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Click here for the full text of this decision FACTS:Around noon on Feb. 12, 2003, appellant walked along the Galveston seawall with another man. Two Galveston police officers, Clemente Garcia and Jerry Roberts, drove past the men and recognized appellant as having an outstanding warrant. The officers made a U-turn on Seawall Blvd., so appellant and the other man were walking towards the officers. Garcia exited the police car and walked to the back of the car. Roberts exited the car and approached appellant and the other man and began talking to them. Within less than a minute, the appellant stepped back, pulled out a gun, and shot Roberts in his leg and stomach. Garcia yelled at appellant and fired twice at appellant. Appellant fired at Garcia, and then ran from the scene with the other man. Garcia followed them. Both appellant and Garcia fired more shots at each other during this pursuit. Garcia eventually lost appellant and the other man. Later than evening, Roberto Torres, appellant’s older cousin, and appellant’s mother convinced appellant to turn himself in to the police. Torres called Officer Joey Quiroga and arranged to meet Quiroga in a public location for appellant to be arrested. Quiroga met Torres, appellant, and appellant’s mother, at a grocery store parking lot, where Quiroga arrested appellant. Appellant then directed Quiroga to the gun he used earlier in the day. Appellant subsequently pleaded guilty to two counts of attempted capital murder of a police officer without an agreement as to punishment. Appellant elected to have a jury assess punishment. After hearing evidence from both the state and defense, the jury assessed punishment at 55 years’ confinement and a $5,000 fine for each offense. HOLDING:Affirmed. Appellant contends the prosecutor attempted to make an improper comparison of the punishment differences between attempted capital murder and capital murder when questioning two witnesses. The appellant failed to preserve the issue, because he did not object when the prosecutor first made the complained of argument to the jury during voir dire. Even if appellant had properly preserved this issue for review, no harm occurred. The jury could only assess the range of punishment provided by law and incorporated in the jury charge, which in this case ranged from five to 99 years’ confinement. The appellant contends the trial court erred when it permitted the state to introduce appellant’s out of court threatening statement to a jailor, as evidence of an extraneous offense. Considering the nature of the offense, these statements are highly relevant in assessing punishment, the court decides. Appellant did not show a clear disparity between the danger of unfair prejudice and the probative value of appellant’s threat to harm another police officer once released from prison. The court holds that the trial court did not abuse its discretion in admitting into evidence appellant’s statement. OPINION:Anderson, J.; before Hedges, C.J., Yates and Anderson, J.J. CONCURRENCE:Yates, J. “The majority analyzes appellant’s first issue as one regarding improper jury argument and concludes appellant waived this issue by failing to object to similar statements made during voir dire, citing Cruz v. State, 877 S.W.2d 863, 868 (Tex. App. – Beaumont 1994, pet. ref’d). I disagree with this analysis for two reasons. First, this issue challenges an evidentiary ruling and should be analyzed accordingly. . . . Second, neither party has argued whether the voir dire statements were in fact improper, nor has the majority addressed this issue.”

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