Affirmed and Mem orandum Opinion filed November 20 , 2014

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00407

- CR

QUINTEN M cINTYRE , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 339th District Court

Harris County, Texas Trial Court Cau se No. 1339592

M E M O R A N D U M O P I N I O N A jury convicted Quinten McIntyre of felony murder 1 and assessed his punishment at 46 years’ imprisonment and a $10,000 fine. Appellant challeng es his conviction and sentence on grounds that (1) the evidence is legally insufficient to prove that he committed the offense; (2) the trial court erred by refusing to issue appellant’s proposed accomplice witness jury instruction; (3) the tri al court erred

1 See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2011).2

by overruling appellant’s objections to Harris County Assistant Distric t Attorney Jane Waters’ testimony; and (4) the trial court erred by refusing to order a mistrial
based on improper jury argument at the punishment phase of trial. We affirm

. B ACKGROUND Deandre Elliot was killed on the night of November 19, 2009. Elliot’ s girlfriend
, Kennetra Parker
, testified that Elliot picked her up from her apartment for a date that night . Elliot drove his bluish

- green Buick , which had custom tire
rims. Elliot and Parker returned to Parker’ s apartment after the date , and Elliot depa rted around midnight. Parker closed her front door after Elliot’s departure
, and took four or five steps towards her bed room . She then heard gunshots . Next,
she heard multiple people running
, and then
, someone bang ing on her front door. She opened her door , and saw Elliot leaning on it . She also saw her neighbor
, Jacobe White
, standing in the breezeway . Parker closed her door and then reopened it. El liot fell forward onto the floor. He was alive, but unable to speak.
He died soon after from multipl e bullet wounds to his chest, mouth, and back
, from
bullets fired by a .38 caliber gun. Lynn Ireland was a resident of the apartment complex where Parker lived

. Ireland testified that she was walking back to her apartment around 11:45 p.m. on the night E lliot died

. She approached the complex from the street and had a clear
view of the breezeway in front of Parker’s apartment. She heard a gunshot as she
walk ed toward the complex, and saw a flame from a gun fired at the edge of the breezeway

. She walked closer
, and saw and heard three more shots fired. She
then saw a man backing out of the breezeway as if he w ere shooting. The man exited the breezeway and ran toward the back passenger’s side of a bluish

- green Buick
, which was parked in the apartment com plex parking lot

. Ireland testified
that she did not get a good look at the man who entered the Buick
, or at the driver3

of the Buick

. The Buick then backed out of its parking space and spe d off

. Houston Police Officer Peter Vu testified that he was disp atched to inve stigate a suspicious vehicle on the day after Elliot died. He discovered Elliot’s
Buick , with rims on its tires, after arriving at the dispatch location . Houston Police
Officer Ramon Cervantes testified that he knew the location where Ellio t’s Buick
was found to be on the street d irectly behind appellant’s home.
Ap pellant was charged with capital murder ; 2 the indictment alleged that appellant intentionally caused the death of Elliot “while in the course of committing and attempting to commit ” the robbery of Elliot. The jury convicted appellant of the lesser included offense of felony murder and assessed his punishment at 46 years’ imprisonment and a $10,000 fine. Appellant timely appealed.

A NALYSIS

I. Sufficiency of the Evidence Appellant argues in his f

irst issue that the evidence is insufficient to support
his conviction because the State did not prove be yond a reasonable doubt that he
was inv olved in robbing and killing Elliot. Due process requires the State to prove beyond a reasonable doubt every element of the crime charged. Jackson v. Virginia , 443 U.S. 307, 316 (1979); see also Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) ( “T he Jackson v. Virginia standard is the only standard that a reviewing court
sh ould apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a
reasonable doubt. ”). When reviewing the sufficiency of the evidence, we view all

2 See Tex. Penal Code Ann. § 19.03 (Vernon Supp. 2014).4

the evidence in the li ght most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. This standard, “ gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts .” Jackson , 443 U.S. at 319 ; Laster v.
State , 275 S.W.3d 512, 522 (Tex. Crim. App . 2009)

. The jury is the sole judge of the credibility and weight to be attached to a witness’ testimony

. Jackson , 443 U.S. at 319; Temple v. State , 390 S.W.3d 341,
3 60 (Tex. Crim. App. 2013) . We permit juries to draw multiple reasonable
inferences from facts as long as each is supported by the evidence presented at
trial. See Temple , 390 S.W.3d at 360. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict
and defer to that determination

. See Jackson , 443 U.S. at 326; Temple , 390 S.W.3d
at 360. “ Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally .” Laster , 275 S.W.3d at 517. “ When conducting a legal sufficiency review, a c ourt must ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt ’

— not whether ‘ it believes that the evidence at the trial established guilt beyond a reasonable doubt. ’ ” Id. (citing Jackson
, 443 U.S

. at 318

- 19) (emphasis in
the original).

We assess both direct and circumstantial evidence under the same standard.
Id . at 517

- 18. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone is sufficient to establish guilt. Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). In circumstantial evidence cases, it is not necessary that every fact and circumstance5

point directly and independently to the defendant’s guilt ; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.” Temple , 390 S.W.3d at 359

. A person commits the offense of felony murder if the person commits or attempts to commit a felony, othe r than manslaughter, and in the course of its commission, he commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2011) . A person commits the second degree felony offense of rob bery if, in the course of committing theft and with intent to o btain or maintain control of property, the person intentionally, knowingly, or recklessly (1) causes bodily injury to another; or (2) threatens or places another in fear of imminent bodily inju ry or death. Se e id. § 29.02 (a) (Vernon 2011)

. A person commits the offense of theft if the person appropriates property without the owner ’ s consent and with intent to dep rive th e owner of property. Se e id. § 31.03(a), (b)(1) (Vernon Supp. 2014)

. Appell ant argues that the jury’s verdict was not based on a rational review of the evidence. He argues that a rational factfinder must have had reasonable doubt that appellant was involv ed with the robbery and killing of Elliot because there is
no evidence or
, at most , a mere scintilla of reliable evidence linking appellant to
the crime. See Laster , 275 S.W.3d at 518 (“[W] e will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential element .”);
Brooks
, 323 S.W.3d 916 (Cochran, J. concurring) (“ A reasonable doubt might arise because the verdict is manifestly against the great weight and preponderance of the credible evidence or because there is nothing more than a mere scintilla of evidence to support some element of th e offense .”). Appellant acknowledges the jury’s role in determining the credibility of witnesses and the weight to be given to their testimony; how ever, he argues that this is a rare case in which the jury’s6

credibility dete rminations must be limited

. We begin our analysis b y summarizing testimony from the State’s witnesses directly linking appellant to t he robbery and murder of Elliot. We then discuss appellant’ s challenges to the credibility of this testimony.

A. The State’s Witness es
The State called J oshua Mouton at tri al. Mou ton testif ied that , a few days before Elliot died, he gave appellant a w orking .38 caliber pis tol in exchange for two guns that appellant offered

. The State called appellant’s close friend Darryl Obey. Obey testified that appel lant came to his house alone around 1:00 a.m. on the night Elliot died. According to Obey, appellant asked him to open his garage because appellant had
a set of tire rims he wished to remove from a car

. Obey identified the car at trial as Elliot’s Buick

. Obey opened his garage, and, as he was preparing to help appel lant , he learned that Elliot had been killed. Obey accused ap p ellant of killing
Elliot for his Buick . A ppellant responded that he did not know that Elliot had been killed. Appellant then st ated that Parker’s neighbor, Jacobe White, set up the robbery; that, during the robbery, Elliot hit appellant ; and that, as he fell to the ground, appellant pulled out a gun and shot Elliot. A ppellant showed Obey a .38 caliber pistol. A ppellant left in E lliot’s Buick.
Obey testified that appellant returned to his house around 9:00 a.m

. the next day. Kenny Hill was also at Obey’s h ouse to sell Obey marijuana. According to Obey, a ppellant approached Hill after Obey completed his marijuana purchase

. Obey observed Hill buy a gun from appellant in exchange for cash and marijuana. Obey testified that he and appellant drove to the auto parts stores Auto Zone and O’R eilly after the drug and gun transactions; Obey denied that they also went7

to Pep Boys. Accor ding to Obey, he and appellant attempted to purchase a tool to
remove the tire rims from Elliot’s Buick. Obey stated that th ey were unsuccessf ul. Obey then dropped appellant off at the apartment complex where Elliot died. Obey testified that, on the foll owing day, Hill returned to Obey’s home upset about purchasing the gun from appellant. Hill then left with the gun. Obey stated that he never saw the gun again. Obey acknowledge d that he had not been completely forthcoming about the gun.

T he State called Hill. Hi ll testified that sometime in November 2009, Obey contacted him regarding a gun that was for sale. Hill went to Obey’s house , where he met Obey and another man. Hill testified that the other man was “probably seventeen [or] eighteen” and “kind of slim.” Hill testified that the other man had “low cut” hair; Hill did not describe the man’s height. Hill sold Obey marijuana
, and then purchased a gun from the other man for approximately $50. Hill testified that Obey was present during the gun tran saction ; all three individuals sat in Hill’s truck during the transaction

. Hill stated that he returned to Obey’s home aft er learning of Elliot’s death a day or two later . He met Obey , and told him that he did not want the gun. Hill left the gun on Obey ’s front porch.
The State called Jacobe White’s sister, TaShell White. TaShell lived with her brother at the apar tment compl ex where Elliot died . TaShell testified that she saw appellant at the apartment complex at approximately 3:00 p.m. or 4:00 p.m.

a nd again at approxim ately 9:00 p.m. on the day Elliot died. TaShell also testified that appellant came to her apartment the morning after Elliot died

. According to TaShell, a ppellant spoke with her brother outside their apartment. T he apartment d oor was partially open, and TaShell overheard part of the conversation . TaShell overheard appellant tell her brother, “ Man, I didn’t mean to shoot him

. ” She also overheard appellant tell her brother that he only wanted to take Elli ot’s Buick for8

its rims.

B. A ppellant’s Attempted Impeachment of the State’s Witnesses

A ppellant attempted to impeach Mouton , Obey, and TaShell at trial

. Mouton acknowledged that in 2010 he was charged with second degree felony possession of a controlled substance . He testified that , after he spoke with investigators about Elliot’s death, he received a plea deal in which he pled guilty to a state jail felony and was sentenced to five day s’ imprisonment in the Harris County Jail. Mo u ton denied receiving the deal in exchang e for testi fying in this

case. Obey testified that he was charged with the felony o f aggravated assault of a family member . He testified that
, after he spoke with Houston police officers
, the felony charge agains t him was dropped and he pled guilty to a misdemeanor deadly conduct charge. Obey denied that he received the plea deal in exchange for

tes tifying in this case.

TaShell testified that she did not tell Houston police investigators about the
conversation she overheard between ap pellant and her brother until ne arly two years after Elliot’s death. She testified that she told investigators about the conversation to “keep [her] brother out of trouble” because investigators w ere asking her about Jacobe ’ s involvement in Elliot’s death . TaShell testified that her
br other did not receive any benefit in exchange for her testimony in this case.

C. Purported I nconsistencies in Witness Testimony Appellant asserts that there are in consistencies in the testimony proffered at
trial.

Mouton testified at trial that he did not know appellant. He then recanted
this statement and testified that he sold a .38 caliber gun to appellant.9

Obey and Hill both described the same gun and drug transaction; however,
their accounts differ

. Both men testified that the gun transaction occurre d inside
Hill ’s truck. Obey testified that he observed the gun transaction standing outside of Hill’s truck; Hill testified that Obey was present in the truck , along with the man who sold him the gun . Obey stated that appellant initiated the gun sale by approaching Hill ; Hill stated th at Obey contacted him by phone and asked him if he was interested in buying a gun

. Appellant called Pep Boy s ’ employee Steven Bradford as a w itness.
Bradford testifie d that two men came to the Pep Boys’ store that he worked at the day after Elliot died. According to Bradford, the two men were looking for a tool
to remove tire r ims. B oth men wore h ooded sweatshirts. Bradford identified one man as Obey. Obey denied visit ing Pep Boys the day after Elliot died

. Addition ally, appellant asserts that the witnesses’ descriptions of key individuals differ. Appellant also asserts that the “ impartial witnesses ” cannot identify appellant. According to appellant, these two failings create reasonable doubt that appellant was connecte d to the robbing and killing of appellant. Ireland described the man he saw running into the backseat of Elliot’s Buick on the night of the killing as “ dark

- skinned, ” “pretty short, ” of a “stocky build,” and with a “taper crew cut.” Hill identified the m an he purchased a gun from as “probably seventeen [or] eighteen” and “kind of slim.” Hill could not identify appellant at trial. Bradford described the man who came to Pep Boys with Obey as 18 to 22
years old, “skinny,” and about six foot, one inch tall

. Bradford did not identify appellant in December 2009 when police presented him with a photo line

- up of six
African

- American men, including appellant. Obey described himself as five foot,
ten inches tall, 25 years old, and about 250 pounds in November 20 09. Houston
Police Officer Cervantes describe d appellant as approximately five foot, six inches10

or five foot, seven inches tall , “thin

- built,” and approximately 160 or 165 pounds, with “very low cut” hair in Novembe r 2009. Appellant was 19 years old in
N ovember 2009.

D

. Discussion Appellant argues that the testimony of Mouton, Obey, and TaShell, linking appellant to the r o bbery and killing of Elliot, is not reliable and cannot establish his guilt beyond a reasonable doubt. Appellant argues that his credi bility attacks on these witnesses, along with inconsistencies between thes e and other witnesses’ testimony and descriptions
, mean that the evidence cannot suppor t his conviction.

We reject appellant’s contention

. A s an initial matter, a ppellant’ s credibil ity
attacks cannot support reversal because we do not re

- evaluate the jury’s credibility
determinations on appeal. Jurors are the exclusive judges of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) ; Green v. State , 350 S.W.3d 617, 621 (Tex. App.

— Hous ton [14th Dist.] 2011, pet. ref ’ d) ; cf. United States v. Abel , 469 U.S. 45, 52 (1984) ( the jury determines bias ) . The jury is free to believe or disbelieve all or a part of a w itness’ testimony. Jones v. State , 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) ; Green , 350 S.W.3d at 621. Our role is not to become a thirteenth juror, and we may not re

- evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the factfinder. Williams v. State
, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)

. T he jury , acting within its prerogative
, could have resolved all cr edibility issue in favor of Mouton, Obey, and
TaShell

. See id. ; cf. Brooks , 323 S.W .3 d at 906

- 07 (it is within a jury’s prerogative
to believe a conveni ence store clerk and disregard contradicting , properly
authenticated video footage , although a jury’s finding of guilt on the basis of the clerk’s testimony would not be rational).11

In a suf ficiency review, we view all evidence in the light most favorable to the verdict and determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Williams , 235 S.W.3d at 750

. In doing so, we give deference to the responsibility of the factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

. We def er to the factfinder’s resolution
unless the resolution is not rational. See id. In this case, we cannot say that the ju ry’s resolution was irrational . Obey and TaShell testified that appellant admitted to robbing and shooting Elliot.
Mouton testified t hat he sold a .38 caliber gun to appellant b efore Elliot died. Hill testified that he purchased a gun from Obey’s acquaintance after the killing , and Obey testified that this acquaintance was appellant

. Elliot’s Buick was discovered
on the street behind appellant’s home after the killing, and TaShell testified that she saw appellant at t he apartment complex on the night of the killing. This is not
a case in which the evidence of appellant’s guilt is speculative , nor is it a case in which conclusive, prop erly authenticated evidence disproves appellant’s guilt; appellant’s conviction is based on witness testimony, which the jury determined to
be credible. See Brooks , 323 S.W.3d at 906

- 07; Johnson v. State , 419 S.W.3d 665, 671 (Tex. App.

— Houston [1st Dist.] 2013, pet. ref ’ d) (complainant’s testimony sufficient to support defendant’s conviction for aggravated sexual assault of a child where complainant’s testimony conflicted with defendant’s testimony and where complainant’s acquaintance denied her honesty); but see Stobaugh v. State , 421 S.W.3d 787, 790 (Tex. App.

— Fort Worth 2014, pet. filed) (evidence is insufficient to support a finding of the elements of murder beyond a reasonable doubt where “there is no body, no murder weapon, no witnesses, and no blood or DNA12

evidence; there are no fibers or hairs or any type of forensic evidence establishing that a murder occurred or linking [the defendant] to a murder; and there is no confession or directly incriminatory statement by [the defendant].”) . We overrule

ap pellant’s first issue.

II. Charge Error

A ppellant contends in his second issue that the trial court erred in refusing
his proposed accomplice witness jury instruction . Appellant argues th at a fact
issue exists as to whether Obey was an accomplice to the charged offens e of capital murder because Ob ey’s testimony established that he helped appellant sell Elliot’s stolen tire rim s and appellant’s gun

. The State argues that Obey was not an accomplice because Obey helped appellant only after Elliot’s murder w as completed
, and because Obey did not possess the required culpable mental state for capital murder. A defendant has a right to an instruction on any defensive issue raised by the
evidence. Cocke v. State , 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). A conviction cannot be secured upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant to the
offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005 ); C ocke , 201
S.W.3d at 747. Unles s the evidence clearly shows that a witness is an accomplice
as a matter of law
, a question about whether a particular witness is an accomplice is properly left to the jury with an instruction defining the term “accomplice.”
Cocke , 201 S.W.3d at 747

- 48

. If the evidence is unclear, the jury must first determine whether the witness is an accomplice as a matter of fact before considering whether corroborating evidence is required and has been produced. Id.
at 748. However, the trial court is not required t o give the jury an accomplice

witness instruction when the evidence is clear that the witness is neither an13

accomplice as a matter of law nor as a matter of fact. Id

. An accomplice is an individual who participates with a defendant before, during, or aft er the commission of the crime and acts with the required culpable
mental state. Id. Participation requires an affirmative act that promotes the commission of the offense with which the defendant is charged. Id. An individual is an accomplice if he or she could be prosecuted for the offense or a lesser

included offense. Id. Appellant argues that Obey was an accomplice to the alleged capital murder
of Elliot because he assisted with the robbery of Elliot’s car. Obey allegedly
assisted with the robbery of Elliot’s car by helping d ispose of the gun used in the robbery and the tire rims

. On this record, Obey was not an accomplice to Elliot’s murder. Robbery is an element of capital murder, as charged in this case. See Tex. Penal Code Ann. § 19.03(a)(2) ( Vernon Supp. 2014); id. § 19.02(b)(3)

. Ro bbery requires that a person commit a theft, which in turn requires that a person appropriate the property of another without the owner’s consent and with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 29.02 ; Tex. Penal Code Ann. § 31.03(a), (b)(1)

. Once each elem ent of a theft has occurred, it is completed ; theft is not a continuing offense

. Barnes v. State, 824 S.W.2d 560, 562 (Tex. Crim. App. 1991), overruled on other grounds by Pr octor v. State , 967 S.W.2d 840, 842 (Tex. Crim. App. 1998); Terry v. State , 397 S.W.3d 823, 830 (Tex. App.

— Ho uston [14th Dist.] 2013, pet. ref’d )

. In this case, a ppellant completed the all eged theft by appropriating Elliot’ s Buick with int ent to deprive El liot of the Buick

. See Barnes , 824 S.W.3d at 830. Any assistance from Obey came after t he Buick was stolen. T herefore
, he was not an accomplice to appellant in the theft; in turn, he was not an accomplice in the14

robbery and murder of Elliot connected wi th the theft

. See id. ; see also Lee v.
State , No. 14

- 03

- 00458

- CR, 2004 WL 1206019 , at *2 (Tex. App.

— Houston [14th Dist.] June 3, 2004, no pet.) (mem. op., not designated for publication ) (individual who received a stolen car was not an accomplice to capit al murder committed in
connection with the robbery of the car )

. Additionally, to the extent the evidence shows Obey tried to conceal the
murder b y assisting in the disposal of Elliot’s Buick and the gun, his assistance
does n ot make him an accomplice to mu rder. To be an accomplice to murder, an
individual must “ be susceptible to prosecution for the murder itself by having affirmatively assisted in committing the offense .” Druery v. State , 225 S.W.3d 491, 500 (Tex. Crim. App. 2007)

. The record does not sh ow that Obey affirmatively assisted in committing the murder ; therefore, Obey is not an accomplice to murder

. See id. (individual who only assisted in disposing of the murder weapon was not an accomplice to murder); Paredes v. State , 129 S.W.3d 530, 537 ( Tex. Crim. App. 2004) (individual who only participated i n disposing of
bodies was not an accomplice to murder). Finally, nothing in the record indicates that Obey acted with the required culpable mental state for capital murder or felony murder ; therefore , he could not be an accomplice to those crimes

. See Cocke , 201 S.W.3d at 747 (an accomplice must act with the required culpable mental state); Rousseau v. State , 855 S.W.2d 666, 673 (Tex. Crim. App. 1993) ( Capital murder requires the existence of a n “int entional cause of death ; ” felony murder in connection with a robbery requires

an “intent to rob the victim, but not cause his death ”).

We conclude that the evidence adduced at trial does not raise the possibility that Obey may have been an accomplice to ca pital or felony murder; therefore
, the trial court correctly denied appellant’s requested accomplice

- witness jury15

instruction. See Cocke , 201 S.W.3d at 747. We overrule appellant’s second issue.

III. Rehabilitation Testimony Appellant contends in his th ird issue that the trial court erred in denying his objections to the testimony of Harris County Assistant District Attorney Jane
Waters

. She testified that the district attorney’s office di d not offer Obey a plea
deal in exchange for his testimony in thi s case. Appellant objected on grounds that Waters’ testimony was irrelevant, was hearsay, and violat ed his Sixth Amendment right to be confronted with the witness against him

. We address each objection in

turn.

A. Background Obey testified on direct ex amination that he did not receive a plea bargain in exchange for his testimony in this case. On cross

- examination, Obey admitted that he was charged in March 2010 with the second degree felony of aggravated assault on a family member, which is punishable by not less than two years ’ or more than 20 years ’ imprisonment. See Tex. Penal Code Ann. § 12.33 (Vernon 2011 ). Obey’s aggravated assault charge was enhanced by a prior agg ravated robbery,
which raised the offense to a first degree felo ny punishable by not less than five

years ’ or more than 99 years ’ imprisonment. Se e id. § 12.42(b) (Vernon Supp. 2014); id. § 12.32 (Vernon 2011 ). Obey testified that the district attorney’s office
offered him a plea bargain in December 2010 . Pursuant to the plea bargai n, the district attorney’s office dropped the aggravated assault charge and Obey pled guilty to misdemeanor deadly conduct. Se e id. § 22.05 (Vernon 2011 ). Obey served 121 days ’ confinement in the Harris County Jail.

The State called Waters to rehabilita te Obey’s credibility . Appellant
examined Waters on voir dire outside of the presence of the jury. Waters testified16

that she was the head of the district attorney’s office domestic violence division in
2010 , and that she supervised the prosecutor directl y responsible for Obey’s aggravated assault prosecution. Water s stated that
, as head of the domestic
violence d ivision
, she would have had to approve a ny plea deal that her d ivision
made with a witness in exchange for testimony

. Waters stated that she di d not approve a plea deal for Obey in exchange for testimony . Waters further stated that she reviewed Obey’s aggravated assault case file and nothing in the case file
indicated to her that Obey was offered a plea deal in exchange for testimony in appellan t’s case. Appellant objected to Waters’ proposed testimony on relevance and hearsay grounds because Waters was not the prosecutor directly responsible for Obey’s aggravated assault case. Appellant also objected on grounds that Waters’ testimony violated his Sixth Amendment right to confront a witness against him

— specifically, the prosecutor directly assigned to Obey’s case. The trial court denied appellant’s objections outside the presence of the jury.

Th e jury returned , and W aters testified that she d id not approve a deal to reduce Obey’s aggravated assault charge in exchange for his testimony in this case.
She furth er testified that nothing in Obey’s case file indicated that a deal with Obey had been reached in exchanged for his testimony in this cas e

. Waters
testified that Obey’s case file contained an email from the prosecutor in charge of appellant’s murder case to the prosecutor in charge of Obey’s aggravated assault

case . According to Waters, the email state d that Obey was a witness in the murd er

case . Waters testified that Obey’s case file also contained a note written by the

p rosecutor directly responsible for Obey’s aggravated assault prosecution. According to Waters, the note stated that the prosecutor in charge of appellant’s
murder case wished to be “kept in the loop” on Obey’s case. Waters stated that
,17

based on her recollection and review of the case file, Obey’s plea deal occurred
after the aggravat ed assault complainant recanted her testimony. 3

B. Standard of Review Appellant’s evide ntia ry and constitutional objections are governed by
different standards of review. See Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) ; Infante v. State , 404 S.W.3d 656, 662 (Tex. App.

— Houston [1st Dist.] 2012, no pet.) . We review appellant’s relevancy and hearsay challenges to the trial court’s admission of evidence under an abuse of discretion standard. See Wall , 184
S.W.3d at 743. We review the trial court’ s constitutional ruling de novo

. See
Woodall v. State , 336 S.W.3d 634, 642 (Tex. Cr im. App. 2011)

. C

. Evidentiary O bjections

1. Relevancy

Texas Rule of Evidence 402 states, “All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory a uthority.” Texas Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evid ence.” Appellant asserts, without further argument, that Waters’ testimony “concerning office policy and processing of family violence cases” was irrelevant to any issue before the jury. The State argues that Waters’ testimony regarding the
domestic viol ence division’s policy of requiring Waters, as head of the division, to sign off on plea bargains was relevant to Obey’ s credibility; in turn, this was

3 Waters also testified that Obey had been charged as a felon in possession of a f irearm. See Tex. Penal Code Ann. § 46.04 (Vernon 2011). Waters testified that this charge was dropped when Obey pled guilty to deadly conduct.18

relevant to the jury’s determination of the facts at issue in appellant’s case. The
State further as ser ts that appellant waived his relevancy complaint by failing to object each time Waters testified regarding division policy. To preserve error for appeal, a party must object each time inadmissible evidence is offered unless the party obtains a running obje ction or obtains a ruling on his complaint in a hearing outside the presence of the jury. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; Lopez v. State , 253 S.W.3d 680, 684 (Tex. Crim. App. 2008)

. Appellant objected to Waters ’ testimony as irrel evant , and conducted a voir
dire examinatio n outside the presence of the jury

. The court overruled appellant’s objection outside the presence of the jury

. We hold that appellant preserved his relevancy issue for review

. See Tex. R. Evid. 103; Lopez , 253 S.W.3d at 684.

W e reject appellant’s relevancy contention bec ause t he trial court reasonably
could have concluded that Waters’ testimony was relevant to the issue of Obey’s credibility

— and therefore re levant to the jury’s determination of the disputed
facts of thi s case. Appellant cross

- examined Obey regarding his 2010 plea bargain in an attempt to impeach Obey on bias. See Michael v. State , 235 S.W.3d 723, 726 (Tex. Crim. App. 2007) (there are five major forms of impeachment: (1) impeachment by prior inconsisten t statements; (2) impeachment by another witness; (3) impeachment through bias; (4) impeachment through motive; and (5 ) impeachment through interest); see also Abel , 469 U.S. at 52 ( “Bias may be
induced by a witness ’ like, dislike, or fear of a party, or b y the witness ’ self

interest. ” ) . Waters’ testimony reasonably could have been understood as rebutting appellant’s suggestion that Obey was bias ed against appellant through Obey’s 2010 plea deal. Waters’ testimony on di vision policy est ablished her person al knowledge that there was no link between the plea d eal and Obey’s testimony in appellant’s case. Appellant did not object to appellant’s testimony as improper19

rehabilitation or as overly prejudicial. See Tex. R. Evid. 403, 608(a); Michael , 235
S.W.3d at 726 . Therefore, we conclude that the trial court did not err in admitting Waters’ testimony as relevant evidence

. See Tex. R. Evid. 401; see also Hurst v.
State , 406 S.W.3d 617, 625 (Tex. App.

— Eastland 2013, no pet.) (evidence that the
defendant owned weapons was relevant to support witnesses’ explanations that they lied to police because they were scared). We overrule appellant’s issue that the trial court erred in denying his relevancy objection to Waters’ testimony.

2. Hearsay Hearsay is “a stateme nt , other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. ” Tex. R. Evid. 801 (d)

. Hearsay is not admissible except as otherwise provided by the Rules or by statute. T ex. R. Evid. 802. Appellant argues that “[t]he written notations, e

- mails and other documentation in Obey’s files constituted hearsay” because the documents were

out

- of

- court statements offered to prove the truth of the matters asserted therein. Appellant further argues that “[t]he trial court erred in allowing Waters to offer her conclusion that no special deal had been reached between the State and Obey
because [:] 1) that is the office policy [; ] and 2) it was not documented in [Obey’s case] file.” Appel lant asserts that only the prosecutor directly responsible for prosecuting Obey’s case could testify that the district attorney’s office did not offer Obey a plea deal in exchange for testimony. The State argues that appellant did not preserve his hearsay issue, and that, even if he had, Waters had personal knowledge that the district attorney’s office did not offer Obey a plea deal in exchange for testimony.20

W e hold that appellant preserved his hearsay issue by conducting a voir dire
examination and obtai ning a ruling on his objection outside the presence of the jury. See Tex. R. Evid. 103; Lopez , 253 S.W.3d at 684

. Resolution of the hearsay issue , however, is more complicated. Appellant
raises two intertwined but separate issues: ( 1) whether Waters’ tes timony regarding the documents in Obey’s case file was hearsay, and ( 2) whether Waters had personal knowledge that the district attorney’s office did not offer Obey a plea deal in exchange for his testimony . The first issue is governed by Rules 801 and 80 2; the second issue is governed by Rule 602

. Rule 602 prohibits a witness from testifying to a matter “unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Tex. R. Evid. 602. Rule 602 is of ten confused with Rules 801 and
802 regarding hearsay ; however Rule 602 provides a separate basis for evidentiary objection. See 1 Edward J. Imwinkelried, McCormick on Evidence § 10 , at 62 ( Kenneth S. Broun ed ., 7th ed. 2013)

. Nevertheless, c ourts typica lly treat an objection on hearsay grou nds as preserving error on grounds that the witness
lack ed perso nal knowledge because witness testimony often rests on the statements
of others

. See id. ; see also Elizarraras v. Bank of El Paso , 631 F.2d 366, 374 (5th Cir. 1980) (“[A] lthough appellant objected on hearsay grounds, not personal knowledge, we will not draw such a fine line .”) (discussing Federal Rule of Evidence 602) ; Contreras v. State , No. 05

- 12

- 01075

- CR, 2013 WL 3956923, at *3 (Tex. App.

— Dallas July 30 , 2013, no pet.) (mem. op., not designated for publication) ( Rule 602 error preserved on hearsay objection ). Accordingly, w e consider appellant’s objection under Rules 602, 801, and 802.

a . Waters’ testimony did not violate Rules 801 and 802 Appellant’s contention that Waters testified to out

- of

- court statements21

contained in Obey’s case file to prove the truth of the matters asserted in the statements raises purely hearsay concerns; appellant’s contention is resolved by application of Rules 801 and 802

. We determine that the trial court acted within the zone of reasonable disagreement in concluding that Waters’ testimony did not
violate Rules 801 and 802

. See Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (“We will not disturb the [tria l court’s non

- constitutional evidentiary] ruling if it is within the zone of reasonable disagreement.”).

The statements Waters testified to include (1) an email written by the prosecutor of appellant’s case to the prosecutor of Obey’s case, in which the

pr os e cutor in appellant’s case stated that Obey is a witness in his case; (2) a notation in Obey’s case file , stating that the prose cutor in appellant’s case wishe d to be “kept in the loop;” and (3) unspecified other documents, which collected and
summarized the testimony
, evidence , and st atus of the case against Obey.

T he tr ia l court reasonably could have concluded that Waters offered the statements in Obey’s case file not to prove the truth of the matters asserted in the

statements ( i.e

. , that Obey was a wi tness in appellant’s case; that the prosecutor for appellant’s case wished to be “kept in the loop;” and that the testimony and evidence in Obey’s file were true) , but instead to prove that the district attorney’s office did not offer Obey a plea deal in e xchange for testimony. If offered for the
la t ter purpose, Waters testimony regarding the statement s in Obey’s case file w as not hearsay as defined by Rule 801

. See Tex. R. Evid. 801 ; cf. Lacaze v. State , 346 S.W.3d 113, 121 (Tex. App.

— Houston [14th Dist. ] 2011, pet. ref ’ d) (“[A] n officer may describe statements made by others for the purpose of showing why the defendant became a suspect and to explain the events and circumstances leading to
the defendant ’ s arrest. ”).22 b

. Waters’ testimony did not violate Rule 602 Appellant also objects that Waters lacked personal knowledge about whether the district attorney’s office offer ed Obey a plea deal in exchange for testimony
because her knowledge was based on office policy and on the content of Obey’s
case file

— not on Water s’ personal knowledge . T his conten tion is resolved by application of Rule 602 . W e determine that the trial court acted within the zone of reasonable disagreement in concluding that Waters had personal knowledge as required by the Rule

. See Winegarner , 235 S.W.3d at 790

. Waters testified that
, as the domestic violence division chief in 2010
, she was required to approve any plea deal offered to a witness in a domestic violence case in exchange for te stimony. Waters testified that she knew Obe y was not offered a plea deal in his domestic violence case because she did not approve a plea deal
, and because nothing in Obey’s case file indicated that his plea deal was
offe red in exchange for testimony. Water s did not state how she acquired personal knowledge that she was required to approve any plea deal in exchange for testimony ; nevertheless, her position as division chief implied her personal knowledge. See Valenzuela v. State & C nty

. Mut. Fire Ins. Co. , 317 S.W.3d 550, 554 (Tex. App.

— Houston [1 4th Dist.] 2010, no pet.) (“ An affiant ’ s position or job responsibilities can qualify him to have personal knowledge of facts and establ ish
how he learned of the facts .”); 3 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 6:6 , at 29 (4th ed. 2013 ) (“ Sometimes the position held by a person, or her job responsibilities, or her general experience

. . . may show

— and without proof

— that the person has enough experience

- based knowledge to give certain kinds of testimony. ”) (discussing Federal Rule of Evidence 602)

. Therefore , to the extent Waters’ testimony was based on her recollection that she did not approve Obey’s plea bargain in exchange for testimony, her testimony was23

not inadmissible for lack of personal knowledge. See Tex. R. Evid. 602. 4
Waters’ testimony that Obey was not offered a plea bargain in exchange for testimony also was based on her review of the case file. The case file contained
statements derived from the words, actions, and observations of others, which presumably Wat ers did not witness independently . T herefore, Waters’ testimony was based partially on personal knowledge (her knowledge that she did not approve a plea deal in exchange for testimony) and partially on the accounts of others ( the documents in Obey’s case file). When testimony is based partially on personal knowledge, and partially on second

- hand accounts, a court should admit or exclude the testimony according to the overall reliability of the evidence. 1 Imwinkelried, McCormick on Evidence § 10 , at 65

- 6 6 ; see United States v.
Mandel , 591 F.2d 1347, 1370 (4th Cir. 1979)
, overruled en banc on other grounds
, 602 F.2d 653 (4th Cir. 1979) ( instructing the trial court to apply the following rule : if testimony is primarily based on hearsay, it is inadmissible; if testimony is primarily based on admissible evidence, it should be admitted) ; Frangias v. State , 367 S.W.3d 806, 817 (Tex. App.

— Houston [14th Dist.] 2012, pet. granted), rev ’ d on other grounds
, 392 S.W.3d 642 (Tex. Crim. App. 2013) (trial court did not

a buse its discretion in excluding witness testimony partially based on hearsay and partially based on the witness’ observations); cf. Roy v. State , 813 S.W.2d 532, 541 ( Tex. App.

— Dallas 1991, pet. ref ’ d) (if the State puts forth some evidence of

pe rsonal kn owledge, it then be comes the defendant’s burden to rebut the evidence

4 Appellant cite s no authority sug gesting that Waters lacked personal knowledge of office policy despite her po sition. Although Waters most likely acquired knowledge of the policy from others (unless she developed the policy herself), her knowledge is “personal knowledge” within the meaning of Rule 602. See Valenzuela , 317 S.W.3d at 553 ( discussing cases in which an individual’s position within an organization qualified the individual to have personal knowledge of the organization’s policies); see also 3 Mueller & Kirkpatrick
, Federal Evidence § 6:6 , at 27 (“A witness can satisfy the knowledge requirement even if her proposed testimony rests in part on information gleaned from outside sources .” ) (discussing Federal Rule of Evidence 602)

.24

and show that the testimony was “founded entirely on hearsay”)

. In this case, Waters’ testimony that the district attorney’s office did not offer Obey a plea bargain in exchange for test imony was based on her personal recollection that she did not approve a plea deal. Waters confirmed her recollection by reviewing Obey’s case file, which did not contain any document suggesting that her recollection was incorrect . We hold that the trial court acted within the zone of reasonable disagreement when it overruled appellant’s hearsay objection based on Waters’ purported lack of personal knowledge. See Tex. R. Evid. 602; Winegarner , 235 S.W.3d at 790

. We overrule appellant’s issue that the tria l court erred i n denying his hearsay objection to Water s’ testimony.

D

. Confrontation Clause

A ppellant argues that the trial court erroneously denied his Sixth Amendment Confrontation Clause objection by allowing Waters to testify ev en though she was not the prosecutor directly responsible for Obey’s case.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses agai nst him .” U.S. Const. amend. VI. The Confrontation Clause applies only to testimonial hearsay. See Davis v. Washington , 547 U.S. 813, 823 (2006) ; Langham v. State , 305 S.W.3d 568, 576 (Tex. Crim. App. 2010) . Out

- of

- court statements offered against the accused that are “testimonial” in nature are inadmissible unless the State can show that the out

of

- court declarant is presently unavailable to testify in court and the accused had a prior opportunity to cross

- examine the declarant. Crawford v. Washington , 541 U.S. 36, 68 (2004).25

Appellant asserts that he was “denied the opportunity to examine [the events leading to Obey’s plea deal] because Jane Waters could only offer testimony in her ‘supervisory’ capacity, and not based on her personal knowledge.” He asserts that
he had a right to cross

- examine the prosecutor directly responsible for Obey’s case.
As an initial matter, we reject appellant’s suggestion that the Con frontation Clause required the S tate to produce the prosecutor directly responsible for Obe y’s
case at trial. T he Confrontation Clause bars admission of certain out

- of

- court testimonial statements ; it also guarantees an accused the opportunity for effective

cross

- examination agai nst a witness who appears at tr i a l. See Delaware v.
Fensterer , 47 4 U.S. 15, 18

- 20 (1985) (describing the two categories of
Confrontation Clause cases ). The Confrontation Clause does not require the State to produce a particular witne ss a gainst the accused at trial

. See id. To the extent appellant argues that Waters’ t estimony was inadmissible
under the Confrontation Clause because it was testimonial hearsay , we also reject this argument . If the trial court correct ly determined that Waters’ testimony was not hearsay, then her testimony did not violate the Confrontation Clause. See Crawford , 541 U.S. at 59 n.9 (“ The Clause

. . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted .”); Langham , 305 S.W.3d at 576. Alternatively, if Waters’ testimony was hears ay, her testimony did not
violate the Confrontation Clause because the only statement Waters testified to that

was made by the prosecutor directly responsible for Obey’s case was a non

testimonial statement

. 5 “ Generally speaking, a hearsay statement is ‘ t estimonial ’

5 We assume for purpose s of Co nfrontation Clause analysis that the trial court erred in overruling appellant’s hearsay objection because we must review the trial court’s constitutional legal ruling de novo , rather than under an abuse of discretion standard. See Woodall , 336 S.W.3d at 642 (“Although we defer to a trial court’s determination of historical facts and credibility, we26

when the surrounding circumstances objectively indicate that the primary purpose
of the [out

- of

- court statement] is to establish or prove past events potentially relevant to later criminal prosecution. ” De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Davis , 547 U.S. at 822

- 23 ) ; see also Sanchez v.
State , 354 S.W.3d 476, 485 (Tex. Crim. App. 2011) (“ While the exact contours of what is and is not testimonial continues to be defined by courts, it generally may be
said that t estimonial statements tend to appear more formal and more similar to trial testimony than non

- testimonial statements. ”). Appellant argues that he had the right to confront the prosecutor directly responsible for Obey’s case; he did not assert a right to c onfront any other individual. The only out

- of

- court statement attributed to the prosecutor directly responsible for Obey’s case was the prosecutor’s notation in Obey’s case file that the prosecutor in appellant’s case wished to be “kept in th e loop.” We determine that this statement is non

testimonial because its primary purpose was not to prove past events potentially relevant to a later criminal prosecution ; therefore
, the Confrontation Clause was
not violated when Waters testified about this statement

. See De La Paz , 273
S.W.3d at 680 ; Sanchez , 354 S.W.3d at 485

. We overrule appellant’s issue that the trial court erred in denying his Confrontation Clause objection to Waters’ testimony.
In conclusion, w e overrule appellant’s third issue.

IV. Jury Argume nt Appellant contends i n his final issue that the trial court erred when it denied
his m otion for a mistrial based on the State’s allegedly improper jury argument at the punishment phase of trial

.

re view a constitutional legal ruling de novo. ”).27

Texas Code of Criminal Procedure article 37.07, section 4 (a) requires t he
trial court to instruct as follows when a jury assesses punishment for felony
murder : Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed throu gh the award of good conduct time

. . . . It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. Under the law applicable in this case, if the defendant is sentenced to a term of impr isonment, the defendant will not become eligible for parole until the actual time served equals one

- half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time the defendant may earn. If the defendant is sen tenced to a term of less than four years, the defendant must serve at least two years before defendant is eligible for parole. Eligibility for parole does not guarantee that parole will be granted. It cannot accurately be predicted how the parole law and g ood conduct time might be applied to this defendant if sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities. You may consider the existence of the parole law and good cond uct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this par ticular defendant.

Tex. Crim. Proc. Code Ann. art. 37.07 , § 4(a) (Vernon Supp. 2014 )

. The State asked the jury to impose the maximum sentence allowed by law

. The reporter’s record of the State’ s closing argument shows the following argument, objection, and ruling :28

[ THE STATE ] : [W]he n you look at that charge, it’s going to tell you the crime that you convicted [appellant] of, he is parole eligible at thirty years or half of whatever you sentence him to. So, for instance, [appellant’s counsel] asked you to sentence him to five. For in stance he’s parole eligible after two

- and

- half

— [APPELLANT’S COUNSEL] : Your Honor, she knows that’s improper to go through the parole with this jury. [THE STATE]: Judge, I’m simply

— [APPELLANT’S COUNSEL]: No. That is just absolutely improper to tell t hem how much time he would be required to serve. [THE STATE]: Judge, I’ll rephrase.

THE COURT: Sustained. [APPELLANT’S COUNSEL]: Ask the jury to disregard the last comment from this prosecutor, Your Honor. THE COURT: Jury, please disregard the last com ment. [APPELLANT’S COUNSEL]: Your Honor, as a matter of law, I move for a mistrial.

THE COURT: Mistrial denied. Appellant argues that the trial court erred in denying his motion for mistrial. Appellant asserts that appellant’s assessed punishment of 46 years’ imprisonment and a $10,000 fine “is clear proof that his substantial rights were affected. ” See Tex. R. App. P. 44.2(b) (non

- constitutional errors must be disregarded unless they affect a party’s “substantial rights”). The State argues that, even if its closing argument was improper, the trial court did not abuse its discretion in denying a
mistrial.
As an initial matter, t he error appellant alleges is not the trial court’s29

response to his objection; rather, it is the trial court’s failure to grant appellant’s
motion for a mistrial. See Archie v. State , 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) ( intermediate appellate court erred in analyzing denial of a motion for
mistrial under Texas Rule of Appellate Procedure 44.2). In reviewing a trial

court ’s ruling on a motion for mistrial, we must uphold the trial court’s ruling if it was within the zone of reasonable disagreement. See id. “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. ”
Hawkins v. State , 1 35 S.W.3d 72, 77 (Tex. Crim. App. 2004)

. In determining whether improper jury argument warrants a mistrial , we must balance three factors : (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures ad opted 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). Archie , 221 S.W.3d at 700.

We hold that the trial c ourt acted within the zone of reasonable disagreement in denying appellant’s motion for mistrial, even assuming that the State’s parole argument was improper . The State’s comment regarding the parole law was brief, and appellant immediately and successful ly ob jected to the comment

. The trial
court instructed the jury to disregard the State’s comment, and the written jury
instruction s explicitly stated that the jury could not consider the manner in which the parole law may be applied to appellant. Th e jur y convicted appellant of robbery and murder , and
, at the punishment phase of trial , the State introduced
evidence that appellant had prior convictions for the manufacture and delivery of a controlled substance and theft. The jury assessed appellant’s puni shment at 46 years’ imprisonment and a $10,000 fine, which was within the midrange of available punishments. See Tex. Penal Code Ann. § 12.32 ( an individual found30

guilty of a first

- degree felony shall be punished by imprisonment for life or for any

term o f not more than 99 years or less than five years, and may be punished by a fine not to exceed $10,000)

. We determine that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial

. See Archie , 221 S.W.3d at 700 ( the trial c ourt acted within its discretion in denying the defendant’s motion for a mistrial at the punishment phase of trial where the State’s improper jury comment was brief; the jury was instructed to disregard the comment; and the record included evidence of
defe ndant’s prior convictions and bad acts). We overrule appellant’s fourth issue.

C ONCLUSION Having overruled appellant’s four issues, we affirm the trial court’s judgment.

/s/ William J. Boyce Justice

Panel consists of Justices Boyce, Ja mison, and Donovan. Do Not Publish

— Tex. R. App. P. 47.2(b).