Opinion issued March 27, 2014.




                                       In The

                                Court of Appeals
                                      For The

                            First District of Texas
                              ————————————
                                NO. 01-13-00167-CR
                             ———————————
                        JEREMY SHANE LEE, Appellant
                                         V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 208th District Court
                             Harris County, Texas
                         Trial Court Case No. 1209651


                           MEMORANDUM OPINION

        Jeremy Shane Lee was convicted of murder;1 the jury assessed punishment

at life confinement. In two issues, Lee contends that the trial court erred by

allowing him to be impeached with a prior conviction for burglary during the guilt


1
    TEX. PENAL CODE ANN. § 19.02 (West 2011).
phase of trial and by overruling his objection to jury argument during the

punishment phase of trial. We affirm.

                                   Background

      Arlett Bennett died in her Houston apartment after being stabbed 64 times.

She had knife wounds to her face and chest and across her neck. The police

investigation revealed that she had been dating Lee, who lived in Lufkin. When the

police initially questioned Lee about Bennett’s death, he denied any involvement,

though he did admit to having a relationship with her. In a subsequent interview,

after being confronted with phone records showing he had been in Houston at the

time of her murder, Lee admitted to stabbing Bennett, but he claimed it was in self-

defense.

      At trial, Lee testified about his romantic relationship with Bennett. The

relationship was characterized as an “affair” because Lee’s girlfriend in Lufkin was

unaware of his simultaneous involvement with Bennett. Just two days before

Bennett’s murder, Bennett made a surprise visit to Lufkin, causing Lee to fear that

his deception would be uncovered. Lee felt that Bennett “backed me in a corner”

and that the relationship “definitely had to come to an end. It ha[d] to come to a

head.” He asked a friend for a ride to Houston and went to Bennett’s apartment

two days later.




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      According to Lee, Bennett was “ecstatic” to see him at first but, when he

told her he wanted to end the relationship, she became “irate” and said, “I will kill

you before I let you leave me.” He testified that, when the two were near the door,

he turned toward Bennett and saw a knife in her hand. They then wrestled

throughout the apartment, each of them taking the knife from the other repeatedly.

In the end, Bennett suffered 64 stab wounds, including what the medical examiner

testified was a “long, long, long horizontal gaping slash wound . . . just below the

chin.” Lee testified: “We fell in front of the bed, and I was on top of her. I put the

knife in her throat, and I pushed it forcibly and jugged it across her throat, and that

time was the time where she actually stopped fighting.”

      The investigating officers testified about the large amounts of blood in the

apartment, including at the front door and in the bathroom. There also was

testimony about blood found on a Lysol can. Lee explained that he sprayed

Bennett’s face with Lysol after stabbing her.

      Lee was convicted of murder and sentenced to life confinement.

                            Evidence of prior conviction

      In his first issue, Lee argues that the trial court erred by allowing the State to

impeach him with evidence of a prior burglary conviction. Lee, though, was the

first to offer evidence of the conviction.




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      As a general rule, a defendant may not argue on appeal that evidence was

improperly admitted if the defendant introduced the same evidence at trial.

Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2004, pet.

ref’d). There is an exception to this rule when the defendant introduces the

evidence in an effort to “meet, rebut, destroy, deny, or explain evidence that

already has been improperly admitted.” Id. (citing Rogers v. State, 853 S.W.2d 29,

35 (Tex. Crim. App. 1993) (op. on reh’g)). This exception, however, does not

extend to the pre-emptive disclosure of a prior conviction made before the State

offers any evidence on the issue. See Johnson v. State, 981 S.W.2d 759, 761 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d); Wootton, 132 S.W.3d at 84; Cisneros

v. State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009, pet.

dism’d). Furthermore, express statements by defense counsel that prior conviction

evidence is being offered “in light of the court’s ruling [and only] . . . to take the

sting out . . . [but in a manner to] not waive error” do not prevent waiver. Cisneros,

290 S.W.3d at 468 n.5; see Wootton, 132 S.W.3d at 84 n.8.

      The State provided Lee with a copy of his past criminal history, identifying

ten criminal acts that resulted in either probation or jail time, and informed Lee of

its intent to offer evidence of some of these prior convictions for impeachment

purposes, including a burglary conviction. Lee responded by filing a Theus motion,

which requests a ruling from a trial court that the State cannot impeach a testifying


                                          4
defendant with prior convictions. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim.

App. 1992) (identifying factors for court to consider, including impeachment value

of prior crime, temporal proximity, similarity, importance of defendant’s

testimony, and importance of credibility issue). A hearing was held outside the

presence of the jury and before Lee testified. The trial court ruled that the burglary

conviction was admissible and denied Lee’s motion. 2

      Lee testified about the prior burglary conviction during his direct

examination. Lee now argues that he “pre-emptively admitted this prior

conviction” because the court already had denied his Theus motion and he realized

he would be asked about the conviction during cross-examination. The State

argues that Lee waived his complaint by preemptively introducing the evidence on

direct examination. We agree.

      By testifying about the prior conviction before the State offered any

evidence on the issue, Lee waived his challenge to the trial court’s ruling allowing

impeachment by evidence of a prior burglary conviction. See Johnson, 981 S.W.2d

at 761; Wootton, 132 S.W.3d at 84; Cisneros, 290 S.W.3d at 468.

      Accordingly, we overrule Lee’s first issue.




2
      Lee does not appeal the trial court’s ruling with regard to any of his convictions
      other than his burglary conviction; therefore, we do not include the others in our
      analysis. TEX. R. APP. P. 38.1.
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                                  Jury argument

      In his second issue, Lee argues that the trial court erred by overruling his

objection to the State’s argument during the punishment phase of the trial.

      Proper jury argument is generally limited to (1) a summation of the evidence

presented at trial, (2) reasonable deductions drawn from that evidence, (3) answers

to opposing counsel’s argument, and (4) pleas for law enforcement. Wesbrook v.

State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Swarb v. State, 125

S.W.3d 672, 685 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). A trial court

has broad discretion in controlling the scope of closing argument. Lemos v. State,

130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.); see Herring v. New

York, 422 U.S. 853, 862–63, 95 S. Ct. 2550, 2555–56 (1975).            The State is

afforded wide latitude in its jury argument and may draw all reasonable, fair, and

legitimate inferences from the evidence. Allridge v. State, 762 S.W.2d 146, 156

(Tex. Crim. App. 1988). Nonetheless, the State may not engage in jury argument

that invites the jury to speculate whether the defendant has committed other crimes

not in evidence. See Villarreal v. State, 576 S.W.2d 51, 64 (Tex. Crim. App. 1978)

(en banc).

A.    The jury argument and objection

      During the punishment phase, the jury heard testimony about Lee’s prior

conviction for possession of a controlled substance and viewed an admitted


                                         6
videotape of Lee selling drugs to a confidential informant. The jury also heard

from Lieutenant P. Maskunas, who arrested Lee for Bennett’s murder. Lieutenant

Maskunas testified about the drugs and drug paraphernalia found in Lee’s home

the day he was arrested. Then, during jury argument, the State suggested to the jury

that it could infer from Lee’s prior conviction for possession of a controlled

substance and from the admitted videotape that there must have been many more

instances of illegal narcotics activity. Lee’s objection that the attorney’s statement

“calls for speculation” was denied. The State made a similar comment immediately

after Lee’s objection; Lee did not make a second objection.

      On appeal, Lee challenges the entirety of the State’s jury argument on this

issue, including the statement made after he objected. But Lee has waived any

claim of error as to the statement made after he objected because Lee failed to

assert an objection to that comment as well. 3 See Valencia v. State, 946 S.W.2d 81,

82–83 (Tex. Crim. App. 1997) (holding that defendant waived jury argument error

by failing to object). We hold that the only portion of the jury argument that is

before this Court, then, is as follows:

      What do we learn then, that he was convicted of possession of a
      controlled substance; and we have a video of Jeremy Lee selling drugs
      to a confidential informant. Do you know and think to yourself, “How


3
      The subsequent remark was as follows: “How many times does someone speed
      and get a speeding ticket? Just think about that in your own life. So how many
      times are you doing this before you actually get caught on camera no less . . . .”
                                           7
      many times did he sell drugs to someone that we didn’t have it on
      video?”

      Lee’s objection was proper. The State invited the jury to speculate whether

Lee had committed other crimes that were not in evidence. That is impermissible

jury argument. See Villarreal, 576 S.W.2d at 64. The trial court erred by overruling

Lee’s objection. We, therefore, must consider whether the trial court’s failure to

sustain the objection requires reversal.

B.    Harmless error analysis

      Improper jury argument, such as this, is considered a non-constitutional

error and analyzed under rule 44.2(b), which requires that error be disregarded

unless it affects an appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Mosley v.

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc) (adopting three-fold

test for reviewing whether improper argument substantially affected defendant’s

rights). A substantial right is affected when an improper jury argument has a

“substantial and injurious effect or influence on the jury’s verdict.” Orsag v. State,

312 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is

not affected if the reviewing court has a “fair assurance that the error did not

influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356,

365 (Tex. Crim. App. 2001). In other words, if there is a “grave doubt” that the

result was free from the substantial influence of the evidence, then the defendant’s

                                           8
substantial rights were affected. See Burnett v. State, 88 S.W.3d 633, 637–38 (Tex.

Crim. App. 2002). “Grave doubt” means “in the judge’s mind, the matter is so

evenly balanced that he feels himself in virtual equipoise as to the harmlessness of

the error.” Id.

       When analyzing the likelihood that the improper jury argument had a

substantial influence on the outcome of the case, we consider the argument in light

of the record as a whole. Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—

Houston [1st Dist.] 2001, pet. ref’d). We consider (1) the severity of the

misconduct or prejudicial effect, (2) any curative measures taken, and (3) the

certainty of conviction or punishment assessed absent the misconduct. Mosley, 983

S.W.2d at 259–60; Orsag, 312 S.W.3d at 120.

       1.     Severity

       In examining the severity of the argument, we review whether it appears that

the improper argument was “a willful and calculated effort to deprive [Lee] of a

fair and impartial trial.” Brown v. State, 270 S.W.3d 564, 573 (Tex. Crim. App.

2008).

       Viewing the record as a whole, we conclude that the improper argument

does not reflect an effort to deprive Lee of a fair trial and that the severity of the

misstatement does not weigh in favor of a reversal. The State’s comment

concerned Lee’s prior conviction for possession of a controlled substance and


                                          9
encouraged the jury to infer, from that conviction, that there must have been more

times that he did “sell drugs to someone” and was not caught.

        The charge for which the jury was determining punishment was not a drug-

related crime but, instead, murder. The jury was assessing punishment for a

defendant already determined to have brutally stabbed and killed his girlfriend.

There was testimony about the extent of her injuries, the large quantities of blood

in the apartment, and the fact that he sprayed Lysol in her face as she lay dying on

her apartment floor. Whether the jury believed there were other instances in which

Lee did “sell drugs to someone” was unlikely to have weighed heavily in their

decision of an appropriate punishment, in the prescribed range of 15 years to life,

for a murder conviction.

        Further, the jury argument implying Lee sold drugs more than once was

unlikely to have had a substantial, prejudicial effect given the ample testimony

admitted without objection from Lee and others from which the jury could have

concluded that Lee had more than an isolated connection to drugs. For example,

Lee testified about the explanation he gave his Lufkin girlfriend concerning

Bennett’s death. Lee testified that he told his girlfriend that Bennett was “setting

up a drug deal” for him and that he killed her in self-defense related to that drug

deal.




                                        10
      Lieutenant P. Maskunas with the Angelina County Sheriff’s Department

testified that when he went to Lee’s house to arrest him for the murder of Bennett

he found marijuana, cocaine, black tar heroin, glass beakers, a digital scale for

weighing objects, a large amount of cash, and other evidence indicating narcotics

manufacturing and sales. Lieutenant Maskunas informed the jury that Lee was

indicted for possession of a controlled substance based on the numerous drug-

related materials found in his home that day. Lee did not object to this testimony.

The drug possession that led to that indictment occurred two years after the

videotaped drug deal shown to the jury.

      In the context of the record, as a whole, given (1) the dissimilarity between

the crime for which he was being punished (murder) and the other crimes the jury

was asked to infer (selling drugs) and (2) the other, unchallenged evidence

indicating that Lee had a history with drugs beyond his single conviction, this

factor weighs in favor of finding the error harmless.

      2.     Curative measures

      No curative measures were taken to minimize the effect of the improper jury

argument because the objection was overruled. This factor favors reversal.

      3.     Certainty of punishment assessed

      Lee challenges the State’s argument implying that he possibly committed

more drug offenses. Lee contends the prosecutor’s statement caused the jury to


                                          11
speculate that he committed other felonies and contributed to its decision to impose

a life sentence. In reviewing the certainty of the punishment absent the improper

argument, we consider the strength of the evidence, looking at all the evidence in

the record. Mosley, 983 S.W.2d at 259. Here the evidence was strong.

      First, although the State improperly invited the jury to speculate that Lee

may have committed more drug offenses than what already was in evidence, the

State’s final argument focused much more on the brutality of the crime for which

he was being punished. The jury heard lengthy testimony about Bennett’s 64 stab

wounds. Lee testified that he covered her mouth to prevent her screams, stabbed

her in the face and chest and across her neck, and then sprayed Lysol in her face.

The jury found the State’s evidence to be credible and rejected Lee’s self-defense

claim in the guilt phase.

      A jury reasonably could conclude, given the type of crime committed, along

with the particularly brutal facts of this murder, that Lee was a danger to society

with a wanton and callous disregard for human life deserving of punishment at the

higher end of the range. Cf. King, 953 S.W.2d at 271–72 (dangerousness shown by

pattern of disrespect for the law); Martinez v. State, 924 S.W.2d 693, 696–97 (Tex.

Crim. App. 1996) (en banc) (“[A]ppellant’s weapon of choice was a knife—a

weapon which, by virtue of its very nature, forces the user to be in such close

proximity to his victim that he is often touching him or comes into contact with


                                        12
him on each blow. Furthermore, the character of the weapon is such that several

thrusts are often utilized in order to ensure death—each additional thrust

potentially indicating to any rational juror that such a personal act requires a

wanton and callous disregard for human life”). We cannot conclude that an

implication that Lee engaged in additional drug deals—beyond those already in

evidence—would have had a significant influence on the jury’s consideration,

given the other evidence before them directly related to the crime for which he was

charged. See Mosley, 983 S.W.2d at 260 (finding harmless error when trial court

overruled defendant’s objection to improper jury argument because certainty-of-

outcome factor weighed heavily in favor of State with strong evidence of guilt).

      Second, there was ample evidence of other criminal activity. In addition to

evidence of illegal narcotics activity at the time of his arrest and in his explanation

to his Lufkin girlfriend, Lee admitted to four prior convictions at the beginning of

the punishment phase of his trial, including

          • Forgery of a commercial instrument (September 11, 2002)
          • Felony burglary of a habitation (February 17, 2003)
          • Failure to identify (April 17, 2008)
          • Possession of a controlled substance with intent to deliver cocaine
            (October 23, 2009)

These four prior criminal convictions were undisputed. Additionally, the videotape

admitted in evidence showed Lee selling drugs to a confidential informant two

years before large quantities of drugs and drug paraphernalia were found in his
                                          13
home. There was evidence of criminal activity and convictions beyond the jury

argument inferring additional drug deals.

      Accordingly, we do not have a “grave doubt” as to the influence of the

improper jury argument on the jury and conclude, instead, that it had but a “slight

effect.” See Solomon, 49 S.W.3d at 365; Burnett, 88 S.W.3d at 637–38.

      We, therefore, overrule Lee’s second issue.

                                    Conclusion

      Having overruled both of Lee’s issues, we affirm the trial court’s ruling.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Keyes, Bland, and Brown.

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




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