                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00134-CR


WILLIAM EDWARD MARCHBANKS                                       APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                                 OPINION
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      In two points, appellant William Edward Marchbanks appeals his

convictions for aggravated assault against a public servant and aggravated

robbery.1 We affirm.




      1
       See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (Vernon Supp. 2010),
§ 29.03(a)(2) (Vernon 2003).
                                Background Facts

         One afternoon in August 2009, Richland Hills Police Department Officer

Zachary Gibson was working at a Dillard’s department store.2             Gibson saw

appellant take two stacks of shirts off a display in the men’s department and run

outside the store. Gibson, who was in uniform, identified himself as a police

officer and ran toward appellant as appellant entered into his car. Appellant shut

his driver’s side door, but his window was down, so Gibson grabbed appellant’s

shirt, told him to get out of the car, and tried to pull him out. Appellant did not get

out of the car; instead, he revved his motor, placed the car in the forward gear,

and quickly accelerated while Gibson was hanging out of the window. Gibson

told appellant, ―Stop the car. You’re going to kill me.‖ Eventually, another car hit

appellant’s car, which threw Gibson off of the car, injuring him. Other police

officers stopped appellant, found the shirts he had stolen (valued at $849.83),

and arrested him.

         A grand jury indicted appellant for aggravated assault against a public

servant and aggravated robbery. Appellant pled not guilty to both offenses. The

jury convicted him of both offenses and assessed his punishment at thirty-eight

years’ confinement for aggravated assault and thirty-five years’ confinement for

aggravated robbery. The trial court sentenced appellant accordingly, and he filed

notice of this appeal.

         2
         Gibson worked for the Fort Worth Police Department at the time of the
trial.


                                          2
                               Standard of Review

      Both of appellant’s points concern the trial court’s decisions to deny his

motions for mistrial. We review a trial court’s denial of a motion for mistrial under

an abuse of discretion standard and must uphold the trial court’s ruling if it was

within the zone of reasonable disagreement. Orr v. State, 306 S.W.3d 380, 403

(Tex. App.—Fort Worth 2010, no pet.) (citing Archie v. State, 221 S.W.3d 695,

699 (Tex. Crim. App. 2007)); see Ratliff v. State, 320 S.W.3d 857, 863 (Tex.

App.—Fort Worth 2010, pet. ref’d); West v. State, 121 S.W.3d 95, 107 (Tex.

App.—Fort Worth 2003, pet. ref’d) (explaining that we are ordinarily deferential to

a trial court’s decision to deny a motion for mistrial).          Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required.

Orr, 306 S.W.3d at 403; see Ratliff, 320 S.W.3d at 863. A mistrial is appropriate

only for a narrow class of highly prejudicial and incurable errors and may be used

to end trial proceedings when the error is so prejudicial that expenditure of further

time and expense would be wasteful and futile. Orr, 306 S.W.3d at 403 (citing

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)); see also Grotti v.

State, 209 S.W.3d 747, 776 (Tex. App.—Fort Worth 2006) (―The determination of

whether a given error necessitates a mistrial must be made by examining the

particular facts of the case.‖), aff’d, 273 S.W.3d 273 (Tex. Crim. App. 2008).

                        Denial of First Motion for Mistrial

      In his first point, appellant argues that the trial court abused its discretion

by denying the motion for mistrial that he made in the middle of the trial. During


                                         3
Gibson’s initial cross-examination by appellant’s counsel, he repeatedly denied

punching appellant while hanging out of appellant’s car; Gibson said that

appellant moved his head on his own and that there was ―no haymaker by any

means.‖ But after Gibson’s initial testimony concluded, during a lunch break, the

prosecutor listened to one of the videos that had been admitted into evidence

and heard Gibson say on the video that he had sucker punched appellant. After

the prosecutor disclosed that fact to appellant’s counsel, appellant requested a

mistrial based on the State’s nondisclosure of exculpatory evidence in advance

of the trial court’s discovery deadline. The trial court denied appellant’s motion

but allowed appellant to recall any witnesses to more fully develop the issue.

      Before resting its case, the State recalled Gibson. He said that he did not

remember punching appellant. But he did not deny punching appellant because

he had said that he did so on the day of appellant’s offenses.3

      Appellant contends that the trial court should have granted a mistrial

because the State violated his right to due process by knowingly using perjured

testimony from Gibson.      A prosecutor’s knowing use of perjured testimony

―violates the Due Process Clause of the Fourteenth Amendment to the United

States Constitution.‖ Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App.

1993); see also Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (―The

      3
       When the State asked Gibson why he did not remember punching
appellant, he said, ―I don’t remember a whole lot once the whole incident took
place, once the adrenaline kicked in . . . .‖ Later, he said, ―If I stated [that I
punched appellant], then I did. I’m not denying that.‖


                                        4
principle that a State may not knowingly use false evidence, including false

testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty,

does not cease to apply merely because the false testimony goes only to the

credibility of the witness.‖). ―If the prosecution presents false testimony which

relates to an essential element of the offense, and fails to correct its own

testimony, then reversal will naturally follow.‖4 Onate v. State, 62 S.W.3d 208,

211 (Tex. App.—El Paso 2001, pet. ref’d) (emphasis added); see Vasquez v.

State, 67 S.W.3d 229, 239 (Tex. Crim. App. 2002); Losada v. State, 721 S.W.2d

305, 311 (Tex. Crim. App. 1986) (―If the prosecution presents a false picture of

the facts by failing to correct its own testimony when it becomes apparent that

the testimony was false, then the conviction must be reversed.‖) (emphasis

added).

      Even if we assume, for the sake of argument, that Gibson’s initial

testimony that he did not punch appellant qualifies as perjury,5 the State


      4
      In some circumstances, a witness’s perjury may be imputed to a
prosecutor who lacks actual knowledge of the testimony’s falsity.
See Castellano, 863 S.W.2d at 480–81 & n.3; Ex parte Adams, 768 S.W.2d 281,
291–92 (Tex. Crim. App. 1989); Page v. State, 7 S.W.3d 202, 208 (Tex. App.—
Fort Worth 1999, pet. ref’d) (explaining that a police officer’s knowledge may be
imputed to a prosecutor).
      5
       A witness does not commit perjury by testifying falsely because of a
reasonable mistake, such as faulty memory. See Tex. Pen. Code Ann. § 37.02
(Vernon 2003) (requiring an intent to deceive to sustain a perjury conviction);
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (explaining that
perjury does not occur when a witness honestly but mistakenly believes a
statement to be true when made).


                                          5
thereafter acted precisely according to what the authority cited above requires; it

corrected Gibson’s misstatement by informing appellant’s counsel about

Gibson’s recorded admission and recalling Gibson to account for the

misstatement. See Losada, 721 S.W.2d at 311. Thus, we hold that the trial

court did not abuse its discretion by denying appellant’s motion for mistrial on the

basis of the State’s alleged use of perjured testimony. See Orr, 306 S.W.3d at

403.

       Next, appellant argues that the trial court should have granted a mistrial

because the State failed to timely disclose exculpatory evidence. See Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963).            As we have

explained,

              Under Brady, in order to ensure the accused a fair trial, a
       prosecutor has an affirmative duty under the Due Process Clause of
       the Fourteenth Amendment to turn over to the accused all
       exculpatory or impeachment evidence, irrespective of the good faith
       or bad faith of the prosecution, which is favorable to the defendant
       and is material to either guilt or punishment. This duty attaches as
       soon as the information comes into the prosecutor’s possession,
       with or without a request from the defense for such evidence, and
       the information must be disclosed to the accused in time to put it to
       effective use at trial.

             A due process violation occurs if: (1) the prosecutor fails to
       disclose evidence; (2) the evidence is favorable to the defendant;
       and (3) the evidence is material. Favorable evidence is ―material‖ if
       there is a reasonable probability that, had the evidence been
       disclosed to the defense, the result of the proceeding would have
       been different.

Franks v. State, 90 S.W.3d 771, 796 (Tex. App.—Fort Worth 2002, no pet.)

(citations omitted); see Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App.


                                         6
2002); Proctor v. State, 319 S.W.3d 175, 184 (Tex. App.—Houston [1st Dist.]

2010, no pet.).

      Before appellant’s trial began, the State gave appellant’s counsel copies of

videos related to the altercation between appellant and Gibson, including the

video that contained Gibson’s admission that he had punched appellant.            If

appellant’s counsel did not learn about Gibson’s admission upon receiving the

videos, he became aware of it during the middle of the trial, at a time in which he

could (and did) question Gibson about it and use it extensively during his closing

jury argument. ―If the defendant received [favorable evidence] in time to use it

effectively at trial, his conviction should not be reversed just because it was not

disclosed as early as it might have and should have been.‖ Little v. State, 991

S.W.2d 864, 866 (Tex. Crim. App. 1999); see Juarez v. State, 439 S.W.2d 346,

348 (Tex. Crim. App. 1969); State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.—

Amarillo 1998, pet. ref’d) (―[T]here is no Brady violation if the defendant receives

the evidence in time to put it to effective use.‖); Givens v. State, 749 S.W.2d 954,

957 (Tex. App.—Fort Worth 1988, pet. ref’d).

      Appellant does not argue that he would have used Gibson’s admission

differently or more effectively had he known about it sooner.           He asserts,

however, that the State’s express disclosure of appellant’s admission came ―so

late that the disclosure and subsequent recall of Gibson could not dispel the

images already placed in the jury’s mind from his earlier testimony‖ and that this




                                         7
problem was ―compounded by the [p]rosecutor in jury argument telling the jury

that the impeaching evidence was not true.‖

      The record does not support this argument.       After appellant’s counsel

learned of Gibson’s recorded admission, counsel spent the majority of the

remainder of the guilt phase of the trial focusing on whether Gibson punched

appellant and whether that fact contradicted Gibson’s original testimony.6 During

the State’s closing argument, it conceded that Gibson’s admission of punching

appellant had occurred, stating,

      [W]e can no more stand before you and say that Officer Gibson
      never said anything about a sucker punch any more than the
      defense can get up here and say that the defendant didn’t commit
      aggravated robbery or aggravated assault on a public servant,
      because guess what, both of those are on video. It is what it is.

In the remainder of the State’s argument, it did not expressly contend that the

punch had not occurred; instead, it argued that the punch was irrelevant to the

jury’s consideration of appellant’s guilt.7




      6
       Appellant’s only witness, who enhanced the video of the altercation
between appellant and Gibson, testified for the sole purpose of establishing that
appellant’s head movement corresponded with Gibson’s arm entering appellant’s
car.
      7
       The prosecutor said,

             So let’s just assume for the sake of argument that Officer
      Gibson did hit him. The 12 of you go back there, and you-all agree
      he hit him. So what? What does that have to do with the elements
      of the offense that are in this indictment, that are in this Court’s
      charge that have to be proven? Nothing.


                                              8
      For all of these reasons, we hold that the trial court did not abuse its

discretion by denying appellant’s motion for mistrial based on an alleged Brady

violation. We overrule appellant’s first point.

                      Denial of Second Motion for Mistrial

      In his second point, appellant contends that the trial court abused its

discretion by denying his motion for mistrial because of an allegedly improper

jury argument by the State. Appellant’s trial counsel spent the majority of his

closing argument discussing Gibson’s inconsistent testimony about punching

appellant.8    After appellant’s counsel concluded the argument, the State

contended in its final jury argument that appellant was using a ―smoke screen‖ by

talking about Gibson’s acts rather than appellant’s offenses.           The prosecutor

said, ―What the defense is doing is what we call jury nullification.‖ Appellant’s

counsel objected, stating, ―It’s outside the record. There is no definition of that.‖

The trial court sustained the objection and instructed the jury to disregard the

argument, but the trial court denied appellant’s motion for mistrial.

      8
       Appellant’s counsel said in part,

      You are judging the evidence in this case, so based upon what you
      saw, how it went down, how he had to be brought back, would you
      buy a used car from [Gibson]? . . .

              ....

            I think with all due respect, he’s young enough to learn a
      lesson, and he needs to learn a lesson now before he’s on patrol in
      the City of Fort Worth. I think the lesson he needs to learn and the
      message you need to send is you got -- you got to tell the truth. . . .


                                           9
      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); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973). Appellant contends on appeal that the State’s

―jury nullification‖ argument was improper because it (1) was not a proper

response to his counsel’s argument, (2) attempted to ―accuse defense counsel of

improper conduct and in so doing was striking at the accused over and through

the shoulders of his counsel,‖ (3) denied him a fair trial by ―imputing a false

motive to defense counsel’s argument,‖ and (4) was ―designed to and did

deprive‖ appellant of constitutional and statutory protections. These contentions,

however, do not match the objection at trial, which was that ―jury nullification‖

was undefined and that the State’s argument was ―outside the record.‖

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d

235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have ruled on

the request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A


                                         10
reviewing court should not address the merits of an issue that has not been

preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009). An objection preserves only the specific ground cited. Tex. R. App. P.

33.1(a)(1)(A); Lugo v. State, 299 S.W.3d 445, 450 (Tex. App.—Fort Worth 2009,

pet. ref’d) (citing Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.

2004)).

      The requirement that a trial objection comport to a complaint on appeal

applies to jury argument points. See Turner v. State, 87 S.W.3d 111, 117 (Tex.

Crim. App. 2002), cert. denied, 538 U.S. 965 (2003); Coffey v. State, 796 S.W.2d

175, 179–80 (Tex. Crim. App. 1990); Bouchillon v. State, 540 S.W.2d 319, 322

(Tex. Crim. App. 1976) (holding that a contention on appeal that the State’s jury

argument commented on a defendant’s failure to testify was forfeited because at

trial the defendant objected on the ground that the argument was ―outside the

record‖); Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (―At trial, appellant objected on the grounds that the State’s

argument improperly shifted the burden of proof; here, he contends that the State

improperly commented on post-arrest silence. . . .      [A]ny error is waived.‖).

Because appellant’s trial objection to the State’s jury argument is inconsistent

with his complaints on appeal, we hold that he forfeited his second point, and we

overrule the point.




                                       11
                                Conclusion

     Having overruled both of appellant’s points, we affirm the trial court’s

judgments.



                                               CHARLES BLEIL
                                               JUSTICE

PANEL: GARDNER and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

PUBLISH

DELIVERED: May 5, 2011




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