Opinion filed August 15, 2013




                                                     In The


           Eleventh Court of Appeals
                                                __________

                                         No. 11-11-00241-CR
                                             __________

                    JOHNATHEN LEE HARRISON, Appellant

                                                        V.

                            THE STATE OF TEXAS, Appellee


                            On Appeal from the 35th District Court
                                          Brown County, Texas
                                  Trial Court Cause No. CR20133


                             MEMORANDUM OPINION
      The jury convicted Johnathen Lee Harrison, Appellant, of the offense of
burglary of a habitation with the commission of a sexual assault, a first-degree
felony. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court assessed
Appellant’s punishment at confinement for sixty years. We affirm. 1


      1
          We note that the Court of Criminal Appeals granted Appellant permission to file this out-of-time appeal.
                                                  Issues
        Appellant presents three issues on appeal.                    In the first issue, Appellant
contends that the trial court should have granted a mistrial after the prosecutor
accused Appellant’s trial counsel of being a liar. In his second issue, Appellant
argues that the evidence showing that he had a “white pride” tattoo was irrelevant
and was substantially more prejudicial than probative. Appellant asserts in his
third issue that permitting the prosecutor to direct the jury’s attention to the alleged
victim during the closing argument at the guilt/innocence phase of trial affected
Appellant’s substantial rights.
                                          Background Facts
        Although Appellant does not challenge the sufficiency of the evidence, we
will briefly summarize the evidence in this case. Appellant and his codefendant,
Richard George Baker, Jr., were tried together.2 The record from the joint trial
shows that Appellant and Baker entered the home of K.L.T. without her consent
and sexually assaulted her. K.L.T. said that she heard a knock at her door and
opened the door slightly. She saw Appellant and Baker, whom she had met a few
days earlier, on the front porch holding forty-ounce beers. When K.L.T. told them
that they could not come in, Appellant pushed open the door and entered anyway.
She testified that Baker held her arms while Appellant played a CD that he had
brought with him. When she tried to get away, Appellant pulled her by the hair
from the dining room into the living room, took off her shirt, pulled down his
pants, and told her to perform oral sex on him. At the same time this was going on,
Baker penetrated her vaginally from behind with his penis. K.L.T. said that, after
she attempted again to get away, Baker pushed her into a chair and continued to
have sex with her until he ejaculated.                    But when K.L.T. tried to flee to the
        2
         Baker was also convicted of burglary of a habitation with the commission of a sexual assault and also
received a sentence of sixty years. See Baker v. State, No. 11-10-00329-CR, 2012 WL 5988900 (Tex. App.—
Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication).

                                                      2
bathroom, Appellant again grabbed her by the hair, told her that he was not
finished, and penetrated her vaginally with his penis; Baker sat on the couch and
drank a beer. K.L.T. called the police after Appellant and Baker left.
      Appellant and Baker were arrested. Appellant admitted that he and Baker
had sex with K.L.T., but he claimed that it was consensual sex.
       An emergency room doctor examined K.L.T.             He noted two abrasions
around the entry to her vagina. He explained, “Typically abrasions that you see in
that area are usually due to forced vaginal penetration or a woman that’s
unreceptive to sexual contact.” The doctor testified that he would not expect to see
that type of abrasion after consensual sex.
                    Accusation that Defense Counsel was a Liar
      In his first issue, Appellant argues that the prosecutor, in his closing
argument, improperly accused Appellant’s trial counsel of lying and that the trial
court erred in denying Appellant’s motion for mistrial based upon that accusation.
We addressed this same issue at length in our opinion in Baker’s appeal, and we
concluded that the error was harmless under TEX. R. APP. P. 44.2(b) as applied
through the Mosley factors for improper jury argument and that the argument was
not so egregious as to warrant a mistrial.       Baker, 2012 WL 5988900 (citing
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). For the same reasons
announced in our opinion in Baker, we hold that the prosecutor’s comment was not
so egregious as to warrant a mistrial.
       The complained-of argument reads as follows:
             What about this medical evidence? This is what surprises me.
      It really does. Because I’ve done a lot of trials. . . . And [both
      defense counsel] start talking about this medical evidence -- and I
      don’t know how else to say it, but just spin it -- that’s what lawyers do
      -- spin it in their direction. I don’t know. I think flat out lie about it.



                                          3
The defense attorneys objected to being called liars in front of the jury, and they
requested a mistrial. The trial court sustained the objections, instructed the jury to
disregard, and denied the motions for mistrial.
      Prior to the complained-of argument made by the prosecutor, Appellant’s
and Baker’s defense attorneys had made statements during their closing arguments
suggesting that the prosecutor’s argument may not be “truthful,” that the
prosecutor may have “misremembered” the evidence, and that the prosecutor
would try to “mislead” the jurors. Appellant’s attorney had also addressed the
content of the doctor’s expert testimony, and the prosecutor had objected to the
argument as being a misstatement of the record.            After the complained-of
argument, the prosecutor addressed the content of the doctor’s expert testimony,
and the defense attorneys objected that the prosecutor was misstating the evidence.
In response to these objections, the trial court instructed the jurors to recall the
evidence as they heard it from the witness stand.
      When a trial court sustains an objection, instructs the jury to disregard, but
denies a motion for mistrial, we assume without deciding that the argument was
improper and look only to whether the court abused its discretion when it denied
the motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App.
2004). “A mistrial is the trial court’s remedy for improper conduct that is ‘so
prejudicial that expenditure of further time and expense would be wasteful and
futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).
While a prosecutor’s “uninvited and unsubstantiated accusation of improper
conduct directed at a defendant’s attorney” unquestionably puts the case at risk,
only the most egregious argument taints the jury to the extent that it warrants a
mistrial. Mosley, 983 S.W.2d at 258, 260.
      To determine whether the error constitutes reversible error, we apply
Rule 44.2(b) of the Texas Rules of Appellate Procedure because, as determined by
                                          4
the court in Mosley, “improper comments on defense counsel’s honesty have never
been held to amount to a constitutional violation.” Id. at 259. Appellant suggests
that the error in this case constitutes constitutional error; we must, however, follow
the ruling of the Court of Criminal Appeals in Mosley. Pursuant to Mosley, we are
to consider the following factors when applying Rule 44.2(b) to an improper jury
argument: “(1) severity of the misconduct (the magnitude of the prejudicial effect
of the prosecutor’s remarks), (2) 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).” Id. To the extent possible, our review must calculate the probable
impact of the error on the jury in light of the record. Orona v. State, 791 S.W.2d
125, 130 (Tex. Crim. App. 1990). Whether there was overwhelming evidence, or a
lack thereof, does not dictate our analysis; instead, we focus on the error’s effect
on the trial. Id. We examine “the source of the error, the nature of the error,
whether or to what extent it was emphasized by the State, and its probable
collateral implications.”   Id.   We also consider “whether declaring the error
harmless would encourage the State to repeat it with impunity.” Id.
      With respect to the first factor in the Mosley test, “[p]rejudice is clearly the
touchstone.” Hawkins, 135 S.W.3d at 77.            In assessing the severity of a
prosecutor’s arguments, we do not consider them in isolation from the question of
whether the argument had a prejudicial effect. Id. at 78. Prosecutors’ arguments
that “attack the personal morals or trustworthiness of defense counsel are
manifestly improper because they undermine the adversarial system by unfairly
prejudicing the jury against the defendant’s attorney.”       Fuentes v. State, 991
S.W.2d 267, 274 (Tex. Crim. App. 1999). But when the jury is “in a position to
evaluate the truthfulness of the prosecutor’s assertion,” the prejudice from
improper argument may be minimized. Mosley, 983 S.W.2d at 260. In fact, when
                                          5
the jury is in such a position, the prosecutor’s comments could “backfire if the jury
disagrees with the prosecutor’s assessment of defense counsels’ actions.” Id.
      In the present case, we cannot hold that the prejudice stemming from the
prosecutor’s improper comment in this case warranted a mistrial. Appellant’s
counsel had already alluded to the prosecutor’s “truthfulness.” The prosecutor did
not accuse the defendants of lying, did not accuse defense counsel of
manufacturing evidence, did not argue outside the record, did not inject new facts
into the record, and did not repeat the complained-of comment. As in Mosley, the
jury in this case was in a position to evaluate the accuracy of the prosecutor’s
argument. The jurors had the doctor’s testimony before them and were able to
discern it for themselves. Also as in Mosley, we cannot find that the first factor
weighs heavily in Appellant’s favor. See id.
      As for the second factor, an instruction to disregard is generally sufficient to
cure the prejudice from an improper argument. Dinkins v. State, 894 S.W.2d 330,
357 (Tex. Crim. App. 1995) (where the prosecutor argued that defense counsel
“wants to mislead you a little bit”); McGee v. State, 774 S.W.2d 229, 238 (Tex.
Crim. App. 1989). We presume that the jury followed the trial court’s instruction
to disregard.
      We cannot hold under the record in this case that the third factor, the
certainty of Appellant’s conviction absent the prosecutor’s improper argument,
weighs heavily in favor of either side. Although we agree with Appellant that the
evidence in this case was not overwhelming and that the medical evidence may
have been—as the State put it—“the critical evidence in the case,” we do not agree
with Appellant that the prosecutor’s comment, which improperly cast aspersion on
the veracity of defense counsel with respect to the contents of the doctor’s
testimony, affected the outcome of this case.        Appellant asserts that, if the
credibility of the defense attorneys had not been “improperly undermined by the
                                          6
State with his assertion that the defense attorneys were liars,” then it could not “be
said with any certainty that conviction would have been the result for Appellant.”
The jury heard the doctor’s testimony relating to the medical evidence and,
presumably, judged the weight and credibility of that evidence for itself.
Furthermore, during its deliberations, the jury requested the doctor’s medical
report, and the exhibit containing that report was delivered to the jury. We hold
that the error in this case was harmless under Rule 44.2(b) as applied through the
Mosley factors for improper jury argument and that the argument was not so egre-
gious as to warrant a mistrial.
      However, as we stated in Baker:
             Although we have found no reversible error in connection with
      the State’s jury argument, we are not to be taken to approve the
      argument in any way. As other courts have expressed, we fail to
      understand why prosecutors continue to make arguments of this
      nature. See, e.g., Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App.
      1996), abrogated on other grounds by Motilla v. State, 78 S.W.3d
      352, 356–57 & n.26 (Tex. Crim. App. 2002). That is especially so in
      the face of a plethora of cases in which the courts of this State
      consistently have held that such arguments clearly are out of
      bounds. We are not unmindful of the pace and stress of
      trial. However, one would think that, even in the “heat of battle,” the
      risk of retrial would be caution enough to yield to cooler
      passions. The argument in this case is held to result in harmless error;
      that will not always be the case.
2012 WL 5988900, at *5. Appellant’s first issue is overruled.
                                  Tattoo Evidence
      In his second issue, Appellant contends that the admission of evidence that
he bore a “white pride” tattoo was irrelevant and substantially more prejudicial
than probative. The record shows that Appellant objected under TEX. R. EVID. 403
when K.L.T., the first witness to testify at trial, began testifying about the
defendants’ unique identifying features, which for Baker was a facial scar and for

                                          7
Appellant was a tattoo. After a discussion at the bench, the trial court overruled
Appellant’s objection and admitted into evidence a picture of one of Appellant’s
tattoos, the “white pride” tattoo that had assisted K.L.T. in identifying Appellant.
      The State asserts that Appellant has not preserved this issue for review
because the same or similar evidence was presented by other witnesses without
objection.   An objection to photographic evidence is waived if the same
information contained in the photograph is conveyed to the jury in some other
form. Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996). A party must
either object each time the complained-of evidence is offered or obtain a running
objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). The
admission of evidence over objection “will not result in reversal when other such
evidence was received without objection, either before or after the complained-of
ruling.” Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
      The record shows that Appellant did not request a running objection and that
evidence of Appellant’s tattoo was presented by other witnesses without objection.
Officer Anna Sturgeon, the first officer to respond to K.L.T.’s call for help,
testified that K.L.T. was traumatized when the officer arrived around 3:15 a.m.
K.L.T. reported that she knew the first name of one of the suspects, “John,” but did
not know his last name or the name of the other suspect. Officer Sturgeon testified
without objection that K.L.T. told her that “John” had “a tattoo on his upper right
arm that says ‘white power’ in the shape of a cross.” The picture of Appellant’s
tattoo shows that Appellant’s upper arm had a tattoo with the words “WHITE
PRIDE” in the shape of a cross. Officer Danny Hutchins, who helped arrest Baker
and Appellant, later testified without objection that he had received descriptive
information of the suspects that he was looking for; that information included the
fact that one of the suspects had a scar on his face and one of the suspects “had a
tattoo of white power” on him.
                                          8
      We note the difference between the words “power” and “pride.” However,
the descriptions of the tattoo were substantially similar to the photo. During trial,
K.L.T. identified the photo of Appellant’s tattoo as the same tattoo that “John” had.
She had said earlier that she believed the tattoo said “white pride or white power.”
      The record reveals that Appellant did not object each time evidence of his
tattoo was offered and that he did not obtain a running objection. Consequently,
we cannot hold that the error, if any, in overruling Appellant’s objection and
admitting evidence of his tattoo constitutes reversible error. See Valle, 109 S.W.3d
at 509; Leday, 983 S.W.2d at 718. Appellant’s second issue is overruled.
                          Prosecutor’s Closing Argument
      In his final issue, Appellant argues that permitting the prosecutor to direct
the jury’s attention to K.L.T. during the prosecutor’s closing argument at the
guilt/innocence phase of trial affected Appellant’s substantial rights. Appellant
asserts that the prosecutor “gestured to [K.L.T.]’s present condition as she sat in
the audience” and that he “directed a personal opinion comment to the alleged
victim during closing argument.” The State responds that Appellant failed to
preserve this issue for review because Appellant did not object at trial. We agree.
      The relevant portions of the record from the State’s closing argument show
the following:
            (To [K.L.T.]:) The one good move as a mother that you did,
      you should be proud of yourself for doing that because you looked out
      for your child and you gave him to his father.
            ....
            . . . You think of how many houses these guys had to get
      kicked out of that night. . . . [K.L.T.], after they raped her, as she
      struggled with them, because she can’t fight back, she is not strong
      enough, she is beat down, she is battered, you can see that. She
      couldn’t fight --



                                          9
At that point, Appellant’s attorney stated, “May the record reflect that when the
prosecutor said ‘You can see that,’ he gesticulated with his head towards the
alleged victim.”
      Appellant did not lodge any objection at trial either time the prosecutor
directed the jury’s attention to K.L.T.         To preserve a complaint for appellate
review, the complaint must first be made in the trial court by a timely request,
objection, or motion. TEX. R. APP. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996). In Cockrell, the court specifically concluded, “[W]e hold
a defendant’s failure to object to a jury argument or a defendant’s failure to pursue
to an adverse ruling his objection to a jury argument forfeits his right to complain
about the argument on appeal.” 933 S.W.2d at 89. Because Appellant did not
object at trial, he failed to preserve for appellate review the complaints that he
urges in his third issue. Appellant’s third issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                       TERRY McCALL
                                                       JUSTICE


August 15, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                           10
