                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00622-CR


RANDY KEITH SEIBEL                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                 STATE


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      Appellant Randy Keith Siebel appeals from his conviction for capital

murder and life sentence. We affirm.




      1
      See Tex. R. App. P. 47.4.
                                I. BACKGROUND 2

      Seibel was charged with capital murder after he participated with four other

men in the robbery of a convenience store, which they had unsuccessfully

planned twice before.     During the robbery, one of the participants—Kwame

Rockwell—shot Jerry Burnett (who was delivering bread at the time of the

robbery), injuring him. After the store clerk—Daniel Rojas—showed the men

where the store’s money was kept, Rockwell shot Rojas in the head, killing him.

After the men left the store, Burnett called 911. Burnett later died from his injury.

      Chance Smith, who had been the getaway driver for the robbery, began to

feel guilty and called the police the next day. Smith told the police that Seibel

had been involved in the robbery but did not implicate himself.            Appellant,

Rockwell, Smith, and Tyrone Thomas (the fourth participant) later were arrested

based on Smith’s information.

      Shortly after Appellant was arrested and given the appropriate warnings,

he invoked his right to counsel and asked to speak with Rachel Sheeran, whom

he identified as his stepmother and his attorney. See Tex. Code Crim. Proc.

Ann. art. 38.22, § 2 (West Supp. 2013).         The police detectives questioning

Appellant—Tom Boetcher and Brent Johnson—immediately stopped the

interview.


      2
       Although Appellant does not challenge the sufficiency of the evidence,
some factual discussion is necessary to put Appellant’s arguments in context.
Thus, our factual recitation is not exhaustive.


                                          2
      Two days later, Sheeran spoke to Appellant at the jail. Before Sheeran

spoke with Appellant, Boetcher told Sheeran that if Appellant cooperated,

Boetcher “would make that fact known to the prosecuting attorney.” Sheeran told

Appellant that she had consulted with another attorney who advised that

Appellant should remain silent until a plea-bargain deal could be achieved.

Indeed, Sheeran brought a form for Appellant to sign indicating he was invoking

his right to remain silent. But Sheeran counseled Appellant that her “gut” told her

that he should make a statement because Smith had been arrested and would

talk to the police and because Boetcher would mention Appellant’s cooperation

to the prosecuting attorney. Sheeran believed her advice helped Appellant avoid

the death penalty. Sheeran then asked Boetcher to join them because Appellant

wanted to make a statement. Boetcher again gave Appellant the article 38.22

warnings. Appellant waived the rights explained in the warnings and gave a

statement implicating himself as a participant in the robbery.                Sheeran

“represent[ed] herself specifically as [Appellant’s] attorney” to Boetcher.

      A few days later, Sheeran contacted the police department because

Appellant “wanted to talk . . . again” but stated that she did not need to be

present “unless [Appellant] wanted her.”      Johnson spoke with Appellant after

again giving him the article 38.22 warnings. Appellant told Johnson he did not

need Sheeran and gave a second statement implicating Tyrone Thomas’s

cousin, Tim Thomas, as the fifth participant in the robbery.




                                          3
      Appellant was indicted for capital murder to which he pleaded not guilty.

See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2013). At some point, the

State elected not to seek the death penalty. 3 Before Appellant’s trial, he filed a

motion to suppress his inculpatory statements. The trial court denied the motion.

After a trial, the jury found Appellant guilty of capital murder, and the trial court

assessed his punishment at life confinement without parole. See Tex. Code

Crim. Proc. Ann. art. 37.071, § 1 (West Supp. 2013). Appellant appeals and

asserts that he received ineffective assistance of counsel before he gave his

statements, the trial court erred by denying his motion to suppress, the trial court

made an improper comment during voir dire, the trial court erred by admitting

extraneous-offense evidence, the trial court erred by admitting Burnett’s 911 call,

the jury charge was erroneous, the trial court erroneously overruled his objection

to the State’s jury argument, and any errors found to be harmless constitute

cumulative error.




      3
       The record does not clearly show exactly when the State waived the
death penalty. As recently as four months before trial, Appellant filed a motion to
preclude imposition of the death penalty and a motion to allow the jury to hear
the impact of its vote division on the imposition of the death penalty. The
judgment, however, reflects that because the State waived the death penalty and
because the jury found Appellant guilty of capital murder, the trial court assessed
Appellant’s punishment at life without parole. In any event, Appellant correctly
asserts that the State’s waiver occurred at least two years after he gave the
inculpatory statements.


                                         4
              II. INEFFECTIVE ASSISTANCE OF COUNSEL
           AND IMPACT ON VOLUNTARINESS OF STATEMENTS

      In his first two points, Appellant asserts that Sheeran was ineffective in

advising him to talk to the police, which rendered those statements involuntary

and, thus, inadmissible. Both the State and Appellant agree that the test to

determine the effectiveness of counsel requires Appellant to show by a

preponderance of the evidence that (1) counsel’s acts or omissions were outside

the wide range of professional assistance and (2) there is a reasonable

probability that, but for these unprofessional errors, the outcome of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–89, 104 S. Ct. 2052, 2064–65 (1984); Menefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012).

      Appellant cannot meet either prong of this test.      Sheeran, while not a

seasoned criminal practitioner, 4 did not act unreasonably under all the

circumstances and prevailing professional norms.        See generally Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (holding review of counsel’s


      4
       We decline Appellant’s invitation to presume either deficient performance
or prejudice arising from such performance solely based on Sheeran’s meager
criminal experience. In our review of Sheeran’s performance, we must focus on
her actions under the totality of the circumstances and prevailing professional
norms, not her resume. See Ex parte Dwyer, No. 08-01-00059-CR, 2002 WL
28018, at *7 (Tex. App.—El Paso Jan. 10, 2002, pet. ref’d) (not designated for
publication) (“[Appellant’s] claim that trial counsel was inexperienced is based on
evidence regarding his reputation and not his actual conduct at trial.”). See
generally Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999).


                                        5
representation is highly deferential and includes strong presumption that

counsel’s conduct fell within a wide range of reasonable representation).

Sheeran spoke to a more experienced criminal attorney before speaking with

Appellant.   She also investigated what evidence the police had to implicate

Appellant, talked to other police officers to determine if Boetcher was a “good

detective,” and knew that Smith had been arrested.          Before meeting with

Appellant, she drafted a statement for him to sign if he wanted to invoke his right

to remain silent, as the other attorney had recommended. Although the other

attorney had advised that Appellant should not speak to the police, Boetcher told

Sheeran that Appellant’s cooperation would be communicated to the prosecuting

attorney. Sheeran told Appellant that the other attorney would advise Appellant

not to talk to the police, Boetcher would tell the prosecuting attorney about

Appellant’s cooperation, Boetcher could not guarantee any leniency, and she

believed Appellant should cooperate.

      In sum, Sheeran investigated before speaking with Appellant and correctly

explained his options to him, including her strategic opinion that Appellant should

give a statement to gain more favorable treatment. We cannot conclude that

Sheeran’s actions and advice were so outrageous that she was acting as

constitutionally ineffective counsel. See Rivera v. State, 317 S.W.3d 480, 482–

83 (Tex. App.—Amarillo 2010, no pet.) (concluding counsel’s performance not

deficient when appellant’s decision to plead guilty was made after review of his

options); Powers v. State, 727 S.W.2d 313, 316 (Tex. App.—Houston [1st Dist.]


                                        6
1987, pet. ref’d) (holding no ineffective assistance of counsel where record

contains no evidence that appellant was misled by counsel); cf. Kennedy v.

State, 402 S.W.3d 796, 800 (Tex. App.—Fort Worth 2013, pet. struck) (“[W]e

refuse to second guess counsel’s trial strategy simply because it failed to result

in an acquittal.”).

       Further, Appellant cannot show that the result of his trial would have been

different absent Sheeran’s conduct. Appellant raises three different hypothetical

outcomes that could have occurred if Sheeran had not advised him to waive his

right to remain silent. But these hypotheticals do not show that Appellant was

denied a fair trial and, at most, merely show that Sheeran’s advice could have

had some conceivable effect on the outcome, which is insufficient to demonstrate

the degree of prejudice that Strickland requires. See Burruss v. State, 20 S.W.3d

179, 186–88 (Tex. App.—Texarkana 2000, pet. ref’d); see also Gulley v. State,

No. 2-06-395-CR, 2008 WL 755203, at *8 (Tex. App.—Fort Worth Mar. 20, 2008,

pet. ref’d) (mem. op., not designated for publication). Indeed, Sheeran based her

advice on her belief that Appellant could avoid the death penalty if he gave a

statement, which occurred (albeit two years later). See Ripkowski v. State, 61

S.W.3d 378, 390 (Tex. Crim. App. 2001) (holding counsel’s advice not

constitutionally ineffective when “Appellant received exactly what counsel told

him he would get”).

       Appellant also attacks counsel’s performance as rendering his decision to

waive his rights to remain silent and to counsel involuntary. As we have held


                                        7
above, Appellant has failed to show that Sheeran was constitutionally ineffective.

Further, nothing shows that Appellant’s statements were involuntary based on

Sheeran’s correct explanation of his then-existing options or on Boetcher’s

allowable promise to communicate Appellant’s cooperation. Cf. Herrera v. State,

194 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding

police promise to “talk to the D.A., get you an offer, if you can help us” was not

improper promise rendering confession inadmissible). We overrule points one

and two.

                                  III. VOIR DIRE

      In his third point, Appellant asserts that the trial court improperly

commented on his Fifth Amendment right not to incriminate himself.            Before

questioning of the veniremembers began, the trial court discussed Appellant’s

rights under the Fifth Amendment:

              You will also get an instruction about the defendant’s failure to
      testify. The defendant in any criminal case is not required to prove
      himself innocent. If the defendant does not choose to testify, you
      may not consider this fact as evidence of guilt nor may you, in your
      deliberations, comment or in any way allude to that fact.

            I think growing up as a small kid and maybe as an older
      gentleman, I would have liked to have been able to invoke that rule
      at my house, but I was not able to.

Appellant did not object to these statements.

      Appellant recognizes that his failure to object limits our review to a

determination of whether the statements were fundamental error affecting his

substantial rights. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(d). To


                                         8
constitute fundamental error, Appellant must show that the trial court’s

statements “rose to such a level as to bear on the presumption of innocence or

vitiate the impartiality of the jury.” Jasper v. State, 61 S.W.3d 413, 421 (Tex.

Crim. App. 2001). The trial court’s comments here, however, did not directly

comment on the import of Appellant’s Fifth Amendment rights or shift the State’s

burden of proof in any way. We conclude that the trial court’s statements did not

constitute fundamental error such that Appellant’s failure to object is excused.

See, e.g., Latson v. State, No. 14-12-00559-CR, 2013 WL 4487544, at *1–2

(Tex. App.—Houston [14th Dist.] Aug. 22, 2013, no pet.) (holding trial court’s

voir-dire statement that reasonable doubt was “simply what is in each juror’s

‘heart’” not fundamental error because it did not shift the State’s burden of proof

or allow the jury to disregard the charge); Morris v. State, No. 01-12-00203-CR,

2013 WL 4399216, at *4–6 (Tex. App.—Houston [1st Dist.] Aug. 15, 2013, no

pet.) (mem. op., not designated for publication) (holding trial court’s definitions

during voir dire of “imminent” and “threaten” with explanatory hypotheticals were

not fundamental error under Jasper); Smith v. State, Nos. 10-08-00360-CR, 10-

08-00361-CR, 2009 WL 4263701, at *2–5 (Tex. App.—Waco Nov. 25, 2009, pet.

dism’d, untimely filed) (mem. op., not designated for publication) (holding trial

court’s voir-dire statement referring to instances when defense counsel “didn’t

even call the defendant to the witness stand” not fundamental error because, in

context, it did not comment on Smith’s right to remain silent or vitiate the

presumption of innocence). We overrule point three.


                                        9
                        IV. ADMISSION OF EVIDENCE

      In points four, five, six, and seven, Appellant argues that the trial court

abused its discretion in admitting extraneous-offense evidence and a recording of

Burnett’s 911 call. We review a trial court’s decision to admit evidence under an

abuse-of-discretion standard. See Rachal v. State, 917 S.W.2d 799, 808 (Tex.

Crim. App.), cert. denied, 519 U.S. 1043 (1996); Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

                      A. EXTRANEOUS-OFFENSE EVIDENCE

      At trial, the State introduced evidence that, in the week before the

successful robbery, Appellant, Rockwell, and Smith twice planned to rob the

same store.    The State also introduced evidence that a month before the

successful robbery, Appellant, Rockwell, and Smith planned either to stage a car

accident with the store owner while he had the money with him or to set the store

owner’s house on fire to get the money he presumably had hidden there. These

plans fell apart for various reasons. Appellant argues that the trial court abused

its discretion because these instances were insufficient to show a plan to rob the

store and because they did not show Appellant’s willingness to participate.

      Although evidence of other crimes, wrongs, or acts is not admissible “to

prove the character of a person in order to show action in conformity therewith,”

such evidence may “be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.” Tex. R. Evid. 404(b). Further, such evidence is admissible under


                                       10
rule 404(b) to rebut an affirmative defense. See Casey v. State, 215 S.W.3d

870, 879 (Tex. Crim. App. 2007).

      At trial, the State asserted that it offered the evidence to show a “plan” and

“preparation for the actual offense.” As the State points out, Appellant asserted

the affirmative defense of duress—that Rockwell threatened Appellant with a gun

when Appellant balked at participating in the robbery. See Tex. Penal Code Ann.

§ 8.05 (West 2011). The two prior plans to rob the store and the plans to burn

the store owner’s home and stage a car accident, in which Appellant was

involved, directly rebutted Appellant’s affirmative defense; thus, they were

admissible. See Thrush v. State, 515 S.W.2d 122, 125 (Tex. Crim. App. 1974).

Additionally, this evidence was admissible “to show steps taken by the defendant

in preparation for the charged offense.” Daggett v. State, 187 S.W.3d 444, 451

(Tex. Crim. App. 2005). The trial court did not abuse its discretion, and we

overrule points four, five, and six.

                                       B. 911 CALL

      Appellant next asserts the trial court abused its discretion by admitting the

recording of Burnett’s 911 call after he was shot. At trial, Appellant objected to its

admission on the ground that it was unduly prejudicial under rule 403. Tex. R.

Evid. 403. On appeal, Appellant asserts that the evidence was not relevant to

any fact at issue in the guilt-innocence phase of the trial and that the evidence

was “highly prejudicial.”    See Tex. R. Evid. 401, 402, 403.         To the extent

Appellant’s argument on appeal varies from the argument raised at trial,


                                           11
Appellant has forfeited such an argument. See Broxton v. State, 909 S.W.2d

912, 918 (Tex. Crim. App. 1995); Brooks v. State, 833 S.W.2d 302, 304 (Tex.

App.—Fort Worth 1992, pet. ref’d).      Thus, we address Appellant’s argument

under rule 403.

      In such a review, we presume that the evidence’s probative value

outweighs its prejudicial effect. See Montgomery, 810 S.W.2d at 388–89. Tapes

of 911 calls are generally admissible because they “provide a framework within

which the particulars of the State’s evidence could be developed” even though

such calls may not “establish any material fact not otherwise proven in the

balance of the State’s case.” Webb v. State, 760 S.W.2d 263, 276 (Tex. Crim.

App. 1988), cert. denied, 491 U.S. 910 (1989); see Munoz v. State, 932 S.W.2d

242, 244 (Tex. App.—Texarkana 1996, no pet.). This is true for the instant case.

      On the recording, Burnett is obviously in pain and can be heard repeatedly

asking for help, yelling that he was “bleeding to death,” directing officers to the

store’s location, and stating that he had been shot “thirty minutes ago” by

someone but that he did not know where the shooter was at the time. This

evidence explains the circumstances surrounding the crime and, thus, was not

unduly prejudicial. See Munoz, 932 S.W.2d at 244; see also Patterson v. State,

No. 02-12-00212-CR, 2013 WL 2631183, at *3 (Tex. App.—Fort Worth June 13,

2013, no pet.) (mem. op., not designated for publication). We conclude that the

probative value of the call, even though emotionally charged, was not

outweighed by its prejudicial effect. See, e.g., Estrada v. State, 313 S.W.3d 274,


                                        12
300 (Tex. Crim. App. 2010) (holding in capital-murder case that 911 recording of

the victim’s family upon discovering her body was admissible at the guilt-

innocence phase and not unduly prejudicial), cert. denied, 131 S. Ct. 905 (2011);

Woods v. State, No. 14-12-00775-CR, 2013 WL 3958479, at *2 (Tex. App.—

Houston [14th Dist.] July 30, 2013, no pet.) (mem. op., not designated for

publication) (holding 911 call by assault victim’s cousin not unduly prejudicial

when cousin reported victim’s physical condition after stabbing because it

“assisted in completing a timeline of the entire incident by providing information

regarding events between the stabbing and [victim’s] hospitalization”); Yi v. State,

No. 01-05-01147-CR, 2007 WL 2052064, at *4 (Tex. App.—Houston [1st Dist.]

July 19, 2007, no pet.) (mem. op., not designated for publication) (holding 911

recording of murder victim’s eleven-year-old son after finding his mother’s “blood

soaked body” not unduly prejudicial). Accordingly, the trial court did not abuse its

discretion in admitting the recording, and we overrule point seven. 5

                               V. JURY CHARGE

      In his eighth point, Appellant contends that the jury charge contained error

in that recklessness was defined only once even though the term was applicable


      5
        Even if admission of the 911 call were an abuse of discretion, we would
conclude that Appellant’s substantial rights were not affected by the error. See
Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355–58 (Tex. Crim. App.
2002); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). For
instance, Appellant does not challenge the sufficiency of the evidence to support
his guilt, which included his inculpatory statements to the police, and the State
did not stress the 911 call in presenting its case to the jury.


                                        13
to two issues submitted to the jury—the elements of aggravated robbery and the

affirmative defense of duress. The trial court defined the term on the second

page of the jury charge:

             A person acts recklessly, or is reckless, with respect to
      circumstances surrounding his conduct or the result of his conduct
      when he is aware of but consciously disregards a substantial and
      unjustifiable risk that the circumstances exist or the result will occur.
      The risk must be of such a nature and degree that its disregard
      constitutes a gross deviation from the standard of care that an
      ordinary person would exercise under all the circumstances as
      viewed from the actor’s standpoint.

On the fourth page of the charge, the trial court included an explanation of the

elements of aggravated robbery, which included the mens rea of “recklessly”

along with “intentionally” and “knowingly.” On the same page of the charge, the

trial court explained that the defense of duress is “unavailable if the actor

intentionally, knowingly, or recklessly placed himself in a situation in which it was

probable that he would be subjected to compulsion.” The trial court informed the

jury immediately after the aggravated-robbery and duress instructions that

intentionally, knowingly, and recklessly had been defined on page two of the

charge.   Appellant had requested that the trial court limit the definition of

recklessness to result-of-conduct and define it as “[a] person acts recklessly or is

reckless with respect to a result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the result will

occur.” The trial court overruled Appellant’s requested instruction.




                                         14
      Appellant’s argument is that because recklessness as it relates to duress

is nature-of-conduct focused and because the definition on page two included

more than a nature-of-conduct instruction, the definition on page two was

incorrect to the extent it applied to duress. 6     Appellant also asserts that the

definition of reckless as it relates to aggravated robbery was erroneous because

it was not limited to a result-of-conduct instruction. “[A]ll alleged jury-charge error

must be considered on appellate review regardless of preservation in the trial

court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our

review of a jury charge, we first determine whether error occurred; if error did not

occur, our analysis ends.      Id.   If error occurred, whether it was preserved

determines the degree of harm required for reversal. Id.

      The culpable mental states in the penal code encompass three possible

conduct elements that may be involved in an offense: nature of the conduct,

result of the conduct, and circumstances surrounding the conduct. McQueen v.

State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).              When an offense is

specifically delineated as to the type of conduct, the trial court should limit the

statutory definitions or the application paragraphs in the jury charge to the

culpable mental state required. 7 Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim.

      6
        We note that Appellant’s argument varies from the argument proffered to
the trial court. But as we explain, we are charged with reviewing all alleged jury-
charge error.
      7
      Because of this law, we disagree with the State’s suggestion that a jury
charge that “tracks the penal code” cannot be erroneous.


                                          15
App. 1994); Murray v. State, 804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991,

pet. ref’d); 43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal

Practice & Procedure § 43:8 (3d ed. 2011).

                            A. AGGRAVATED ROBBERY

         Appellant’s argument regarding the aggravated-robbery charge is without

merit.     The charge specifically informed the jury that it was to consider

aggravated robbery only if it had previously concluded that Appellant was not

guilty of capital murder: “Unless you so find [Appellant guilty of capital murder]

and believe beyond a reasonable doubt, [or] if you have a reasonable doubt

thereof, or if you are unable to agree, you will next consider whether he is guilty

of the lesser included offense of Aggravated Robbery.” Therefore, the jury did

not consider the charge as it related to aggravated robbery, which would render

any possible error harmless as unrelated to the verdict or Appellant’s substantial

rights. See Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Tex. R. App. P.

44.2(b).

         Even were we to address the propriety of the trial court’s charge on

aggravated robbery, we would conclude there was no error. Aggravated robbery,

as Appellant was alleged to have committed, contains result-of-conduct, nature-

of-conduct, and circumstances-surrounding-conduct elements.         See Garza v.

State, 794 S.W.2d 497, 500–01 (Tex. App.—Corpus Christi 1990, pet. ref’d); see

also McCarty v. State, No. 10-13-00066-CR, 2013 WL 5526224, at *2–3 (Tex.

App.—Waco Oct. 3, 2013, no pet.) (mem. op., not designated for publication).


                                        16
Thus, the definition of reckless, as it applied to the elements of aggravated

robbery, correctly included more than a result-of-conduct instruction.

                                    B. DURESS

      Duress, on the other hand, is an affirmative defense upon which Appellant

bore the burden of proof and persuasion by a preponderance of the evidence.

Tex. Penal Code Ann. §§ 2.04(d), 8.05(a) (West 2011); Meraz v. State, 785

S.W.2d 146, 151 (Tex. Crim. App. 1990). Its unavailability is not an element of

the offense upon which the trial court was required to charge the jury and upon

which the State bore any burden. See Tex. Penal Code Ann. § 1.07(a)(22)(B)

(West Supp. 2013), § 8.05(d) (West 2011). See generally Tex. Code Crim. Proc.

Ann. art. 36.14 (West 2007).

      Here, the charge correctly set out the elements of the affirmative defense

of duress under section 8.05(a) and (b), stated the proper burden of proof and

persuasion under section 2.04, and explained that the affirmative defense was

unavailable if “the actor intentionally, knowingly, or recklessly placed himself in a

situation in which it was probable that he would be subjected to compulsion.”

Tex. Penal Code Ann. § 8.05(d). Because the mental state of reckless in section

8.05(d) is not a culpable mental state that must be properly defined under the

penal code, the trial court was not required to separately and specifically define

that term as it related to Appellant’s affirmative defense. Cf. Milner v. State, 262

S.W.3d 807, 808–09 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (recognizing

trial court not required to specially instruct jury on justification defense under


                                         17
article 38.36(b) because general jury instruction to limit consideration to admitted

evidence adequate); Richardson v. State, 906 S.W.2d 646, 648–49 (Tex. App.—

Fort Worth 1995, pet. ref’d) (holding specific charge regarding scope of evidence

under section 19.06 not required where general charge sufficient by requiring

jurors to consider surrounding circumstances and previous relationship between

defendant and victim to show defendant’s state of mind). See generally King v.

State, 189 S.W.3d 347, 364–65 (Tex. App.—Fort Worth 2006, no pet.) (upholding

similar jury charge on duress on different grounds). Indeed, Appellant does not

cite any authority supporting his argument that the mental states relating to the

affirmative defense of duress were required to be separately defined and

specifically delineated as to the type of conduct as if they were elements of the

offense. The trial court did not err by failing to separately define reckless or by

expansively defining reckless in the general portion of the charge as it related to

Appellant’s affirmative defense of duress. 8 We overrule point eight.

                             VI. JURY ARGUMENT

      In his ninth point, Appellant contends that the trial court erred by overruling

his objection to the State’s unsupported jury argument, which “attempted to tell

the jury what [Appellant] was thinking when he gave his statement to police.”


      8
       Additionally, we conclude that the definition contained in the charge was
substantially the same as the requested definition and adequately covered
Appellant’s request, which precludes a finding of harm. See Valentine v. State,
587 S.W.2d 399, 402 (Tex. Crim. App. 1979); Samford v. State, 302 S.W.3d 552,
557–58 (Tex. App.—Texarkana 2009, no pet.).


                                        18
Appellant fails to cite the specific portion of the record containing the complained-

of argument. We assume Appellant is attacking the following statements made

by the State during closing jury arguments regarding Appellant’s plan to torch the

store after the robbery, which Smith had testified to:

             And why is [Appellant] guilty under this theory [the law of
      parties]? Because you know that this plan, it evolved over time.
      And one of the plans, it was actually [Appellant] who was going to
      spread that gasoline and start that store on fire.

              Now, he didn’t tell that to the - - in the statement he gave to
      the police. He didn’t tell that. But, ladies and gentlemen, there’s a
      lot of things that [Appellant] didn’t tell in that statement. And you get
      to evaluate all of that, ladies and gentlemen.

             And he knew that they had - - he had to give them some of the
      facts to make himself look - -

             [Defense counsel]: Objection, that is an improper argument,
      that’s outside the record.

             THE COURT: I’ll overrule the objection.

            [The State]: Now, ladies and gentlemen, [Appellant] also told
      you the second way that he can be guilty under the law of parties
      ....

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993). The State’s argument was a

reasonable deduction from the evidence and was, therefore, proper jury

argument. It was reasonable from the admitted evidence for the State to deduce


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that because Appellant failed to include information indicating that he was a

willing participant, his assertions that he was under duress and that he could not

be considered a party to the crime were not credible. See, e.g., Auguste v.

State, No. 08-99-00303-CR, 2002 WL 475226, at *5 (Tex. App.—El Paso Mar.

29, 2002, no pet.) (not designated for publication). The trial court did not err by

overruling Appellant’s objection. We overrule point nine.

                           VII. CUMULATIVE ERROR

      In his final point, Appellant cogently asserts that all of the errors raised in

his brief suffice to show cumulative harm warranting reversal. See generally

Linney v. State, No. PD-0675-13, 2013 WL 6182424, at *1–2 (Tex. Crim. App.

Nov. 27, 2013) (Cochran, J., concurring in refusal of pet.) (explaining briefing

requirements and review standard for issues of cumulative error). Because we

have concluded that there was no error, there can be no cumulative error or

harm. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999),

cert. denied, 528 U.S. 1082 (2000). We overrule point ten.




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                               VIII. CONCLUSION

      Having overruled Appellant’s points, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).

                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 23, 2014




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