COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ GREGORIO GARCIA, JR., No. 08-16-00242-CR § Appellant, Appeal from § v. 409th District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC # 20150D02898) §
OPINION
The sole issue in this appeal is whether the trial court erred in failing to grant a mistrial
based on the prosecutor’s closing argument. In particular, Appellant Gregorio Garcia contends
that in closing argument the prosecutor (1) attacked defense counsel, (2) referenced evidence never
admitted at trial, (3) asked the jury to consider the range of punishment in the guilt/innocence
phase of trial, (4) lowered the burden of proof to convict, and (5) improperly used character
evidence. While we disapprove of some of the prosecutor’s arguments, we are convinced that for
the complaints preserved for review, the trial court’s instructions ameliorated any potential harm,
or the complained of comments do not merit reversal. We affirm the conviction below. BACKGROUND
A jury convicted Appellant of aggravated sexual assault of child. The indictment alleged
that on or about July 1, 2010, Appellant intentionally and knowingly caused the penetration of his
penis into the mouth of N.M., who at the time was younger than fourteen.1 As with many cases of
this type, the jury was confronted with the child victim’s claim of the assault, and the defendant’s
denial that anything ever happened. The outcry was made some four years after the event.
Consequently, there was no physical evidence of the assault. There were no other eyewitnesses.
The record does show that Appellant began dating N.M.’s mother in 2008, and soon moved
into her house. Appellant was age 54 at the time and the mother was 28. At the time, the mother
had two children, N.M. who was eight years old, and a younger daughter, age three. Mother
became pregnant with Appellant’s son in the spring of 2009. N.M. testified that one day she and
her younger sister were playing with Barbie dolls. Her mother, pregnant at the time, was in the
shower. Appellant was in an adjacent bedroom watching TV. Appellant called N.M. to come into
the bedroom. When she did, he had her lock the door. Appellant was dressed in a t-shirt and boxer
shorts. He pulled down his boxer shorts while he was lying down on the bed and he told N.M. to
lick his penis. According to N.M., Appellant “put his hand on the back of my head and he pushed
it down.” N.M.’s younger sister was knocking on the door while the incident occurred. When it
became apparent that the mother finished her shower, Appellant told N.M. to leave.
The mother gave birth to Appellant’s son in December 2009. A year and month following
the birth, Appellant and mother had a falling out, and she had him leave the house. In 2014, some
four years after the event, N.M. confided in her mother what had happened back in 2009. Mother
claims that she reported the matter to the police within days of the outcry. N.M. described the
1 We use only the child’s initials, and intentionally do not identify family members by name to protect the child’s identity.
2 event in a videotaped interview taken at the Child Advocacy Center. The video was admitted at
trial by Appellant, who emphasized some claimed discrepancies between the account given in the
2014 interview and N.M.’s trial testimony in 2016.
Appellant testified on his own behalf, and denied the incident ever occurred. He claimed
the house had no locks on the interior doors, and that he did not own a pair of boxer shorts as N.M.
described. One of Appellant’s adult daughters from a prior marriage had been sexually assaulted
while at college, and he contended that experience would cause him never to consider doing the
things he is accused of here. His counsel also pursued an additional defense. As alleged in the
indictment, the aggravated sexual assault required proof that Appellant’s sexual organ penetrated
the mouth of the child. Based on claimed inconsistencies in the outcry and initial reports,
Appellant’s counsel argued there was no actual penetration, and that the State had overcharged an
indecency by contact case as an aggravated sexual assault.
Nonetheless, the jury convicted Appellant of aggravated sexual assault of a child, and
assessed a seventeen-year prison term and the maximum possible fine.
DISCUSSION
In a single issue, Appellant argues that the prosecutor engaged in improper argument
during closing arguments, for which the trial judge should have granted a mistrial.
Standard of Review and Applicable Law
The primary purpose of closing argument is to facilitate the jury’s analysis of the evidence
so they reach a just and reasonable verdict based only on the evidence admitted at trial. Campbell
v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980). Proper jury argument includes
four areas: (1) summation of the evidence presented at trial, (2) reasonable deductions drawn from
that evidence, (3) answers to the opposing counsel’s argument, or (4) a plea for law enforcement.
3 Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000), citing McFarland v. State, 845
S.W.2d 824, 844 (Tex.Crim.App. 1992). In determining whether a prosecutor’s statements were
improper, we consider the remarks in the context in which they appear, examining the “entire
argument, not merely isolated sentences.” Robbins v. State, 145 S.W.3d 306, 314-15 (Tex.App.--
El Paso 2004, pet. ref’d), citing Rodriguez v. State, 90 S.W.3d 340, 364 (Tex.App.--El Paso 2001,
pet. ref’d); see also Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).
The right to insist on proper jury argument is a forfeitable right. Hernandez v. State, 538
S.W.3d 619, 622 (Tex.Crim.App. 2018), citing Cockrell v. State, 933 S.W.2d 73, 89
(Tex.Crim.App. 1996). To preserve error for appeal, a defendant must object and pursue that
objection to an adverse ruling. Hernandez, 538 S.W.3d at 622-23 (“Erroneous jury argument must
be preserved by objection pursued to an adverse ruling; otherwise, any error from it is waived.”).
The traditional three steps of error preservation include (1) an objection, (2) a request for an
instruction to disregard, and (3) a motion for mistrial. Young v. State, 137 S.W.3d 65, 69
(Tex.Crim.App. 2004).
Appellant’s precise complaint is that the trial court erred in failing to grant a mistrial. A
mistrial is the trial court's remedy for improper conduct that is “so prejudicial that expenditure of
further time and expense would be wasteful and futile.” Hawkins v. State, 135 S.W.3d 72, 77
(Tex.Crim.App. 2004), quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). We
review the failure to grant a mistrial based on an improper jury argument for an abuse of discretion.
Hawkins, 135 S.W.3d at 76-77. A mistrial is only appropriate for “highly prejudicial and incurable
errors.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), quoting Wood v. State, 18
S.W.3d 642, 648 (Tex.Crim.App. 2000). “In reviewing a trial court’s ruling on a motion for
4 mistrial, an appellate court must uphold the trial court’s ruling if it was within the zone of
reasonable disagreement.” Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007).
In determining whether the trial court abused its discretion by denying a motion for mistrial
based on an improper jury argument, we apply the so-called “Mosley” test, and balance the
following three factors: (1) the severity of the misconduct (the prejudicial effect of the
prosecutor’s remarks); (2) the efficacy of any cautionary instruction by the judge; and (3) the
certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259
(Tex.Crim.App. 1998); see also Archie, 221 S.W.3d at 700 (noting that whether a mistrial should
have been granted involves most, if not all, of the same considerations that attend a harm analysis,
but is not itself a harm analysis under TEX.R.APP.P. 44.2); Hawkins, 135 S.W.3d at 77.2
Appellant contends that the prosecutor in closing argument improperly (1) attacked defense
counsel, (2) relied on evidence outside the record, (3) asked the jury to consider the range of
punishment in guilt/innocence, (4) lowered the burden of proof to convict, and (5) improperly used
character evidence. With the above standards in mind, we examine each of the complained of
comments.
Attacks on Defense Counsel
A prosecutor may not strike at a defendant by attacking the character of defense counsel.
See Mosley, 983 S.W.2d at 258-59. The more egregious examples of such attacks include claims
that defense counsel has manufactured evidence, suborned perjury, or has a lesser ethical
2 No claim is made here that the prosecutor’s comments denied Appellant his constitutional right to due process or a fair trial. And indeed, a prosecutor’s improper comments are generally considered non-constitutional errors. Brown v. State, 270 S.W.3d 564, 572 (Tex.Crim.App. 2008)(“Mosley' s holding suggests that most comments that fall outside the areas of permissible argument will be considered to be error of the nonconstitutional variety.”); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000)(comment striking at counsel viewed as non-constitutional error). Even viewed through the prism of TEX.R.APP.P. 44.2(b), a non-constitutional error requires reversal only when it affects a substantial right, meaning that the error must have “a substantial and injurious effect or influence in determining the jury’s verdict.” Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App. 2005).
5 obligation than the prosecution. See Wilson v. State, 938 S.W.2d 57, 58 (Tex.Crim.App. 1996);
Mosley, 983 S.W.2d at 258. A prosecutor also flirts with improper argument by claiming defense
counsel is subverting the truth. Mosley, 983 S.W.2d at 259 (“[A] prosecutor runs a risk of
improperly striking at a defendant over the shoulder of counsel when the argument is made in
terms of defense counsel personally and when the argument explicitly impugns defense counsel’s
character.”).
Appellant contends that this portion of the State’s closing argument improperly attacked
defense counsel:
[N.M.] got on the stand and told her story. [N.M.] was the one that told her mom what happened. [N.M.] was the one that told her sister what happened. [Defense Counsel] towards the end of his closing got up here and said that outcry was made in May and not reported to the officers or to the police until October. Completely untrue. [Defense Counsel] has been trying to confuse you the entire time. Appellant’s counsel objected, but the objection complained that the prosecutor misstated the
evidence and that the argument was made in “bad faith.” On appeal, however, Appellant
complains that this statement is a personal attack on his counsel. We reject that claim as a matter
of error preservation. A complaint raised on appeal is not preserved if the legal basis of the
argument varies from the objection made at trial. Lovill v. State, 319 S.W.3d 687, 691-92
(Tex.Crim.App. 2009). In other words, the complaint raised on appeal must comport with the
objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012). While
Appellant’s reply brief claims the trial court would have understood the objections as an attack on
counsel, we simply disagree. Misstating the evidence and an attack on counsel are two different
objections. An objection that an argument is made in bad faith is so general as to have no meaning.
Moreover, the objection that was actually made (“That is a total misstatement of the
evidence”) would have been properly overruled. The prosecutor accurately represented one
version of the facts developed at trial. Appellant argued that N.M.’s mother had made an allegation
6 of the sexual assault in a domestic relations hearing held in May of 2014. The outcry and report
to the police occurred in October 2014. A five-month delay in going to the police would have cast
a further shadow over the report, particularly given that the N.M.’s mother was ultimately
unsuccessful in her domestic relations case, which terminated in August 2014. Appellant advanced
this argument in his own closing.
The mother, however presented a different version of events. She claimed that the issue
came up in the domestic relations suit when N.M.’s aunt refused to testify on behalf of a “child
molester.” The aunt reached that conclusion based on the N.M.’s younger sister telling the aunt
that Appellant had kissed N.M. on the lips and patted her bottom. The aunt was not relating the
specific incident of aggravated sexual assault made the basis of the indictment. The prosecutor
argued from that testimony that there was no delay between the outcry of the aggravated sexual
assault and the report to the police. He was also responding to Appellant’s closing, which is
another of the permissible parameters for closing. See Mosley, 983 S.W.2d at 256; Davis v. State,
268 S.W.3d 683, 713 (Tex.App.--Fort Worth 2008, pet. ref’d).
Appellant bolsters the “attack on counsel” argument with additional comments made by
the prosecutor:
[Defense Counsel] has been trying to confuse you the entire time -- to confuse you all the entire time by two different outcries. Well, when did she outcry? When did it happen? Kissing, sexual penetration, not penetration. What is going on here? He would ask Mr. Zimmerly the same thing. ‘How long were you on the police force for?’ ‘25 years.’ ‘And you are unbiased?’ And he is like, ‘Well, am I unbiased as a police officer or as a forensic interviewer?’ [Defense Counsel] has not been clarifying any of those questions to any of those witnesses because it is not to his client's favor. Now, although what we say is not evidence, don't think we are not trying to persuade you. That is our job right now. If I didn't believe in this case we wouldn't be here in trial today. Ultimately, we have discretion as an assistant district attorney to go forward with the case or to not go forward with the case. After looking at the case and after pre-trialing with [N.M.], [the younger sister] and her mother and some other family members, we
7 went forward with the case. [Defense Counsel] is right. There was enough to go forward with the case in terms of what we had. Even if these arguments exceeded the bounds of proper argument, no objection was lodged
at trial, and we cannot consider any error on appeal. Threadgill v. State, 146 S.W.3d 654, 667
(Tex.Crim.App. 2004)(defendant forfeited any complaint that the prosecutor during closing
argument struck at the defendant over the shoulders of his counsel by failing to object); Wead v.
State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004)(holding court of appeals erred by considering
defendant's complaint of improper comment regarding his failure to testify when defendant did not
raise such complaint in the trial court).
Evidence Outside the Record
A prosecutor cannot use closing argument to argue facts that are outside the record. Everett
v. State, 707 S.W.2d 638, 641 (Tex.Crim.App. 1986). Appellant calls our attention to this
statement in the State’s closing as the prosecutor tried to explain why N.M.’s younger sister was
not called to testify:
Detective Alvarado knew he had an uphill battle. Four-year outcry. You have got a mother that maybe isn’t liked because of her profession. You have another daughter that was there for one of the kissing incidents that happened, but she may be too young to speak with or to actually get a credible answer from. That’s why you didn’t hear from [the younger sister]. I could have put [the younger sister] on that stand. We had the discussion beforehand. That is why you didn’t hear from [the younger sister]. But she said, ‘You know what, I was, like, three. I think I saw something, but --’ Appellant’s trial counsel promptly objected, and the trial court sustained the objection. But neither
a motion to disregard or motion for mistrial was urged. The State first responds that the failure to
move for an instruction or mistrial, forfeits the error. We agree. See Hernandez, 538 S.W.3d at
623 (“Erroneous jury argument must be preserved by objection pursued to an adverse ruling;
otherwise, any error from it is waived.”).
8 Appellant also points another portion of the prosecutor’s argument where he paraphrased
and overstated N.M.’s testimony. In his closing, the prosecutor claimed that N.M, testified that “I
coughed and I gagged. I don't remember the taste. I don't know what it tastes like. I don't
remember what it looked like. This is not something I want to talk about.’" N.M. did testify that
she coughed. In her videotaped interview, N.M. stated that she did not recall what Appellant’s
penis looked like. She did not testify, or say anything in her statement about taste, and she
explicitly denied that Appellant ejaculated. Appellant’s counsel objected that the statement was
outside the record. The trial court overruled the objection,3 but admonished the jury that they
would collectively recall the testimony better than the court.
The State concedes N.M. never testified about taste in describing the event. Rather, it
claims the statement is only a “slight” deviation from the record; Appellant contends the
embellishment is a “gross misstatement of the facts.” Applying the Mosely framework, we agree
the embellishment was improper, but at most it refers to one of three senses (taste), when the actual
testimony refers to only two sensations--sight and touch. While the overstatement is perhaps more
than “slight,” we conclude the trial court’s instruction ameliorated any harm. The trial court
reminded the jury to use their collective recollection of the actual testimony. That instruction is
generally considered effective in remedying counsel’s overstatement of the evidence. See Long v.
State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991)(although court overruled objection, its sua
sponte instruction that jurors “recall the evidence as you heard it . . . what the lawyers say is not
evidence” was sufficient to cure any error from prosecutor's comment); Jackson v. State, 50
S.W.3d 579, 590 (Tex.App.--Fort Worth 2001, pet. ref'd)(court's instruction to “recall the
evidence” was tantamount to instruction to disregard that cured improper jury argument). The jury
3 The State claims that Appellant forfeited the error by not obtaining a ruling. Our record, however, shows the trial judge clearly stated “overruled.” The State’s waiver argument is not well-taken.
9 in fact asked for specific read-backs of testimony regarding the “coughing” and we have no reason
to conclude they relied on the prosecutor’s single, but improper, reference to taste. And while the
factual disputes in this trial were sharp, and the State’s case well contested at trial, we cannot
conclude that the single reference to taste merits a mistrial. “Only in extreme circumstances, where
the prejudice is incurable, will a mistrial be required.” Hawkins, 135 S.W.3d at 77. That standard
is not meet here.
Range of Punishment
It is generally improper for the State to comment on punishment during the guilt-innocence
stage of trial. See McClure v. State, 544 S.W.2d 390 (Tex.Crim.App. 1976); Cherry v. State, 507
S.W.2d 549 (Tex.Crim.App. 1974). That kind of comment is more troublesome in a case where
the jury must decide between a greater and lesser included offense, and the range of punishment
might steer them to one crime or the other. See McClure, 544 S.W.2d at 393 (explaining that the
harm was not that the jury was informed of the punishment ranges, but that the jury was urged to
consider the amount of punishment in deciding between murder and manslaughter); Browne v.
State, 483 S.W.3d 183, 201 (Tex.App.--Austin 2015, no pet.)(noting the same and collecting
cases). Conversely, isolated references to the punishment range would rarely call for reversal. See
Cifuentes v. State, 983 S.W.2d 891, 893 (Tex.App.--Houston [1st Dist.] 1999, pet. ref'd).
Appellant focuses on this portion of the prosecutor’s argument as improperly injecting the
range of punishment into the guilt innocence phase of the trial:
What else did he say? ‘You like young women, right?’ ‘Yeah, so does Mick Jagger and Donald Trump.’ You’re joking right now. You are kidding. You are kidding me. If you find him guilty, he is going into custody as soon as that verdict comes back and then we are going to punishment and then the minimum he is facing is five years, the maximum 99 or life and up to a $10,000 fine if you want to put that in there.
10 The trial court sustained Appellant’s objection and sua sponte instructed the jury to disregard this
argument. The trial court then denied a motion for mistrial.
We find no abuse of discretion for several reasons. First, Appellant’s counsel brought the
issue up first in his own closing, referencing Appellant same testimony. And in arguing that the
State intentionally chose to pursue the case as an aggravated sexual assault charge, rather than an
indecency with a child by contact or indecent exposure, his counsel had explicitly told the jury that
the punishment range was five years to life.
Additionally, the reason the State referenced the punishment range was not to steer the jury
between charges, as there was no lesser included offense at issue here. Instead, it used the
punishment range to emphasize the flippancy of one of Appellant’s testimonial answers in the face
of a serious charge. Cf. Good v. State, 723 S.W.2d 734, 736 (Tex.Crim.App. 1986)(a prosecutor
may allude to the demeanor of a testifying witness during closing argument, so long as the jury
had the same opportunity to observe the demeanor during the witness’s testimony); see also
Hinojosa v. State, 433 S.W.3d 742, 763 (Tex.App.--San Antonio 2014, pet. ref’d)(proper jury
arguments may include argument as to the truthfulness of a witness’s testimony so long as the
argument is based on the evidence presented and reasonable deductions from such evidence,
including the complainant’s demeanor while testifying). And even if viewed as error, the single
reference to the punishment range would not require a new trial. Compare Bruton v. State, 921
S.W.2d 531, 536 (Tex.App.--Fort Worth 1996, pet. ref’d)(holding that a single reference to the
punishment range “was not of such a damning character that it would be impossible to remove the
harmful impression from the minds of the jurors”), with McClure, 544 S.W.2d at 393(holding
prosecutor’s reference to the punishment range improper where the prosecutor repeatedly argued
the difference in punishment ranges between the greater and the lesser-included offense). Finally,
11 the trial judge instructed the jury to disregard the comment, which in most instances will cure any
claim of harm. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996).
Lowering the Burden of Proof
The jury was properly charged that it could only find Appellant guilty if the State proved
each element of the crime beyond a reasonable doubt. Appellant contends, however, that the
prosecutor asked the jury to apply a different standard when he made this argument:
So when you go back there and after you deliberate and after you talk about it, if you go back there and you say, ‘You know what, I think it happened.’ If you say, ‘I think it happened,’ that means you believe it happened. At that point, stop. A jury of course could believe that “it happened” by a preponderance of the evidence, or
even by clear and convincing evidence, but still not be obligated to “stop” and render a guilty
verdict. See Abbott v. State, 196 S.W.3d 334, 344 (Tex.App.--Waco 2006, pet ref’d)(finding
similar closing argument was improper, but noting it did not merit reversal). Only if the State
proved each element beyond a reasonable doubt should the jury “stop” and fill out the verdict form.
Nonetheless, we conclude any error in the argument does not merit reversal. Appellant
properly objected that a juror’s “I think” belief is not the same as “I believe beyond a reasonable
doubt.” While the trial judge overruled the objection, the judge immediately reminded the jury
that “the burden of proof in all criminal cases in the State of Texas is beyond a reasonable doubt.
You, individually and collectively, will make the definition of beyond a reasonable doubt and
nobody else.” When the prosecutor resumed his argument, he acknowledged that the State needed
to prove its case beyond a reasonable doubt, and the State could not tell the jurors what that meant.
Applying the Mosely factors, we find the violation mild, the curative instruction, which was
acknowledged by the State, as effective, and even considering a closely contested case, any error
as not worthy of a new trial.
12 Improper Used of Character Evidence
Under Rule 404(b) “[e]vidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character.” TEX.R.EVID. 404(b)(1). Appellant claims that the prosecutor did just that, by
pointing the jury to testimony about how Appellant French-kissed N.M. and patted her on the
bottom. The prosecutor made this argument regarding that evidence:
‘Did she tell you that she was kissed by the defendant?’ And that is where [Mother] said yes. ‘Did she tell you that she was touched by the defendant?’ ‘Yes.’ Those were like bonus points for you all to consider. He asked if there was corroborating evidence from Detective Alvarado. And he wasn't allowed to talk. That is your corroborating evidence. Other offenses that happened. We don't need to prove --
Appellant objected, and the trial court sent the jury out. The trial judge then asked the
prosecutor if he was “seriously trying to tell this jury that because somebody does A or B that is
not a crime -- or has not been charged with a crime means he is guilty of what you have indicted
him for?” The trial judge then warned that if the prosecutor “finished that argument in front of the
jury” the State would see what the trial court’s ruling was going to be. When the jury returned,
the trial court denied Appellant’s motion for mistrial, but it immediately instructed the jury that
the only offense they should be concerned about was the one in the charge and that they were
required to find that the State had proven each element of that offense beyond a reasonable doubt.
Under Rule 404(b) extraneous offense evidence might be admitted for a limited purpose,
such as proving motive, opportunity, intent, or several other specified purposes. TEX.R.EVID.
404(b). A defendant is entitled to seek an instruction defining that limited purpose. Delgado v.
State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007)(“[A] defendant is entitled to limiting
instructions on the use of extraneous offenses during the guilt phase only if he timely requests
those instructions when the evidence is first introduced.”). And the kind of conduct at issue here
13 (French-kissing and patting on the bottom) might have fit into one of those categories. See Brown
v. State, 6 S.W.3d 571, 578-79 (Tex.App.--Tyler 1999, pet. ref’d)(extraneous bad act of defendant
placing his hand on the child victim’s buttocks when he picked her up was probative of the
defendant’s state of mind); Poole v. State, 974 S.W.2d 892, 898 (Tex.App.--Austin 1998, pet.
ref’d)(evidence of extraneous sexual conduct explains how “a person in a position of authority,
custody, or care of a young child has developed an unnatural attitude and relationship toward that
child . . .”). The extraneous event evidence in this case came in without a limiting instruction. It
was first elicited by Appellant in cross-examination of the mother, and then admitted again by
Appellant when he introduced a videotape of N.M.’s forensic interview.
If evidence is admitted without a limiting instruction, it can be considered by the jury for
all purposes. Delgado, 235 S.W.3d at 251 (“Once evidence has been admitted without a limiting
instruction, it is part of the general evidence and may be used for all purposes.”); Hammock v.
State, 46 S.W.3d 889, 894 (Tex.Crim.App. 2001)(same); Irielle v. State, 441 S.W.3d 868, 880
(Tex.App.--Houston [14th Dist.] 2014, no pet.)(“[W]e hold that there was no error in the jury
charge because the ‘other wrongs or acts’ evidence was admissible for all purposes--including
character conformity--when appellant failed to request a limiting instruction at the time the ‘other
wrongs or acts’ evidence was admitted.”). Because the French-kissing and bottom-patting
evidence was admitted for all purposes, we cannot fault the prosecutor for arguing one of those
possible purposes.
But in any event, if the comment was improper, it does not merit reversal under the Mosley
factors. The comment was minimally prejudicial, because as the trial court noted, the prosecutor
never finishing the argument. The reference to “bonus points” is at best ambiguous, and can just
as easily be understood as corroborating N.M.’s credibility which had been attacked during the
14 trial. The trial judge promptly gave an instruction that would limit the jury to considering only the
offense outlined in the court’s charge (the indicted offense). We presume that the jury follows
curative instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998)(holding
that the jury is presumed to follow the court’s instructions); Martin v. State, 176 S.W.3d 887, 898
(Tex.App.--Fort Worth 2005, no pet.)(holding that jury is presumed to follow the instructions set
forth in the trial court’s charge). Any error in the argument does not require a mistrial.4
Appellant’s reply brief urges that the harm from the several arguments cannot be
considered piecemeal, but rather we must collectively consider how they prejudiced Appellant’s
case. But even collectively, those comments that were properly preserved do not meet the
relatively high threshold for demonstrating an abuse of discretion in denying Appellant’s motion
for mistrial. We overrule his single issue on appeal and affirm the conviction below.
August 31, 2018 ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
4 Appellant’s brief also contends this last argument by the State was improper:
Ultimately, if you go back there and you find the defendant not guilty, you would have told [N.M.], ‘We don't believe you.’
[Defense Counsel]: Your Honor, that is beyond improper. To tell a jury that they are telling -- I will withdraw it. I will withdraw it, Judge.
Appellant’s brief asserts that the Prosecutor withdrew his remark, and State makes that same statement in its brief. That is not how the official transcript reads. But in any event, the objection was too general to form the basis of an issue on appeal. Nor did the trial judge rule on the objection, and the issue was not pursued to an adverse ruling. Hernandez, 538 S.W.3d at 622-23 (“Erroneous jury argument must be preserved by objection pursued to an adverse ruling; otherwise, any error from it waived.”).