Affirmed and Memorandum Opinion filed October 21, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00664-CR

                     JOSHUA GEORGE NOWLAND, Appellant
                                              V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 252nd District Court
                              Jefferson County, Texas
                           Trial Court Cause No. 12-14189

                    MEMORANDUM                          OPINION


      A jury convicted appellant Joshua George Nowland of aggravated robbery1
and assessed his punishment at 28 years’ confinement in the Institutional Division
of the Texas Department of Criminal Justice and assessed a fine of $10,000.
Appellant challenges his conviction in four issues, arguing that: (1) the trial court
improperly defined “robbery” in the abstract paragraphs of the jury charge; (2)

      1
          See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (West 2011).
crime scene photographs admitted before the jury were not properly authenticated;
(3) the trial court erred in failing to instruct the jury to disregard allegedly
improper jury argument of the State; and (4) the trial court erred in denying a
mistrial after allegedly improper jury argument by the State. We affirm. 2

                    I.     FACTS AND PROCEDURAL BACKGROUND

       On May 9, 2012, appellant visited Randy Flatau’s jewelry store in Jefferson
County, Texas, under the pretense of purchasing merchandise. While Flatau and
appellant were discussing the merchandise, appellant pointed a handgun at Flatau
and told him that he planned to rob the jewelry store. Appellant led Flatau’s wife
and a customer to the back of the jewelry store and made them lie face down in the
office. Flatau informed appellant that a shoulder injury prevented him from lying
down. Appellant initially permitted Flatau to remain on one knee unrestrained
while appellant filled a satchel with merchandise from the store safe. At some
point during the robbery, appellant decided to restrain Flatau. While attempting to
restrain Flatau, appellant shot Flatau in the leg. After shooting Flatau, appellant
continued filling the satchel with the contents of the store safe.

       After obtaining the merchandise from the safe, appellant proceeded towards
the store exit. By that time, Flatau had retrieved a revolver that was hidden under a
display counter. Flatau ordered appellant to stop. Appellant pointed his gun at
Flatau. Flatau opened fire, emptying the revolver. Flatau then activated the store’s
silent alarm system, went to his office, acquired a second gun, and opened fire
again. Flatau shot appellant multiple times, disabling him. Flatau then held
appellant at gunpoint until the police arrived.


       2
         This case was transferred to our court from the Beaumont Court of Appeals; therefore,
we must decide the case in accordance with its precedent if our decision would otherwise be
inconsistent with its precedent. See Tex. R. App. P. 41.3.

                                              2
      A Jefferson County grand jury indicted appellant for aggravated robbery by
causing bodily injury. Appellant pleaded not guilty and was convicted in a jury
trial. Appellant timely appealed.

                                    II.   DISCUSSION

A.    Appellant’s rights were not egregiously harmed by the inclusion of an
      erroneous definition of “robbery” in the abstract paragraphs of the jury
      instruction.
      In his first issue, appellant contends the trial court erred by submitting a jury
charge that defined the charged offense as aggravated robbery by threat when
appellant was actually indicted for aggravated robbery by causing bodily injury.
The State concedes that the trial court erred but argues that the error did not result
in egregious harm to appellant.

      Because the State conceded that the trial court erred, we need only analyze
the error for harm. See Tex. R. App. P. 47.1. Appellant did not object to the jury
charge at trial; therefore, we can reverse only if the error resulted in egregious
harm. Hollander v. State, 414 S.W.3d 746, 749 (Tex. Crim. App. 2013). Errors that
result in egregious harm are those that affect “the very basis of the case,” deprive
the defendant of a “valuable right,” or “vitally affect a defensive theory.” Hutch v.
State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). When determining whether
the record establishes that appellant suffered egregious harm, we consider: (1) the
complete jury charge; (2) arguments of counsel; (3) the entirety of the evidence,
including the contested issues and weight of the probative evidence; and (4) any
other relevant factors revealed by the record as a whole. Hollander, 414 S.W.3d at
749–50.

      1.     Jury Charge
      We begin by examining the jury charge as a whole. Vasquez v. State, 389
S.W.3d 361, 371 (Tex. Crim. App. 2012). A jury charge is comprised of an
                                           3
application paragraph and abstract paragraphs. The application paragraph is what
authorizes the jury to convict a defendant but is not necessarily determinative of
what legally authorizes a conviction. Yzaguirre v. State, 394 S.W.3d 526, 530
(Tex. Crim. App. 2013). We look to the wording in the application paragraph to
determine whether the jury was correctly instructed in accordance with the
indictment and also to determine what the jury likely relied upon in arriving at its
verdict, which can help resolve a harm analysis. Id.

      The abstract paragraphs serve merely as a glossary to help the jury
understand the meaning of concepts and terms used in the application paragraphs
of the charge. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
“Where the application paragraph correctly instructs the jury, an error in the
abstract instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex.
Crim. App. 1999). “Generally, a reversible error occurs in the giving of an abstract
instruction only when it is an incorrect or misleading statement of law that the jury
must understand in order to implement the commands of the application
paragraph.” Crenshaw, 378 S.W.3d at 466 (emphasis added).

      The application paragraph of the jury charge stated:

      Now, if you believe from the evidence beyond a reasonable doubt that
      in Jefferson County, Texas, that on or about the 9th day of May, Two
      Thousand and Twelve, and anterior to the presentment of the
      indictment, in the County of Jefferson and State of Texas, the
      defendant JOSHUA GEORGE NOWLAND, did then and there while
      in the course of committing theft of property owned by RANDY
      FLATAU, hereafter styled the Complainant, and with intent to obtain
      and maintain control of said property, intentionally or knowingly or
      recklessly cause bodily injury to the Complainant, by SHOOTING
      COMPLAINANT, and the defendant did then and there use or exhibit
      a deadly weapon, to-wit: a FIREARM, then you shall find the
      defendant GUILTY of AGGRAVATED ROBBERY, as alleged in the
      indictment.

                                         4
(Emphasis added). The abstract paragraphs of the jury charge defined “robbery”
and “aggravated robbery” as follows:

      ROBBERY: A person commits the offense of Robbery, if, in the
      course of committing theft, and with the intent to obtain or maintain
      control of property, he intentionally or knowingly or recklessly
      threatens or places another in fear of imminent bodily injury or death.
      AGGRAVATED ROBBERY: A person commits the offense of
      Aggravated Robbery if he commits Robbery and in addition he uses
      or exhibits a deadly weapon.
(Emphasis added).

      We acknowledge that the abstract paragraphs defined robbery by threat, as
opposed to the charged crime of robbery by bodily injury, and incorrectly included
“recklessly” as one of the culpable mental state elements of robbery by threat.3
However, the abstract paragraphs were not incorporated into the application
paragraph. The application paragraph accurately tracked the language of the
indictment,4 which alleged the bodily-harm theory of robbery. The application
paragraph restricted the jury’s consideration only to those allegations contained in
the indictment. See Crenshaw, 378 S.W.3d at 467; cf. Cullum v. State, 576 S.W.2d
87, 88 (Tex. Crim. App. [Panel Op.] 1979) (pre-Almanza case; finding
      3
         See Tex. Penal Code Ann. § 29.02(a)(2) (robbery by threat can only be committed
intentionally or knowingly).
      4
          The indictment stated:
               JOSHUA GEORGE NOWLAND, hereafter styled the Defendant, on
               or about the 9TH day of MAY, TWO THOUSAND AND TWELVE,
               and anterior to the presentment of this indictment, in the County of
               Jefferson and State of Texas, did then and there while in the course of
               committing theft of property owned by RANDY FLATAU, hereafter
               styled the Complainant, and with intent to obtain and maintain control
               of said property, intentionally and knowingly and recklessly caused
               bodily injury to the Complainant, by SHOOTING COMPLAINANT,
               and the Defendant did then and there use and exhibit a deadly weapon,
               to-wit: a FIREARM, AGAINST THE PEACE AND DIGNITY OF
               THE STATE.

                                                5
fundamental jury-charge error when application paragraph authorized conviction
on robbery by causing bodily injury but indictment alleged robbery by threat).

      The jury is presumed to have understood and followed the court’s charge,
absent evidence to the contrary. Crenshaw, 378 S.W.3d at 467. Other than the
single flawed abstract paragraph which we already have addressed, we are aware
of nothing in the record that would suggest the jury did not understand the
application paragraph of the court’s charge. Therefore, we presume the jury
convicted appellant pursuant to the bodily-harm theory of robbery. Furthermore,
the jury did not need to understand the erroneous definition of robbery provided by
the trial court to implement the commands of the application paragraph because the
application paragraph correctly stated the elements of robbery by causing bodily
injury and conformed to the allegations in the indictment. See id. at 466.

      2.     Trial Evidence
      Next, we analyze the evidence adduced at trial. Vasquez, 389 S.W.3d at 371.
The evidence in this case is generally not disputed. Specifically, the overwhelming
evidence indicated that appellant entered the jewelry store; held Flatau, Flatau’s
wife, and a customer at gunpoint; and tried to depart with merchandise from the
store safe. With regard to the bodily injury element of aggravated robbery, Flatau
testified that appellant shot him in the leg with a handgun. Flatau also testified that
the wound was painful and that he was taken to the hospital to receive medical
treatment for the wound. The jury reasonably could have concluded from the
evidence that appellant committed aggravated robbery by causing bodily injury.

      3.     Arguments of Counsel
      Finally, we analyze the arguments of counsel. Id. During closing arguments,
appellant’s counsel stressed that the jury would be looking at the application
paragraph of the jury charge, describing it as the jury’s “roadmap.” He emphasized

                                          6
that the jurors must analyze the application paragraph to determine whether the
evidence supported each of the allegations in the charge. Appellant’s counsel also
recited part of the application paragraph during his closing argument. Although
appellant’s counsel did mention the definitions contained in the abstract portion of
the charge, he did not recite any of the definitions or emphasize their importance.
During her closing argument, the prosecutor stressed the bodily-injury aspect of
the charged offense on multiple occasions. The prosecutor also reiterated that the
application paragraph was the jury’s roadmap. Our review of the record indicates
that the arguments of both counsel focused on the application paragraph of the jury
charge rather than the abstract paragraphs.

         In sum, nothing in our review of the record suggests how the jury might
have been confused by the application paragraph of the trial court’s charge. See id.
at 372. Nor does the record reveal evidence to rebut the presumption that the jury
understood and followed the application paragraph of the trial court’s charge.
Likewise, we have found nothing in the record to suggest that the jury was
confused or misled. See id. We therefore conclude that appellant’s rights were not
egregiously harmed by the inclusion of an erroneous definition of “robbery” in the
abstract portion of the jury instruction. Accordingly, we overrule appellant’s first
issue.

B.       The trial court erred in admitting Exhibits 9, 55, and 57, but the error
         was harmless.
         In his second issue, appellant argues that the trial court abused its discretion
when it admitted Exhibits 1–58, which contained photographic evidence of the
crime scene, because the evidence was not properly authenticated. We conclude
that the trial court erred when it admitted Exhibits 9, 55, and 57, but the error was
harmless.


                                             7
      We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). An
appellate court must uphold the trial court’s evidentiary ruling if it is reasonably
supported by the record and is correct under any theory of law applicable to the
case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). A trial court
abuses its discretion if it acts arbitrarily and unreasonably, such that it acted
“without reference to any guiding rules and principles.” Montgomery v. State, 810
S.W.2d 372, 380 (Tex. Crim. App. 1990). An appellate court will not reverse a trial
court’s evidentiary ruling if it falls within the zone of reasonable disagreement.
Tienda, 358 S.W.3d at 638.

      The predicate for introduction of a photograph requires proof of (1) its
accuracy as a correct representation of the subject at a given time and (2) its
material relevance to a dispute issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex.
Crim. App. 1988). To authenticate a photograph, a witness who observed the
object or scene with his or her naked eye must testify that the photograph truly and
accurately represents that object or scene. Id. The witness can authenticate a
photograph even though the witness did not take the photograph or see it taken. Id.

      Generally, Exhibits 1–58 are crime-scene photographs of the interior and
exterior of the jewelry store shortly after the robbery occurred. Flatau testified that
the images fairly and accurately reflected the condition of the store on the day the
robbery occurred. Because Flatau owned the store, had worked there for twenty
years, and was present during the commission of the robbery, he possessed the
requisite knowledge to authenticate the crime-scene photographs. Therefore, with
the exception of Exhibits 2, 9, 55, and 57, which we specifically address below, we
conclude the trial court did not err when it admitted State’s Exhibits 1–58.



                                          8
      We now consider appellant’s specific challenges to Exhibits 2, 9, 55, and 57.
The trial court did not err when it admitted Exhibit 2. Exhibit 2 depicted the side of
Flatau’s store, including a portion of the parking area. Despite initially testifying
that he did not know what Exhibit 2 depicted, Flatau later confirmed that Exhibit 2
depicted the “left side to the front of the store.” Given Flatau’s intimate knowledge
of the store and the surrounding area and the fact that he was present during the
commission of the robbery, this testimony was sufficient to authenticate the
Exhibit 2 photograph. The trial court did not err when it admitted Exhibit 2.

      It was error to admit Exhibits 9, 55, and 57. The trial court erred when it
admitted Exhibit 9. Exhibit 9 depicted an unsheathed Remington knife alongside a
cone marked with the number “2.” Flatau recalled seeing a sheathed knife during
the robbery, but he never observed the unsheathed knife. As a result, Flatau could
not have testified that Exhibit 9 accurately portrayed the unsheathed knife found at
the crime scene. The trial court erred when it admitted Exhibit 9 into evidence.

      The trial court erred when it admitted Exhibit 55. Exhibit 55 depicted an
open Wells Fargo envelope containing two bundles of money. Flatau testified to
seeing a “bank envelope” during the commission of the robbery. He also testified
that appellant told him the envelope contained money. However, in response to the
State’s questioning about the actual contents of the envelope, Flatau only stated, “I
can tell you what I was told.” Flatau never saw the money inside the envelope. As
a result, Flatau did not have the requisite knowledge of the envelope’s contents to
authenticate the Exhibit 55 photograph. The trial court erred when it admitted
Exhibit 55 into evidence.

      The trial court erred when it admitted Exhibit 57. Exhibit 57 depicted a sport
utility vehicle parked in the parking area behind Flatau’s store. Flatau testified that
he never saw the sport utility vehicle. His knowledge of the vehicle stems solely

                                          9
from statements made to him by his wife. As a result, Flatau did not possess the
requisite knowledge of the sport utility vehicle to authenticate Exhibit 57. The trial
court erred when it admitted Exhibit 57 into evidence.

      Having determined that the trial court erred in admitting State’s Exhibits 9,
55, and 57, we must decide whether the error was harmful. The erroneous
admission of evidence is a non-constitutional error. See Garcia v. State, 126
S.W.3d 921, 927 (Tex. Crim. App. 2004). “[A]n appellate court must disregard a
non-constitutional error that does not affect a criminal defendant’s ‘substantial
rights.’” Id.; see Tex. R. App. P. 44.2(b). “A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s
verdict.” Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). A non-
constitutional error is harmless if the improperly admitted evidence did not
influence the jury or had but a slight effect on its deliberations. Id. We must
examine the entire record and calculate, to the extent possible, the probable impact
of the error upon the rest of the evidence. Id. The “entire record” includes
testimony, physical evidence, the nature of the evidence supporting the verdict, the
jury instructions, the State’s theory, any defensive theories, closing arguments, voir
dire, the character of the alleged error, how the character of the error might be
considered in connection with other evidence in the case, and whether the State
emphasized the error. Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App.
2002). The presence of overwhelming evidence supporting the finding of guilt can
also be a factor in the evaluation of harmless error. Id. at 358.

      After examining the entire record, we conclude that the erroneous admission
of State’s Exhibits 9, 55, and 57 was harmless. First, although Flatau had never
seen the knife unsheathed as portrayed in Exhibit 9, the actual knife depicted in
Exhibit 9 was admitted into evidence as Exhibit 66. The erroneous admission of

                                          10
Exhibit 9 had little impact on the rest of the evidence. Second, the State presented
overwhelming evidence of appellant’s guilt, most notably the consistent testimony
of three eyewitnesses. Flatau, Flatau’s wife, and a customer testified that appellant
entered the store and held them at gunpoint. Flatau testified that appellant shot him.
Flatau also testified that he saw appellant filling a satchel with merchandise from
the store safe. The first officer on the scene observed Flatau holding appellant at
gunpoint and noticed that Flatau had been shot. The police recovered a satchel
from appellant that contained the stolen merchandise. Photographs of the satchel
were admitted into evidence.

      Even if Exhibits 9, 55, and 57 had been excluded, the jury could have
concluded from the other evidence that appellant committed the charged offense.
The erroneous admission of Exhibits 9, 55, and 57 had little to no impact on the
rest of the evidence in the case. With the exception of Exhibits 9, 55, and 57, the
trial court did not err in admitting Exhibits 1–58. The trial court committed
harmless error when it admitted Exhibits 9, 55, and 57. Appellant’s second issue is
overruled.

C.    Appellant did not preserve his objection to the State’s jury argument.
      In his third and fourth issues, appellant argues that the trial erred when it
refused to instruct the jury to disregard the State’s allegedly improper jury
argument and that the trial court abused its discretion when it denied his motion for
mistrial. We do not reach the issue of whether the trial court erred because
appellant failed to preserve the error.

      “Because preservation of error is a systemic requirement on appeal, a court
of appeals should review preservation of error regardless of whether the issue was
raised by the parties.” Bekendam v. State, — S.W.3d —, No. PD-0452-13, 2014
WL 4627275, at *4 (Tex. Crim. App. Sep. 17, 2014). Although the State did not

                                          11
raise the issue in its brief, we must determine whether the jury-argument issue
raised by appellant was preserved for review.

      A defendant’s failure to timely object to an alleged error waives the
complaint on appeal. Tex. R. App. P. 33.1(a). “To complain about an improper
jury argument, a defendant must object at trial and pursue his objection to an
adverse ruling.” Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—Houston [14th
Dist.] 2010) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)),
aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013). A defendant “must object at the
earliest opportunity to prevent waiver of an issue on appeal.” Espinosa v. State,
194 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing
Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)). Additionally, a
defendant must object each time an improper argument is made to prevent waiver
of the issue on appeal. Temple, 342 S.W.3d at 603; George v. State, 959 S.W.2d
378, 383 (Tex. App.—Beaumont 1998, pet. ref’d).

      During the State’s closing argument, the following exchange occurred:

      [STATE]: I want y’all to keep this simple. Did Mr. Nowland enter
      Randy’s Jewelry, attempt to take the property owned by Mr. Flatau,
      did he cause bodily injury, did he threaten bodily injury, and did he
      exhibit a deadly weapon. That’s it. That’s all you have to decide - -
      [APPELLANT’S COUNSEL]: Your Honor, I object. The totality is
      the date, the place, not just those facts. That’s a mischaracterization of
      the law, Your Honor.
      THE COURT: Clear that up, please.
      [STATE]: That’s true.
      [APPELLANT’S COUNSEL]: Your Honor, your ruling is?
      THE COURT: Sustained.
      [APPELLANT’S COUNSEL]: Ask the jury to be instructed to
      disregard that, Your Honor.
      THE COURT: Denied.
                                         12
      [APPELLANT’S COUNSEL]: Thank you, Your Honor. Move for a
      mistrial.
      THE COURT: Denied.
      [STATE]: You also have to, you know, agree that we proved beyond
      a reasonable doubt that this happened in Jefferson County, Texas, on
      or about May 9th of 2012; okay?
The basis for appellant’s objection was that the prosecutor did not inform the jury
about the State’s burden to prove the date and location elements of the charged
offense beyond a reasonable doubt. The State made a virtually identical statement
earlier in its argument that did not include the date or location elements of the
charged offense. The prosecutor asserted:

      All you have to determine is did Mr. Joshua Nowland in the course of
      committing theft intentionally, knowingly or recklessly cause bodily
      injury to Randy Flatau and exhibit a deadly weapon; okay? That’s it;
      okay?
Appellant did not object to this earlier statement by the prosecutor.

      Because he did not object when the prosecutor first made the complained of
argument to the jury, appellant has failed to preserve the issue of whether the
prosecutor’s statements amounted to improper jury argument. Accordingly, we
overrule appellant’s third and fourth issues.

                                III.   CONCLUSION

      Having overruled each of appellant’s issues on appeal, we affirm the trial
court’s judgment.


                                       /s/      Marc W. Brown
                                                Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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