                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-13-00553-CR
                             NO. 02-13-00554-CR


TYWRON PIERRE THOMAS A/K/A                                      APPELLANT
TYRONE PIERRE THOMAS

                                      V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
              TRIAL COURT NOS. 1038600W, 1195093D

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                                 OPINION

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     In cause number 1195093D, a jury convicted Appellant Tywron Pierre

Thomas, also known as Tyrone Pierre Thomas, of committing capital murder by

shooting Daniel Rojas with a firearm in the course of committing robbery at a

Valero gas station.   The trial court sentenced Appellant to a mandatory life

sentence. In cause number 1038600W, the trial court found the allegations in
the State’s motion to proceed to adjudication of the offense of burglary to be true,

revoked Appellant’s deferred adjudication community supervision, adjudicated

his guilt of burglary, and sentenced him to twenty years’ confinement.

      Appellant brings three issues on appeal, arguing that the trial court

reversibly erred by

•     refusing to strike Chance Smith’s direct-examination testimony when he
      invoked the Fifth Amendment in response to questions on cross-
      examination;

•     failing to give a limiting instruction regarding a transcript and allowing the
      State to introduce the transcript as substantive evidence; and

•     overruling the defense’s motion for mistrial premised on the State’s
      misconduct in closing argument.

Because the trial court committed no reversible error, we affirm the trial court’s

judgments.

Brief Summary of Facts

      At approximately 6:20 a.m. on March 23, 2010, Daniel Rojas arrived at the

Valero gas station and convenience store where he worked.            He and Jerry

Burnett, a Mrs. Baird’s representative who regularly stocked the store with Mrs.

Baird’s bakery products, arrived at about the same time. As Rojas was going

about his duties to open the store and Burnett was stocking the bread shelves,

three masked men entered the store. Two of them had guns, and the third man

was carrying a red gas can. The first masked gunman raised his gun and shot

Burnett while walking past the bread aisle. The second gunman followed behind




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the first gunman, while the third masked man barricaded the door with a

newspaper stand.

      The two gunmen moved quickly to the back room and found Rojas there.

The video evidence shows Rojas at gunpoint, opening the store’s freezer, taking

out a dark object (presumably containing money), and handing it to the gunmen.

The gunmen then forced Rojas out of the back room and shoved him to the

registers out front. Rojas opened the registers, and the second gunman emptied

their contents into a dark bag he was carrying. The two gunmen took Rojas back

to the back room, and the first gunman shot Rojas in the head. The gunmen fled

the back room and met the third masked man at the store’s front door. The third

man poured gasoline on the floor from the gas can he carried. The three men

then left the store.

      A customer drove up while the three men were running out of the store,

and he stood as though surprised until the first gunman raised his gun to shoot.

When the customer heard the gun click, he began running down the street, but

he managed to see the masked men get into a hatchback car and leave the

Valero. He believed that the man with the gas can was Hispanic because he

thought that he saw light skin around the man’s eyes. Appellant is dark-skinned.

      Chance Smith was an accomplice in the robbery, but he was not one of the

three masked men. Instead, he served as a lookout, sitting across the street

from the Valero station and watching for police. He was the State’s primary

witness at trial. He testified that while technically his mother was a part-owner


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with Kwame Rockwell of Moncomp, a car lot adjacent to the Valero station, he

considered himself an owner.       Smith said that Rockwell had been the first

gunman. Smith testified that in January 2010 the car lot business was doing very

poorly, and that he, Rockwell, and Randy Seibel, the second gunman, had tried

unsuccessfully to find legitimate means to get funds to keep the business going.

They knew that the Valero station was doing well because either two of them or

all three had cashed large tax refund checks at the station. From this knowledge,

they surmised that Vo, the Valero’s owner, kept a large amount of cash there.

      Smith described various times that the three had tried to rob Vo before the

March 23 robbery. Smith admitted that Appellant had not been involved in any of

these attempts on Vo and that Appellant had nothing to do with the car lot

business. But Smith also testified that Appellant was the gas-can-carrying third

masked man in the March 23 robbery.          Smith stated that Appellant and his

cousin, Tim Thomas, were recruited to participate in the robbery shortly before

March 23.

      Appellant also testified at trial. He had given a statement to authorities in

which he admitted that he had been the third masked man who carried the gas

can, but at trial he testified that he had inculpated himself in the robbery to cover

for his cousin Tim, who was light-skinned. Appellant testified that he had actually

been the lookout and that Tim had been the third masked man who carried the

gas can into the Valero store.




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Partial Denial of Cross-Examination

      In his first issue, Appellant argues that the trial court reversibly erred and

denied him effective assistance of counsel by refusing to strike Smith’s direct-

examination testimony when he invoked the Fifth Amendment in response to

questions on cross-examination. The law is well established that a witness may

not voluntarily testify regarding a matter but then invoke his Fifth Amendment

right to remain silent to avoid answering further questions about that matter. “It is

clearly inadmissible to permit a witness to give a partial account of his knowledge

of the transaction, suppressing other of the circumstances, whether the evidence

is to be used in favor of or against the [S]tate.” 1

      On direct examination and as part of an agreement with the State, Smith

testified to the details of the robbery and murder of Rojas and to the development

of the plan to commit the robbery. Smith testified that the business had needed

an influx of cash and that he and Rockwell had developed several ideas for

getting money in the early part of the year before the robberies. Smith admitted

that some of the ideas were not “legit” and that some were scandalous. Smith

also testified that he had cashed a large income tax check at the Valero station

and that Rockwell and Seibel had also both cashed IRS checks there. Then he

said that just he and Seibel had. When Appellant’s trial counsel attempted to ask



      1
       Ex parte Park, 37 Tex. Crim. 590, 596–97, 40 S.W. 300, 302 (1897).



                                            5
additional questions about the cashing of the IRS checks, Smith requested to

speak to his lawyer.

      The conscientious trial judge recessed the proceedings until Smith’s

attorney could be contacted. Smith’s attorney came to the trial court, conferred

with Smith, and presented argument to the trial court regarding Smith’s right not

to answer further questions about the scheme. After Appellant’s counsel argued

that the State had opened the door, the trial judge allowed Appellant’s counsel to

delve into the topic, but only about the time period near the time of the Valero

robbery. Appellant’s counsel explained that she was trying to elicit evidence that

“they had an IRS scam that they were using to scramble to get $4,000 to pay the

rent. They were using this scam to pay the rent.” When she questioned Smith

about the scheme, he invoked his Fifth Amendment privilege against self-

incrimination.   Appellant’s counsel then requested a mistrial on the basis of

denial of “full and fair cross-examination.” The trial court denied her request.

      On redirect, the State asked further questions about the scheme’s

relationship to the March 23 robbery and murder, and Smith voluntarily answered

them. Smith initially testified that his cashing of the IRS check had no role in the

scheme to rob the store but then admitted that it helped develop the robbery

plan. Smith explained that he, Rockwell, and Seibel had become aware that

there were large amounts of cash at the Valero station when either all or two of

them had been able to cash large tax refund checks there along with other

people. Through skillful cross-examination, Appellant’s counsel was then able to


                                         6
elicit the information Smith had announced that he would not reveal when he

invoked his Fifth Amendment protection, that is, that the tax refund checks were

part of a scam against the IRS.

      At a jury break, Appellant’s counsel perfected error on the record by asking

the trial judge to instruct Smith to answer questions regarding the IRS and

receiving a denial because of Smith’s invocation of his Fifth Amendment

privilege. She then asked the trial court to strike Smith’s testimony because she

was precluded from cross-examining Smith on his testimony about the scheme

by his invocation of his Fifth Amendment privilege.      Upon the denial of her

request, she complained that the trial court had denied Appellant “his rights

under the state and federal constitution of due process and to confront and

cross-examine the witnesses that have been tendered against him.”

      This case is unusual because Smith’s refusal to testify about the scheme

on cross-examination did not prevent Appellant’s trial counsel from questioning

Smith about the scheme. She got the information she wanted before the jury:

Smith cheated the government. Even if it was constitutional error to refuse to

strike Smith’s testimony, which we do not hold, in light of Appellant’s ability to

secure the relevant evidence of tax fraud while Smith simultaneously reiterated




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his refusal to answer those questions, such error was harmless beyond a

reasonable doubt. 2 We overrule Appellant’s first issue.

Limiting Instruction for Transcript

      Appellant argues in his second issue that the trial court reversibly erred by

admitting as substantive evidence a transcript of the CD containing his interview

with the police, played to the jury as State’s Exhibit 308, and by failing to give a

limiting instruction regarding the transcript.   But we find no indication in the

record that the transcript was admitted into evidence or that the jury was

provided a copy of the transcript. Additionally, the record indicates that the trial

court denied the State’s request to allow the jury to see the transcript:

      [PROSECUTOR]: I know you made a ruling about the transcript,
      could I bring just one matter to the Court’s attention?

      THE COURT: Yes.

      [PROSECUTOR]: Judge, back in the case of Garrett versus State,
      which is a case out of the Court of Criminal Appeals back in 1983,
      658 S.W.2d 592. In that case, the Court introduced the State’s
      transcript over defense appeal. And the Court basically said that the
      fact that the Court only made the transcript available while the jury
      was listening to it, didn't enter it into evidence, and, you know, took
      the transcripts up—

      THE COURT: I’m familiar with the case.

      [PROSECUTOR]: Okay. And, basically, the instruction that we
      prepared is basically the instruction that the Court approved in
      2
       See Tex. R. App. P. 44.2(a); Davis v. State, 203 S.W.3d 845, 849–53
(Tex. Crim. App. 2006) (discussing harmless error framework from Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967)), cert. denied, 549 U.S. 1344
(2007).



                                          8
       Garrett versus State. So with that additional consideration, we
       would just ask that the jury be allowed to use the transcript as an aid
       as they listen to the recording in court.

       THE COURT: You have the same objection?

       [DEFENSE]: I do, Judge.

       THE COURT: You’re overruled.

       As the CD played, the prosecutor repeatedly asked the sponsoring witness

what was being said on the recording. The witness and prosecutor appeared to

have the transcript, but various comments on the record indicate that the jury did

not.   The trial judge stated that he was familiar with the law governing the

admission of transcripts and was aware of the required jury instruction. Absence

of direct proof that the transcript was admitted as an exhibit, the repeated

requests for the witness to explain what was being said in the recording, and the

absence of the jury instruction all indicate that the transcript was never admitted

before the jury.

       Because there is no record that the transcript was made available to the

jury, 3 we cannot hold that the trial court abused its discretion by admitting said




       3
       See Tex. R. App. P. 33.1(a); New v. State, No. 02-03-00506-CR, 2005
WL 248526, at *3 (Tex. App.—Fort Worth Feb. 3, 2005, pet. ref’d) (not
designated for publication) (holding “error, if any, was not preserved” regarding
questions proposed at bench conference but disallowed “because the record
does not reveal what was said at the bench”); Hullaby v. State, 911 S.W.2d 921,
926 (Tex. App—Fort Worth 1995, pet. ref’d) (holding unrecorded objection made
at bench did not preserve error regarding admission of evidence).



                                         9
transcript or that the trial court erred by failing to instruct the jury regarding the

transcript. We overrule Appellant’s second issue.

Improper Jury Argument

      In his third issue, Appellant argues that the trial court abused its discretion

by denying his motion for mistrial after sustaining his objection to the prosecutor’s

closing argument and instructing the jury to disregard the remark.          Appellant

asserts that the prosecutor’s argument, “Sweet deals, secret deals? I cannot

speak for what kind of prosecutor [defense counsel] was when she was in this

office, but I don’t lie to juries,” was “manifestly improper” because “it directly

accused defense counsel of lying to the jury” and “indirectly accused her of

proffering perjured testimony.”

      Although a prosecutor is permitted to attack the argument of defense

counsel, he cannot attack counsel’s personal integrity. 4        When a trial court

sustains an objection and instructs the jury to disregard but denies a defendant’s

motion for mistrial, the issue is whether the trial court abused its discretion in

denying the mistrial. 5 Only in extreme circumstances, when the prejudice caused

by the improper argument is incurable, that is, so prejudicial that expenditure of


      4
        See Mosley v. State, 983 S.W.2d 249, 258–59 (Tex. Crim. App. 1998),
cert. denied, 526 U.S. 1070 (1999); Whitney v. State, 396 S.W.3d 696, 704 (Tex.
App.—Fort Worth 2013, pet. ref’d).
      5
        Archie v. State, 340 S.W.3d 734, 738–40 (Tex. Crim. App. 2011); Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Whitney, 396 S.W.3d at 703.



                                         10
further time and expense would be wasteful and futile, will a mistrial be required. 6

In determining whether a trial court abused its discretion by denying a mistrial, we

balance three factors: (1) the severity of the misconduct (prejudicial effect); (2)

curative measures; and (3) the certainty of conviction absent the misconduct.7

       An instruction to disregard an improper jury argument is generally sufficient

to cure harm. 8 On appeal, a reviewing court presumes that the jury followed the

trial court’s instruction in the manner presented. 9 Although the presumption is

refutable, the defendant must rebut the presumption by pointing to evidence that

the jury failed to follow the trial court’s instruction.10

       The argument did not inject new facts harmful to Appellant, nor did the

prosecutor continue in his attack. Indeed, his attack appears to be in response to

defense counsel’s jury argument:


       6
        Hawkins, 135 S.W.3d at 77 (internal quotation marks and citation
omitted); Whitney, 396 S.W.3d 704 (quoting Hawkins); see also Archie, 340
S.W.3d at 739 (noting mistrial appropriate when the objectionable events “are so
emotionally inflammatory that curative instructions are not likely to prevent the
jury from being unfairly prejudiced against the defendant” (internal quotation
marks and citation omitted)).
       7
        Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259.
       8
      Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert.
denied, 532 U.S. 944 (2001); Whitney, 396 S.W.3d at 704.
       9
       Archie, 340 S.W.3d at 741; Thrift v. State, 176 S.W.3d 221, 224 (Tex.
Crim. App. 2005); Whitney, 396 S.W.3d at 706.
       10
           Thrift, 176 S.W.3d at 224.



                                             11
      And they now stand up in front of you and tell—I want to see them
      say it with a straight face again. I’ve seen them do it several times
      during this trial. But there is no deal. There is no deal about any of
      those prior felonies.        All those first-degree felonies, those
      aggravated robberies, those attempted robberies, [Smith] is just up
      here testifying and there’s absolutely no deal. That’s not part of the
      deal. Huh-uh. No, it’s not.

             That’s what they say. That’s simply not the truth. And you
      know it because it’s actually [Smith] that told you, I think there’s like
      this wink-wink, nod-nod underhanded thing. . . . No. No, sir, there’s
      not. There’s none of that. Okay.

            ....

              So you know there’s a deal that goes beyond what these
      gentlem[e]n are willing to stand up and tell you. There’s shady
      dealings here. And our government should be above that. If we are
      going to trust in our government as citizens, if we’re going to trust in
      them, if we’re going to throw somebody in prison for the rest of their
      life with no possibility of parole, they need to come to this courtroom
      with clean hands. They need to come here telling the truth and
      being above-board. And that simply has not happened.

      After the trial court sustained Appellant’s objection to the State’s jury

argument and instructed the jury to disregard it, the State did not continue to

attack defense counsel but, instead, argued,

      And I’ll ask you folks to disregard her telling you that I made a secret
      deal with the Defendant and lied to you people about that. I’ll ask
      you to disregard that because there’s no basis in fact. I can’t even
      imagine where she would come up with something like that, but
      there’s nothing present in the case to support it. Nothing at all.

            I don’t make—I don’t make promises—I don’t make promises
      about cases that I have no jurisdiction over, okay?

      The trial court’s curative measures were sufficient to cure any harm

resulting from the improper argument. After sustaining Appellant’s objection to

the argument, the trial court immediately admonished the jury: “You will disregard

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the last comment.” Although Appellant argues that the trial court’s admonition

was insufficient, Appellant did not offer an additional or alternatively-worded

instruction. Nor did he request further instruction. 11

      Applying the appropriate balancing test and standard of review, we hold

that the trial court’s instruction cured any harm from the improper argument and

that the trial court did not abuse its discretion by denying Appellant’s motion for

mistrial. We overrule Appellant’s third issue.

Conclusion

      Having overruled Appellant’s three issues on appeal, we affirm the trial

court’s judgment in the capital murder case. Further, although Appellant does

not specifically direct us to any complaint regarding the trial court’s proceeding to

adjudication in Cause No. 1038600W, to the extent that his complaints regarding

the capital murder case are intended to also apply to the trial court’s actions in

the burglary case, we overrule his challenge, if any, to the judgment in that cause

and likewise affirm the trial court’s judgment in the burglary case.




      11
        See Waldo v. State, 746 S.W.2d 750, 756 (Tex. Crim. App. 1988)
(holding trial court’s instruction “adequate” when defendant “failed to request a
sharper ‘rebuke’ before moving for a mistrial”).


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                                        /s/ Lee Ann Dauphinot
                                        LEE ANN DAUPHINOT
                                        JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: March 26, 2015




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