Opinion issued August 8, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00284
- CR

——————————— I V AN BURGOS SANTIAGO , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 264th District Court

Bell County, Texa s Trial Court Ca se No. 82101

MEMORANDUM OPINION A jury found appellant I van Burgos Santiag o guil ty of the offense of aggravated assault w i th a deadl y weapon . 1 The trial court asses s ed his punishment

1 See T EX
. P EN AL C ODE § 22.02(a)(2).2

at eight years ’ confinement. 2 In two issu es on appeal , S antiag o argu es that (1) the trial court abused its discretion in allowing the State to introduce po lice body

cam era footage during rebutta l because it was cumulative and harmed Santiag o by its admission, and (2) the State injected “ new harmful facts ” du rin g closing

ar gument. We affirm. Background The complainant , Jerry Davis, stopped at a conv enience store and observed Santiago ’ s vehicle blo c king “ an old man trying to back out. ” Davis to l d Santiag o to move his car. According to Davis, S antiago “ [s]t arted ta lking crazy ” and

“ cussing. ” Dav is was offen ded by the things Santiago was saying, so Da vis told Santiago he was “ not the one to mess wit h ” and w alked on his way. As Davis continued to w a lk down the street, Santiago followed in his vehicle , pulled up nex t
t o Davis, and used a rac ial slur. Santiago got out of his vehicle, Davis sa w that he had “ a knife

. ” 3 Davis and S antiago fought, and Davis wa s c ut on his hands and neck. Davis was concerned w ith p rotecting himself because he was worried he would be killed

.
2 Pursuant to its docket equ alization authority, the Su preme Cou rt o f T exas transferred this appeal to this Court from the Third Court of Appeals

. See T EX
. G OV ’ T C ODE § 73.001 (authorizing t ransfer of ca ses).

3 There were va rying descripti o ns of this weapon . Dav is called it a knife, bu t another witness called it a box cu tter

. T he only weapon recovered at the sce ne was a box cutter that Santiago confirmed belonged to him.3

Davis testi fied th at a nother man was passing by and helped him subdue
Sant iago. Davis t estified that , “ while [he] was holding [Santiago ’ s] ha n d keeping
the kn ife from getting out, [Santiag o ] kept twisting, twisting , twisting. ” Davis “ tol d him to stop, your arm is goin g to break and he just kep t twisting and it broke. ” When the police arrived, t hey stopped fig ht ing

. John ny Wilson was the bysta nd e r who help ed Davis subdue Santiago. He testifi e d that he witnessed Santiago stop his vehicle in the middle of the road. Wilson s aw that Santiago had a box c utter in his hand and was argui ng with Dav is. Wilson testified that he saw Santiago cut Davis a c ou p le of times before Davis

“ was able to grab [San t iago ’ s] hand and bring him down. ” W hen Wilson s aw this, he got out of his vehi cle and r an up to help Davis

. Wilson told San tiago to let go of the blade, but Santiago “ wouldn ’ t let it go ” and “ was trying to g e t that blade out so he could throw some more sw i ngs and try to cut people. ” Officer T. Lundt re spon ded to 9

- 1

- 1 ca lls reportin g a fight with a weapon. When he arr ived at the scene, “ [t]here was a lot of chaos going on. ” He saw that there were a lot of b ys t anders, two men sitting do wn and “ covered in bl o od , ” a vehicle stopped in the middle of the roa d, and “ someone hol ding a small kni fe. ” He detained and cuffed both Santiago and Davis t o secure the scene until police could determine what had happened. Off ic e r Lundt also “ secured the weapon th at was on4

th e ground, ” describing it as “ a small box cutter like kn ife. ” Santia go was
event ually charged with the aggravated assault of Davis. Santiago testified on his own behalf. He testified that after Davis told hi m t o move his c ar, he decided to drive home to get some tools. He denied calling Davis
any names. He testified that D avis c rossed into the street in front of his vehicle , forcing him to stop in the middle of the street . Santiago testified that , when he got

o u t of his car, Davis had a knife in his hand tha t Davis used to attack him. When they fell to th e ground during the fight, Davi s dropp ed the kn ife and Santiago picked it up. Santiag o testified that he received a cut and a broken arm during the
altercatio n. S antiago identified the box cutter that was col l ected from the scene as belonging to him. When asked how the box cutter ended up on the sidewalk at the

sc ene of the assault, he testified, “ I suppose that when we were fighting it fell from my side pocke t w here I keep it and somebody must have grabbed it. ” S antiago testified th at the assault h appened with a knife that Davis had in his hand. Santiago did not know what hap pened to that knife

. W hen the State pointed ou t that no other witness mention ed seeing D a vis with a knife, Santia go disagreed. He testi f ied that Davis or Wilson “ did something with it. ” On rebutt al , Off

ice r J. L e ac h testified that he also responded to the call about Santiago ’ s altercation. When he arrived, he observed Sa ntiago and Davis5

“ f i g h ting ” and “ struggling ” w ith each other. They q u ickly separated, and Officer
Le ach noticed that both men had injuri es. Officer Leach believed that Santiago ’ s arm was already broken w hen the fight stopped, and he also noted in his report that Santiago wan te d to press charges against Da vis for assaulting him with a knife. The State sought to admit a 30

- minute recording f rom Officer Leach ’ s body

cam era depicting the scene after the police arriv ed. Santiago objected that the video was “ imp roper rebuttal to th e d efense case , ” which consisted of Santiago ’ s testim o ny. The State argued that Santiago made stat ements during hi s t estimony abo ut what had happened, wh ere certain people were located, the number of weapons involved an d other matters that created a confli ct between his testimony and that of other witnesses. The S t ate argued that it “ would be helpful t o the jury to under stand w hat h appened at that m oment shortly after [the fight] occurred. ” The trial court overruled the objection and granted Santiago a runn in g objection. The State played the video to the jury , accompanied by Officer Leach ’ s testimony

ex plaining p ortions o f the footag e. The video showed the end of the fight between Santiag o and Davis, the collection of evidence, and statements made by Santiag o

a nd Davis to Officer Leach, among other things.
Dur i ng closing argument, the State was summarizi ng the efforts poli ce took
duri ng the investi gation of the scene. T he following exchange occurred: [ State]: These officers did their job, they did a good job

. I t ’s just

very ob vious what happened. They talked t o wit nesses on6 the scene that told them what happened. They foun d th is box c utter. Right there. Right there where the guys were. [C ourt] : Time to wrap up

. . . . [State ]: Thank you, your Honor. This box c u tter which still to

this day has the victim ’s bloo d on it. [Santiago]: Objection, Your Honor. There ’s no

— [Co urt] : Ladies a n d gentlemen, the lawyer commen ts are not

evidence. You heard the evidence from the witness stand. You ’ll remember the e vidence. [ S tate]: Thank you. It was all there all contained i n this one

location. The officers in vestigat ed. They found out what happene d, and now everyone has told you. . . . The S t ate concluded its c losing argument, and the trial court sent the jury to delibera te

. Santiago made n o further objections or re quests r e garding the S tate ’ s argument. The jury foun d Santiago guilty o f aggravated assault, and it made an affirmative finding that he used a deadly weapon. The trial court assessed Santiago ’ s punishment at ei gh t years ’ confinement. This appeal followed.

Admissi o n o f Body Cam era Footage In hi s first issue , Santiago argues th at the trial cour t abused its discretion in

a llowing the State to present the video from Officer Leach ’ s body cam era in rebuttal to Santiag o ’ s testimony.7

A. Standard of Review We review a trial court ’ s ruling on the admissibility of eviden ce for an abuse of discretion. Rhomer v. State , 569 S.W.3d 664, 6 69 (Tex. Crim. App. 2019). We will not reverse a trial court ’ s decision to admit or exclude e vi d ence, and there is no abuse of discretion, unless that decision lies outside the zone of reason able disagreement. Beham v. Sta te , 559 S.W.3d 474, 478 (Tex. Cri m . App. 2018)

. For a complaint to be properly preserved for appellate review, a party must
pres en t a specific, timely objection to the trial court that articul ates and makes the trial court aw are of the specific grounds for the ruling that the complaining p a rty seeks. See T EX
. R. A PP
. P . 33.1(a)(1)(A); T EX
. R. E VID . 103(a) ; Burg v. State , 592 S.W.3d 4 4 4, 448

–

49 (Tex. Crim. App. 2020) . Further, the complaint raised on appeal must correspond to a nd comport with the objection m ade at trial. S ee Hallmark v. State , 541 S.W.3d 167 , 171 (Tex. Crim. App. 20 17 ); Lovill v. State , 319 S.W.3d 687, 691

– 92 (Tex. C ri m . App. 20 0 9) (noting that issue is not preserved “if the legal basis of the complaint rais ed o n appeal varies fro m the compla int made at trial”)

. B. Analysis Santiago objected at tr ial to the admission of the video from Officer Leach ’ s body camer a on the g ro u nd that it was not proper rebuttal evidence. Now on appeal, h e argues that the evidence “ was c umulative a nd could have been p resented8

during the State ’ s case - in

- chief, ” citing to Rule s of Evide nce 401 through 403. He argues that the video was duplicativ e a nd a needless presentation of cumulative evidence

. Because his o bjection on appeal does not co mport with his obje ction at tri al , he has not preserved this co mplaint for review on appeal. See Hallmark , 541 S.W.3d at 171 ; see also, e.g. , Lopez v. State , 2 00 S.W.3d 246, 251 (Tex. App.

— Houston [14th Dist.] 2006, pet. ref ’ d) ( holding that “ a specifi c Rule 403 objection

mu s t be raised t o preserve error ” because Rule 403 complaint is not implicitly contained in general objection to relevancy or objection under some o t her rule of evidence)

. To the extent that Santiago is attempt ing to reassert his obje ction at trial that the v id eo of bo dy cam era footage was not pro per rebutt al eviden ce and, thus, the trial court erred in overruling his objection and admitting the vi de o , we d isagree

. Santiago argues that “ the State could have called L e ach to testify in i ts case

- in

chief ” but i nstead, the State “ wait ed until after [Santi ago] testified t o call Leach and introduc e duplicative and cumulative evidence which had already bee n
p re se nted, presumably so t he last witness the jury would hear from was a State ’ s witnes s. ” In general, “ [t]he prosecution is entitled on rebuttal to pres ent any evi dence
that tends to re fute the defensive theory of the accused and the evidence int roduce d
i n support of it. ” L a ws v. S t ate , 549 S.W. 2 d 738, 741 (Tex. Crim. App. 1977); see9

T EX
. C ODE C RIM
. P ROC
. art. 3 6.01 ( a ) ( set ting order of proceeding in trial, including that “ [r]ebutting testimony may be offer ed on the part of each party ” following
defendant ’ s p resentation of evidence) ; id. art. 36.02 ( “ The court sha ll allow
t estimony to be in troduced at any time be for e the arg ument of a cause i s

con cluded, if it appears that it is necessary to a due administration of justice. ” ); Lackey v. State , 638 S.W.2d 43 9 , 457 (Tex. C rim. App. 1982) (en banc) (“This
Court has often held that [Texas Code o f Criminal Procedure ar ticle 36.02] and its predecessors mean that testimony may be introduced in the rebuttal portion of a trial whether it specifically rebuts other tes t i m ony or not.”)

. Santiago ’ s testimony challenged factual details set out by the State ’ s witn esses. Santiago testifi ed th at Davis instigated the fight, that Davis had a kn ife of his own , that Davis or Wilson “ did something ” with D avis ’ s knife immediately
f o l l owing the fi ght, and that his own box cutter must have falle n from his pocket durin g the fight. On rebutta l, the State sought to admit the body c amera fo otage to show the im mediate aftermath of the altercation and the investigation and
collection of evi d e n ce by police. We cannot say that the trial court abused its discretion in determini ng that this evidence w as generally admissible as rebuttal evidence

. See L a ws , 549 S.W. 2 d at 741 ; Lackey , 638 S.W.2d at 457

. We overrule Santiago ’ s first issue.10 Statement D u ring Closing Argument In his se cond issue , Santiago argues that the State “ injected new, harm ful facts dur ing jury arg ument that we re not supported by the record. ” A. Standard of Re v iew

“ The purpos e of closing argument is to facilitate the jury in properl y

a n alyzing the evidence presented at trial so that it may ‘ arrive at a just and

reason able conclusion based o n the eviden ce alone, and not on any fact not admitted in evidence. ’ ” Milton v. State , 572 S.W.3d 234, 239 (Tex. Crim. App. 2019) ( quoting Campbel l v . State , 610 S.W.2d 754, 756 (Tex. Crim. App. 1980) (panel op. ))

. “ [ T ] he bounds of p roper closing argument are left to the sound discretion of the trial court. ” Id. at 240. As stated above, f

or a complaint to be properly preserved for appellate review, a pa r t y must present a specific, timely objection to t he trial court that articulates a nd makes the trial cour t aware of t he specific grounds for the ruling that the complaining party seeks. See T EX
. R. A PP
. P. 33.1(a)(1)(A); T EX
. R. E VID
. 103(a); Burg , 592 S. W

. 3d at 4 4 8

– 4 9

. A defendant ’ s failure to pursue an adverse ruling on his objection to a jury argument forf eits his rig ht to complain about the argument on appeal. Hernandez v. State , 538 S.W.3d 619, 6 22

– 23 (Tex. Crim. App. 2018) (citing Cockrell v. State , 9 3 3 S.W.2d 73, 89 (Tex. Crim. App. 1996) ).11

B. Analysis . During closing argument, t he S tate commented that Dav is ’ s blood w as “ still to this day ” on Santiago ’ s bo x cutter. Santiago ’ s c ounsel objecte d , but before he could state the specific grounds of the obje ct i o n, the trial court stat ed , “ Lad ies and gentlemen , the lawyer co mments are not evi dence. You heard the ev idence from the witness stand. You ’ ll reme mber the evidence

. ” Santiago did not make any further objectio ns or requests regarding th e State ’ s argumen t t h at the bo x cutter still ha d Davis ’ s blood on it. Thus, Santiago failed to p ursue his objection to an adv erse ruling and, therefore, forfeits his right to complain on appeal about the argument. See id. at 622 (holding that def

endant “ m u s t object and pursue his objection to an adverse

ru ling ” or he “ forfeits his right to complain on appe al about the argument ” )

. Assuming w ithout deci ding that the State ’ s comment was imp roper, 4 t he trial court here essentially instructed the jury to dis re g a rd th e lawyer ’ s comments and consider only the evidence that was admitted at trial. “ In order to claim on appeal that an inst ruction to d isregard was inadequate to cure erroneous jury argument, the defendant must object and pursue his objection to an a dv er s e ruling. ” Id. ; see also

4 When Office r L undt testi fied about collecting the bo x c utter as evi dence, he testified that the blad e was open, he observ ed that both me n were bleedin g an d t here were cuts to Davis ’ s ne ck and arm , and the blade “ appear[ed] t o have a substa nce on it that look[ed] like blood. ” T he S t ate also int roduce d photog raphs of the bo x cutter as Officer Lundt described it.12

Estrada v. State , 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (even assumi ng prosecutor ’ s argument w as so egregi ous that instruction to disregard would be ineffectual, defendant “should have moved for a mistrial to prese rv e t his error ”). Santiago failed to pursue his objection to an adverse ruling or to move for mistrial,

so he has forfe it ed review of th is is sue. We overrule Santiago ’ s second issue. Conclusion We affirm the judgment of the trial court.

Richard Hi ghto we r Justice Panel consists of Justices Kelly, Hightower, and Countiss. Do not publish. T EX
. R. A PP
. P. 47.2(b).