AFFIRM; and Opinion Filed August 4, 2014.




                                         Court of Appeals
                                                         S     In The


                                  Fifth District of Texas at Dallas
                                                    No. 05-13-00176-CR

                     NICKEY VAN EXEL A/K/A NICKEY VANEXEL, Appellant
                                           V.
                              THE STATE OF TEXAS, Appellee

                              On Appeal from the 363rd Judicial District Court
                                           Dallas County, Texas
                                   Trial Court Cause No. F-11-00424-W


                                                          OPINION
                                  Before Justices FitzGerald, Fillmore, and Evans
                                          Opinion by Justice FitzGerald

          A jury found appellant Nickey Van Exel, a/k/a Nickey Vanexel, 1 guilty of murder and

assessed punishment of sixty years’ imprisonment and a $10,000 fine. The trial judge rendered

judgment on the jury’s verdict. Appellant raises four issues on appeal. We affirm.

                                                      I. BACKGROUND

          In July 2011, the State indicted appellant for capital murder, alleging that he shot and

killed Bradley Eyo in the course of committing the offense of retaliation. The State’s theory of

the case was that Eyo had been charged with robbery in Houston, and that appellant killed Eyo to

keep Eyo from identifying him as an accomplice. Evidence at trial showed that Eyo and


     1
      The judgment of conviction recites appellant’s name as “Nickey Vanexel.” The notice of appeal and appellate briefs refer to him as
“Nickey Van Exel.”
appellant were friends and had jointly committed multiple armed robberies in Houston in May

2010. Eyo was charged with aggravated robbery but appellant was not. Eyo told appellant that

he was going to follow his attorney’s advice, make an open plea to the judge, and admit

everything about the robberies, including appellant’s role in them. A few weeks later, Eyo’s

body was found in a Dallas park. He had been killed by a gunshot. About two days after Eyo’s

death, appellant voluntarily went to the police and admitted that he had shot Eyo, but he said it

was an accident.

            The jury charge allowed the jury to find appellant guilty of capital murder, murder,

manslaughter, or criminally negligent homicide. The jury found appellant guilty of murder.

                                                             II. ANALYSIS

            Appellant raises four issues on appeal.                        First, he challenges the sufficiency of the

evidence to convict him. Second, he contends that the trial judge erred by admitting hearsay

testimony against him. Third, he complains that the trial judge erred by holding an in camera

hearing in appellant’s absence. And fourth, he complains that the State made an improper

closing argument.

A.          Sufficiency of the evidence

            We first address appellant’s issue challenging the sufficiency of the evidence to convict

him of murder. Under the appropriate standard of review, we consider all of the evidence in the

light most favorable to the jury’s verdict and determine whether a rational fact finder could have

found the essential elements of the crime beyond a reasonable doubt, based on the evidence and

the reasonable inferences therefrom. 2                        We must defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the credibility of the witnesses and the



     2
         Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).



                                                                     –2–
weight to be given to their testimony. 3 It is not necessary for every fact to point directly and

independently to appellant’s guilt for us to uphold the conviction; the evidence is sufficient if the

finding of guilt is warranted by the cumulative force of all the incriminating evidence. 4

             A person commits murder if he intentionally or knowingly causes the death of an

individual. 5 A person acts intentionally with respect to the result of his conduct when it is his

conscious objective or desire to cause the result. 6 A person acts knowingly with respect to the

result of his conduct when he is aware that his conduct is reasonably certain to cause the result. 7

Direct evidence of the defendant’s mental state is not required, 8 and proof of the defendant’s

mental state almost always depends on circumstantial evidence. 9 Intent and knowledge can be

inferred from the acts, words, and conduct of the accused. 10 Appellant limits his sufficiency-of-

the-evidence challenge to the element of culpability, contending that there was insufficient

evidence to prove that his conduct resulting in Eyo’s death was more than reckless, at worst.

             1.         Review of the evidence

             At the time of Eyo’s death in December 2010, he was 23 years old and appellant was

about 19 or 20. Appellant and Eyo had lived across the street from each other while they were

growing up, and they were very close friends. After high school, Eyo moved to Houston for

college, but he and appellant remained very close. In May 2010, Eyo and appellant were

arrested in Houston as suspects in an armed robbery. The investigation of that crime led to


   3
       Id.
   4
       Id.
   5
       TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
   6
       Id. § 6.03(a).
   7
       Id. § 6.03(b).
   8
       Young v. State, 358 S.W.3d 790, 802 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).
   9
       Lincoln v. State, 307 S.W.3d 921, 924 (Tex. App.—Dallas 2010, no pet.).
   10
        Martinez v. State, 833 S.W.2d 188, 196 (Tex. App.—Dallas 1992, pet. ref’d).



                                                                    –3–
evidence that implicated Eyo and appellant in two other armed robberies that had occurred that

same night. Ultimately, the Harris County District Attorney pressed one aggravated-robbery

charge against Eyo and decided not to prosecute appellant.

       An attorney named Allan Tanner represented Eyo in the Harris County robbery case, and

he testified to the following facts at appellant’s trial. Eyo wanted to plead guilty to the armed-

robbery charge. During Eyo’s consultations with Tanner, Eyo refused to say anything about

appellant’s involvement in the robberies. Tanner advised Eyo that he would have to be honest

and forthcoming with the judge at the sentencing hearing if he wanted to receive a light sentence.

Tanner also advised Eyo that appellant would never be charged with the armed robberies even if

Eyo admitted appellant’s involvement during the sentencing hearing. Tanner told Eyo that his

word alone was insufficient to justify charging appellant without corroborating evidence, and he

also told Eyo that the normal practice of the Harris County District Attorney was not to follow

up on information divulged at sentencing. Eyo pleaded guilty on November 16, 2010, and his

sentencing hearing was scheduled for January 6, 2011.

       Eyo’s cousin Joseph Ene-Ita also testified at appellant’s trial, and he testified to the

following facts. He was a year older than Eyo. He and Eyo were close, and he was also a close

friend of appellant. Ene-Ita was living in Houston in 2010, and Eyo sought his advice on how to

handle the armed-robbery charge arising from the May 2010 robberies. In November 2010, Ene-

Ita listened on speakerphone to a telephone conversation between Eyo and his lawyer, Tanner.

As soon as that conversation was over, Eyo called appellant, and Ene-Ita again listened to the

conversation on speakerphone. When Ene-Ita began testifying about what was said during that

conversation, appellant made a hearsay objection, which the judge overruled. The judge granted

appellant’s request for a running objection. Ene-Ita then testified that Eyo told appellant about

Eyo’s conversation with Tanner and told appellant that Eyo was going to go to court and “tell

                                               –4–
everybody’s role of what happened in the robberies so he could get probation.” Appellant’s

response was silence. Ene-Ita then grabbed the phone and started talking to appellant because he

“felt tension.” He assured appellant that Eyo’s confession “wasn’t going to get him in any

trouble” and it was just for Eyo “to get on probation and stipulations for probation.” Ene-Ita then

testified about appellant’s reaction to Ene-Ita’s assurances:

          Q.          And what was his reaction to your explaining all this to him?

          A.          He just said, all right.

          Q.          And when you say he said, all right, did he sound all right?

          A.          Not really.

          Q.          How did he sound?

          A.          Sounded like—sounded like it wasn’t right. He was confused about what
                      was going on, like confusion.

          Q.          Did he ever indicate that he was okay with Bradley [Eyo] doing this?

          A.          No, he didn’t.

After that telephone conversation, Eyo told Ene-Ita that Eyo was going to talk about the roles of

the parties in the robberies at the January 6 hearing.

          Eyo’s brother Antigha Eyo testified to the following facts at trial. Like Eyo, Antigha 11

was attending college in Houston in December 2010. On December 24, 2010, Antigha and Eyo

took a bus from Houston to Dallas, arriving in Dallas around midnight. After they arrived in

Dallas, Eyo posted a message on the internet website Facebook that said, “Even #JesusChrist

disciples turned coat… So with dat in mind the unexpected is expected, just a matter of time.”

Antigha asked Eyo what that meant, and, as Antigha testified, “[h]e said he felt the need that it

related to him so he just—because on Facebook it says what’s on your mind so he just put that,

because I guess that was on his mind.” Antigha also testified that there was a television special

   11
        We will use this witness’s first name to distinguish him from the decedent.



                                                                      –5–
“on how Judas betrayed Jesus” playing in the bus station when they arrived in Dallas, before Eyo

posted the message on Facebook.

          After Eyo and Antigha arrived in Dallas, they went to the house where appellant lived,

which was right across the street from Eyo and Antigha’s father’s house. They played video

games and listened to music at appellant’s house until the sun came up. Antigha testified that

appellant acted “kind of antsy like” and wouldn’t sit still the whole time Eyo and Antigha were

there. When asked if this behavior was unusual for appellant, Antigha testified, “Yeah, to me,

but it was regular old Nick to me like. I didn’t think nothing of it because I known him so long.”

He also testified that “everything was cool” between appellant and Eyo when Antigha and Eyo

left and went back to their father’s house. After sleeping at their father’s house for a while,

Antigha and Eyo went to their mother’s house for Christmas dinner. Eventually, Eyo left their

mother’s house and went back to their father’s house.

          Eyo’s father, Oyo Eyo, testified to the following facts. The night of December 25, Oyo 12

drove over to the home of Eyo’s mother, picked Eyo up, and took him back to Oyo’s house.

This was around midnight. Shortly after they arrived at Oyo’s house, Eyo told Oyo that he

wanted to go out and go to a club. He asked Oyo to use the car, and Oyo said no. Oyo went to

the restroom and walked into his own room. The next thing he knew, Eyo was gone. That was

the last time he saw his son alive. Oyo also testified that Eyo was wearing a watch that evening,

and that he had $500 in his pocket.

          Officer Drew Jeffcoat of the Dallas County Sheriff’s Department testified to the

following facts. He was on routine patrol the morning of December 26, 2010. Between 7 and 9

a.m. that morning, Jeffcoat visited Barnes Bridge Park and saw a body lying on the ground near

the entrance to the park. He called for an ambulance and approached the body. He saw that the

   12
        Again, we will use this witness’s first name to distinguish him from the decedent.



                                                                      –6–
person had suffered “a large defect in the upper left chest,” but there did not appear to be much

blood in the area. The person’s shoes were missing, but his socks were clean, which suggested

that the body had been dumped there. Dallas Police Officer Michael Gonzalez testified that he

investigated the crime scene and found no wallet, jewelry, or identification on the body.

          Oyo testified that the authorities notified Eyo’s family that he was dead on December 27.

Early that afternoon, appellant went to Oyo’s house and spoke to Oyo. He told Oyo not to worry

and that he would look for Eyo’s killer. Appellant seemed normal to Oyo at the time. Oyo

talked to appellant again later that day and asked him when he had last talked to Eyo. Appellant

said he had talked to Eyo on the phone “last night,” apparently meaning the night of December

25–26, and that they had had only a short conversation about where appellant was and what he

was doing. Antigha testified that he also talked to appellant on December 27, and that appellant

was acting “real antsy.” Antigha also testified that appellant invited him to go to the mall and

take his mind “off a few things,” but Antigha did not go. Detective Fidel Perez of the Dallas

Police Department testified that he looked for appellant on December 28 to interview him as a

possible witness. No one was home, so he left his business card there. Detective Perez also left

a voicemail for appellant’s father. A couple of hours later, Perez received a call from appellant’s

defense attorney, who told Perez that someone wanted to talk to him. Perez told him that he

would be in the office the next day.

          On December 29, appellant, his mother, and his attorney went to Dallas Police

headquarters. Appellant and his attorney met with Perez in an interrogation room, and, at the

suggestion of appellant’s attorney, Perez gave appellant a Miranda 13 warning. Perez’s interview

with appellant was video recorded, and the recording was admitted into evidence. During the

interview, appellant gave the following account. The night of December 25–26, Eyo went to

   13
        Miranda v. Arizona, 384 U.S. 436 (1966).



                                                   –7–
appellant’s house at around midnight. Appellant’s parents were out of town, and no one else was

in the house. While they were hanging out in appellant’s room, appellant retrieved a shotgun

from his father’s closet to show Eyo. Appellant said that the shotgun was never loaded and that

he played with it all the time. He gave it to Eyo, and Eyo gave it back to him. Eyo was sitting

on a bed, and appellant was standing up holding the gun not too far from Eyo. Appellant pulled

the trigger, and Eyo put his hands on his upper chest and said, “You killed me!” Appellant said

that he “lost it” after that, and that Eyo was his best friend. Eyo’s eyes rolled back and he fell

backwards. Appellant began crying and panicking. He called his parents and his stepfather but

no one answered. He wrapped Eyo’s body in trash bags and put it in his mother’s Suburban. He

took the body to Barnes Bridge, which was close to the house, and left the body there. He said

he did not remove anything from the body. Then he went home and cleaned up the blood with

bleach. The next morning, appellant called a friend and asked him for a ride. The friend sent

someone to pick appellant up. When the person arrived, appellant put the gun in a bag and asked

the person to take him to north Dallas. Appellant had the driver drop him off on Forest Lane,

and he went to a creek behind a nearby restaurant. He took the gun out of the bag and threw it

into the water. Appellant was visibly upset during the interview and started crying after he had

told the story. Perez testified that he found appellant’s account of his actions after he shot Eyo

very suspicious, but he also testified that, at the time of the interview, he believed that what

appellant had told him was accurate.

       After appellant’s interview, he showed two detectives where he had thrown the gun, but

the gun was not found in subsequent searches.         That same afternoon, appellant’s mother

consented to a search of the house where the shooting had occurred. Detective Seth Rosenberg

testified that he conducted the search but did not find much evidence. He found a few drops of a

substance that could have been blood on the stairs and a possible bloodstain on the wall of the

                                               –8–
stairway. He also found possible bloodstains in the back of a Suburban that appellant’s mother

furnished for him to search. And he found a shotgun in appellant’s room, but it was not the same

caliber as the one that had killed Eyo.

          Detective Perez testified that, after his interview with appellant, he arrested appellant for

capital murder on the theory that he had killed Eyo during the course of a robbery. He later

changed the charges against appellant to manslaughter, tampering with a human corpse, and

tampering with physical evidence. Later, the charge was increased from manslaughter to capital

murder.

          The doctor who performed the autopsy on Eyo testified that Eyo was about two to four

feet from the end of a shotgun when he was shot, and that he could not have survived the wound

even if he had been rushed to an emergency room.

          2.         Sufficiency analysis

          There is no question that the evidence was sufficient to establish that appellant caused

Eyo’s death. The video recording of appellant’s confession was admitted into evidence, and

during that confession he admitted that he pointed a shotgun at Eyo and pulled the trigger, that

the shotgun discharged, and that the blast struck Eyo in the chest and killed him. The question

presented is the sufficiency of the evidence that appellant intentionally or knowingly caused

Eyo’s death.

          As previously noted, the mental state of the accused may be proved by circumstantial

evidence, 14 and intent and knowledge can be inferred from the acts, words, and conduct of the

accused. 15 The jury is entitled to consider events that occurred before, during, and after the




   14
        Lincoln, 307 S.W.3d at 924.
   15
        Martinez, 833 S.W.2d at 196.



                                                  –9–
offense. 16 “In a murder prosecution, the intent to kill may be inferred from the defendant’s use of

a deadly weapon, unless in the manner of its use it is reasonably apparent that death could not

result.” 17 Moreover, attempts to conceal incriminating evidence and implausible explanations to

the police are probative of wrongful conduct and are also circumstantial evidence of guilt. 18 A

motive can be a significant circumstance tending to show guilt, 19 but the State is not required to

prove motive in a murder prosecution. 20

            Appellant identifies evidence that tends to support his contention that he did not

intentionally or knowingly kill Eyo. For example, the evidence showed that Eyo and appellant

were very close friends, and there was evidence that appellant was told he would not get into

trouble if Eyo implicated him in the Houston robberies.                                       Although Antigha testified that

appellant was acting “antsy” shortly before the shooting, he also testified that he didn’t think

anything of it because he had known appellant so long.                                        Appellant argues that his upset

demeanor during his video-recorded interview tends to show that he was telling the truth that the

shooting was an accident. Detective Perez testified that appellant’s acts after the shooting could

be viewed as the confused actions of a teenager and could be as consistent with accidental death

as with ill will or ill motive.

            Although the evidence cited by appellant could be viewed as exculpatory, it was the

jury’s prerogative to weigh all the evidence and choose between conflicting theories of the




     16
          Pitonyak v. State, 253 S.W.3d 834, 844 (Tex. App.—Austin 2008, pet. ref’d).
     17
         Id.; see also Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005) (“It is both a common-sense inference and an
appellate presumption . . . that the act of pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an
intent to kill.”); Johnson v. State, 959 S.W.2d 284, 288 (Tex. App.—Dallas 1997, pet. ref’d) (“We may infer the intent to kill from the use of a
deadly weapon in a deadly manner.”) (footnote omitted).
     18
          Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014).
     19
          Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
     20
          Pitonyak, 253 S.W.3d at 844.



                                                                     –10–
case. 21 Our task is limited to ascertaining whether a rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light

most favorable to the jury’s verdict.                         Under that standard, we conclude the evidence was

sufficient.         In his videotaped confession, appellant demonstrated that he pointed a shotgun

directly at Eyo from close range and pulled the trigger. Although he also said that he played

with the gun all the time and that the gun was never loaded, Antigha testified that he and

appellant had never played with guns when they were hanging out at appellant’s house. The jury

was entitled to judge appellant’s credibility and disbelieve his assertion that the gun was never

loaded. 22 Thus, the evidence that appellant pointed a gun at Eyo at very close range and pulled

the trigger is probative evidence that he acted intentionally or knowingly. The evidence that he

moved the body and disposed of the shotgun immediately after the killing is also probative

evidence of guilt. 23 The State also put on some evidence of a potential motive in the form of

testimony that at the time of the shooting, appellant knew that Eyo was soon going to appear in

court and identify appellant as an accomplice to a prior robbery. There was also evidence that

appellant acted “antsy” around Eyo and his brother roughly twenty-four hours before the

shooting took place.

            Appellant also argues that appellate courts have upheld manslaughter convictions in

situations involving the accidental discharge of a firearm. 24 But these cases do not support the

proposition that the jury in this case was required to believe appellant’s statement that he




     21
          See Merritt v. State, 368 S.W.3d 516, 527 (Tex. Crim. App. 2012).
     22
         See Sorto v. State, 173 S.W.3d 469, 475 (Tex. Crim. App. 2005) (“[T]he jury was free to take all of the evidence into account and to
believe or disbelieve any portion of appellant’s statements.”).
     23
          See Ex parte Weinstein, 421 S.W.3d at 668.
     24
          See, e.g., Davis v. State, 757 S.W.2d 386 (Tex. App.—Dallas 1988, no writ).



                                                                     –11–
believed the shotgun was unloaded when he pulled the trigger. Appellant’s cases are simply not

relevant to the question before us.

            We reject appellant’s first issue on appeal.

B.          Admission of evidence

            In his second issue on appeal, appellant argues that the trial judge erred by admitting

testimony by the victim Eyo’s cousin Joseph Ene-Ita about a telephone conversation involving

appellant, Eyo, and Ene-Ita. Appellant contends the testimony was inadmissible hearsay with

respect to appellant’s statements during the conversation. Our standard of review is abuse of

discretion. 25 We must uphold the trial judge’s ruling if it is correct under any theory of law

applicable to the case based on the record before the trial judge. 26

            We have already described Ene-Ita’s testimony about the conversation in detail in our

discussion of appellant’s first issue on appeal, so a short summary will suffice. In November

2010, Eyo called appellant on his cellphone in Ene-Ita’s presence. He used the speakerphone

function, so Ene-Ita heard the whole conversation. Eyo told appellant that he was going to admit

the details of the May 2010 armed robberies in court in hopes of getting probation. Appellant’s

response was silence. Ene-Ita “felt tension” and told appellant that Eyo’s admissions would not

get appellant in trouble, and that Eyo was just doing it to get probation. Appellant responded,

“all right,” but Ene-Ita thought appellant did not sound all right. Ene-Ita thought appellant

sounded confused. On appeal, appellant complains specifically about the admission of Ene-Ita’s

testimony, over appellant’s running hearsay objection, concerning appellant’s initial period of

silence and his subsequent response “all right.”




     25
          See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).
     26
          See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).



                                                                    –12–
              Appellant spends most of his argument on the proposition that the evidence was not

properly admissible under the doctrine of forfeiture by wrongdoing. But he fails to establish the

first step of his argument, which is that Ene-Ita’s testimony about appellant’s part of the

conversation actually constituted hearsay. Hearsay is a statement, other than one made by the

declarant while testifying, offered in evidence to prove the truth of the matter asserted. 27 A

statement is a verbal expression or nonverbal conduct intended as a substitute for verbal

expression. 28 Even if a statement meets the definition of hearsay, it is not hearsay if it is offered

against a party and is the party’s own statement in either an individual or representative

capacity. 29 Hearsay is generally inadmissible. 30

              Assuming that appellant’s silence and his subsequent comment “all right” met the general

definition of hearsay, they still were not hearsay because they were appellant’s own statements

and were therefore admissions by a party. 31 “Rule 801(e)(2)(A) plainly and unequivocally states

that a criminal defendant’s own statements, when being offered against him, are not hearsay.” 32

There is no requirement that the statement be contrary to the party’s interests when it was made;

“in order to be admissible, the admission need only be offered as evidence against the party.” 33

Because the statements were made by appellant and were offered against him, they were not

hearsay. The trial judge did not abuse her discretion by admitting the evidence. Appellant’s

second issue is without merit.



   27
        TEX. R. EVID. 801(d).
   28
        TEX. R. EVID. 801(a).
   29
        TEX. R. EVID. 801(e)(2)(A).
   30
        See TEX. R. EVID. 802.
   31
        See TEX. R. EVID. 801(e)(2)(A).
   32
        Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999).
   33
        Id.



                                                                  –13–
C.     Appellant’s absence from an in camera hearing

       In his third issue on appeal, appellant argues that the trial judge committed reversible

error during trial by conducting a hearing in the judge’s chambers when appellant was not

present. Appellant argues that this hearing violated his statutory right to be present under article

33.03 of the code of criminal procedure, his rights under the confrontation clauses of the federal

and Texas constitutions, and the Due Process Clause of the United States Constitution. We

conclude appellant’s third issue is without merit because any error was harmless.

       1.      Relevant facts

       The relevant facts are these. The jury was sworn and the first witnesses were called on

January 29, 2013. After two witnesses had testified for the State, the judge sent the jury out for a

break at 10:18 a.m. During that recess, the judge called the lawyers back to her chambers for a

hearing on the record. Appellant was not present in chambers for the hearing. The record is

silent as to whether appellant knew that the hearing was taking place, or whether he knowingly

and voluntarily absented himself from the hearing.        Appellant’s counsel did not object to

appellant’s absence from the hearing.

       The hearing concerned a juror who had informed the bailiff that she had recognized

someone in the gallery observing the trial. The juror was brought into chambers for the hearing,

and an attorney for the State asked her a few questions. The juror said that the person in the

gallery was one of her co-workers but was not someone she socialized with outside of work.

However, if the juror and her co-worker happened to be in the same place where there were two

seats at a table, they might sit together. The juror did not know why her co-worker was there,

but she assumed she was there for appellant. The State asked the juror if that would have any

effect on her as a juror, and she replied, “Absolutely not.” Appellant’s counsel did not ask the

juror any questions, neither side requested her removal from the jury or any other relief, and the


                                               –14–
hearing ended. The person whom the juror identified as a co-worker eventually testified on

appellant’s behalf during the punishment phase of the case. She testified that she had known

appellant for twelve years and that appellant was like a son to her. She testified that appellant

was a good young man with potential who got good grades in school. And she testified that if

appellant were released, she would be there to help support him and get him back into the

community.

            2.         Applicable law

            The code of criminal procedure provides:

            In all prosecutions for felonies, the defendant must be personally present at the
            trial . . . provided, however, that in all cases, when the defendant voluntarily
            absents himself after pleading to the indictment or information, or after the jury
            has been selected when trial is before a jury, the trial may proceed to its
            conclusion. 34

The confrontation clauses of the federal and state constitutions also guarantee a defendant’s right

to be present at all stages of the trial when his absence might frustrate the fairness of the

proceedings. 35 Finally, appellant also had a due-process right to be present at all times when his

presence had a reasonably substantial relationship to the opportunity to defend against the

charge. 36 All of these rights, constitutional and statutory, involve essentially the same analysis. 37

            Violations of the right to be present are subject to harmless-error analysis. 38 We consider

a constitutional error harmful unless we conclude beyond a reasonable doubt that the error did




     34
          TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006).
     35
          Sumrell v. State, 326 S.W.3d 621, 623 (Tex. App.—Dallas 2009) (relying on the Sixth Amendment to the United States Constitution and
article I, section 10, of the Texas Constitution), pet. dism’d as improvidently granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) (per curiam); see
also Kessel v. State, 161 S.W.3d 40, 45 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (“One of the most basic rights guaranteed by the
Confrontation Clause is the defendant’s right to be present in the courtroom at every stage of his trial.”).
     36
          See United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam); Adanandus v. State, 866 S.W.2d 210, 219 (Tex. Crim. App. 1993).
     37
         Hernandez-Sandoval v. State, No. 07-11-00085-CR, 2012 WL 3870306, at *10 (Tex. App.—Amarillo Sept. 6, 2012, pet. ref’d) (mem.
op., not designated for publication).
     38
          Routier v. State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003).



                                                                     –15–
not contribute to the conviction or punishment. 39 Nonconstitutional error is harmful only if it

affected the defendant’s substantial rights. 40

           3.          Application of the law to the facts

           Assuming without deciding that error was preserved and that appellant had a right to be

present at the in camera hearing with the juror, we conclude that any error was harmless beyond

a reasonable doubt.

           Appellant argues that his absence from the hearing was harmful to his defense because he

could have assisted his attorney by listening to what the juror said, observing her demeanor, and

suggesting additional questions to ask the juror. This is speculation, and there is nothing in the

record to support the notion that appellant’s presence at the hearing would have changed the

course of the hearing or its outcome, much less the outcome of either phase of appellant’s trial.

The only theory of harm that is suggested by the record is that the juror could have been biased

against appellant because of her feelings towards her co-worker who eventually testified for

appellant during the punishment phase. But there is no evidence of such bias, and the only

evidence in the record indicates the juror held no such bias. Through questioning, the State

established that the juror’s relationship with her co-worker was minimal. To the extent they had

a relationship, it was cordial to the point that they might sit down at a table together if they

happened to find themselves in the same place at the same time. Then the State asked the juror

directly whether her familiarity with her co-worker would have any effect on her, and she

replied, “Absolutely not.”

           Appellant’s counsel, who was present through the hearing, decided not to ask the juror

any questions and did not object to her continued service, demonstrating that he was satisfied


    39
         TEX. R. APP. P. 44.2(a).
    40
         TEX. R. APP. P. 44(b).



                                                     –16–
that the juror was not biased against her co-worker or against appellant. Appellant adduced no

evidence, such as through a motion for new trial, that he had special knowledge about the juror

or her co-worker that could have changed the course of proceedings in any way. 41 In short, the

record is devoid of any evidence of juror bias, and the evidence it does contain refutes the

existence of juror bias. We conclude that appellant’s absence from the in camera hearing was

harmless beyond a reasonable doubt. It necessarily follows that any error also did not affect

appellant’s substantial rights.

            We reject appellant’s third issue on appeal.

D.          Closing argument

            In his fourth issue, appellant argues that we should reverse his conviction because the

State made an improper closing argument. Permissible jury argument generally falls into one of

four areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3)

answers to the arguments of opposing counsel, and (4) a plea for law enforcement. 42 Appellant

argues that the State made an improper closing argument when discussing Ene-Ita’s testimony

about the telephone conversation involving Bradley Eyo, appellant, and Joseph Ene-Ita:

            The State:                 Joseph didn’t think it was a good idea, but Bradley called him
                                       [appellant]. Why didn’t Joseph think it was a good idea to call
                                       and tell Nickey Van Exel, his best friend, that he was going to
                                       snitch on him, that he was going to testify at that hearing?
                                       Why, if it wasn’t a big deal? Well, because of cases like this
                                       and because of what --

            Defense counsel: Judge, there’s no testimony of that. It’s completely outside of
                             the record.

            The Court:                 Sustained.

            Defense counsel: Ask the jury be instructed to disregard the last comment.

     41
        See Routier, 112 S.W.3d at 579 (concluding that defendant’s absence from hearing was harmless beyond a reasonable doubt because
there were no “specific facts that she could have pointed out to the trial court that her attorneys could not have”).
     42
          Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010).



                                                                    –17–
          The Court:                   Overruled.

(Emphasis added.) Appellant argues that the italicized passage was improper because there was

no evidence that Ene-Ita was concerned that appellant might retaliate against Eyo if Eyo testified

to appellant’s involvement in the May 2010 armed robberies.

          We reject appellant’s contention and conclude that the argument in question was a

permissible deduction from the evidence. In context, the State’s reference to “cases like this”

plainly meant cases of retaliation, since that was State’s theory of the case. Ene-Ita testified that

after Eyo told appellant about Eyo’s intention to admit the details of the May 2010 armed

robberies in order to try to get probation, and after Ene-Ita explained to appellant that Eyo’s

admissions would not get appellant in trouble, appellant “sounded like it wasn’t right. He was

confused about what was going on, like confusion.” During his testimony, Ene-Ita was asked

how people in his circle felt about “snitching,” and he answered, “Not too good about it.” From

this testimony, a person could reasonably infer that Ene-Ita thought it was a bad idea for Eyo to

tell appellant about Eyo’s plan to admit all the details about the robberies because that could be

perceived as “snitching” and might lead to retaliation against Eyo. It was proper for the State to

ask the jury to draw those inferences.

          Moreover, even if the argument were improper, we would conclude that it was harmless.

Nonconstitutional error is harmless unless it affected the defendant’s substantial rights. 43 If a

jury argument is improper because it interjects facts not supported by the record, the error is

harmless unless the argument is extreme or manifestly improper in light of the record as a

whole. 44 We consider factors such as the severity of the prejudice caused by the State’s improper

argument, any measures taken to cure the misconduct, and the strength of the evidence


   43
        See TEX. R. APP. P. 44.2(b).
   44
        See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).



                                                                  –18–
supporting the conviction. 45 In this case, we conclude that the argument did not cause severe

prejudice to appellant. It was a brief comment in the context of the argument as a whole and was

not especially inflammatory in nature. Although the trial judge did not give the jury a curative

instruction to disregard, there was ample evidence to support appellant’s conviction for murder.

He admitted that he pointed a gun at Eyo and pulled the trigger, he did not call for emergency

help, he attempted to conceal his role in the killing, and he did not immediately come forward to

admit his role in Eyo’s death. We conclude that the argument, if improper, was not extreme or

manifestly improper in light of the record as a whole.

          Appellant’s fourth issue on appeal is without merit.

                                                       III. CONCLUSION

          We affirm the trial court’s judgment.




                                                                           /Kerry P. FitzGerald/
                                                                           KERRY P. FITZGERALD
                                                                           JUSTICE


Do Not Publish
TEX. R. APP. P. 47

130176F.U05




   45
        See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).



                                                                  –19–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

NICKEY VAN EXEL a/k/a NICKEY                       On Appeal from the 363rd Judicial District
VANEXEL, Appellant                                 Court, Dallas County, Texas
                                                   Trial Court Cause No. F-11-00424-W.
No. 05-13-00176-CR        V.                       Opinion delivered by Justice FitzGerald.
                                                   Justices Fillmore and Evans participating.
THE STATE OF TEXAS, Appellee

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


Judgment entered this 4th day of August, 2014.




                                            –20–
