                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00352-CR

                                     Kathleen COLE-MAYER,
                                             Appellant

                                               v.
                                          The STATE of
                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 13, Bexar County, Texas
                                      Trial Court No. 359926
                        The Honorable Monica A. Gonzalez, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 24, 2013

AFFIRMED

           Kathleen Cole-Mayer was convicted of assault bodily injury-married and was sentenced to

one year confinement in jail. Her sentence was then suspended, and she was placed on community

supervision for one year. On appeal, she argues that (1) the trial court erred in allowing the State

to argue facts outside the record during closing argument; and (2) the trial court erred in denying

her motion for new trial. We affirm.

           On April 26, 2011, Kathleen Cole-Mayer and her husband, Harvey Mayer, had an

altercation at their home. Unbeknownst to Kathleen, a few days before April 26th, Harvey had
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visited with a divorce attorney, closed their joint bank account, and canceled their joint credit card.

Thus, on April 26th, during a visit at their bank, Kathleen discovered $300 missing from their joint

bank account and was told that her social security check and Harvey’s social security check were

being withheld from the account. According to Kathleen’s testimony at trial, the bank teller was

unable to explain the reason for the holds on the checks. Kathleen then went to a grocery store and

attempted to use her credit card to pay for the groceries, but her card was declined. When she

returned home, Harvey was sitting in his recliner, watching television and eating dinner. Kathleen

testified that she asked Harvey about the missing $300, but he was unresponsive. She then went to

Harvey’s bedroom to retrieve his wallet and found $300 inside the wallet. Kathleen testified that

she then went back to the living room and asked Harvey, “Is this where the $300 is?” According

to Kathleen, Harvey jumped out of his recliner and shouted at her to give him the wallet. Kathleen

testified that Harvey grabbed her from behind, and then grabbed her arms and wrists. Kathleen

then threw his wallet across the room.

       In direct contradiction to Kathleen’s testimony, Harvey testified that he was not the first

aggressor. According to Harvey, he was sitting in his recliner when Kathleen, upon entering the

home, struck him from behind. She then left the living room. When she came back, she had his

wallet in her hand. Harvey testified that he followed her back to his bedroom and reached for his

wallet when Kathleen struck him in the mouth with her forearm.

       After both parties called 911, Officer Miller was one of the officers who responded to the

call. He testified that he separated the parties and questioned them separately. Officer Miller

testified that Kathleen told him the following:

       Ms. Mayer told me that Harvey was watching TV, and she went into his bedroom.
       They have separate bedrooms. She went into his bedroom [and] was going through
       his wallet. This is according to her. And she found that he had closed one of their
       joint checking – or check [sic] bank accounts, and she approached him. He was
       watching TV in their living room. She had hidden his wallet behind her back and
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       initiated questioning him about closing that checking account. He realized that she
       had his wallet. He stood up and tried to get it back from her, and she was pushing
       him back. She told me that she used her left arm to push him back, and that’s when
       she actually hit him in his mouth. And then Kathleen told me that she threw the –
       threw Harvey’s wallet at him and hit him and that all the stuff fell out of his – out
       of his wallet onto the living room floor.

Officer Miller testified that after his investigation, he concluded Kathleen “was the primary

aggressor in this instance” and arrested her.

       In her first issue, Kathleen argues that the trial court erred in allowing the prosecutor to

argue facts outside the record during closing argument at the guilt-innocence phase of the trial.

During closing argument, the prosecutor argued the following:

       STATE: In the 911 notes that they are taking down, [Kathleen] says she pushed
       him. She told the 911 operator she pushed him. She told the officer she pushed him.
       And she gets up here and tells us she didn’t touch him. We know she’s lying about
       that. It is clear from her own words that she pushed him. But she kind of did herself
       in at the very end when I asked her, we said, when Harvey came home, did he have
       a swollen lip? Did he have anything on it? She said no, he didn’t have anything on
       there. And yet at the end of the night, and you will get to see photos, Harvey has
       got a swollen lip. They are kind of dark. When you take them back, compare the
       right side of his lip, that much of his lip, you can see to the left. On the close-up,
       you can see a little indentation there, a little bit of a – I guess you would call it kind
       of a bruise, a little bit of a dark redness. Look up close when you get back there.
       These are hard to see from this far away. You can see that Harvey didn’t have
       anything when she came home, and now he’s got something. They are the only two
       people in the house. Her saying she didn’t touch him, that’s a lie, because she told
       the officer, she told the 911 operator, and Harvey’s face shows that something hit
       him. She hit him right in the mouth. We’re talking about the other photos, how she
       complained about her injury to her wrist and how he grabbed her wrist. Remember,
       he said he was kind of swatting at her up here. This is the difference – his injury
       and her injury is the difference on what could have happened and reasonable doubt.
       There’s no question that she hit him in the mouth. She told you she did. She told
       two people and the injuries –

       DEFENSE: I’m going to object, Your Honor. She never – that was never in
       evidence –

       COURT: All right.

       DEFENSE: -- the admissions.



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       COURT: All right. I’m going to go ahead and overrule because the jury has heard
       the evidence and you’ll just go by the evidence that you’ve heard.

(emphasis added).

       A proper jury argument must fall within one of four general areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing

counsel; and, (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.

1999). Any appellate claim that a prosecution argument strayed outside of these categories is

forfeited if there was no contemporaneous trial objection. See Threadgill v. State, 146 S.W.3d 654

(Tex. Crim. App. 2004); see also Milam v. State, No. AP-76379, 2012 WL 1868458, at *19 (Tex.

Crim. App. 2012). If there was a contemporaneous trial objection to improper jury argument, such

argument does not result in reversal “unless, in light of the record as a whole, the argument is

extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to

the accused into the trial proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.

2000). “The remarks must have been a willful and calculated effort on the part of the State to

deprive appellant of a fair and impartial trial.” Id

       On appeal, Kathleen argues the trial court erred in overruling her objection because the

prosecutor engaged in improper jury argument by arguing facts outside the record. According to

Kathleen, by stating “[s]he told you she did,” the prosecutor argued to the jury that Kathleen had

testified and admitted to the jury that she had hit Harvey in the mouth when, in fact, she testified

that she did not hit Harvey in the mouth. However, we agree with the State that in considering the

statement “[s]he told you she did” in the context of the entire argument, it is clear that the

prosecutor was making reference to Officer Miller’s and Harvey’s testimony, which both reflect

Kathleen saying on the day of the incident that she had hit Harvey. Indeed, before making the

statement “[s]he told you she did,” the prosecutor made reference to Kathleen testifying that she


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had not hit Harvey: “And she gets up here and tells us she didn’t touch him.” Thus, the prosecutor’s

argument was a reasonable deduction from the evidence.

       In her second issue, Kathleen argues that the trial court erred in denying her motion for

new trial. Officer Miller testified at trial that his entire interaction with the Mayers was recorded

by a microphone attached to his uniform and synced with the dashboard camera in his patrol car.

Officer Miller testified, however, that he never disclosed the recording in his report and that it was

erased within a certain period of time after the incident. On appeal, Kathleen argues that by failing

to disclose this recording to her, the State violated her rights pursuant to Brady v. Maryland, 373

U.S. 83 (1963). However, Kathleen has failed to preserve this issue for appeal. See Keeter v. State,

175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (explaining that in order to preserve an issue that a

Brady violation occurred, the accused must voice his complaint in a timely fashion). At the time

Kathleen unintentionally elicited this testimony from Officer Miller at trial, she made no objection

pursuant to Brady. Nor did Kathleen argue that her rights pursuant to Brady had been violated in

her motion for new trial. Instead, at the hearing on her motion for new trial, Kathleen argued that

the trial court should grant a new trial pursuant to Texas Rule of Appellate Procedure 21.3(e), not

pursuant to Brady. Thus, by failing to make a Brady argument to the trial court, Kathleen has failed

to preserve this issue for appeal. See Clarke v. State, 270 S.W.3d 573, 582 (Tex. Crim. App. 2008)

(explaining that to preserve an issue for appeal, “a particular argument relied upon on appeal must

have been presented to the trial court”).

       We therefore affirm the judgment of the trial court.



                                                       Karen Angelini, Justice

Do not publish



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