Affirmed and Opinion filed December 31, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00076-CR

                       MICHAEL TREJO, JR., Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 22nd District Court
                              Hays County, Texas
                       Trial Court Cause No. CR-14-0769


                                     OPINION

      Appellant Michael Anthony Trejo, Jr., appeals his murder conviction,
arguing in five issues that the trial court erred in (1) failing to suppress his video
interview in violation of the Fifth and Sixth Amendments after he invoked his right
to counsel; (2) overruling his hearsay objection to testimony regarding the sale of
the firearm used in the commission of the offense; (3) allowing the State to use a
prior consistent statement to bolster a witness’s credibility; and (4) failing to grant
a mistrial after the State purportedly misstated the law in closing argument during
the punishment phase of trial.1 We affirm.

                                         Background

        Christopher Vicuna lived with his cousin, Carlos Fernandez. Vicuna got into
a fist fight with his neighbors, two brothers. Fernandez approached the men
fighting and tried to pull the brothers off Vicuna a couple of times. After one of the
brothers called their mother, Vicuna “took off.” He went to his house, grabbed a
gun, and ran back toward the brothers, who were getting into a car with their
mother. Vicuna then shot in the direction of the car, ran away, and discarded the
gun.2

        Appellant was on the scene while police officers were investigating. After
the officers left, at approximately 2:00 a.m., appellant walked over to Fernandez as
he was standing outside. They discussed looking for Vicuna’s gun so the
neighborhood children would not find it, and they walked away together.

        Fernandez’s wife, Jessica, and mother, Rosa, were also standing outside at
the time and “within a minute,” they heard a gunshot. They ran toward the sound
of the gunshot and saw appellant running away. He jumped into his car and fled.
Two more men ran toward Jessica and Rosa—Jessica went with one of the men to
look for Fernandez, and Rosa went with the other. Rosa found Fernandez lying on
the ground. He had been shot and was pronounced dead on the scene.

        Later that night, appellant was arrested in another county after fleeing the


        1
        This case was transferred to our court from the Austin Court of Appeals; therefore, we
must decide the case in accordance with the Austin Court’s precedent if our decision would be
otherwise inconsistent with that precedent. See Tex. R. App. P. 41.3.
        2
        Vicuna at first testified that he fired the gun toward a field but admitted during cross-
examination that he “was firing at somebody.” Vicuna pleaded guilty to aggravated assault and
was serving a sentence for that offense during trial. The gun that Vicuna discarded was never
found.

                                               2
scene of a car accident. He lost control of his vehicle, struck a guardrail, and fled
on foot before being apprehended. A few days later, officers located a firearm near
the scene of the accident. The State’s firearms expert concluded the firearm found
near the scene of the accident fired the bullet that was recovered from Fernandez’s
body. In addition, there was gunshot residue on some of appellant’s clothing,
which was consistent with “having been in the immediate proximity of a weapon
that [was] being fired or [having] come into contact with a surface containing
gunshot primer residue particles.”

      Vicuna testified at trial that Fernandez had had a handgun that matched the
description of the murder weapon. Vicuna observed Fernandez display the gun to
appellant. Appellant offered to purchase it for $100, but Fernandez declined to sell
it to him at that time. At a later date, appellant pulled up outside Fernandez and
Vicuna’s house. Fernandez got the gun and took it outside. Vicuna left the house
around that time. When Vicuna returned, Fernandez no longer had the gun but
instead had about $350 in cash. Based on these observations, Vicuna testified that
Fernandez sold the gun to appellant. Images of the same firearm were found on
Fernandez’s and appellant’s phones and admitted at trial. Serial numbers on the
images matched the serial numbers on the firearm used to kill Fernandez.

      While appellant was in custody for fleeing the car accident, Detective
Swonke, with another officer present, interviewed appellant regarding the murder.
Appellant denied any involvement.

      A few minutes into the video interview, appellant stated:

      I might as well just get a lawyer. I don’t even know what this is about.
      I feel like I might need a lawyer. Am I in trouble? Am I being charged
      with something? If I’m being charged with something, let me know,
      so I can just get my lawyer, because I’ve got a lawyer. I’ll just call up
      my lawyer right now. If that’s the case, then I’ll just call him, call him

                                          3
      right now. Am I getting charged?

At first Swonke responded that appellant was not being charged but told him at the
end of the interview that he probably would be charged with something due to his
lack of cooperation.

      I.     Motion to Suppress

      In his first and second issues, appellant challenges the trial court’s denial of
his motion to suppress portions of his video interview after he purportedly invoked
his right to counsel. He contends that the video interview was admitted in violation
of his Fifth Amendment and Sixth Amendment rights to counsel.

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard, giving almost total deference to the trial court’s findings of historical fact
and reviewing de novo the trial court’s application of the law. Vasquez v. State,
324 S.W.3d 912, 918 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). When a
criminal defendant challenges the admissibility of a videotaped statement, we defer
to the trial court’s determination of historical facts in the video. Tucker v. State,
369 S.W.3d 179, 185 (Tex. Crim. App. 2012). We use the same deferential
standard for mixed questions of law and fact that require evaluation of credibility
and demeanor. Id. However, we review de novo all other mixed questions of law
and fact that do not fall within that category. Id. at 184.

      When the trial court makes no finding of facts, we view video evidence in
the light most favorable to the trial court’s ruling to deny the motion to suppress.
Id. We presume that the trial court made implicit findings that support the denial of
Appellant’s motion to suppress. Id. at 184-85. If video evidence does not support
the trial court’s conclusion, we must reverse. Id. But we must uphold the trial
court’s ruling if it falls within the zone of reasonable disagreement. Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
                                            4
               A. Fifth Amendment

       Appellant argues in his first issue that he invoked his right to counsel under
the Fifth Amendment during the interview and that officers should have ceased the
interview at that time. The State concedes that appellant was in custody during the
interview but asserts that he did not unequivocally invoke his right to counsel.3

       Swonke began his interview by giving appellant his Miranda warnings. See
Miranda v. Arizona, 384 U.S. 436, 479 (1966). The Fifth Amendment right to
interrogation counsel is triggered by the Miranda warnings that police must give
before beginning any custodial questioning. Pecina v. State, 361 S.W.3d 68, 71
(Tex. Crim. App. 2012). Under the Fifth Amendment, the police must advise a
suspect whom they have arrested that he has the right to have counsel present
during any police-initiated interrogation. State v. Gobert, 275 S.W.3d 888, 892
(Tex. Crim. App. 2009). Once the suspect has invoked his Fifth Amendment right
to counsel, police interrogation must cease until counsel has been provided or the
suspect himself reinitiates a dialogue. Id.

       Not every mention of a lawyer will invoke the Fifth Amendment right to the
presence of counsel during questioning. Id. An ambiguous or equivocal statement
with respect to counsel does not even require officers to seek clarification, much
less halt their interrogation. Id. Whether the mention of a lawyer constitutes a clear
invocation of the right to counsel will depend upon the statement itself and the
totality of the surrounding circumstances. Id. The test is objective: the suspect
“must articulate his desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand the statement to
be a request for an attorney.” Id. at 892–93. We look to the totality of

       3
          The State asserts that the trial court granted the motion to suppress all but three minutes
of the interview. But approximately thirteen minutes of the interview was played at trial.

                                                 5
circumstances to determine whether any statement referencing counsel was really a
clear invocation of the Fifth Amendment right; we do not look to the totality of the
circumstances, however, to determine in retrospect whether the suspect really
meant it when he unequivocally invoked his right to counsel. Id. at 893. Finally,
when a suspect makes a clear, but limited, invocation of the right to counsel, the
police must honor the limits that are thereby placed upon the interrogation, but
they may question their suspect outside the presence of counsel to the extent that
his clearly expressed limitations permit. Id.

      The State argues that appellant’s request for a lawyer was not unequivocal
because it was conditioned upon whether appellant was being charged with a
crime. In Gobert, the Court of Criminal appeals held that the statement “I don’t
want to give up any right though, if I don’t got no lawyer” was an unequivocal
invocation of the right to counsel. Id. at 892-93. In reaching this conclusion, the
high court noted: “Just because a statement is conditional does not mean it is
equivocal, ambiguous, or otherwise unclear.” Id. at 893. In that case, the Court
held officers were required to comply with the defendant’s clearly stated
condition—that he was not willing to give up his Miranda rights without an
attorney present. Id. at 894.

      This case is distinguishable from Gobert in that appellant had not yet been
charged at the time of the interview, so the stated condition had not occurred. But
Swonke admitted at trial that by the time of the interview, he already was certain
that appellant committed the murder. At issue, then, is whether a reasonable police
officer would have understood the statement to be a request for an attorney under
these facts.

      The State relies on several cases that involve equivocal statements such as
“Do I need an attorney?” United States v. Montes, 602 F.3d 381, 385 (5th Cir.

                                          6
2010), and “I should have an attorney,” Davis v. State, 313 S.W.3d 317, 341 (Tex.
Crim. App. 2010). Here, appellant stated that he already had a lawyer and he
would call him if he was being charged with a crime: “If I’m being charged with
something, let me know, so I can just get my lawyer, because I’ve got a lawyer. I’ll
just call up my lawyer right now. If that’s the case, then I’ll just call him, call him
right now.” The case cited by the State that is most factually similar to this case is
Molina v. State, 450 S.W.3d 540 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

      In Molina, the defendant stated, “If I’m getting blamed for something like
that . . . I’m going to just go ahead and call my lawyer.” Id. at 547. Citing Gobert,
the defendant argued that because the officers “well knew” that he was being
blamed for murder, no reasonable police officer could interpret the statement other
than as a clear invocation of the right to counsel. Id. This court held that the facts
in Molina were distinguishable from those in Gobert because the defendant in
Molina “agreed to answer questions, conditionally referred to calling his lawyer,
and then continued to request additional information about the case and answer the
investigators’ questions.” Id. The court concluded the defendant’s statement “was
not in the form of a request, nor did appellant expressly say that he wanted a
lawyer.” Id.

      This case is also distinguishable from Molina. Appellant said he wanted a
lawyer if he was being charged with a crime, steadfastly denied any involvement in
the offense, refused to answer Swonke’s questions, and did not request information
about the case. Moreover, appellant’s statement “[i]f I’m being charged with
something, let me know, so I can just get my lawyer, because I’ve got a lawyer”
was not equivocal. Cf. Davis, 313 S.W.3d at 341 (“That appellant’s statement, ‘I
should have an attorney,’ was not a request for an attorney is also bolstered by the
fact that he subsequently asked the detectives why he should help them out.”). The

                                          7
statement was conditioned on appellant’s being charged with a crime. As the court
noted in Gobert, a conditional statement is not necessarily “equivocal, ambiguous,
or otherwise unclear.” 275 S.W.3d at 893.

      Presuming that the trial court admitted appellant’s statement in violation of
his Fifth Amendment right to counsel, we conclude appellant was not harmed by
the statement’s admission. See McCarthy v. State, 65 S.W.3d 47, 52 (Tex. Crim.
App. 2001); see also Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App.
2001) (discussing harm analysis applied to Miranda exclusionary rule). Because
any error would be of constitutional magnitude, we must reverse the judgment
unless we determine beyond a reasonable doubt that the error did not contribute to
the conviction or punishment. McCarthy, 65 S.W.3d at 52 (citing Tex. R. App. P.
44.2(a)). If there is a reasonable likelihood that the error materially affected the
jury’s deliberations, the error was not harmless. Jones v. State, 119 S.W.3d 766,
777 (Tex. Crim. App. 2003). We must “calculate, as nearly as possible, the
probable impact of the error on the jury in light of the other evidence.” Id. In
determining whether constitutional error in the admission of evidence is harmless,
we consider the entire record in light of several factors, including the importance
of the evidence to the State’s case; whether the evidence was cumulative of other
evidence; the presence or absence of other evidence corroborating or contradicting
the evidence on material points; the overall strength of the State’s case; and any
other factor, as revealed by the record, that may shed light on the probable impact
of the error on the mind of the average juror. Clay v. State, 240 S.W.3d 895, 904
(Tex. Crim. App. 2007).

      Appellant did not confess. The essence of his statement was to deny any
involvement in the offense and ask if he needed an attorney. Swonke told appellant
officers knew he was with Fernandez on the night of the offense. Appellant denied

                                         8
being there and denied knowing who Fernandez was. Appellant then made the
above statements about possibly needing a lawyer and said, “I don’t even know
what this is about.” He asked a few times if he was being charged with anything
and opined that he was only in jail because he ran from the car accident. The
overall effect of appellant’s demeanor was defensive, but he did not make any
inculpatory statements about the murder or even being present before, during, or
after the offense occurred.

      Compelling evidence supported the jury’s finding of guilt. Perhaps the most
persuasive evidence was the recovery of the murder weapon near the scene of
appellant’s car accident. The State’s firearms expert testified that the recovered
weapon fired the bullet that killed Fernandez. Moreover, Vicuna testified that
Fernandez had had a gun matching the description of the murder weapon and sold
it to appellant. Images of a firearm on Fernandez’s and appellant’s phones had
serial numbers that matched the serial numbers on the murder weapon. Some of
appellant’s clothing had gunshot residue on it, which was consistent with having
been near a weapon that had been fired or having touched a surface containing
gunshot residue.

      Moreover, despite appellant’s denials, numerous witnesses testified that
appellant was present while officers were investigating the earlier incident with
Vicuna. After the officers left, Fernandez’s mother and wife both observed
Fernandez and appellant walk away together. Shortly thereafter, a shot was fired,
killing Fernandez. Appellant ran away and fled in his car.

      In light of this evidence, the above factors weigh in favor of our conclusion
that the trial court’s error, if any, in admitting the statement was harmless:
appellant’s interview was not very important to the State’s case, given that
appellant did not make any statements incriminating himself in the murder; ample

                                         9
evidence contradicted appellant’s denials regarding his presence on the scene and
his acquaintance with Fernandez; and the State’s case was strong because direct
evidence linked appellant to the murder weapon and appellant was with Fernandez
when or immediately before he died. Based on these factors, we conclude beyond a
reasonable doubt that any error in admitting appellant’s statement did not
contribute to the jury’s guilty verdict. We overrule appellant’s first issue.

             B. Sixth Amendment

      Appellant argues in his second issue that the trial court should have
suppressed his statement because it was taken in violation of his Sixth Amendment
right to counsel. The Sixth Amendment right to counsel attaches “at or after the
time that adversary judicial proceedings have been initiated.” Griffith v. State, 55
S.W.3d 598, 603 (Tex. Crim. App. 2001).

      While no “magic words” or citation to specific rules is required to preserve a
complaint for appeal, a party must convey the substance of the complaint to the
trial court clearly enough to provide the judge and the opposing party an
opportunity to address and, if necessary, correct the purported error. Ex parte
Marascio, 471 S.W.3d 832, 842 (Tex. Crim. App. 2015). The record must make it
clear that both the trial court and the opposing party understood the legal basis for
the complaint. Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013).
Further, the complaint on appeal must comport with the specific objection made at
trial, or error has not been preserved. Thomas v. State, 505 S.W.3d 916, 924 (Tex.
Crim. App. 2016). A motion to suppress, as a specialized objection to the
admissibility of evidence, must meet all the requirements of an objection, including
that it be both timely and sufficiently specific to inform the trial court of the
complaint. Johnson v. State, 171 S.W.3d 643, 647 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d); see Tex. R. App. P. 33.1(a).

                                          10
      In the written motion to suppress, appellant asserted his statement was
obtained in violation of the “Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution.” He also cited Miranda and Gobert, which involve
only the Fifth Amendment right to counsel. At the hearing on the motion, the trial
court asked, “this is strictly a Miranda issue?” Trial counsel responded, “Judge, it
is. It relates to his invocation of counsel.” No mention was made in the motion or
at the hearing of appellant’s Sixth Amendment right to counsel.

      An accused’s Fifth Amendment right to consult with counsel before
speaking is distinct from an accused’s Sixth Amendment right to representation by
counsel. Janecka v. State, 937 S.W.2d 456, 465 (Tex. Crim. App. 1996); Looney v.
State, 745 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1988, no pet.).
Based on this record, we conclude that appellant did not preserve for our review
his complaint concerning a violation of his Sixth Amendment right to counsel. See
Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016); see also Swain v.
State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). We overrule appellant’s
second issue.

      II.   Hearsay Challenge

      In his third issue, appellant argues that the trial court abused its discretion in
denying his hearsay objection to Vicuna’s testimony involving Fernandez’s sale of
the firearm to appellant. Appellant’s counsel took Vicuna on voir dire and
afterward objected to his testimony on the following basis: “[O]ur concern is that
we believe that what [Fernandez] told [Vicuna] about the gun—and it doesn’t have
to be an actual verbal expression. But whatever [Fernandez] showed [Vicuna] that
would take the place of a verbal expression is hearsay.” The State conceded that
Fernandez’s oral statements to Vicuna would be hearsay but not “everything else
that shows [Vicuna’s] personal knowledge of the transaction.” The trial court

                                          11
overruled the objection as to Vicuna’s personal observations and instructed
Vicuna, “[Y]ou’re going to be able to testify as to what you actually observed, not
what [Fernandez] told you.”

      Appellant challenged the following testimony elicited by the State as
hearsay:

      Q. Did you ever see and hear [appellant] negotiating with [Fernandez]
      for the sale or the purchase of that firearm?

      A. Yes. We were in his car whenever we talked about it, you know—
      or whenever [appellant] and [Fernandez] talked, you know, trying to
      see . . . if he wanted to sell the gun.
      Q. And did . . . did [Fernandez] display that firearm to [appellant]?
      A. Yeah, he . . . handed it to him. [Appellant] was looking at it. And
      [appellant] was trying to buy it at the time. You know, he offered
      [Fernandez] $100, and, you know, he didn’t want to sell it for that
      amount.
      Q. Okay. And I want to talk about just what you saw like we just
      discussed. Did you ever see text messages on [Fernandez’s] phone
      between [Fernandez] and [appellant] discussing the sale of the
      firearm?

      A. Yes.
      Q. Okay. Were you at the residence when [appellant] showed up one
      day?

      A. Yes.

      Q. Okay. Did . . . you watch [Fernandez] go and get the firearm?
      A. Yes. . . .

      Q. [D]id [Fernandez] take the gun outside?

      A. Yes. He . . . got a text message from him or whatever, and he said
      he was going to go sell the gun.

                                         12
      Q. [L]et’s just say what [you] saw. . . .

      A. He stood up, grabbed the gun, and walked out.
      Q. Now, what did you do?

      A. I went to my mom’s house for little bit to go grab some clothes.

      Q. When you came back, did [Fernandez] still have the firearm?
      A. No. He had the money . . . .

      Q. Were you able . . . to see the money?

      A. Yes.
      Q. Okay. Do you recall how much money [Fernandez] had?

      A. Yes. It was . . . around 350.

      Q. Okay. And did you ever see the firearm after that?
      A. No, because [Fernandez] had sold it to [appellant].
      Hearsay is a statement, other than one made by the declarant while testifying
at a trial or hearing, offered in evidence to prove the truth of the matter asserted.
Tex. R. Evid. 801(d); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
Hearsay statements are not admissible at trial unless they fit into an exception
designated by statute, the rules of evidence, or another rule prescribed under
statutory authority. Tex. R. Evid. 802; Pickron v. State, 515 S.W.3d 462, 465 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d). We review a hearsay challenge to the
trial court’s admission of evidence for an abuse of discretion. Saldinger v. State,
474 S.W.3d 1, 6 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). We must
uphold the trial court’s ruling if it is reasonably supported by the record and is
correct under any theory of law applicable to the case. Id. at 6-7.

      The State does not contend that any hearsay exception applies to


                                          13
Fernandez’s oral statements to Vicuna. However, appellant’s statements offering to
purchase the firearm were not hearsay. See Tex. R. Evid. 801(e)(2)(A) (statement
of a party opponent is not hearsay). Appellant also contends that “non-verbal
actions can and do qualify as hearsay when they are ‘assertions by conduct.’”
According to appellant, Vicuna’s testimony that he saw Fernandez leave with the
murder weapon and return with money “was clearly the result of non-verbal
conduct by the decedent.” We disagree. Vicuna testified that he personally
observed these actions. This testimony was not based on any statements by
Fernandez, verbal or nonverbal.

      Appellant relies on Graham v. State, 643 S.W.2d 920 (Tex. Crim. App.
1981), to support his argument that nonverbal communication can be hearsay. In
that case, the witness showed several photographs to the victim after asking her to
identify the person who had shot and robbed her. Id. at 927. The victim made a
shooting motion with her hand when she saw the defendant’s photograph. Id. The
Court of Criminal Appeals held the shooting motion was a hearsay statement
because it was “only significant as indicating [the victim’s] belief that [the
defendant] was the individual who shot her.” Id.

      Here, Vicuna did not testify that Fernandez communicated to him
nonverbally. Vicuna testified as to his personal observations of what happened and
his reasonable inferences from those observations, which is not hearsay. See, e.g.,
Wilson v. State, 605 S.W.2d 284, 286 (Tex. Crim. App. [Panel Op.] 1980) (holding
officer’s personal observation of driver’s license and inference that it belonged to
the defendant was not hearsay and stating, “[a] witness may assert the existence of
a fact if his knowledge of that fact was gained through personal observation and
reasonable inferences from that observation”); Damian v. State, 881 S.W.2d 102,
112 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding witness’s testimony

                                        14
was not based on indirect hearsay when he personally observed defendant leaving
bedroom where victim was assaulted); Brockway v. State, 853 S.W.2d 174, 177
(Tex. App.—Corpus Christi 1993, pet. ref’d) (holding officer’s testimony that he
found a knife after talking to another officer was not based on “backdoor
hearsay”).

       That leaves only Vicuna’s testimony that he heard Fernandez negotiating
with appellant for the sale of the weapon and that he saw text messages from
Fernandez regarding those negotiations. Presuming this testimony was hearsay, we
must determine whether its admission was harmless. See Pickron, 515 S.W.3d at
466.

       The following properly admitted evidence was not hearsay: Fernandez had a
handgun that matched the description of the murder weapon. Vicuna observed
Fernandez display the gun to appellant. Appellant, a party opponent, offered to
purchase it for $100. At a later date, Vicuna saw appellant outside Fernandez and
Vicuna’s house. Fernandez left the house with the gun and returned without it. He
had cash when he returned. Vicuna testified based on his observations that
Fernandez sold the gun to appellant. Images of the same firearm were found on
Fernandez’s and appellant’s phones and admitted at trial. The serial numbers on
the images matched the serial numbers on the firearm used to kill Fernandez.

       We conclude any error in admitting Fernandez’s statements was harmless
because the statements were cumulative of properly admitted evidence. See
Pickron, 515 S.W.3d at 466 (holding admission of complainant’s statements, even
if erroneously admitted as hearsay, would have been harmless because the
testimony was cumulative of other evidence in the record). We overrule appellant’s
third issue.



                                        15
       III.    Prior Consistent Statement

       In his fourth issue, appellant contends the trial court abused its discretion by
allowing the State to bolster Vicuna’s credibility by admitting a prior consistent
statement in a video interview. Vicuna testified at trial that he shot his gun in the
direction of a field and not toward anyone, despite the fact that he had pleaded
guilty to aggravated assault by threat of imminent bodily injury with a deadly
weapon. Appellant’s counsel impeached Vicuna’s credibility at trial with
(1) Vicuna’s plea agreement to establish that he lied about not firing his gun
toward someone and (2) a statement to police that he had not fired a gun but
instead ignited a firecracker. The trial court admitted a video interview of Vicuna
as a prior consistent statement discussing the sale of the firearm to appellant.4

       We review a trial court’s evidentiary ruling for abuse of discretion.
Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). As long as the
trial court’s ruling is within the zone of reasonable disagreement, we will not
intercede. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).

       Under Rule of Evidence 613(c), a witness’s prior consistent statement is not
admissible to bolster the witness’s credibility, but it is admissible to rebut an
express or implied charge of recent fabrication. Tex. R. Evid. 613(c), 801(e)(1)(B).
Rule 801 gives substantive, non-hearsay status to prior consistent statements of a
witness “offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive.” Hammons, 239 S.W.3d at 804.
Prior consistent statements are admissible when four foundational requirements are

       4
          In the video interview, Vicuna also discussed the circumstances surrounding the
aggravated assault for which he later pleaded guilty. Appellant challenges only the admission of
the portion of the video involving the sale of the firearm: according to appellant, the trial court
“erroneously allow[ed] the State to admit and publish the entire video with Vicuna wholesale
regarding the sale of the firearm used in the commission of the instant offense.”

                                                16
met: (1) the declarant must testify at trial and be subject to cross-examination;
(2) the opposing party must have made an express or implied charge of recent
fabrication or improper influence or motive regarding the declarant’s testimony;
(3) the proponent must offer a prior statement that is consistent with the declarant’s
challenged in-court testimony; and (4) the prior consistent statement must be made
prior to the time that the supposed motive to falsify arose. Id.

      Element three is at issue: whether the prior consistent statement is consistent
with the challenged in-court testimony. The challenged in-court testimony
involved the sale of the firearm to appellant. But appellant’s attorney impeached
Vicuna with the statement that he lied about firing his gun at someone. Presuming
the trial court abused its discretion in admitting the video interview because it was
not consistent with the challenged in-court testimony, we cannot overturn the
conviction unless, after examining the record as a whole, we conclude that an error
may have had a substantial influence on the outcome of the proceeding. See Linney
v. State, 401 S.W.3d 764, 782 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In
this case, any error was harmless because, as discussed above, even without
Vicuna’s testimony and interview regarding the sale of the firearm, ample evidence
linked appellant to the murder weapon: witnesses observed appellant leave with
Fernandez and flee right after Fernandez was shot, the murder weapon was
recovered near the scene of appellant’s car accident, the State presented testimony
that the recovered weapon fired the bullet that killed Fernandez, and images of the
firearm were found on both Fernandez’s and appellant’s phones, as established by
the serial numbers.

      After examining the record as a whole, we are reasonably assured that any
error in admitting the prior consistent statement did not have more than a slight
effect, if any, on the jury’s verdict. See id. We overrule appellant’s fourth issue.

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      IV.    Misstatement of Punishment Range

      In his fifth issue, appellant contends that the trial court erred in failing to
grant a mistrial during the punishment phase of trial because the State purportedly
misstated the punishment range during closing argument by referring to heat of
passion crimes as the type of offense that would merit the low end of punishment.
The punishment range for the charged offense of murder is 5 to 99 years or life.
Tex. Penal Code §§ 19.02(c), 12.32(a). The punishment range for sudden passion
crimes is 2 to 20 years. Id. §§ 12.33(a), 19.02(d) (allowing defendant to raise issue
during punishment phase regarding whether he caused someone’s death “under the
immediate influence of sudden passion arising from an adequate cause” and if
proven, reducing sentence to second degree felony).

      During closing argument, State’s counsel stated: “And when we start at five,
we think about heat of passion, anger, sparks, instant, bad decisions. [A] classic
example is the guy that comes home and catches his wife in bed with another—a
man.” Appellant’s counsel objected on the basis that “that is a different offense as
far as the punishment range is concerned.” The trial court sustained the objection
and instructed the jury to disregard the statement.

      Appellant contends that afterward, the State “persist[ed] with arguing that
the lower range of punishment in the case [was] defined [as follows]”:

      So there are examples that you can imagine on your own where two
      people might have a heat of passion or a lot of anger and sparks that
      are justified that might cause people to hate each other, to scream and
      yell at each other, and to be consumed by that color red and an instant
      decision that’s gone wrong. And that can be murder.

      And at the other end of the spectrum, you can have a hypothetical
      where some act is cold. Some murder is so calculated, so detailed in
      the length of time that it was planned.


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Defense counsel did not object at trial to this argument.

      By failing to object to the State’s continued argument regarding heat of
passion crimes after the trial court sustained the first objection, appellant waived
any error because the argument was substantially the same as the argument the
State previously made. See Taylor v. State, 109 S.W.3d 443, 449 n.25 (Tex. Crim.
App. 2003) (“Where the same evidence or argument is presented elsewhere during
trial without objection, no reversible error exists.”); Temple v. State, 342 S.W.3d
572, 610 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex.
Crim. App. 2013). We overrule appellant’s fifth issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                       /s/    Frances Bourliot
                                              Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.
Publish — TEX. R. APP. P. 47.2(b).




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