Opinion issued March 31, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00593-CR
                           ———————————
                   BOBBY DEWAYNE EVANS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                 On Appeal from the Criminal District Court
                         Jefferson County, Texas *
                      Trial Court Case No. 12-14438




*
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred the appeal to this court. See Misc. Docket No. 13-9008 (Tex. Jan. 17,
     2013); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases).
                           MEMORANDUM OPINION

      A jury convicted appellant Bobby Dewayne Evans of aggravated robbery

and found that he used a deadly weapon in the commission of the offense. See TEX.

PENAL CODE § 29.03. The trial court assessed punishment at 50 years in prison.

      Evans appealed, raising 13 issues. Within these issues, he challenges: (a) the

sufficiency of the evidence (issues 1 and 2); (b) the State’s failure to disclose

allegedly exculpatory evidence (issues 3 and 4), (c) the trial court’s failure to grant

an evidentiary hearing on his motion for new trial (issue 5), (d) statements made

during closing argument that he contends shifted the burden of proof and violated

his due-process rights (issues 6, 7, and 8), and (e) the trial court’s admission of

evidence that was the subject of a motion to suppress and the court’s related failure

to make certain rulings and findings in connection with the motion to suppress

(issues 9 through 13).

      Because we conclude that the record reveals no reversible error, we affirm

the judgment of the trial court.

                                    Background

      Complainant Wingrove Felton Robinson needed some repairs at his rental

home, and his landlord suggested that he temporarily occupy a room in another of

her rental houses. Robinson moved into a room in a house where appellant Bobby




                                          2
Dewayne Evans lived with his girlfriend, Penzalla Winston. At the time, Robinson

was 75 years old and recovering from cancer treatment.

      Robinson was lying in bed when Evans knocked on his door and asked to

use his hotplate. But upon entering the room, Evans demanded money. Robinson

refused, and Evans responded by pushing him, punching his right eye, tackling him

to the ground, and attempting to break his leg. At one point Evans left the room,

returning moments later with two aluminum baseball bats. He said, “I need that

money or I’m going to tap you in your head with these. . . . If you don’t give me

the money, I’m going to smash you.” Robinson again refused, and Evans hit him

on the head with a bat, causing him to bleed profusely. Robinson thought he “was

going to die.” He testified that Evans took his wallet, including a debit card and a

driver’s license. Evans dragged Robinson from the house, forbade him from

coming back inside, and left him alone, where he later asked a passerby to call 911.

Robinson never returned to the house because it was “too heartbreaking.”

      Beaumont Police Department Officer D. Vaughn responded to the 911 call

and found Robinson standing outside, bleeding from his head and his eye.

Robinson told Officer Vaughn that his roommate hit him with a baseball bat after

he refused to give him money. An ambulance arrived and transported Robinson to

a Beaumont hospital, where he received 15 staples to his scalp. Ultimately surgery

was required to repair his fractured eye socket.



                                          3
      Officer Vaughn was unable to search the house immediately because nobody

answered when he knocked on the door. Meanwhile, Evans and Winston had left

the house, and they found a police officer about a mile away. That officer

contacted Officer Vaughn, who joined them. Evans provided a differing account of

what happened, saying that Robinson’s injuries were self-inflicted. Winston said

that she did not see anything that happened at the house. Evans was arrested on an

outstanding warrant, and later he was charged with committing aggravated robbery

against Robinson.

      In addition to Robinson’s testimony at trial on the robbery charge, the State

proffered hospital records, which included descriptions of Robinson’s injuries and

the history he provided, i.e., that he was assaulted by his “neighbor,” who hit him

with a fist and a baseball bat after he refused a demand for money. Officer Vaughn

also testified, and Evans moved to suppress statements he made during the

officer’s investigation. At a hearing outside the presence of the jury, Officer

Vaughn testified that there might have been a patrol car videorecording of the

conversation at issue, but he suspected it was no longer available because of the

lapse of time and retention policies. The State announced that it would not ask

Officer Vaughn about statements Evans made to him during its case-in-chief. The

court concluded the hearing without ruling on the motion to suppress.




                                        4
       Evans testified in his own defense, and he disputed Robinson’s account.

According to Evans, he and Winston were in his room when Robinson came to the

door with his face covered in blood. He said that Robinson told him that a neighbor

had assaulted him. Evans further testified that Robinson hit him on the shoulder

with a skillet, and when he told Robinson to leave, he replied, “You’re going to

have to kill me.” Evans said that he escorted Robinson out of the house, returned

inside, and locked the door. He denied hitting Robinson, taking any of his property,

or demanding money. In apparent contradiction of his testimony that Robinson was

assaulted by a neighbor, Evans also testified that Robinson’s injuries were self-

inflicted.

       Winston testified that she was in the bedroom with Evans when she heard a

noise that sounded like a “bump.” She said that she saw Robinson strike Evans

with a pot and heard him say, “You’re going to have to kill me.” She denied seeing

any blood or injuries on Robinson or hearing any cries for help. She testified that

she never saw Evans take any of Robinson’s belongings, and Robinson never

returned to the house. She admitted that she previously told police that she did not

see what happened.

       On rebuttal, the State called Officer Vaughn back to the stand, and he

testified without objection that Evans told him Robinson’s injuries were self-

inflicted.



                                         5
        The jury found Evans guilty of aggravated robbery. The trial court assessed

punishment at 50 years in prison. Evans filed a motion for new trial, which the trial

court denied without holding an evidentiary hearing. Evans appealed.

                                      Analysis

        On appeal, Evans contends that the evidence was insufficient to support the

conviction. He also argues that some evidence was withheld from him and that

other evidence should have been suppressed at trial. He further argues that he was

unfairly prejudiced by the State’s improper closing argument and that the court

erred by denying his motion for new trial.

   I.      Sufficiency of the evidence

        Evans’s first two issues challenge the legal sufficiency of the evidence to

support his conviction. He first argues that he and Winston were credible

witnesses—but Robinson was not—and that the evidence is insufficient when

viewed in the light most favorable to the defense theory of the case. He also argues

that there is no evidence of a completed theft.

        When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The standard is



                                          6
the same for both direct and circumstantial evidence cases. See Carrizales, 414

S.W.3d at 742; King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do

not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of

any witnesses, as this is the function of the trier of fact. See Adames v. State, 353

S.W.3d 854, 860 (Tex. Crim. App. 2011); Wiley v. State, 388 S.W.3d 807, 813

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

      A person commits aggravated robbery if he commits robbery and causes

serious bodily injury to another person, uses or exhibits a deadly weapon, or causes

or threatens imminent bodily injury to a person who is 65 years of age or older or

disabled. TEX. PENAL CODE § 29.03. A person commits robbery if “in the course of

committing theft” and “with intent to obtain or maintain control of the property,”

he “intentionally, knowingly, or recklessly causes bodily injury to another” or

“intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death.” Id. § 29.02; see id. § 31.03(a) (theft); id. § 31.03(b)(1) (unlawful

appropriation).

      A. Credibility of the witnesses

      On appeal, we consider the evidence in the light most favorable to the

factfinder’s decision. This case was tried before a jury that was tasked with

assessing the credibility of the witnesses and determining all issues of fact,

including resolving inconsistencies in the testimony. Evans argues that he and



                                          7
Winston were credible and that when their testimony is viewed in a positive

light—and Robinson’s testimony is rejected—there is insufficient evidence to

support the jury’s verdict. The jury, however, was free to draw its own conclusions

about the witnesses’ credibility. The verdict reflects the jury’s implicit conclusion

that Robinson was credible and the contrary testimony offered by Evans and

Winston was not. In any case, the credibility determination is purely the province

of the jury, and it may not be second-guessed on appeal. See Adames, 353 S.W.3d

at 860; Wiley, 388 S.W.3d at 813.

      B. Lack of evidence of a completed theft

      Evans also argues that the lack of evidence of a completed theft renders the

evidence in support of his conviction insufficient. This is incorrect. For the purpose

of robbery, “in the course of committing theft” means “conduct that occurs in an

attempt to commit, during the commission, or in immediate flight after the attempt

or commission of theft.” TEX. PENAL CODE § 29.01(1). The State is not required to

show “a completed theft” in order to “establish the underlying offense of robbery.”

Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003).

      Robinson testified that Evans assaulted him with a baseball bat while trying

to take his money, i.e., while in the course of committing theft. Robinson also

testified about how he suffered serious bodily injuries and feared for his life, and

he specifically testified that Evans took his wallet. Thus, the evidence was



                                          8
sufficient to show the essential elements of aggravated robbery, that Evans used a

deadly weapon to cause serious bodily injury to Robinson while in the course of

committing theft. See TEX. PENAL CODE § 29.01–.03; id. § 31.03. Accordingly, we

hold that the evidence was legally sufficient to support the jury’s verdict, and we

overrule issues one and two.

   II.      Motion to suppress

         Evans moved to suppress evidence of certain statements that he made to

Officer Vaughn prior to his arrest. The suppression hearing was held mid-trial and

outside the presence of the jury. However, the court concluded the hearing without

ruling on the motion. Evans raises several issues related to his motion to suppress.

         During the suppression hearing, Officer Vaughn testified that he did not

warn Evans of his Miranda rights. He said that at least two other officers were

present, and one of them most likely conducted a pat-down search prior to his

arrival. He testified that Evans spoke to him voluntarily for 10 or 15 minutes while

he checked for outstanding warrants, as he ordinarily does when speaking to

witnesses during an investigation. Evans told him that Robinson caused the injuries

to himself and then called the police to accuse him of a crime. Officer Vaughn did

not know whether Evans would have believed that he was free to leave or not to

answer questions, but he acknowledged that “any reasonable person could

probably be intimidated by at least two police officers standing there.” He denied



                                          9
interrogating Evans and reiterated that he “basically asked him what his side of the

story was.” When the trial court asked if he spoke to Evans in a conversational

manner, he said, “I would have to go back and listen to my video.”

      Evans’s attorney then asked about the videorecording. Officer Vaughn

testified that police “normally” record videos from their cars, but he did not know

if his equipment was turned on at the time. In response to a question from the trial

court, Officer Vaughn said that the normal protocol is to retain videos for six

months before the recording would be erased or recorded over. He said that the

incident in question occurred more than a year prior to trial. The court asked

Officer Vaughn to ascertain if the videorecording was available. No further

mention of the videorecording appears in the trial transcript.

      At the conclusion of the suppression hearing, the trial court asked if the State

wanted to introduce the officer’s testimony. The State asked for a ruling as to

whether the testimony was “even admissible now,” to which the court responded,

“I think it is, but the question is do you really want it?” The State then informed

the court that it did not want to introduce the statements “at this point.” The court

observed that if the State wished to introduce the testimony, it “would make

findings on the record.” No such findings appear in the record.




                                         10
      A. Failure to rule on motion to suppress

      In issue nine, Evans argues that the court erred by admitting Officer

Vaughn’s rebuttal testimony without ruling on the motion to suppress. In

particular, Evans contends that the testimony that should have been suppressed

primarily concerned his statements to Officer Vaughn that Robinson had inflicted

injuries on himself.

      Evans did not object to the court’s failure to rule on the motion to suppress,

nor did he reurge the motion or otherwise object when Officer Vaughn testified

during the State’s rebuttal case. In addition, some of the testimony challenged on

appeal was solicited by defense counsel on cross-examination. For those reasons,

we hold this issue was waived. See TEX. R. APP. P. 33.1; Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998).

      B. Admission of statements elicited by police officer’s questions

      The same logic applies to issues ten and eleven. In issue ten, Evans argues

that his statements to Officer Vaughn should have been suppressed because they

were the product of interrogation conducted without the warnings required by

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and the Code of

Criminal Procedure. Article 38.22 prohibits the use of an oral statement of an

accused made as a result of custodial interrogation unless the statement is made

voluntarily, after the accused is informed of his rights, and is electronically



                                        11
recorded. TEX. CODE CRIM. PROC. art. 38.22 § 3. In addition, a copy of the

recording must be preserved and provided to the accused’s attorney at least 20 days

before trial. Id.

       In issue eleven, Evans argues that the admission of Officer Vaughn’s

testimony violated his rights under Article 38.22 because the State did not provide

him with a copy of his recorded statement prior to trial. He further contends that

the court therefore erred by admitting Officer Vaughn’s testimony without ruling

on the motion to suppress.

       As we explained with respect to issue nine, there was no objection to the

rebuttal testimony, no objection to the trial court’s refusal to rule, and some of the

challenged testimony was solicited on cross-examination by Evans’s trial counsel.

For the same reasons that we concluded issue nine was waived, we also conclude

that issues ten and eleven were waived. See TEX. R. APP. P. 33.1; Leday, 983

S.W.2d at 718.

       C. Admission of statements elicited by police officer’s questions

       In issues twelve and thirteen, Evans argues that the court erred by failing to

enter findings of fact on the suppression hearing and specific findings on whether

his statements were voluntary. On Evans’s motion, we abated the appeal so that the

trial court could enter findings of fact and conclusions of law as to the motion to

suppress. The trial court found that after the suppression hearing, the State



                                         12
withdrew its proffer of Officer Vaughn’s testimony. Then Evans made no further

objections when Officer Vaughn later was presented as a rebuttal witness. The trial

court concluded that because it made no ruling on the motion to suppress, no

findings of fact or conclusions of law were required.

      The record supports the trial court’s conclusion. Because there was no ruling

on the motion to suppress, the trial court was not obligated to make the findings of

fact and conclusions of law that would have been required had such a ruling been

made. See State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012)

(after court rules on motion to suppress, losing party may require the trial judge to

make explicit historical findings of fact); State v. Cullen, 195 S.W.3d 696, 699

(Tex. Crim. App. 2006) (trial court must make findings of fact upon which court of

appeals may review its ruling on a motion to suppress); cf. Leza v. State, 351

S.W.3d 344, 353 (Tex. Crim. App. 2011) (holding that appellant waived

Article 38.22 argument by failing to present it to trial court for ruling). Issues

twelve and thirteen are overruled.

   III.   Undisclosed evidence

      In issues three and four Evans challenges the State’s failure to disclose (1) a

videorecording of statements made to Officer Vaughn and (2) a “call-out sheet”

from the Beaumont Police Department. Evans argues that the State’s failure to

disclose and provide this information violated both the Due Process Clause of the



                                         13
Fourteenth Amendment to the United States Constitution and the Due Course of

Law clause in Article I, Section 19 of the Texas Constitution. However, Evans has

not provided argument or authority concerning the protection provided by the

Texas Constitution or how that protection differs from the protection provided by

the United States Constitution. “State and federal constitutional claims should be

argued in separate grounds, with separate substantive analysis or argument

provided for each ground.” Muniz v. State, 851 S.W.2d 238, 251–52 (Tex. Crim.

App. 1993) (citing Heitman v. State, 815 S.W.2d 681, 690–91 n.23 (Tex. Crim.

App. 1991)); Avilez v. State, 333 S.W.3d 661, 669 n.3 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d). We therefore confine our analysis to Evans’s federal

constitutional arguments.

      “A prosecutor has an affirmative duty to turn over material, favorable

evidence to the defense.” Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App.

1999). “[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963); see also U.S.

v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381 (1985) (suppression of

exculpatory or impeachment evidence “amounts to a constitutional violation only

if it deprives the defendant of a fair trial.”). The withholding or suppression of



                                        14
evidence is reversible only if the appellant shows that (1) the State failed to

disclose evidence, regardless of the prosecution’s good or bad faith; (2) the

withheld evidence is favorable to the accused; and (3) the evidence is material,

meaning that there is a reasonable probability that had the evidence been disclosed

the outcome of the trial would have been different. Pena v. State, 353 S.W.3d 797,

809 (Tex. Crim. App. 2011) (citing Hampton v. State, 86 S.W.3d 603, 612 (Tex.

Crim. App. 2002)); Higginbotham v. State, 416 S.W.3d 921, 924 (Tex. App.—

Houston [1st Dist.] 2013, no pet.).

      The materiality prong includes a “requirement that the defendant must be

prejudiced by the State’s failure to disclose the favorable evidence.” Harm v. State,

183 S.W.3d 403, 406 (Tex. Crim. App. 2006). The defendant bears the burden to

show materiality, which in this case means that the withholding of the evidence

“undermines confidence in the outcome of the trial.” Bagley, 473 U.S. at 678, 105

S. Ct. at 3381; see Hampton, 86 S.W.3d at 612 (burden of proof). “Usually, a

determination concerning the materiality prong of Brady involves balancing the

strength of the exculpatory evidence against the evidence supporting conviction.”

Hampton, 86 S.W.3d at 613.

      A. Videorecording

      Evans contends that the State’s failure to disclose a videorecording of

statements he made to Officer Vaughn violated his constitutional rights. The State



                                         15
argues that there is no such videorecording. Nothing in the record confirms that

such a recording ever existed. Officer Vaughn’s testimony was equivocal: he said

he did not know if his video recorder was on at the time he spoke to Evans and

Winston. The State would have no duty to disclose evidence that does not exist.

See Pena, 353 S.W.3d at 810.

      Even if a recording existed at some time, Evans still has a burden to show

that such evidence was material. He assumes that the videorecording was “highly

material,” but he makes no argument and directs the court to no evidence that

would support such a conclusion. See TEX. R. APP. P. 38.1(i). Although he argues

that Winston’s statements might have been admissible, exculpatory evidence, the

“mere possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612.

      Finally, even with a showing of materiality, a defendant must show that he

was prejudiced by the alleged Brady violation. Evans first learned of the possible

existence of a videorecording during trial. Although his counsel asked Officer

Vaughn if it was possible for him to find out if such a video existed, he did not

seek a recess or continuance in order to obtain the evidence. When the existence of

undisclosed Brady material is first discovered during trial, a defendant must seek a

continuance to obtain the evidence or risk waiver of the issue because “failure to



                                        16
request a continuance indicates that the tardy disclosure of the evidence was not

prejudicial.” State v. Fury, 186 S.W.3d 67, 73–74 (Tex. App.—Houston [1st Dist.]

2005, pet. ref’d) (citing Davis v. State, 992 S.W.2d 8, 12 (Tex. App.—Houston [1st

Dist.] 1996, no pet.)). Because Evans did not seek a continuance, we conclude that

the tardy disclosure of the possible existence of a videorecording that was not

shown to be material could not have resulted in prejudice.

      B. Call-out sheet

      Evans makes several references to the “call-out” sheet in his brief. Despite

the fact that Robinson is not mentioned, Evans asserts that this document, which

was attached as an exhibit to his motion for new trial, showed that Robinson

frequently complained to the Beaumont Police Department, including a false report

of theft a week before the robbery in this case. On appeal, Evans states that he was

not provided with this call-out sheet due to a lack of preparation by the

prosecution. He asserts that the call-out sheet indicated that Robinson was

“trumping up charges to get [him] in trouble” and therefore had to be disclosed as

exculpatory evidence. Unfortunately, the State’s appellate brief failed to respond to

this aspect of Evans’s argument.

      Considering that the motion for new trial and its supporting memorandum

focused on the alleged videorecording and made no reference to the call-out sheet,

this issue arguably has not been preserved. See TEX. R. APP. P. 33.1, cf. Pena, 353



                                         17
S.W.3d at 809 (despite failure of motion for new trial to reference a particular

Brady argument, issue held to be preserved for appeal because the issue

“dominated the motion hearing,” demonstrating that the trial court and the State

were both aware of the purported error). Moreover, Evans’s appellate brief

presents no cogent legal argument about the materiality of the call-out sheet,

instead only referring us generally to attachments to the motion for new trial,

without appropriate citations to the record. See TEX. R. APP. P. 38.1(i); Hampton,

86 S.W.3d at 612–13 (appellant must prove materiality of withheld evidence by

balancing the strength of the exculpatory evidence against the evidence supporting

conviction). In light of these failures to adequately present and argue the point in

the trial court or on appeal, we hold that Evans’s complaint about the State’s

failure to produce the “call-out” sheet—which does not even identify Robinson as

being responsible for any calls made to the Beaumont police—has been waived.

TEX. R. APP. P. 33.1 & 38.1(i).

      We overrule issues three and four.

   IV.   Motion for new trial

      In his fifth issue, Evans argues that the trial court abused its discretion by not

holding an evidentiary hearing on his motion for new trial. We review a trial

court’s denial of a hearing on a motion for new trial for an abuse of discretion, and

we will reverse only if the trial court’s decision was clearly wrong and outside the



                                          18
zone of reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.

App. 2009). The purposes of a hearing on a motion for new trial are (1) to

determine whether the cause should be retried and (2) to prepare a record that

would enable the defendant to present issues on appeal if the court denies the

motion. Id. at 338. A criminal defendant does not have an “absolute right” to a

hearing on his motion for new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex.

Crim. App. 2009). For example, a hearing is not required when the matters raised

in the motion for new trial are subject to being determined from the record. Reyes

v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). When the grounds in the

motion are not already in the record, the motion must be supported by an affidavit

that sets forth the factual basis for the claim. Smith, 286 S.W.3d at 339. This

affidavit need not make out a prima facie case that the movant is entitled to a new

trial, but it must give rise to reasonable grounds in support of the claim. Id. As

such, “a trial judge abuses his discretion in failing to hold a hearing if the motion

and accompanying affidavits (1) raise matters which are not determinable from the

record and (2) establish reasonable grounds showing that the defendant could

potentially be entitled to relief.” Hobbs, 298 S.W.3d at 199 (citing Smith, 286

S.W.3d at 338–39).

      In his motion for new trial, Evans argued that the evidence was legally

insufficient, that the court had erred by overruling objections to Robinson’s



                                         19
testimony which was “largely and obviously self-serving in nature,” that the State

failed to disclose the alleged videorecording of his conversation with Officer

Vaughn, and that the court likewise erred by not assuring that the videorecording

was available to him. Attached to the motion for new trial was an affidavit from

Winston in which she expressed her belief in Evans’s innocence and an affidavit

from defense counsel attaching the Beaumont police department call-out sheet. As

we have observed, the motion for new trial did not mention the call-out sheet,

which itself did not identify any caller or indicate the resolution of the incidents.

The nature of each indicated call was described briefly as “theft,” “check welfare,”

“non specific diag or illness,” and “serve warrant.” Evans made no argument about

how the call-out sheet from the Beaumont police department or any other newly

discovered evidence undermined the evidence at trial that supported the jury’s

verdict. The trial court denied the motion for new trial without a hearing noting

that the motion raised “no issues of fact or law” that were not “fully developed in

the record of the case,” and that the “allegations in the motion, even if true, are

insufficient to require the granting of a new trial.”

      On appeal, Evans asserts that the State’s failure to disclose the call-out sheet

was a Brady violation because it was newly discovered evidence. The argument

Evans makes on appeal to challenge the denial of a hearing—that the call-out sheet

was newly discovered Brady material that would have caused a different result at



                                           20
trial—does not comport with the arguments made in his motion for new trial.

Although he attached the call-out sheet to his motion for new trial, that motion

itself does not mention the call-out sheet or inform the court of an assertion of

newly discovered evidence that might have warranted a hearing. As such, the

argument on appeal was not preserved for appellate review. See Sterling v. State,

800 S.W.2d 513, 521 (Tex. Crim. App. 1990) (“objection at trial which differs

from the complaint on appeal preserves nothing for review”).

      In his motion for new trial, Evans argued that the failure of the prosecutor to

determine if a videorecording had been made and to provide his attorney with a

copy violated his due process rights and his right to pretrial disclosure of Brady

material. Implicit in this argument is an assertion that the videorecording would

have been favorable to Evans and material to guilt or punishment, i.e., had it been

disclosed the result of the trial would have been different. See Pena, 353 S.W.3d at

809; Higginbotham, 416 S.W.3d at 924. In his motion, Evans referred to Officer

Vaughn’s testimony that he might have made a videorecording and to statements

from the prosecutor that he had neither knowledge nor possession of such a video.

Although not set forth in the motion, the record shows that in response to questions

from the trial court, Officer Vaughn testified that the incident occurred more than a

year before trial and that his department’s retention policy required retention of

videorecordings for six months. He also testified that no one had asked him to



                                         21
retain a video pertaining to this case. In a “Memorandum Supporting Motion for

New Trial,” Evans argued that if such a videorecording existed and showed his

demeanor shortly after the alleged aggravated robbery, the State was required to

provide him with a copy of it. He also argued that it should have been provided

because Winston’s statements “might have been” admissible and exculpatory and

“could have led to other evidence” because the incident was more fresh in her

mind.

        The motion and the affidavits attached to it do not establish reasonable

grounds that Evans could be entitled to relief, i.e., a new trial based on his claim

that the State withheld Brady material. Although Evans was present for the

discussion captured on any existing recording, the conclusory statements in the

motion for new trial do not explain how or why any such videorecording could be

expected to be favorable to Evans or could have changed the outcome of the trial.

The affidavits attached to the motion for new trial do not mention the

videorecording at all. See Smith, 286 S.W.3d at 339 (an affidavit setting forth the

factual basis for a claim is a prerequisite to obtain a hearing on a motion for new

trial). Accordingly, we hold that the trial court did not abuse its discretion by

denying an evidentiary hearing on the grounds stated in the motion for new trial.

See id.

        We overrule the fifth issue.



                                        22
   V.      State’s closing argument

        A. Trial court’s refusal to instruct jury to disregard comment about
           reasonable doubt

        In issues six and seven, Evans argues that the court erred by failing to

instruct the jury to disregard the State’s comment about reasonable doubt in its

closing argument. Although Evans’s objection to the comment was sustained, the

trial court refused to instruct the jury to disregard it.

        “Contested jury argument must be extreme or manifestly improper to

constitute reversible error.” Bryant v. State, 340 S.W.3d 1, 13 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d). “In general, proper jury argument

encompasses one of the following: (1) summation of the evidence presented at

trial; (2) reasonable deductions drawn from that evidence; (3) answers to the

opposing counsel’s argument; and (4) pleas for law enforcement.” Id. (citing

Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999)). We consider three

factors when assessing the impact of the harm arising from jury-argument error:

(1) the severity of the misconduct (the magnitude of the prejudicial effect of the

prosecutor’s remarks); (2) the measures adopted to cure the 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). Berry v. State, 233 S.W.3d 847, 858–59 (Tex. Crim. App. 2007).




                                            23
      After the close of evidence, Evans had the first opportunity to deliver closing

remarks to the jury because the State waived its right to speak first. Defense

counsel argued that what happened to Robinson may have been an assault but was

not a robbery because Evans merely knocked the wallet to the floor and Robinson

never returned to the house to collect his belongings. He also argued that that the

State did not proffer testimony from other officers or EMS technicians who

responded to the 911 call or the detective who took statements from Evans and

Winston months after the incident. His trial counsel urged the jury to return a

verdict of not guilty, saying:

      You said more was better but you got less and with that less, the State
      is going to ask you to find Mr. Evans guilty beyond a reasonable
      doubt. Well, erase your doubt. Bring those people in. Let them testify.
      Let them be subject to cross-examination.

      ....

      Ladies and gentlemen of the jury, I’m sorry. Your response to the
      prosecutor is that I’m sorry this did not occur. The evidence simply is
      not there. Bobby Dewayne Evans may be a demon. He may be a lot of
      things, but he did not commit aggravated robbery. He’s not guilty.
      Thank you very much.

      The State addressed the jury last, arguing about the inconsistencies in or

implausibility of the testimony of Evans and Winston. The State also responded to

the defense argument that what happened to Robinson may have been an assault

but was not robbery:




                                         24
      The defense wants you to think there is no theft. Don’t be misled. I’ve
      never seen a defense attorney come into court and tell you, yeah, there
      is enough evidence. Find them guilty. Their job is to bring up
      reasonable doubt.

Evans’s counsel objected to this statement, saying: “That is not what we’re

ethically bound to do.” The trial court sustained the objection and told the jury:

“Their job is to represent their client with zeal.” The court refused to instruct the

jury specifically to disregard the statement, but it said in open court in the presence

of the jury: “They’ve been instructed . . . that the final arguments do not constitute

evidence, and I trust the jury understands that and will follow that instruction.”

      Evans argues that the State’s argument was improper because it suggested to

the jury that the defense had the burden of proof to show a reasonable doubt. In

determining whether an argument was improper, we consider the context of the

statement. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). The

State’s comment that “their job is to bring up reasonable doubt” is susceptible of

more than one meaning. Evans argues that it was an attempt to persuade the jury

that he had the burden of proof to show reasonable doubt. In context, however, it

also could be a response to the defense closing argument—to point out or “bring

up” in its closing argument possible areas for reasonable doubt. As such, the

comment would be a response to defense counsel’s argument and a proper subject

of closing argument. Bryant, 340 S.W.3d at 13; Guidry, 9 S.W.3d at 154.




                                          25
      Even to the extent the comment could have been understood differently, as

suggested by Evans, he still has not shown that he was harmed. First, the

prejudicial effect of the remark was limited because the prosecutor did not actually

state that Evans had the burden of proof as to reasonable doubt, and it was an

isolated instance. Second, the stated basis for the objection was that the State’s

comment did not accurately represent “what we’re ethically bound to do.”

Although the trial court did not specifically instruct the jury to disregard the

statement, the trial court did give an explanatory instruction by informing the jury

of defense counsel’s ethical duty to “represent their client with zeal.” The trial

court also reminded the jury that the arguments of counsel are not evidence and

that it was required to follow the previously given instructions. The court’s charge,

which was read to the jury just before closing arguments and given to the jury to

take into their deliberations, included the following instructions:

      The presumption of innocence alone is sufficient to acquit the
      defendant unless the jurors are satisfied beyond a reasonable doubt of
      the defendant’s guilt after careful and impartial consideration of all
      the evidence in the case. The prosecution has the burden of proving
      the defendant guilty and it must do so by proving each and every
      element of the offense charged beyond a reasonable doubt and if it
      fails to do so, you must acquit the defendant. It is not required that the
      prosecution prove guilt beyond all possible doubt. It is required that
      the prosecution’s proof excludes all reasonable doubt concerning the
      defendant’s guilt.

      ....




                                          26
      [Y]ou must be bound by and strictly follow the law contained in this
      charge.

Third, the evidence supporting the conviction in this case was strong: Robinson

testified to the essential elements of the crime, and photographs and hospital

records showed that he suffered serious bodily injury. Though Evans agreed that

Robinson was seriously injured, his testimony and theory of the case was that the

injuries were self-inflicted. The jury was able to assess the credibility of the

witnesses based on their trial testimony, and it was also able to consider the

photographic and documentary evidence of the injuries in light of the alternative

explanations that were offered: aggravated robbery or self-inflicted wounds.

      Evans has not shown that he was harmed by any impropriety in the

prosecutor’s closing argument, and we overrule issues six and seven.

      B. Credibility of defense witnesses

      In issue eight, Evans argues that his Fourteenth Amendment due-process

right to a fair trial was violated by the cumulative effect of the State’s argument

regarding the credibility of the defense witnesses and its comment about

reasonable doubt. Evans did not object to any portion of the State’s closing

argument pertaining to credibility of the witnesses, nor did he object to any

suggestion that Evans and Winston were not truthful. Aside from the statement of

issue eight, he makes no substantive argument pertaining to this issue. “A

defendant’s failure to object to a jury argument or a defendant’s failure to pursue to

                                         27
an adverse ruling his objection to a jury argument forfeits his right to complain

about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim.

App. 1996); see TEX. R. APP. P. 33.1(a). A defendant also waives his right to

complain of error on appeal if his trial objection does not comport with his

appellate issues. Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d).

      Issue eight is overruled.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

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




                                           28
