that the trial court erred in failing to quash and dismiss

the re-indictment because appellant was not allowed to appear and testify before the



        2We note that although appellant alludes in his brief to other potential bases for quashing the
indictment—namely, official oppression by the officers—he provides no citations to authority or substantive
argument for these bases, so we do not address them on appeal. See TEX. R. APP. P. 38.1(i).
                                                    12
second grand jury. Citing Texas Code of Criminal Procedure Articles 20.04 and 20.17,

appellant argues that "the grand [j]ury's duty to receive evidence from a fact witness(es)

[sic] involves logically a correlative right in an individual who is affected personally to

testify if he/she so chooses." (Emphases removed.) In fact, article 20.04 specifically

provides that "[n]o person may address the grand jury about a matter before the grand

jury other than the attorney representing the State, a witness, or the accused or suspected

person or the attorney for the accused or suspected person if approved by the State's

attorney." TEX. CODE CRIM. PROC. ANN. art. 20.04 (emphasis added). And it is well-

established that "[a] criminal defendant or other person being investigated by the grand

jury does not have the right to appear in person or by counsel before the grand jury."

McConnell v. State, 34 S.W.3d 27, 31 (Tex. Crim. App. 2000) (citing Rogers v. State, 774

S.W.2d 247, 262 (Tex. Crim. App. 1989); Morin v. State, 682 S.W.2d 265, 267 (Tex. Crim.

App. 1983); Moczygemba v. State, 532 S.W.2d 636 (Tex. Crim. App. 1976)).                 We

therefore disagree that appellant had a "correlative" right to testify before the grand jury,

and the re-indictment was not defective on this basis.

E. Summary

       Finding no merit in the foregoing arguments, we conclude that the trial court did

not err in denying appellant's various motions to quash and dismiss the re-indictment.

We overrule this first issue.

                                 III. Booking Evidence

       By his second issue, appellant argues that the trial court erred in refusing to admit

at trial evidence about appellant's booking at the Jackson County jail, evidence appellant


                                             13
argues was necessary to establish the unlawfulness of the charges against him.

Specifically, appellant complains that he was not allowed to examine either Officer Bolton

or Nixon about the alleged threat Officer Bolton made to charge appellant with a felony.

Appellant argues that this: (1) violated his due process rights to challenge the legality of

the charges against him, a defensive issue appellant argues he was entitled to raise; and

(2) limited his constitutional right to cross-examine the officers.

       We first note that appellant made no complaint to the trial court at trial that its

exclusion of the booking testimony limited his Sixth Amendment Confrontation Clause

rights to cross-examination. See U.S. CONST. amend VI. That argument was therefore

not preserved for our review. See TEX. R. APP. P. 33.1(a)(1); Reyna v. State, 168 S.W.3d

173, 179 (Tex. Crim. App. 2005) (holding that a defendant must specifically notify the trial

court that he is objecting on Confrontation Clause grounds); Garcia v. State, 210 S.W.2d

574, 579 (Tex. Crim. App. 1948) (holding that the right to confrontation may be waived).

       Appellant's remaining argument—that the exclusion of this evidence denied him

his due process right to raise a defensive issue that the charge was illegal before the

jury—is contingent on his argument that we disposed of above in Part II.C, i.e., that the

trial court erred in failing to quash and dismiss his indictment as unlawful based on the

alleged threat made by Officer Bolton. In light of our finding of no error in the indictment,

appellant cannot show he was harmed by the exclusion of this evidence. See TEX. R.

APP. P. 44.2.

       Appellant's second issue is overruled.




                                             14
                                   IV. Double Jeopardy

       By his third issue, appellant argues that by not submitting the elements in

paragraph 2 of the re-indictment to the jury, the trial court deprived appellant of his right

to have the jury he helped choose "resolve the entire cause against him" and, therefore,

impliedly acquitted him of that conduct. See United States v. Jorn, 400 U.S. 470, 484

(1971) ("[T]he crucial difference between reprosecution after appeal by the defendant and

reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the

defendant has not been deprived of his option to go to the first jury and, perhaps, end the

dispute then and there with an acquittal. On the other hand, where the judge, acting

without the defendant's consent, aborts the proceeding, the defendant has been deprived

of his ‘valued right to have his trial completed by a particular tribunal."). And because

paragraph 2 contains some of the same conduct as paragraph 1, appellant argues, the

court was collaterally estopped from submitting paragraph 1. When it did so, appellant

argues, his double jeopardy rights were violated. See Ashe v. Swenson, 397 U.S. 436,

445 (1970) (holding that the established rule of law regarding collateral estoppel in

criminal cases is embodied in the Fifth Amendment guarantee against double jeopardy).

We are not persuaded by this argument because appellant's threshold premise is flawed.

       In this case, appellant made no objection to the trial court's failure to submit both

paragraphs of the indictment, and as a result, the record does not show that the trial

court's submission was "without the defendant's consent."             Thus, the sort of harm

contemplated by Jorn—"a sua sponte judicial" determination that ultimately deprives the

defendant of his right to have his trial completed by a tribunal of his choosing—is not


                                               15
present in this case.

       Neither are we persuaded by appellant's general assertion that the trial court's

submission of paragraph 1 of the indictment was an implied acquittal of the conduct

alleged in paragraph 2. Jorn does not stand for this principle, and appellant cites no

authority, and we find none, supporting this assertion.

       At the most, appellant's double-jeopardy complaint is premature. In this case,

appellant's double-jeopardy rights would not be implicated unless the State attempted to

re-indict and reprosecute appellant based on the same facts determined by the jury in this

case. At this stage, we cannot conclude that appellant's double-jeopardy rights have

been implicated.

       Appellant's third issue is overruled.

                                 V. Motion to Suppress

       By his fourth issue, appellant argues that the trial court erred in denying his motion

to suppress Officer Bolton's testimony that appellant admitted to eating a joint and that

the officer found the residue of chewed marihuana leaves in appellant's mouth.

Appellant argues that he was in custody at the time of this admission and search, and

because he had not been read his rights yet, the admission of this testimony violated both

the Fourth Amendment and articles 38.22 and 38.23 of the Texas Code of Criminal

Procedure. See U.S. CONST. amend. IV; Miranda v. Arizona, 384 U.S. 436, 444–45

(1966); TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2–3, art. 38.23(a) (West, Westlaw

through 2013 3d C.S.).




                                               16
A. Standard of Review

       We review a trial court's ruling on a motion to suppress under a bifurcated

standard. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Shepherd v.

State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Carmouche v. State, 10 S.W.3d 323,

327 (Tex. Crim. App. 2000). The trial court is given almost complete deference in its

determination of historical facts, especially if they are based on an assessment of

credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).

The same deference is afforded the trial court in its rulings on the application of the law

to questions of fact and to mixed questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor.             Id.   However, for mixed

questions of law and fact that do not fall within that category, a reviewing court conducts

a de novo review. Id.

       In ruling on the motion to suppress, the trial court is the exclusive trier of fact and

judge of a witness's credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). Accordingly, a trial court may choose to believe or to disbelieve all or any part of

a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We

view all of the evidence in the light most favorable to the trial court's ruling. State v.

Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). Therefore, the prevailing

party is entitled to "the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence." Id. Since all evidence is viewed in

the light most favorable to the trial court's ruling, we are obligated to uphold its ruling on

a motion to suppress if that ruling is supported by the record and is correct under any


                                             17
theory of law applicable to the case. Ross, 32 S.W.3d at 856; Carmouche, 10 S.W.3d

at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

B. Applicable Law

      No statement, either oral or written, of an accused made as the result of a custodial

interrogation shall be admissible against the accused in a criminal proceeding, unless the

accused, prior to making the statement, voluntarily waives his rights pursuant to the

following warning that:

      (1)    he has the right to remain silent and not make any statement at all
             and that any statement he makes may be used against him at his
             trial;

      (2)    any statement he makes may be used as evidence against him in
             court;

      (3)    he has the right to have a lawyer present to advise him prior to and
             during any questioning;

      (4)    if he is unable to employ a lawyer, he has the right to have a lawyer
             appointed to advise him prior to and during any questioning; and

      (5)    he has the right to terminate the interview at any time[.]

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2; see Miranda v. Arizona, 384 U.S. at 444–45.

The defendant must prove that the statement he wishes to exclude was the product of a

custodial interrogation before the State is required to show compliance with Miranda and

the article 38.22 warnings. See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App.

2007) (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). In

other words, the State has no burden at all unless the record as a whole clearly

establishes that the defendant's statement was the product of custodial interrogation by

a law enforcement agent.     Wilkerson, 173 S.W.3d at 532.       A trial court's "custody"

                                           18
determination presents a mixed question of law and fact. Herrera, 241 S.W.3d at 526.

       Under Miranda and Texas law, a "custodial interrogation" is defined as

"questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of [her] freedom of action in any significant way"; in other

words, a custodial interrogation is one in which a detainee's freedom of movement is

restrained to the degree associated with a formal arrest and not a mere investigative

detention. Thompson v. Keohane, 516 U.S. 99, 107 (1995); see State v. Ortiz, 382

S.W.3d 367, 372 (Tex. Crim. App. 2012).

       We evaluate whether a person has been detained to the degree associated
       with arrest on an ad hoc, or case-by-case, basis. In making the custody
       determination, the primary question is whether a reasonable person would
       perceive the detention to be a restraint on his movement "comparable
       to . . . formal arrest," given all the objective circumstances.

Ortiz, 382 S.W.3d at 372 (quoting Berkemer v. McCarty, 468 U.S. 420, 441 (1984); citing

Stansbury v. California, 511 U.S. 318, 323 (1994)). A traffic stop, by itself, does not

constitute "custody" for purposes of Miranda and the code of criminal procedure. State

v. Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997) (citing Berkemer, 468 U.S. at

437); see Ortiz, 382 S.W.3d at 372. And "the mere fact that the suspect becomes the

focus of a criminal investigation does not convert a roadside stop into an arrest."

Stevenson, 958 S.W.2d at 829; see also Estrada v. State, No. 04-12-00136-CR, 2012

WL 6720655, at *3, 8 (Tex. App.—San Antonio Dec. 28, 2012) (mem. op., not designated

for publication) ("Interrogation has been defined as express questioning or words or

actions by police that the police should know are reasonably likely to elicit an incriminating

response. . . . However, warnings are required only when a suspect is interrogated while


                                             19
in custody or its equivalent; questioning outside of a custodial environment is not

prohibited, even if it is likely to provoke an incriminating statement." (internal citations

omitted)), aff'd, No. PD-0106-13, 2014 WL 969221 (Tex. Crim. App. Mar. 12, 2014).3

Questioning during a traffic stop mitigates the danger presented under Miranda because

traffic stops are presumptively brief and temporary, unlike a police station interrogation,

and are more open and take place in public, which lessens the police dominance over a

defendant. See Berkemer, 468 U.S. at 437–38.

         A noncustodial encounter may, however, escalate into custodial interrogation.

See Stevenson, 958 S.W.2d at 828. The Texas Court of Criminal Appeals has identified

four situations which may constitute custody for Miranda purposes. See Dowthitt v.

State.       931 S.W.2d 244, 254–55 (Tex. Crim. App. 1996); see also Stevenson, 958

S.W.2d at 828–29. Under Dowthitt, a person may be in custody for purposes of Miranda

         (1) when the suspect is physically deprived of his freedom of action in any
         significant way, (2) when a law enforcement officer tells the suspect that he
         cannot leave, (3) when law enforcement officers create a situation that
         would lead a reasonable person to believe that his freedom of movement
         has been significantly restricted, and (4) when there is probable cause to
         arrest and law enforcement officers do not tell the suspect that he is free to
         leave.

931 S.W.2d at 255.


         3 We note that the Texas Court of Criminal Appeals has recently affirmed the Fourth Court's opinion
in Estrada. See Estrada v. State, No. PD-0106-13, 2014 WL 969221, at *3–6 (Tex. Crim. App. Mar. 12,
2014) (holding that police are free to ask potentially incriminating questions during non-custodial
interrogation, and the fact that a question contains an element of a criminal offense bears no independent
significance on a custody determination beyond the officer's suspicion communicated to the detainee by
the nature of the question itself). Although the higher court's Estrada is not designated for publication
under rule 77.3 and we are therefore prohibited from citing it as authority, see TEX. R. APP. P. 77.3, we
nonetheless find the court of criminal appeals's analysis of its facts—a relatively non-coercive traffic stop
during which general, investigatory questions were asked by officers to a driver and passenger after finding
a bag of marihuana in the vehicle—instructive to our factual analysis herein. See 2014 WL 969221, at *3–
5.
                                                    20
       Concerning the fourth situation, . . . the officers' knowledge of probable
       cause [must] be manifested to the suspect. Such manifestation could
       occur if information substantiating probable cause is related by the officers
       to the suspect or by the suspect to the officers. Moreover, given our
       emphasis on probable cause as a "factor" in other cases, situation four does
       not automatically establish custody; rather, custody is established if the
       manifestation of probable cause, combined with other circumstances, would
       lead a reasonable person to believe that he is under restraint to the degree
       associated with an arrest.

Id. (citations omitted). Regardless, "the restriction upon freedom of movement must

amount to the degree associated with an arrest as opposed to an investigative detention."

Id. (citations omitted).

C. Relevant Facts

       At a pre-trial hearing, Officer Nixon testified that he and Officer Bolton pulled

appellant over because he was speeding, a traffic violation to which appellant admitted.

Officer Nixon testified that when appellant rolled down his window, he could smell the

odor of burnt marihuana. Appellant and his passenger, Meltvedt, were asked to exit the

vehicle and stand in the grassy area to the right of the road. Officer Nixon testified that

they conducted their investigation in the grassy area on the side of the road for safety

reasons and that they separated appellant and Meltvedt "so that one [couldn't] hear what

the other" was saying. Officer Nixon first questioned Meltvedt. Officer Nixon testified

that Meltvedt admitted to smoking marihuana "three hours ago." Officer Nixon then

approached appellant. Officer Nixon testified that Officer Bolton stood by and spoke with

Meltvedt when Officer Nixon was questioning appellant. Officer Nixon testified that he

told appellant that he could "smell the mari[h]uana on him and also inside [the] vehicle";

appellant responded "that he had not been smoking, that there was no mari[h]uana inside


                                            21
the vehicle." Officer Nixon testified that appellant then gave him consent to search the

vehicle.

       While Officer Nixon searched the car, Officer Bolton continued to question

appellant in the grassy area.     Officer Bolton testified that as he was speaking to

appellant, he smelled the odor of burnt marihuana on appellant's clothes and breath.

Officer Bolton told appellant to open his mouth. He testified that "as [appellant] opened

his mouth, I took my flashlight, shined the light inside his mouth and noticed immediately

there was [sic] mari[h]uana leaves inside his mouth." Officer Bolton testified that he

asked appellant whether he had eaten any marihuana, and appellant responded, "I only

ate one joint." Officer Bolton testified that, at this point, he handcuffed appellant and

placed him under arrest. In his testimony, Officer Bolton did not recount any details of

his conversation with Meltvedt.

       Appellant also testified at the hearing. He denied that he ate any marihuana and

denied that he told Officer Bolton he had eaten any marihuana. Appellant also described

Officer Bolton's questioning of Meltvedt. He testified that he had watched the DVD

recording from the patrol car's dashboard camera, which had captured Officer Bolton's

interactions with Meltvedt. Appellant testified that Officer Bolton "was screaming at the

top of his lungs" at Meltvedt.

       With regard to his interactions with Officer Nixon, appellant testified that, when

Officer Nixon went to search the vehicle, appellant did not feel that he was free to leave

"at that point." Appellant testified that on a scale of one to ten, ten "being the most

restrictive of [his] movements," he gauged his feelings of restriction at a nine. When


                                           22
Officer Nixon returned after searching the car, appellant had been handcuffed by Officer

Bolton. Officer Nixon read appellant his rights, and then he searched appellant's mouth.

When Officer Nixon asked appellant if he had "eat[en] the dope," appellant refused to

cooperate further; appellant testified that, at this point, he told Officer Nixon, "I don't see

how I'm going to help myself, you know, by admitting anything to you or incriminating

myself."

       Finally, we have reviewed the DVD recording of the traffic stop, which was part of

the record before the trial court.     We note that only Officer Nixon was wearing a

microphone, so the majority of Officer Bolton's interactions with appellant and Meltvedt

were not recorded. We observed the following sequence of events from the video:

          Officers Nixon and Bolton turned on their flashing lights, and appellant pulled

           his car over to the left side of the road. Officer Nixon approached the car and

           asked appellant to move to the right side of the road. Both appellant's car and

           the patrol car did so.

          Officer Nixon approached the passenger side of the car and asked appellant to

           step into the grassy area on the right side of the road. Appellant was directed

           to stand in a spot close to the patrol car that was outside the camera's view.

          After asking Meltvedt where the two were headed, Officer Nixon asked Meltvedt

           to step out of the vehicle and stand in the grassy area to the right of the road.

           Meltvedt was directed to stand in a spot that was within the camera's view.

           Both Officers Nixon and Bolton were standing near appellant's car at this point.

           They appeared to be smelling inside the open window. Officer Nixon then


                                              23
    asked Meltvedt if there was anything illegal in the car; Meltvedt responded, "Not

    to my knowledge." Officer Nixon asked Meltvedt if anyone had been "smoking

    dope." Meltvedt responded that he had been, but three hours earlier. Officer

    Bolton remained with Meltvedt and patted him down while Officer Nixon went

    to question appellant.

   Officer Nixon asked appellant, "Who's been smoking dope in the car?"

    Appellant responded, "No one."        Without being prompted, appellant told

    Officer Bolton that there was nothing illegal in the car and that he could search

    the car. Officer Bolton told appellant that he could smell the marihuana on

    him, Meltvedt, and in the car. He told appellant, "I'm gonna search the car, so

    if you have anything there, you might as well come clean now because I will

    find it." Appellant then denied again that there was anything illegal in the car

    and told Officer Nixon that he could search it. Before Officer Nixon walked to

    the car, he asked appellant whether he had any weapons or drugs on his

    person. Appellant responded that he did not, and Officer Bolton then patted

    appellant down.

   As Officer Nixon approached the car, next to which Meltvedt was standing,

    Meltvedt asked if he could put his hands down. Officer Nixon responded, "No.

    Just keep them right there. That's for both our safety, ok?"

   While Officer Nixon searched the car, Officer Bolton questioned appellant.

    The vast majority of the conversation between Officer Bolton and Meltvedt was

    not captured audibly or visually because Officer Nixon was the only person


                                     24
          wearing a microphone and appellant was standing outside the visual range of

          the camera. Officer Bolton appeared in the corner of the video as he shined

          his flashlight in appellant's mouth. Officer Bolton then turned to Officer Nixon,

          who was searching the car, and stated, "He ate it," which is captured in low

          volume on Officer Nixon's microphone. Officer Nixon asked Meltvedt if he ate

          any marihuana; Meltvedt responded that he had not. Officer Nixon asked

          Meltvedt if appellant ate the marihuana; Meltvedt responded that he did not

          know.

         Officer Bolton then approached Meltvedt and began questioning him again

          while Officer Nixon continued to search the car. Officer Nixon's microphone

          captured some of the conversation between Officer Bolton and Meltvedt as he

          searched the car, but the audio is muffled. It is clear that Officer Bolton had

          raised his voice while speaking to Meltvedt. One question that came through

          clearly was, "Who was smoking dope in the car?" Officer Bolton was making

          hand gestures to Meltvedt and appeared agitated. Officer Bolton then put his

          head in the car where Officer Nixon was searching and asked Officer Nixon to

          "go look in [appellant's] mouth."

         At this point, Officer Nixon read appellant his rights.

The video does not show when appellant was handcuffed. The video captured none of

the audio of the conversation between Officer Bolton and appellant.

D. Analysis

      The record in this case shows that, at the time appellant allegedly told Officer


                                              25
Bolton "I ate one joint," a reasonable person would have believed he was under restraint

to a degree associated with an investigative detention, which does not trigger the

protections of Miranda and the code of criminal procedure. See Stevenson, 958 S.W.2d

at 828; see also Berkemer, 468 U.S. at 437. The officers' questions to appellant and

Meltvedt were investigatory in nature; the officers were entitled to gather information to

determine who, if anyone, was responsible for the odor of marihuana emanating from the

car. See Stevenson, 958 S.W.2d at 829; see also Lewis v. State, 72 S.W.3d 704, 712

(Tex. App.—Fort Worth 2002, pet. ref'd).

        Further, there was only one patrol car at the scene and only two officers were

present, which is also consistent with a routine roadside investigation.4 See Ortiz, 382

S.W.3d at 374 ("An ordinary traffic stop usually involves a single police car and one or

two officers."). And while it is true that both appellant and Meltvedt were patted down

and that Meltvedt was required to keep his hands over his head for most of the

investigation, it would have been reasonable for the trial court to conclude that the officers

did this for their safety. See Terry v. Ohio, 392 U.S. 1, 24 (holding that an officer's safety

during an investigative detention is paramount and he is therefore justified in conducting

a search for weapons); see also Crain, 315 S.W.3d at 48; Maxwell, 73 S.W.3d at 281

(holding that in ruling on a motion to suppress, the trial court is the exclusive trier of fact

and judge of a witness's credibility). Officer Nixon told Meltvedt that he needed Meltvedt

to keep his hands over his head "for both our safety." And before Officer Bolton patted



        4  Later in the stop, a sheriff's deputy stopped briefly by the scene, but remained there only for a
few minutes. Regardless, this occurred after appellant had been read his rights and arrested, so it is
irrelevant to whether appellant was in custody at the time of the complained-of statements.
                                                    26
appellant down, Officer Nixon had asked appellant if he had any weapons on him.

        Finally, although appellant was handcuffed, this did not occur until after Officer

Bolton searched his mouth and after he allegedly made the statement, "I only ate one

joint."5 Likewise, although Officer Bolton raised his voice to Meltvedt and waved his arms

in a seemingly frustrated manner while questioning him, this, too, occurred after the

search of appellant's mouth and appellant's statements, the two pieces of evidence he

sought to suppress. And even if this had occurred earlier, the trial court was, again, the

exclusive judge of historical facts, and we will not second-guess its interpretation of these

events.     See Crain, 315 S.W.3d at 48; Maxwell, 73 S.W.3d at 281.                          In light of the

foregoing facts, we cannot conclude that the circumstances here were such that a

reasonable person in appellant's position would have believed he was restrained to the

degree associated with a formal arrest as opposed to a mere investigative detention at

the time Officer Bolton searched his mouth and appellant admitted to eating the

marihuana. See Ortiz, 382 S.W.3d at 372–73; see also Stevenson, 958 S.W.2d at 829.

        We note lastly that the fourth Dowthitt scenario is implicated by the facts of this

case. The officers' suspicions were communicated to appellant—from the inception of

the traffic stop, appellant was told by the officers that they could smell "dope" in the car

and on his person and was asked several times who had been "smoking dope"—and from



          5 In their briefs, both parties suggest that it is "unclear" or "uncertain" exactly when appellant was

handcuffed. But at the pre-trial hearing, Officer Bolton testified that he handcuffed appellant after he
looked in appellant's mouth and after appellant made the incriminating statement. The trial court was
entitled to credit this testimony by Officer Bolton. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002) (holding that in ruling on the motion to suppress, the trial court is the exclusive trier of fact and
judge of a witness's credibility); see also State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (holding
that a trial court may choose to believe or to disbelieve all or any part of a witness's testimony).
                                                      27
our review of the testimony and DVD, appellant was never told he was free to leave. See

Dowthitt, 931 S.W.2d at 255. But this does not, per se, amount to a custodial situation.

We must still examine the entirety of the circumstances to determine whether a

reasonable person would believe he was restrained to the degree associated with a

formal arrest as opposed to a mere investigatory detention. See id. And at the time

Officer Bolton looked in appellant's mouth and appellant made the "I only ate one roach"

statement, we do not believe the circumstances had risen to the level of a formal arrest.

Unlike the defendant in the court of criminal appeals's recent case, State v. Ortiz, who

was subject to overtly coercive and accusatory questioning, see 382 S.W.3d at 373–74

(after informing the driver-defendant that he had found "something" under his wife's skirt,

the officer asked the defendant, "What kind of drugs does she have?"), the officers'

questions in this case were general inquiries about whether anyone had been smoking

marihuana in the car and whether there was anything illegal in the car. As stated above,

these questions were part and parcel of the investigation the officers were entitled to

conduct after they smelled the marihuana; the questions were addressed to both

appellant and his passenger and were an attempt to gather information and ascertain

whether a crime had occurred and who had participated. See Stevenson, 958 S.W.2d

at 829; see also Lewis, 72 S.W.3d at 712; Estrada, 2012 WL 6720655, at *8. Prior to the

search by Officer Bolton and without prompting by either officer, appellant told Officer

Nixon to search his car, stating that there was nothing illegal in the car. Further, as noted

above—and again, unlike Ortiz, in which the defendant was handcuffed before

questioning and several patrol cars and at least three officers were present, see 382


                                             28
S.W.3d at 374—there was nothing overly coercive about the investigation or the officers'

behavior here: only one patrol car and two officers were present at the scene, and no

one was handcuffed until Officer Bolton saw the marihuana leaves in appellant's mouth.

There were adequate circumstances here to justify the officers' suspicion that appellant

had been smoking and may have been in possession of marihuana, but this mere fact

that appellant became the focus of a criminal investigation did not convert the roadside

stop into a custodial interrogation. See Stevenson, 958 S.W.2d at 829; see also Lewis,

72 S.W.3d at 712–13 (holding that an officer's modest number of questions over a short

period time during which the defendant-suspect was not handcuffed was "not the

functional equivalent of formal arrest").

       Under the facts of this case, see Ortiz, 382 S.W.3d at 372 ("We evaluate whether

a person has been detained to the degree associated with arrest on an ad hoc, or case-

by-case, basis."), we cannot conclude that the investigatory detention of appellant had

escalated into a custodial interrogation at the time Officer Bolton searched his mouth and

appellant made the incriminating statement, the two pieces of evidence he sought to

suppress.    See Stevenson, 958 S.W.2d at 828.          In other words, looking at the

circumstances objectively, a reasonable person would not have believed he was

restrained to the degree associated with a formal arrest. See Ortiz, 382 S.W.3d at 372;

see also Berkemer, 468 U.S. at 441.         Appellant therefore failed to prove that the

evidence he wished to exclude was the product of a custodial interrogation, and the trial

court did not abuse its discretion in denying appellant's motions to suppress.       See

Herrera, 241 S.W.3d at 526; see also Hubert, 312 S.W.3d at 559. Appellant's fourth


                                            29
issue is overruled.

                                         VI. Discovery

       By his fifth issue, appellant argues that the State's refusal to respond to his request

for exculpatory material constitutes reversible error. Specifically, appellant points to his

pre-trial letter to the prosecutor referencing its investigator's interview of Meltvedt, to

which the State did not respond, and his post-trial motion to compel production of this and

other exculpatory evidence, on which the trial court did not rule. Appellant has waived

this issue. See TEX. R. APP. P. 33.1(a); Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim.

App. 1999) (holding that to preserve Brady error, a complaint must be made as soon as

the grounds for the complaint are apparent or should be apparent); In re A.C., 48 S.W.3d

899, 905 (Tex. App.—Fort Worth 2001, pet. denied) (same).

       With regard to the pre-trial letter, appellant took no action to raise the matter to the

trial court.   See TEX. R. APP. P. 33.1(a)(1)–(2) ("As a prerequisite to presenting a

complaint for appellate review, the record must show that . . . the complaint was made to

the trial court by a timely request, objection, or motion . . . and . . . the trial court . . . ruled

on the request, objection, or motion.") (emphasis added). The entire trial then proceeded

with no mention of the State's alleged failure to produce exculpatory material, and

appellant did not object on this basis when Meltvedt testified at trial. See In re A.C., 48

S.W.3d at 905 (holding that where a defendant failed to object or request a continuance

at the time the undisclosed incriminating evidence is introduced at trial, he has waived

the issue). Appellant's first action on the matter was his post-trial motion to compel, and

we find nothing in the record indicating that he obtained a ruling from the trial court on


                                                 30
that motion. See TEX. R. APP. P. 33.1(a)(1)–(2).

       Because appellant failed to preserve the arguments he makes on appeal, we

overrule his fifth issue.

                            VII. Sufficiency of the Evidence

       By his sixth issue, appellant argues that the evidence was factually insufficient to

prove that the marihuana cigarette that appellant destroyed was "related to" the

marihuana possession offense that formed the basis of his tampering-with-evidence

charge. We first note that, per the Texas Court of Criminal Appeals's 2010 ruling in

Brooks v. State, we no longer conduct separate factual-sufficiency reviews. 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (recognizing that legal and factual-sufficiency standards

"have become essentially the same standard and that there is no meaningful distinction

between them that would justify retaining them both"). Regardless, appellant cites no

authority and makes no argument that would allow us to construe this issue as any sort

of sufficiency issue cognizable on appeal.       See TEX. R. APP. P. 38.1(i); see also

Kuykendall v. State, 335 S.W.3d 429, 436 (Tex. App.—Beaumont 2011, pet. ref'd)

(holding that appellant waived review where his brief lacked any discussion of law or

citation to authority). For these reasons, we overrule appellant's sixth issue.

                                VIII. Closing Argument

       By his seventh issue, appellant complains that the following portion of the State's

closing argument was improper:

              I want to comment a little bit more, I'm going to try and hurry through
       this. I really am. I want to comment just a little bit more about Daniel
       Meltvedt. You know, we went through this trial and I think the Defendant,
       the defense attorney overlooked one important fact and that is Daniel

                                            31
       Meltvedt wasn't the same Daniel Meltvedt. He was a grown-up. He had
       put it behind him. He was in the military. He was going to make it a
       career. He's going to college.

               They just didn't believe that he wouldn't, because of friendship, get
       up here and lie. Well, you put your eggs in a basket and you got to live
       with it. But I’m going to tell you what, they didn't care, Joshua didn't care,
       Schmude. Put him on the stand. We're going to ask him. Try to get him
       to say what he tells you is a lie. Daniel Meltvedt tells you is a lie. Put his
       military, they want to put his military career in jeopardy. He told you. I’m
       not going to lie under oath, but they wanted him to do that.

Defense counsel then objected as follows: "I object to that, Judge. That not only is

inflammatory and outside the record that's absolutely false." The trial court overruled the

objection.

       On appeal, appellant argues that the trial court erred in overruling the objection

"because the complained of portions not only were outside the record but constituted

striking at the appellant" over the shoulders of his counsel. We first note that appellant's

argument that the State struck at him over defense counsel's shoulder was not preserved

for our review, so we decline to address it on appeal. See TEX. R. APP. P. 33.1(a)(1).

As to appellant's argument that the prosecutor's statement was outside the record, we

disagree.

       Permissible closing argument falls into one of four areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of

opposing counsel; or (4) a plea for law enforcement. Gallo v. State, 239 S.W.3d 757,

767 (Tex. Crim. App. 2007). Improper closing arguments include references to facts not

in evidence or incorrect statements of law. Phillips v. State, 130 S.W.3d 343, 355 (Tex.

App.—Houston [14th Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex. Crim. App. 2006).


                                            32
       The standard of review for improper jury argument is abuse of discretion. Powell

v. State, 63 S.W.3d 435,438 (Tex. Crim. App. 2001). In examining challenges to jury

argument, this Court considers the remark in the context in which it appears. Gaddis v.

State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (citing Denison v. State, 651 S.W.2d

754 (Tex. Crim. App. 1983)). Counsel is allowed wide latitude in drawing inferences from

the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered

in good faith. Id. at 398. Closing argument "only becomes subject to reversal if, in light

of the record as a whole, the argument is extreme or manifestly improper, violative of a

mandatory statute or injects new facts, harmful to the accused, into the trial." Felder v.

State, 848 S.W.2d 85, 95 (Tex. Crim. App. 1992) (citing Bell v. State, 724 S.W.2d 780,

803 (Tex. Crim. App. 1986)).

       Here, the complained-of argument referenced Meltvedt's credibility and his

motivation to testify. This issue was raised by Meltvedt's admission at trial that he had

initially lied to the officers because of his friendship with appellant. Meltvedt went on to

testify that he had since joined the military and changed his life; he testified that he wanted

to take responsibility and would not lie under oath. On cross-examination, defense

counsel asked Meltvedt numerous questions about his earlier lies and asked questions

attempting to have Meltvedt admit he lied on the stand when he testified that appellant

ate the marihuana.

       In light of this testimony, we cannot conclude that the prosecutor's remarks

referenced facts outside the record. The remarks were reasonable inferences drawn

from the testimony at trial, and the trial court did not abuse its discretion in overruling


                                              33
appellant's objection to the contrary. And even assuming the complained-of portion was

improper, having reviewed the remarks in context, we cannot conclude the remarks were

extreme, manifestly improper, or injected new facts into the record. Appellant's seventh

issue is overruled.

                                   IX. Conclusion

       We affirm the judgment of conviction.


                                                            NELDA V. RODRIGUEZ
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of May, 2014.




                                          34
