AFFIRM; and Opinion Filed June 24, 2019.




                                                             In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas
                                                   No. 05-18-00571-CR

                                         WINDELL STOKES, Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                              On Appeal from the 422nd Judicial District Court
                                         Kaufman County, Texas
                                  Trial Court Cause No. 15-50472-422-F

                                       MEMORANDUM OPINION
                         Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                       Opinion by Justice Pedersen, III
          Appellant Windell Stokes was indicted for possession of cocaine with intent to deliver. The

indictment included one enhancement paragraph listing a previous felony conviction. On

appellant’s open plea of guilty, the trial court sentenced him to fifty years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. On appeal, this Court

concluded there was no evidence that appellant was aware of the applicable punishment range for

the offense to which he pled guilty. We reversed the trial court’s judgment and remanded for

further proceedings.1

          On remand, a jury found appellant guilty of the lesser included offense of possession of a

controlled substance, cocaine, between one and four grams, and sentenced him to twenty years in


     1
         Stokes v. State, No. 05-16-00986-CR, 2017 WL 2791714 (Tex. App.—Dallas June 28, 2017, no pet.) (mem. op., not designated for
publication).
prison. Appellant does not dispute his conviction. He does, however, dispute his punishment. In

one issue, he urges that the cumulative effect of prosecutorial misconduct and errant trial court

rulings during the punishment phase of his trial led to a final sentence that was contrary to the law

and the evidence. We affirm the trial court’s judgment.

       Appellant argues that the cumulative impact of errors during the punishment phase “rose

to the point where they became harmful.” He illustrates his argument with six examples of alleged

misconduct or error: (1) the State repeatedly referred to a prior arrest for which appellant was not

convicted in an attempt to portray him as a drug dealer; (2) the State referred to appellant as a gang

member; (3) the trial court admitted an exhibit despite appellant’s objection; (4) the State referred

to his original fifty-year sentence; (5) the State ignored the trial court’s instruction and referred to

appellant as a drug dealer during closing argument; and (6) the trial court allowed the State’s

improper closing argument. In response, the State contends that appellant failed to show or

preserve error or harm from error, and the cumulative effect of non-error does not merit reversal.

       “The doctrine of cumulative error provides that the cumulative effect of several errors can,

in the aggregate, constitute reversible error, even though no single instance of error would.”

Holloway v. State, No. 05-14-01244-CR, 2016 WL 3098297, at *4 (Tex. App.—Dallas May 25,

2016, no pet.) (mem. op., not designated for publication); see also Chamberlain v. State, 998

S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of errors may be found

harmful in their cumulative effect.”). In a cumulative error analysis, we consider only errors that

were preserved for appeal. Taylor v. State, No. 05-14-00821-CR, 2016 WL 7439194, at *9 (Tex.

App.—Dallas Dec. 27, 2016, pet. ref’d) (mem. op., not designated for publication). The

cumulative-error doctrine does not apply unless the complained-of errors have been preserved for

appeal and are actually errors. See Chamberlain, 998 S.W.2d at 238 (“[W]e are aware of no

authority holding that non-errors may in their cumulative effect cause error.”). If an appellant fails

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to prove any error as to his complaints separately, there is no cumulative harm. Buntion v. State,

482 S.W.3d 58, 79 (Tex. Crim. App. 2016).

       Appellant first complains that the State attempted to portray him as a drug dealer by

repeatedly referring to a prior arrest for which he was not convicted. According to the record, the

State introduced and the trial court admitted, without objection, eight exhibits pertaining to

appellant’s previous juvenile and adult convictions. Witnesses for the defense included appellant’s

sister and appellant himself. During cross-examination of appellant and his sister, the State elicited

testimony regarding appellant’s previous arrest record. Appellant and his counsel did not object to

this line of questioning. However, on appeal, appellant now complains about the State’s references

to a prior arrest without conviction. To preserve this complaint for appellate review, appellant was

required to present a timely, specific request, objection, or motion to the trial court, and to obtain

a ruling. TEX. R. APP. P. 33.1(a). Further, his complaint on appeal must comport with the specific

objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because

appellant did not object to the State’s questions or the exhibits pertaining to his prior arrests and

convictions, he failed to preserve his complaint about that evidence.

       Second, appellant contends that the State attempted to “inflame the jury’s passions” by

referring to appellant as a gang member. The record does not support his contention. According to

the record, the State asked appellant’s sister if appellant was involved with a gang or any gang

members. She responded that appellant was never in a gang and to her knowledge, he did not hang

around with anyone associated with gangs.

       In his third example, appellant urges that the trial court erred by admitting the State’s

Exhibit 17 without a proper predicate. We examine a trial court’s decision to admit or exclude

evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App.

2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable

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disagreement. Id. at 83. We will uphold a trial court’s decision to admit evidence when it is

reasonably supported by the record and correct under any theory of law applicable to the case.

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).

       During the State’s cross-examination of appellant about his previous manslaughter

conviction, the State sought to introduce State’s Exhibit 17, a photograph of the deceased. Defense

counsel objected based on an improper predicate and asked for a bench conference. It is unclear

from the record what defense counsel argued was improper about the predicate supporting State’s

Exhibit 17. However, when testimony resumed, the State asked appellant if Exhibit 17 was a

photograph of Dorian Jackson. Appellant confirmed the identity of the person in the photograph.

He also testified that: (i) Exhibit 17 was a photograph of the person he shot, (ii) the person later

died, and (iii) appellant pled to a manslaughter charge. The State again offered the exhibit for

admission into evidence. The court asked defense counsel if he had any objection, and counsel

stated he had no additional objections. Thus, it appears that whatever defense counsel found to be

lacking from the predicate supporting State’s Exhibit 17 was supplied by the additional identifying

testimony by appellant. We conclude that the trial court did not abuse its discretion in admitting

State’s Exhibit 17.

       Appellant next complains that the State referred to the previous punishment in this case to

argue that a maximum sentence was not enough. However, according to the record, the State did

not refer to the original fifty-year sentence. Instead, appellant himself referenced the previous

sentence of fifty years’ confinement before his original conviction was reversed on appeal.

Appellant made this reference in response to an unrelated question by the State.

       State:          The extent of these offenses seem to be greater than each one of
                       them you’ve talked to this jury about.

       Appellant:      I mean that was a list of misdemeanors, whatever. Whatever, I don’t
                       need to say that was part of my past. I don’t have to sit up here and
                       say. What I did, I done did, sir. You know, you trying to get me to
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                        man up to something ‘cause you trying to pin a charge on me or
                        something like that because, you know, you upset. Then, you know,
                        that’s, that’s something else I don’t got nothing to do with, you
                        know.

                        I know from the 50 years that I received in TDC, I know I’m back
                        on bench warrant from the case, I just been found not guilty of a
                        lesser punishment. I’ve been locked up 2 years, 9 months. All this
                        right here, that’s a whole nother part of my life, you know; and I’m
                        not going to run from it or nothin’ because it’s the person that – you
                        know, it made me better. You know, I’m not even the same man that
                        I was from all that. You know, so I understand the cases. I been
                        through the cases. I lived the cases. But you trying to act like that
                        I’m the same person that I am now just because I done went. Yeah,
                        I made mistakes. I made the wrong choices. I caught the drug cases,
                        the ones that I pled guilty for. The one in April, it ain’t nothing even
                        been ran from. It’s been 3 years. It’s been over 3 years. Like I said,
                        I received the 50 years you all gave me, the 50 years in the case.

At this point, defense counsel objected—without stating a basis for his objection—and asked for

a bench conference. We are unable to ascertain the basis for counsel’s objection from the record,

and the record does not reflect a ruling on counsel’s objection by the trial court. However, the

record establishes that counsel did not object to the State’s question; the record also establishes

that counsel did not object the first time appellant mentioned the previous fifty-year sentence from

the overturned conviction.

        The record does not establish that the State referred to the previous punishment. Further,

the record does not establish the basis of defense counsel’s objection. If, during the bench

conference, counsel objected to his own client’s discussion of the previous sentence, his objection

was untimely, and he failed to object each time his client referred to the fifty-year sentence.

Regardless, we conclude that appellant failed to preserve this complaint for appeal. See TEX. R.

APP. P. 33.1(a) (To preserve a complaint for appellate review, a party must present a timely

objection to the trial court and obtain a ruling.).

        Appellant’s fifth and sixth allegations of error pertain to the State’s closing argument.

Appellant complains that the prosecutor continuously referred to appellant as a drug dealer during
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closing argument. Appellant contends that even though “the trial court sustained Defense

Counsel’s objection on the issue,” the prosecutor persisted in referring to appellant as a drug dealer.

The record reflects that during closing argument, the prosecutor referred to appellant as a drug

dealer. However, it is not clear that defense counsel objected—or the trial court sustained—an

objection to the prosecutor’s reference to appellant as a drug dealer.

       Defense counsel did not immediately object when the prosecutor first referred to appellant

as a drug dealer. Instead, counsel objected when the prosecutor started talking about a telephone

call reporting that appellant was dealing at a specific location. Counsel objected that the prosecutor

was arguing facts that were outside the record. Counsel then expanded his objection to complain

that the prosecutor was “putting his personal opinion into closing argument,” and “getting into

stuff that was never admitted.” When the trial court asked counsel to be more specific as to what

argument he was objecting to, counsel asked for a bench conference. At the conclusion of the

bench conference, the trial court sustained defense counsel’s objection. However, there is nothing

in the record to establish that the trial court sustained an objection to the prosecutor’s reference to

appellant as a drug dealer.

       Even if the trial court sustained an objection to the prosecutor’s reference to appellant as a

drug dealer, appellant failed to preserve error on this complaint because he failed to object each

time the reference was made. Further, appellant did not request an instruction that the jury

disregard the reference, and he did not request a mistrial. “To preserve error regarding improper

jury argument for appellate review, a defendant must contemporaneously object to the statement,

request an instruction that the jury disregard the statement if the objection is sustained, and move

for a mistrial if an instruction to disregard is given.” Robinson v. State, No. 05-16-00449-CR, 2017

WL 2264823, at *2 (Tex. App.—Dallas May 24, 2017, pet. ref’d) (mem. op., not designated for

publication) (citing Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993)).

                                                 –6–
       Appellant’s sixth complaint involves a subsequent exchange during the State’s closing

argument. The prosecutor referred to appellant as “someone who has been a lifelong drug dealer”

and began to compare the facts in this case to a previous arrest where appellant was in possession

of crack cocaine, baggies, and a large amount of cash. Defense counsel objected, renewing his

objection to improper argument and complaining that the prosecutor was talking about things that

were not facts in this case. The trial court responded: “Let me just admonish the jury. You have

heard the evidence. You will recall the evidence. What the attorneys say is not evidence. So you

will recall the evidence you heard from the witness stand.” Although the trial court admonished

the jury, the trial court did not rule on defense counsel’s objection.

       “To preserve error regarding improper jury argument for appellate review, a defendant

must object and pursue his objection to an adverse ruling.” See Canada v. State, 547 S.W.3d 4, 22

(Tex. App.—Austin 2017, no pet.). In this case, defense counsel failed to pursue his objection to

an adverse ruling. In addition, defense counsel failed to request an instruction to the jury to

disregard, or a mistrial. See Robinson, 2017 WL 2264823, at *2. Therefore, appellant failed to

preserve error regarding his objection to the State’s closing argument to the jury.

       Having considered all of appellant’s allegations of misconduct or error, we conclude that

appellant failed to prove error concerning each of his complaints separately, and so we find no

cumulative harm. See Buntion, 482 S.W.3d at 79. Accordingly, we conclude that appellant’s

cumulative-error argument lacks merit. We overrule his sole issue and affirm the trial court’s

judgment.


                                                    /Bill Pedersen, III/
                                                    BILL PEDERSEN, III
Do Not Publish                                      JUSTICE
TEX. R. APP. P. 47

180571F.U05

                                                 –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 WINDELL STOKES, Appellant                            On Appeal from the 422nd Judicial District
                                                      Court, Kaufman County, Texas
 No. 05-18-00571-CR         V.                        Trial Court Cause No. 15-50472-422-F.
                                                      Opinion delivered by Justice Pedersen, III.
 THE STATE OF TEXAS, Appellee                         Justices Whitehill and Partida-Kipness
                                                      participating.

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


Judgment entered this 24th day of June, 2019.




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