Opinion issued February 21, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-17-00604-CR
                            ———————————
                         DAVION GRIFFIN, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 185th District Court
                            Harris County, Texas
                        Trial Court Case No. 1494454


                                  OPINION

      A jury found Davion Griffin guilty of the offense of capital murder, and the

trial court assessed his punishment at life imprisonment. In three issues, Griffin

contends that the trial court erred in (1) refusing to instruct the jury to consider
whether a certain witness was an accomplice-witness and (2) denying his motions

for mistrial for improper jury argument.

      We conclude that the trial court’s decision to not include an accomplice-

witness instruction in the jury charge was not in error. We further conclude that the

trial court did not abuse its discretion in denying Griffin’s motions for mistrial.

      We therefore affirm.

                                    Background

      In the early morning hours of June 20, 2012, the complainant, Coy Thompson,

a.k.a “Poppa C,” who was a member of the street gang the Forum Park Crips, was

gunned down in the parking lot of a southwest Houston nightclub where he had just

attended a rap concert.

      Minutes after the shooting, Houston Police Department (“HPD”) Officer W.

Reyes was dispatched to the strip center at 9850 Westpark where the nightclub

Scores (also called Hottyz) was located. He arrived to find EMS, fire department

personnel, and other officers responding to a “very out of control” scene, with “over

a hundred people, easily, running around, frantic, chaotic,” and the deceased bodies

of the complainant (Poppa C), Carlos “Dinky” Dorsey, and Erica Dotson. Officer

Reyes was unable to locate any eye witnesses to the shooting. He did, however,

collect eighteen fired .40 caliber Smith & Wesson bullet casings. Also collected at

the scene were three baseball caps and the complainant’s cell phone.


                                           2
      HPD Sergeant C. Cegielski, who was part of the homicide division’s gang

murder squad, was assigned to the case. At trial, he testified that at the time of the

shooting, the HPD had been investigating the complainant’s possible involvement

in the January 2012 murders of Bellfort Bloods street gang members, Tremaine

Burnett and Tre Bush, and that he immediately theorized that the complainant’s

shooting may have been in retaliation for these murders.

      In the hours after the shooting, Sergeant Cegielski interviewed several

witnesses, but none could identify the shooter. A few weeks later, however, an eye-

witness identified Efeany Uvukansi, a.k.a. “E-Funny,” as the shooter, and he was

charged on July 3, 2012 with the capital murder of all three of the decedents.

      E-Funny is a member of the street gang MWG, or “M-Dub-G,” which stands

for “Most Wanted Gangsters,” and is affiliated with the nation-wide street gang, the

Bloods. Locally, MWG is associated and shares members with street gangs the

Taliban and the Bellfort Bloods. Notably, Tremaine Burnett and Tre Bush were

members of the Bellfort Bloods, and Griffin was a member of MWG and/or the

Bellfort Bloods. These gangs are considered to be rivals of the Forum Park Crips,

of which the complainant was rumored to be the leader.

      Several days after E-Funny was charged with capital murder, Sergeant

Cegielski received Houston Forensic Science Center firearms examiner K. Zeller’s

lab report, concluding that the 18 bullet casings collected at the scene were fired


                                          3
from two different firearms. Sergeant Cegielski continued his investigation, and on

September 19, 2012, he interviewed Griffin. Although the interview was not

recorded, Sergeant Cegielski testified at trial that Griffin denied having been at the

scene the morning of the shooting, denied knowing E-Funny, and stated that he only

knew “of” Dexter Brown, another witness in the investigation.

      During the interview, Sergeant Cegielski was able to verify Griffin’s cell

phone number. Having already obtained cell phone records for E-Funny and Brown,

Sergeant Cegielski searched those records for Griffin’s cell phone number, and

discovered 85 calls between E-Funny and Griffin between June 3–July 3 2012,

including on the day of the shooting, and 170 calls between Brown and Griffin from

May through July 2012.

      Photographs extracted from E-Funny’s cell phone and admitted into evidence

as State’s Exhibits 80–85 show Griffin, E-Funny, Brown, Anthony “Tutu” Jones,

and others celebrating. The photographs were taken beginning an hour after the

shooting and ending at 10:28 p.m. In some of the photographs, E-Funny and

possibly Griffin are “throwing the dub,” or “the west,” which are hand gestures for

the gang MWG. All but one1 of the people depicted in the photographs are members

of at least one of the related gangs MWG, the Taliban, or the Bellfort Bloods.




1
      Anthony Jones is a Crip.

                                          4
      Sergeant Cegielski testified that, because the interview was inconsistent with

the call records and photographs extracted from E-Funny’s and Brown’s cell phones,

he re-interviewed Griffin on November 29, 2012. An audio recording of the

interview was admitted as Exhibit 130 and published to the jury. Sergeant Cegielski

noted that, in the recording, Griffin distanced himself from E-Funny, asking, “Is that

the dude from the news?” He claimed that he did not really know E-Funny and

would have had “no reason to hang out” with him. Sergeant Cegielski also noted

that, when shown the photographs from E-Funny’s cell phone taken just after the

shooting, Griffin “sound[ed] surprised that he’s standing in the middle.” But by the

end of the interview, Griffin admitted that he knew the people in the photographs

and that he would “chop it up” with them.

      In the recorded interview, Griffin can also be heard denying that he lived in

the apartment where the photographs were taken at the time of the incident. This

conflicts with the testimony of several trial witnesses, including Griffin’s girlfriend

Briana Hunter, who stated that she and Griffin lived together in the apartment at the

time of the post-shooting celebration.

      Almost exactly three years after Griffin’s recorded interview, MWG gang

member Kelsey Manning, a.k.a. “Smoke,” who was in federal custody awaiting

sentencing after pleading guilty to the charge of felon in possession of a firearm,

came forward as an eye-witness to the shooting. Manning was not charged in this


                                          5
case, but as a result of the information he provided, Griffin was charged with the

complainant’s murder.

      At trial, Manning testified that, by June of 2012, he and his MWG associates

were “very angry” at the complainant and “wanted him dead,” because they held

him responsible for the deaths of fellow gang members Tre Bush and Tremaine

Burnett. Manning further testified that, in 2011, Griffin was shot “over drugs,” and

that MWD held the complainant responsible for that as well.

      According to Manning, MWG gang member “Stiff Sean,” whose family

managed the nightclub at 9850 Westpark, informed MWG that the complainant

would be at the nightclub attending a rap concert on the night of June 19, 2012.

Manning went, unarmed, to the nightclub to watch the complainant “get killed.” He

arrived in the parking lot of 9850 Westpark just as the concert was ending. He

walked over to Stiff Sean, and while the two were talking, he noticed Griffin

standing against the wall of the nightclub. He began to approach Griffin to greet

him, but Griffin put his hand up “like a stop sign,” “to, like, stop, like, to hold off,

like I’m drawing attention to him or something.” Manning then saw Griffin run

toward the complainant, firing his gun at him twice. The complainant took off

running and hid behind Dinky. Manning saw Griffin shoot Dinky in the head. He

also saw E-Funny shoot at the complainant.




                                           6
      Manning further testified that, although he did not feel he was in any danger,

he dropped to the ground, “covering” himself. The following exchanges then

occurred:

      [State]: So, why did you go down to the ground if you don’t believe
             yourself to be in any danger?

      [Manning]: To play my position, play my role, like I know it was
           something I didn’t know what was going on.

      [State]”: So, you’re, in all honesty, trying to act like an innocent
             bystander out there but you actually know who the intended
             target is?

      [Manning]: Yes, ma’am.

      ....

      [Defense counsel]: You went over there knowing that some sort of
            attempt was going to be made on Poppa C’s life, correct?

      [Manning]: Yes, sir.

      [Defense counsel]: And you had a role to play in that particular venture,
            that particular enterprise or that particular attempt. You had a
            role to play, to act as an innocent bystander? Is that what you
            said?

      [Manning]: Yes, sir.

      [Defense counsel]: Did everybody have a role to play?

      [Manning]: No, sir. I just know as far as me.

      [Defense counsel]: That—but you felt you had a role to play?

      [Manning]: Yes, sir, due to me being a active and known gang member
           of the—of my organization, yes, I felt like I had to play a[n]
           innocent role.

                                         7
      Manning testified that while taking cover on the ground, he continued to hear

gunshots, but did not see Griffin shoot the complainant. When the shooting ended,

Griffin ran away and Manning went to the apartment where Griffin and Hunter lived.

      The State showed Manning some of the photographs taken just after the

shooting on E-Funny’s cell phone. Manning identified Griffin, Jones, Brown, E-

Funny, and others, some of whom were making hand gestures of gang signs, which

Manning described as “throwing up the dub . . . as a celebration . . . of what just

happened.”

      Manning stated that at the celebration, Griffin said that he shot Dinky because

the complainant was hiding behind Dinky. He also stated that Griffin indicated that

he used a .40 caliber weapon.

      Finally, Manning testified regarding his own criminal record. He stated that

he had been convicted of aggravated robbery, engaging in organized criminal

activity, burglary of a habitation, and possession of a controlled substance. Manning

also explained that he hoped to receive a reduced sentence in his federal case in

exchange for his testimony. More specifically, he stated that he agreed to testify in

this case in exchange for the Assistant U.S. Attorney’s recommendation of a

downward departure in his sentencing, with the understanding that, even with the

recommendation, “the full range would still be from zero years all the way up to life




                                         8
in prison,” and that “the judge can take anything the Assistant U.S. Attorney says

into account or . . . disregard it completely.”

      Jones also testified at trial, but he did so under subpoena. He acknowledged

that he was not entirely truthful in his first and second interviews with HPD

detectives, but that by his third interview, he had “come clean.” Jones testified that

when he arrived at the nightclub toward the end of the concert on the morning of the

shooting, he saw E-Funny outside. Inside the nightclub, he saw Griffin, heard him

say “RIP T-Pain,”2 watched him walk “straight out the door,” and then heard

“multiple gunshots,” at which point he took off running.

      Jones left the scene and went to a gas station, where Griffin arrived in a Honda

with E-Funny and Brown. Next, they all went to Hunter’s apartment, where they

took photographs. Jones identified himself, Griffin, E-Funny, and others in the

photographs from E-Funny’s cell phone taken just after the shooting. Jones also

testified that he had previously told police that Griffin stated that he had used a .40

caliber gun that night.

      Hunter testified that, at the time of the incident, she and Griffin lived together

in the apartment where Griffin, E-Funny, and other gang members met just after the

shooting to celebrate the complainant’s murder. She also testified that, at that time,



2
      In its statement of facts, the State characterizes “RIP T-Pain” as “an apparent
      reference to Tremaine Bennett.” Griffin does not dispute this characterization.

                                           9
she owned a dark-colored Honda Civic, which she allowed Griffin to use “whenever

he wanted.”

      Finally, several witnesses testified regarding an incident that took place while

Griffin was confined in the Harris County jail. While awaiting trial in this case,

Griffin was caught secreting a cell phone and charger. Harris County District

Attorney’s Office Investigator J. Pietsch used data extracted from the cell phone to

find a Facebook page Griffin created while in jail. The profile name for the

Facebook page was Tremaine Livethrume, which Investigator Pietsch opined was a

reference to Tremaine Burnett, one of the two Bellfort Bloods whom MWG gang

members believed the complainant murdered in early 2012.

      The trial court admitted a Facebook Live video posted to the page as State’s

Exhibit 127, and the State published it to the jury. In it, Griffin says, “TOA, Taliban

or ambulance.” Investigator Pietsch testified that in street slang, this means “either

you ride with us, Taliban, or we’ll put you in an ambulance.” Griffin also references

E-Funny, and motions “the trigger pull,” saying, “trained assassins.”

      Griffin did not present any evidence, and both sides rested. At the charge

conference, Griffin objected to the jury charge because it did not ask the jury to

consider whether Manning was an accomplice as a matter of fact to the

complainant’s murder. The trial court denied the objection.




                                          10
                          Accomplice-Witness Instruction

      In his first issue, Griffin argues that the trial court erred in refusing to instruct

the jury to consider whether Manning was an accomplice as a matter of fact,3 because

there was some evidence to support his accomplice-witness status. See TEX. CODE

CRIM. PROC. art. 38.14. He further argues that he suffered some harm because it is

possible that the jury convicted him based solely on Manning’s uncorroborated

testimony. See id.

A.    Standard of Review

      We review a trial court’s decision to deny a requested accomplice-witness jury

instruction for an abuse of discretion. Delacerda v. State, 425 S.W.3d 367, 395 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d); see also Paredes v. State, 129 S.W.3d

530, 538 (Tex. Crim. App. 2004). A trial court abuses its discretion only if its

decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.

2008).




3
       Griffin makes no argument that Manning was an accomplice as a matter of law. See
Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013) (“A witness is an
accomplice as a matter of law when the witness has been charged with the same offense as
the defendant or a lesser-included offense, or ‘when the evidence clearly shows that the
witness could have been so charged.’” (quoting Cocke v. State, 201 S.W.3d 744, 747–48
(Tex. Crim. App. 2006)).

                                           11
      If we find that the trial court abused its discretion, we must then determine

whether denial of the instruction caused sufficient harm to warrant a reversal.

Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). The degree of harm

necessary for reversal depends upon whether the error was preserved. Id. If, as here,

the error has been properly preserved by an objection or request for instruction,

reversal is required if the appellant has suffered “some harm.” Id. In other words,

any harm, regardless of degree, is sufficient to require reversal. Id. If there is non-

accomplice evidence connecting the defendant to the offense, failure to submit an

accomplice-witness instruction may be rendered harmless. Herron v. State, 86

S.W.3d 621, 632 (Tex. Crim. App. 2002).

B.    Applicable Law

      Under article 38.14 of the Code of Criminal Procedure, a criminal conviction

may not be based on the testimony of an accomplice witness unless the testimony is

“corroborated by other evidence tending to connect the defendant with the offense

committed.” TEX. CODE CRIM. PROC. art. 38.14. A witness is an accomplice only if

he participates in the crime with the defendant, taking “an affirmative act . . . to assist

in the commission of the [crime]” before, during, or after the commission of the

crime, with the required culpable mental state for the crime. Druery, 225 S.W.3d at

498–99. Mere presence at the scene of the crime does not render a witness an

accomplice. Id. at 498; Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006).


                                            12
Nor is a witness an accomplice merely because he knew of the crime and failed to

disclose it or even concealed it. Druery, 225 S.W.3d at 498. There must exist

evidence sufficient to connect the witness to the criminal offense as a “blameworthy

participant.” Cocke, 201 S.W.3d at 748 (quoting Blake v. State, 971 S.W.2d 451,

455 (Tex. Crim. App. 1998)).

      “A witness may be an accomplice either as a matter of law or as a matter of

fact; the evidence in a case determines what jury instruction, if any, needs to be

given.” Cocke, 201 S.W.3d at 747. “Whether an accomplice-witness instruction is

justified, therefore, requires a case-specific and fact-specific inquiry.” Id. at 748.

“When the evidence clearly shows (i.e., there is no doubt) that a witness is an

accomplice as a matter of law, the trial judge must instruct the jury accordingly.”

Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). For example, a witness

who is indicted for the same offense or a lesser-included offense as the defendant is

an accomplice as a matter of law. Id. But when the evidence is conflicting and it

remains unclear whether the witness is an accomplice, the trial court should allow

the jury to decide the issue as a matter of fact under instructions defining the term

“accomplice.” Druery, 225 S.W.3d at 498–99; Paredes, 129 S.W.3d at 536. Finally,

when the evidence clearly shows that a witness is not an accomplice, the trial judge

is not obliged to instruct the jury on the accomplice-witness rule—as a matter of law

or fact. Smith, 332 S.W.3d at 440.


                                         13
C.    Analysis

      Griffin argues that the following evidence entitled him to an accomplice-

witness-as-a-matter-of-fact instruction: (1) Manning knew that MWG was planning

to kill the complainant; (2) Manning was present at the club with Griffin when the

crime occurred; (3) the murder was gang-motivated, and both Manning and Griffin

were members of MWG; (4) when Griffin signaled to him not to approach, Manning

complied; (5) Manning went to the ground when Griffin fired at the complainant,

pretending he was unaware of what was happening; (6) Manning met with other

members of MWG after the shooting to celebrate their efforts; and (7) Manning had

been previously convicted of engaging in organized criminal activity. We disagree.

      “Merely being present at the crime, having knowledge of the planned offense

but failing to disclose it, and even concealing the offense does not turn a witness into

an accomplice witness.” Delacerda, 425 S.W.3d at 396; see also Druery, 225

S.W.3d at 498 (“The mere presence of [witnesses] at the scene of the crime does not

render either an accomplice witness, and neither [of the two witnesses] is an

accomplice witness merely because he or she knew of the planned offense but did

not disclose it.”); Paredes, 129 S.W.3d at 537–38 (“Although [witness] may have

suspected that foul play would occur when [defendant] arrived at her house, there is

no evidence suggesting that she assisted in the preparation for or planning of the




                                          14
murders. [She] was not susceptible to prosecution for capital murder or a lesser-

included offense.”).

      Similarly, Manning’s status as a member of MWG even combined with his

presence at the scene is not enough to support submission of an accomplice-witness

question to the jury. See Medina v. State, 7 S.W.3d 633, 641–42 (Tex. Crim. App.

1999) (defendant’s fellow gang member who was present when defendant

committed offense was not accomplice witness); Valadez v. State, No. 13-02-036-

CR, 2002 WL 34231214, at *4 (Tex. App.—Corpus Christi Oct. 10, 2002, pet. ref’d)

(not designated for publication) (“Gang membership, even if combined with

presence at the scene of a crime and/or concealment of a crime, is not necessarily

sufficient to support a finding of accomplice status.”); see also Garcia v. State, No.

13-10-00098-CR, 2011 WL 861156, at *5 (Tex. App.—Corpus Christi Mar. 10,

2011, no pet.) (mem. op., not designated for publication) (“[M]embership in a gang,

without evidence that the person participated or assisted in the commission of the

crime, is not sufficient to support a finding of accomplice status.”).

      Nor is the fact that Manning had been previously convicted of engaging in

organized criminal activity. Druery, 225 S.W.3d at 498 (“[C]omplicity with an

accused in the commission of another offense apart from the charged offense does

not make that witness’s testimony that of an accomplice witness.”); Garcia, 2011

WL 861156, at *5 (“participating in other gang-related criminal acts having nothing


                                          15
to do with the charged offense” does not makes witness an accomplice); Valadez,

2002 WL 34231214, at *4 (witness who had participated in another homicide

involving defendant and gang not accomplice as a matter of law or fact).

      Even the combined force of the above-discussed evidence of his knowledge,

gang affiliation, and presence at the scene is insufficient to create a fact issue as to

whether Manning was a “blameworthy participant” whose testimony supports

submission of the accomplice-witness question to the jury. See Cocke, 201 S.W.3d

at 748 (requiring evidence witness was blameworthy participant). More is needed:

there must be some evidence that he performed an “affirmative act” to assist in the

commission of the murder. See Paredes, 129 S.W.3d at 536 (witness must have

engaged in affirmative act that promoted crime to warrant accomplice-witness

instruction); Kunkle v. State, 771 S.W.2d 435, 441 (Tex. Crim. App. 1986) ([“T]here

must be some evidence of an affirmative act by the witness committed to assist in

commission of the offense before that witness may be considered an accomplice.”);

see also Valadez, 2002 WL 34231214, at *4 (witness who drove fellow gang

member to victim’s apartment days before murder, knew of another gang member’s

intent to kill victim because of power struggle within gang, and had participated in

another homicide involving defendant and gang, not accomplice as matter of law or

fact because he made no affirmative act to promote commission of offense of

engaging in organized criminal activity).


                                          16
      Griffin argues that Manning acted affirmatively to promote the murder when

he complied with Griffin’s signal not to approach him. According to Griffin, this

facilitated the shooting by not drawing attention to Griffin. But Manning’s keeping

away from Griffin does not qualify as an affirmative act. Indeed, it is not an act at

all, but is more akin to an omission, such as failure to warn the victim or to disclose

knowledge that a crime is going to be committed, neither of which constitute

affirmative acts to promote a crime. See, e.g., Kunkle, 771 S.W.2d at 439–41

(concluding there was no evidence witness performed affirmative act in robbery and

murder of victim, “[e]ven if [he] knew about the prior robbery, failed to abandon the

group, permitted [victim] to be induced into entering the vehicle, and would have

told the others (but did not) if he saw police”); Easter v. State, 536 S.W.2d 223, 225

(Tex. Crim. App. 1976) (witness who “had guilty knowledge of the offense and did

not timely disclose it” not accomplice); Delacerda, 425 S.W.3d at 396 (neither

presence at scene, nor failure to disclose knowledge of planned offense, nor

concealing offense “turn a witness into an accomplice witness”); Lane v. State, 991

S.W.2d 904, 907 (Tex. App.—Fort Worth 1999, pet. ref’d) (witness who was present

“during the entire series of events” and “knew full well what the other three actors

were doing,” but did not stop crime or alert anyone “committed no affirmative act

in furtherance of the crime,” because she did not act but rather, omitted to act); see

also Mendoza v. State, No. 01-13-00146-CR, 2014 WL 3045194, at *3 (Tex. App.—


                                          17
Houston [1st Dist.] July 3, 2014, pet. ref’d) (mem. op., not designated for

publication) (witnesses who knew defendant had shotgun and planned to assault

victim, but did not warn him “not accomplice witnesses to murder or assault, because

they committed no affirmative act to assist”); Rios v. State, No. 2-04-543-CR, 2006

WL 1101841, at *4 (Tex. App.—Fort Worth Apr. 27, 2006, pet. ref’d) (mem. op.,

not designated for publication) (witness who “threw gang signs” at members of street

gang with whom defendant fought and later shot, was in car with defendant at time

of shooting, did nothing to prevent or stop shooting despite knowing what was about

to happen, and withheld information from police, not accomplice); Valadez, 2002

WL 34231214, at *4 (witness who drove fellow gang member to victim’s apartment

days before murder, knew of another gang member’s intent to kill victim because of

power struggle within gang, and had participated in another homicide involving

defendant and gang, not accomplice because he made no affirmative act to promote

commission of offense of engaging in organized criminal activity); Bethle v. State,

No. 09-96-393 CR, 1997 WL 536707, at *1 (Tex. App.—Beaumont Aug. 27, 1997,

pet ref’d) (not designated for publication) (witness who knew offense was going to

be committed and did not warn victim did not “affirmatively act[] to promote the

murder,” as his “failure to prevent the murder does not make him an accomplice”).

      Similarly, hitting the ground pretending to be unaware of what was happening

does not rise to the level of an affirmative act to assist in the commission of the


                                        18
murder. Manning’s testimony reflects that he went to the nightclub to observe the

crime, rather than to further its commission by fulfilling a “role”4 of dropping to the

ground. By his act, Manning merely continued to play the role of an unwitting

bystander as the events unfolded. Concealing knowledge of a crime as it occurs falls

short of participation. See Easter, 536 S.W.2d at 225 (“The fact that a person who

is present when a crime is committed fails to give an alarm . . . does not make him

an [accomplice].” (quotation omitted)); cf. Tran v. State, 870 S.W.2d 654, 657–58

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (defendant entitled to accomplice-

in-fact instruction where witness knew defendant and his group planned to shoot at

least one person and did not disclose plans, went to crime scene, and did not seek

medical help for his wounds after the shooting, and there was evidence that he may

have made affirmative act “by preventing members of [defendant]’s group from

escaping”).

      Finally, Manning’s attendance at the get-together after the shooting was not

an affirmative act done to promote it. See McCallum v. State, 311 S.W.3d 9, 14

(Tex. App.—San Antonio 2010, no pet.) (disposing of evidence “do[es] not make

[witness] an accomplice to the offense of criminally negligent homicide—there is

no evidence he did anything to promote the attack that led to [victim]’s death”);



4
      Manning clarified this testimony, explaining that he dropped to the ground to act as
      if he “didn’t know what was going on.”

                                           19
Garcia, 2011 WL 861156, at *7 (“[Witness] admitted that a meeting was held at his

house after the shooting to discuss whether the shooters violated the rules of the

Mexican Mafia. However, this evidence is not sufficient to prove that [witness] was

an accomplice witness—it does not prove that [he] affirmatively assisted in the

shooting. . . .”).

       We conclude that the evidence did not raise a fact issue regarding whether

Manning engaged in an affirmative act promoting the commission of the murder.

See Delacerda, 425 S.W.3d at 396 (“We conclude that the evidence did not raise a

fact issue regarding whether [witnesses] engaged in an affirmative act promoting the

commission of the offense or whether they acted with the required culpable mental

state. We therefore hold that the trial court correctly denied [defendant]’s requested

jury instruction that included [witnesses] as accomplice witnesses.”); Garcia, 2011

WL 861156, at *7 (“The evidence is not conflicting or unclear regarding [witness]’s

status as an accomplice because there was no evidence showing that [he] committed

an affirmative act in order to assist or promote the shooting . . . .”).

       We overrule Griffin’s first issue.

                              Improper Jury Argument

       In his second and third issues, Griffin argues that the trial court abused its

discretion in denying his motions for mistrial for improper jury argument regarding




                                            20
the unsubmitted theory of conspiracy and the benefit Manning anticipated receiving

for his testimony.

   A. Standard of Review and Applicable Law

      When, as here, the trial court instructs the jury to disregard improper

argument, the proper analysis is whether the trial court abused its discretion in

denying the defendant’s motion for mistrial. Archie v. State, 340 S.W.3d 734, 738–

39 (Tex. Crim. App. 2011) (“Because the trial court sustained the appellant’s

objection and instructed the jury to disregard the argument, ‘[t]he only adverse

ruling—and thus the only occasion for making a mistake—was the trial court’s

denial of the motion for mistrial.’ Thus, ‘the proper issue is whether the refusal to

grant the mistrial was an abuse of discretion.’” (quoting Hawkins v. State, 135

S.W.3d 72, 76–77 (Tex. Crim. App. 2004)). Under this standard, we view the

evidence in the light most favorable to the trial court’s ruling and uphold the ruling

if it falls within the zone of reasonable disagreement. Ocon v. State, 284 S.W.3d

880, 884 (Tex. Crim. App. 2009); Torres v. State, 424 S.W.3d 245, 260 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d).

      “A mistrial is an extreme remedy and should be exceedingly uncommon.”

Williams v. State, 417 S.W.3d 162, 175 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d) (citing Hawkins, 135 S.W.3d at 77 (a mistrial is required only “in extreme

circumstances, where the prejudice is incurable”))). It is required only when the


                                          21
impropriety is “clearly calculated to emotionally inflame the jurors’ minds and is of

such a character as to suggest the impossibility of withdrawing the impression

produced on the jurors’ minds,” or is “so prejudicial that expenditure of further time

and expense would be wasteful and futile.” Id. at 175 (citing first Hinojosa v. State,

4 S.W.3d 240, 253 (Tex. Crim. App. 1999), then Hawkins, 135 S.W.3d at 77

(quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)); see also Archie,

340 S.W.3d at 738–39 (“Mistrial is the appropriate remedy when . . . the

objectionable events ‘are so emotionally inflammatory that curative instructions are

not likely to prevent the jury from being unfairly prejudiced against the defendant.’”

(quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)).

      Where, as here, constitutional rights are not implicated,5 we evaluate whether

the trial court abused its discretion in denying a mistrial for improper jury argument

by conducting a harm analysis. We do so by weighing the following factors set forth

in Mosley v. State: “(1) the severity of the misconduct (the magnitude of the

prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to cure the


5
      Generally, error involving improper jury argument is non-constitutional. See
      Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Freeman v. State,
      340 S.W.3d 717, 728 (Tex. Crim. App. 2011). And, while “[a]n ‘improper argument
      may present a Fourteenth Amendment due process claim if the prosecutor’s
      argument so infected the trial with unfairness’ as to make the result ‘a denial of due
      process,’” Thompson v. State, 89 S.W.3d 843, 852 (Tex. App.—Houston [1st Dist.]
      2002, pet. ref’d) (citing Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App.
      1987)), the record before us does not present such a case.


                                            22
misconduct (the efficacy of any cautionary instruction by the judge), and (3) the

certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction).” Archie, 340 S.W.3d at 739 (citing Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998)).

      A prompt instruction to disregard ordinarily cures any resulting harm.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Williams, 417

S.W.3d at 172. And, on appeal, we generally presume the jury followed the trial

court’s instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).

Thus, a mistrial is required only in those “extreme circumstances” where the

prejudice is “incurable.” Hawkins, 135 S.W.3d at 77.

   B. Waiver

      We begin by addressing the State’s argument that Griffin waived his second

and third issues (that the trial court abused its discretion in denying his motions for

mistrial for improper jury argument) due to inadequate briefing. See TEX. R. APP.

P. 38.1(i) (appellant’s brief “must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”);

Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (appellant waives an

issue on appeal if he does not adequately brief that issue by presenting supporting

arguments and authorities).




                                          23
      According to the State, Griffin did not adequately address the impropriety of

the complained-of arguments. But the trial court sustained Griffin’s objection to the

arguments and instructed the jury to disregard them. Thus, the propriety of the

arguments is not the focus of our inquiry. Instead, “we assume without deciding that

the argument was improper and look only to whether the trial court abused its

discretion when it denied the motion for mistral.” Penix v. State, No. 10-17-00012-

CR, 2018 WL 4624027, at *1 (Tex. App.—Waco Sept. 26, 2018, pet. ref’d) (mem.

op., not designated for publication) (citing Hawkins, 135 S.W.3d at 76–77); see also

Daniels v. State, No. 05-06-01363-CR, 2008 WL 444467, at *5 (Tex. App.—Dallas

Feb. 20, 2008, pet. ref’d) (mem. op., not designated for publication) (where trial

court sustained objection to improper argument and instructed jury to disregard, only

appellate issue was whether denial of mistrial was abuse of discretion, not whether

argument was improper); cf. Archie, 340 S.W.3d at 738–39 (where trial court

sustains objection and instructed jury to disregard argument, only ruling for

reviewing court to address is trial court’s denial of mistrial motion).

      In determining whether the trial court erred in denying Griffin’s mistrial

motion, we conduct a Mosley harm analysis, weighing the severity of the

misconduct, the efficacy of any curative measures taken by the judge, and the

strength of the evidence supporting the conviction. Archie, 340 S.W.3d at 739;

Mosley, 983 S.W.2d at 259. Because Griffin adequately addressed these factors,


                                          24
none of which require him to defend the trial court’s antecedent ruling in his favor,

he has not waived his second and third issues that the trial court abused its discretion

in denying his motions for mistrial for improper jury argument. See TEX. R. APP. P.

38.1(i); Cardenas, 30 S.W.3d at 393.

   C. Unsubmitted Theory

      In his second issue, Griffin argues that the prosecutor improperly

“bootstrapped” a conspiracy theory of responsibility into the case, confusing the jury

and thus requiring a mistrial. Specifically, he complains of the following remarks:

      Let’s talk a little bit about conspiracy. And I know Sarah used an
      example, I believe, with Jurors No. 6, No. 7 and 8 on the agg[ravated]
      robbery. You guys remember that? Let’s talk about it. So, if in the
      attempt to commit one felony and in this case –

      Griffin interrupted the prosecutor’s sentence with an objection, which the trial

court sustained. And upon Griffin’s request, the trial court instructed the jury to

disregard the prosecutor’s comments. Griffin then asked for a mistrial, which the

trial court denied.

      To determine whether the trial court abused its discretion in denying Griffin’s

mistrial motion, we conduct a Mosely harm analysis, first weighing the severity of

the misconduct. See Archie, 340 S.W.3d at 739; Mosley, 983 S.W.2d at 259. Griffin

argues that because the prosecutor discussed the concept of conspiracy at voir dire,

and Manning’s testimony “alluded to a previous discussion among the members of

MWG that they would kill [the complainant] if the opportunity presented itself,” the

                                          25
prosecutor’s prefatory mention of conspiracy constituted severe misconduct. We

disagree. At closing, the prosecutor’s attempt to define conspiracy was interrupted

mid-sentence. Thus, even if the State had intended to argue for a conviction based

on conspiracy, it was not given the chance to do so. Any effect this could have had

on the jury was negligible. See Hughes v. State, 897 S.W.2d 285, 304–05 (Tex.

Crim. App. 1994) (prosecutor’s comment regarding expert witness’s ethics not so

inflammatory as to be incurable, because, among other reasons, it was interrupted

by appellant’s objection and not a complete sentence); Thomas v. State, No. 14-95-

00354-CR, 1997 WL 367927, at *4 (Tex. App.—Houston [14th Dist.] July 3, 1997,

no pet.) (not designated for publication) (prosecutor’s argument alleging an

extraneous offense not so inflammatory as to be incurable as it was unlikely jury

understood prosecutor’s inference because of “timeliness of counsel’s objection”).

      Second, we assess the efficacy of any curative measures taken by the trial

court, Archie, 340 S.W.3d at 739; Mosely, 983 S.W.2d at 259, keeping in mind that

“[a]lmost any improper argument may be cured by an instruction to disregard.”

Williams, 417 S.W.3d at 175–76 (citation omitted). Here, not only did the trial court

immediately instruct the jury to disregard the partial statement, it also included the

following language in the jury charge: “You are the exclusive judges of the facts

proved, of the credibility of the witnesses and the weight to be given their testimony,

but the law you shall receive in these written instructions, and you must be governed


                                          26
thereby.” See Hawkins, 135 S.W.3d at 84 (analysis of this factor should consider

instructions given in jury charge); Orcasitas v. State, 511 S.W.3d 213, 224 (Tex.

App.—San Antonio 2015, no pet.) (trial court’s instruction to jury that only law it

should depend on was law in jury charge itself cured improper argument); Williams,

417 S.W.3d at 179 (considering as curative measures, that trial court’s “written jury

instructions again advised the jury that it should not ‘consider, discuss, nor relate

any matters not in evidence’”); Durand v. State, No. 01-05-01148-CR, 2007 WL

2332541, at *17 (Tex. App.—Houston [1st Dist.] Aug. 16, 2007, pet. ref’d) (mem.

op., not designated for publication) (given jury charge providing applicable law,

State’s “less than clear” explanation of law of parties “did not convey to jury that it

could convict appellant of capital murder because he had unwittingly helped [co-

defendant] commit the crime”).

      On appeal, we presume the jury followed the trial court’s instructions, curing

any harm from improper argument. Thrift, 176 S.W.3d at 224; Wesbrook, 29 S.W.3d

at 115–16. Only an extremely inflammatory statement overcomes this presumption.

Williams, 417 S.W.3d at 176 (“[O]nly in the most egregious cases when there is an

‘extremely inflammatory statement’ is an instruction to disregard improper

argument considered an insufficient response by the trial court.” (citation omitted);

accord Wesbrook, 29 S.W.3d at 116 (only “offensive or flagrant error” incurable).

Such is the case only where “the evidence is clearly calculated to inflame the minds


                                          27
of the jury and is of such a character as to suggest the impossibility of withdrawing

the impression produced on their minds.” Williams, 417 S.W.3d at 176 (quoting

Johnson v. State, 01-07-00461-CR, 2009 WL 1331857, at *4 (Tex. App.—Houston

[1st Dist.] May 14, 2009, pet. ref’d) (mem. op., not designated for publication)).

      Based on the record before us, we hold that the prosecutor’s truncated mention

of conspiracy was not so extreme that the trial court’s curative instructions were

ineffective. See Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App. 1999)

(instruction to disregard cured harm from comment on defendant’s failure to testify);

Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (“We find the uninvited

and unembellished reference to appellant’s prior incarceration—although

inadmissible—was not so inflammatory as to undermine the efficacy of the trial

court’s instruction to disregard.”); Brown v. State, 769 S.W.2d 565, 567 (Tex. Crim.

App. 1989) (improper argument that jury consider parole law not incurable);

Williams, 417 S.W.3d at 179 (harm from argument accusing defense counsel of

manufacturing evidence not incurable).

      The third factor—the strength of the evidence supporting the conviction—

also supports a conclusion that the trial court did not abuse its discretion in denying

the motion for mistrial. See Archie, 340 S.W.3d at 739; Mosley, 983 S.W.2d at 259.

The record contains compelling evidence of Griffin’s guilt, including Manning’s

eye-witness testimony that Griffin fired his gun at the complainant, and Griffin’s


                                          28
false statements to police denying both his familiarity with E-Funny and Brown

(shown to be false by evidence including cell phone records, photographs, and

Jones’s testimony), and his presence at the nightclub the morning of the shooting

(directly contradicted by Manning’s and Jones’s testimony). See Guevara v. State,

152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (inconsistent statements to police and

lies about an actor’s relationship with accomplice indicative of guilt); King v. State,

29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (false statements to cover up crime

show consciousness of guilt). Griffin’s compelling motive to retaliate against the

complainant for his supposed involvement in the murders of his fellow-gang

members, Tremaine Bennett and Treon Bush, also supports his conviction. See

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (motive is

circumstance indicative of guilt). Having reviewed the entire record, we find no

indication that the mere mention of the term conspiracy, without explanation or

argument, caused the jury such confusion as to undermine Griffin’s conviction.

      All three of the Mosley factors weigh heavily in favor of the State.

Accordingly, we hold that the trial court did not abuse its discretion in denying

Griffin’s motion for mistrial based on the prosecutor’s mention of conspiracy during

his closing argument.

      We overrule Griffin’s second issue.

   D. Witness’s Anticipated Benefit


                                          29
      In his third issue, Griffin complains that the prosecutor’s statement that

“[f]ederal judges here in the southern district routinely don’t listen to the Assistant

US Attorney” implied that Manning would not receive a benefit from testifying, and

thus improperly bolstered his credibility so profoundly that a mistrial was required.

      We first address the State’s argument that Griffin failed to preserve this issue

for review because his trial objection does not comport with his argument on appeal.

See TEX. R. APP. P. 33.1(a)(1) (to preserve error, party must timely object “with

sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context”). At trial, Griffin objected that the

comment went outside the record. See Freeman v. State, 340 S.W.3d 717, 728 (Tex.

Crim. App. 2011) (“A prosecutor may not use closing arguments to present evidence

that is outside the record.”). As explained above, because the trial court sustained

Griffin’s objection and instructed the jury to disregard the prosecutor’s improper

jury argument, our task on appeal is to determine whether the trial court abused its

discretion in denying a mistrial, which requires us to conduct a Mosley harm

analysis. Archie, 340 S.W.3d at 739; Mosley, 983 S.W.2d at 259.

      In his brief, Griffin argues that the Mosely factors compel the conclusion that

he was incurably harmed by the prosecutor’s outside-the-record comment because it

improperly bolstered Manning’s credibility by implying that he would not receive a

benefit for his testimony. This argument is part of Griffin’s Mosley harm analysis


                                          30
and is not inconsistent with his outside-the-record objection at trial. Cf. Archie, 340

S.W.3d at 738–39 (where trial court sustains objection and instructed jury to

disregard argument, only ruling for reviewing court to address is trial court’s denial

of mistrial motion). Thus, for much the same reason we held above that Griffin did

not waive his improper jury argument issues for inadequate briefing, we hold that

his outside-the-record objection preserved his challenge to the trial court’s denial of

his mistrial motion.

      Turning to the merits, we again consult the Mosley factors to determine

whether the trial court abused its discretion in denying Griffin’s motion for mistrial.

See Archie, 340 S.W.3d at 739; Mosley, 983 S.W.2d at 259. We begin by assessing

the severity of the improper jury argument. Id. Here, the prejudicial effect of the

prosecutor’s reference to a fact not in evidence—that “[f]ederal judges here in the

southern district routinely don’t listen” to Assistant U.S. Attorneys’ sentencing

recommendations—was minimal or nonexistent. The comment was not probative

of Manning’s credibility, as it stopped short of suggesting that Manning was aware

of, much less took into consideration in agreeing to testify, the frequency with which

judges disregard sentencing recommendations.          Further, the jury heard from

Manning himself that, although he hoped his testimony would result in a lighter

sentence in his federal case, he knew that he could still receive the maximum

sentence. And the prosecutor made the complained-of remark immediately after


                                          31
stating that “certainly [Manning] hopes to receive a benefit. He told you that he

hopes that he gets time served . . . . He could still receive up to life in prison.” We

conclude that it is highly unlikely that the prosecutor’s mild attempt to bolster

Manning’s credibility actually influenced the jury.

      The second Mosley factor examines the measures taken to cure the

misconduct. See Archie, 340 S.W.3d at 739; Mosley, 983 S.W.2d at 259. Here, the

prosecutor’s comment was quickly followed by an instruction to disregard, which

we presume the jury obeyed. See Thrift, 176 S.W.3d at 224; Wesbrook, 29 S.W.3d

at 115–16. And the trial court took additional curative measures in its charge, which

admonished the jury not to “consider, discuss, [n]or relate any matters not in

evidence.” See Hawkins, 135 S.W.3d at 84 (curative measures include instructions

given in jury charge). “An instruction to disregard will generally cure error if a

prosecutor mentions facts outside the record.” Freeman, 340 S.W.3d at 727–28.

This is so unless the complained-of argument was “so clearly calculated to inflame

the minds of the jury or . . . of such a damning character as to suggest it would be

impossible to remove the harmful impression from the juror’s minds.” Torres, 424

S.W.3d at 261 (citing Logan v. State, 698 S.W.2d 680, 683–84 (Tex. Crim. App.

1985)); accord Wesbrook, 29 S.W.3d at 116 (only “offensive or flagrant error”

incurable by instruction to disregard). We conclude that the State’s remark was not

so egregious as to render the instruction to disregard ineffective.


                                          32
      Finally, we assess the certainty of Griffin’s conviction absent the improper

argument. See Archie, 340 S.W.3d at 739; Mosley, 983 S.W.2d at 259. Griffin

argues that the prosecutor’s comment was especially harmful because it bolstered

the credibility of the State’s “main witness.” But, as previously discussed, the

evidence of Griffin’s guilt was overwhelming. And given the irrelevance of the

complained-of comment to Manning’s credibility, we cannot say that it influenced

the jury or had more than a slight effect. Because Griffin’s conviction was certain

notwithstanding the prosecutor’s improper injection of facts not in evidence, the

third factor favors the State.

      Given the strength of the evidence against Griffin, the trial court’s instructions

to the jury to disregard, and the minimal likelihood that the comment caused

prejudice, we hold that the trial court did not abuse its discretion in denying Griffin’s

motion for mistrial. See Archie, 221 S.W.3d at 700; Hawkins, 135 S.W.3d at 85.

      We overrule Griffin’s third issue.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Keyes, Higley, and Landau.

                                           33
Publish. TEX. R. APP. P. 47.2(b).




                                    34
