Opinion issued April 23, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00053-CR ——————————— JOSE AMILPAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1334791
MEMORANDUM OPINION
Appellant Jose Amilpas was charged by indictment with felony possession
of more than four grams and less than 200 grams of cocaine with intent to deliver.
The indictment included two enhancement allegations for felony possession of a
controlled substance and felony possession of a weapon. After a jury found Amilpas guilty, Amilpas and the State agreed to a plea bargain on sentencing—30
years’ confinement. Once Amilpas pleaded true to the enhancement allegations,
the trial court sentenced him to 30 years’ confinement in prison, in accordance
with the plea bargain. On appeal, Amilpas contends that the evidence was legally
insufficient to support his conviction. Amilpas also complains that the trial court
erred by (1) denying his request to unseal a court order requiring Amilpas’s cell
phone service provider to disclose to police data allowing them to ascertain the
location of his cell phone and (2) overruling his objection to the prosecutor’s
allegedly improper argument during closing. We affirm.
Background
On January 11, 2012, Houston Police Department’s East Side Tactical Unit
began searching for Amilpas to serve an arrest warrant for a felony evading arrest
charge. Unable to locate Amilpas, they requested assistance from Officer Vigil of
the Houston Police Department Criminal Intelligence Division.
Officer Vigil testified that, on January 26, 2012, his division obtained a
“probable cause based court order,” signed under seal by a judge, which ordered
Sprint-Nextel to provide information regarding Amilpas’s cell phone. Specifically,
Officer Vigil obtained information showing the signal strengths from various cell
towers in relation to Amilpas’s phone and used it to triangulate possible locations
2 of Amilpas’s cell phone. Based on this data, Officer Vigil formed the belief that
Amilpas could be found at a local cell phone store.
Officer Vigil and Sergeant Vega of the Houston Police Department drove to
the store, where Officer Vigil saw and recognized Amilpas and entered the store
with Sergeant Vega immediately behind him. Officer Vigil testified that he
identified himself as a Houston police officer as he entered the store. At that point,
Amilpas turned around, reached into his waistband, and threw a small object over
the store counter. Officer Vigil also testified that there were at least two other
people in the store, but neither was standing near Amilpas and he did not see either
of them throw anything into the area where Amilpas had thrown the object.
Sergeant Vega’s testimony was consistent with Officer Vigil’s. He testified
that Amilpas looked “surprised” when he and Officer Vigil entered the store.
When Sergeant Vega identified himself as an officer and directed Amilpas to “get
on the ground,” Amilpas did not comply. Rather, he turned around, reached into
his waistband, pulled out what appeared to be a knife, and threw it over the counter
before complying with the officers’ commands to get on the ground. Vega
testified that he saw the general area in which the object landed and that Amilpas’s
girlfriend was standing by the counter talking to a store employee, which was not
“very close” to Amilpas.
3 After Amilpas was handcuffed, Sergeant Vega directed Officer Yanez of the
Houston Police Department to find the object that Amilpas had thrown over the
counter. Officer Yanez testified that he walked behind the counter to the location
where Sergeant Vega said that Amilpas had thrown an object, and he found a clear
plastic bag, which contained seven smaller bags. The smaller bags contained a
powdery substance, which Officer Yanez believed was cocaine. The officers also
found that Amilpas was carrying $3,070 in cash.
Mona Colca, a criminalist with the Houston Police Department Crime
Laboratory, tested the powdery substance recovered at the scene and determined
that it was 64.7 grams of cocaine. The lab report containing the test results was
admitted at trial.
Officer Aguirre of the Houston Police Department testified that finding that
quantity of cocaine packaged in seven individual bags and $3,070 in cash on a
defendant’s person indicates that the defendant is a drug dealer and intends to sell
the individual bags of cocaine. According to Officer Aguirre, the cocaine had an
approximate street value of $2,200 to $3,000.
Sealed Court Order for Disclosure of Amilpas’s Cell Phone Information
In his first and second issues, Amilpas complains that the trial court erred in
denying his request to unseal the court order directing Sprint-Nextel to disclose
Amilpas’s cell phone data. He contends in his first issue that this prevented him
4 from evaluating the evidence against him, subpoenaing rebuttal witnesses, and
questioning witnesses in violation of his right to confront witnesses guaranteed by
the Sixth Amendment of the United States Constitution and Article 1 Section 10 of
the Texas Constitution. In his second issue, Amilpas argues that the same ruling
deprived him of due process of law.
A. Applicable Law
Section 18.21 of the Texas Code of Criminal Procedure provides that a
police officer from an incorporated area may seek, by court order signed by a
district judge, pen register information, trap and trace devices, and mobile tracking
devices. TEX. CODE CRIM. PROC. ANN. art. 18.21 (West Supp. 2014). A pen
register “means a device or process that records or decodes dialing, routing,
addressing, or signaling information transmitted by an instrument or facility from
which a wire or electronic communication is transmitted, if the information does
not include the contents of the communication.” TEX. CODE CRIM. PROC. ANN. art.
18.21, § 1(6) (West Supp. 2014). A prosecutor with jurisdiction in a county “may
file an application for the installation and use of a pen register . . . .” Id. § 2(a)
(West Supp. 2014). The application must be in writing, under oath, include the
subscriber name, information, telephone number, and location of the device, and
“state that the installation and use of the device or equipment will likely produce
information that is material to an ongoing criminal investigation.” Id. § 2(c). “On
5 presentation of the application, the judge may order the . . . use of the pen register
. . . and, on request of the applicant, the judge shall direct in the order that a
communication common carrier or a provider of electronic communications
service furnish all information, facilities, and technical assistance necessary to
facilitate the installation and use of the device . . . .” Id. § 2(d).
Additionally, the statute requires that “[t]he district court shall seal an application
and order granted under this article” and includes no mention of any process by
which the application or order may be unsealed. Id. § 2(g).
Article 38.23(a) of the Code of Criminal Procedure provides that “[n]o
evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West
2005). The primary purpose of article 38.23(a) is to deter unlawful actions that
violate the rights of criminal suspects in the acquisition of evidence for
prosecution. Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010).
However, if the evidence seized is sufficiently attenuated from the violation
of the law, the evidence is not considered to be obtained in violation of the law for
the purpose of article 38.23. Johnson v. State, 871 S.W.2d 744, 750 (Tex. Crim.
App. 1994). To determine whether the discovery of physical evidence is
6 sufficiently attenuated from the violation, we consider: (1) the temporal proximity
of the violation of law and the seizure of physical evidence, (2) the presence of
intervening circumstances, and (3) the purposefulness or flagrancy of the police
misconduct. See State v. Mazuca, 375 S.W.3d 294, 301–07 (Tex. Crim. App.
2012).
In Mazuca, the trial court found that the officers’ stop of the car in which
Mazuca was a passenger was illegal. Id. at 296–97. Accordingly, the trial court
suppressed ecstasy that the officers discovered in Mazuca’s pocket during the
detention, and the court of appeals affirmed. Id. at 298–99. The Court of Criminal
Appeals reversed, concluding that the discovery of the ecstasy was sufficiently
attenuated from the illegal stop. Id. at 308. The Court of Criminal Appeals
reasoned that the officers’ discovery of Mazuca’s outstanding arrest warrants
between the time they made the illegal stop and the time they found the ecstasy
was an intervening circumstance and the officers’ misconduct was not “particularly
purposeful and flagrant.” Id.
B. Analysis
Amilpas’s counsel first learned during trial of the existence of the order
directing disclosure of Amilpas’s cell tower data. Amilpas’s counsel argued that
had he known of the order earlier, he would have moved to suppress any evidence
that the officers discovered after arriving at the cell phone store. Amilpas argued
7 that the officers’ use of Amilpas’s cell phone data to locate him constituted an
illegal search. He requested that the trial court unseal the order, and he moved for
a continuance. The trial court denied Amilpas’s motions to suppress and for
continuance.
Amilpas relies on United States v. Jones, 132 S. Ct. 945 (2012), to argue for
reversal. In Jones, the Supreme Court held that the government’s placement of a
GPS tracking device on a subject’s vehicle and subsequent use of information
obtained from the GPS device to secure his arrest warrant amounted to an illegal
search in violation of the Fourth Amendment. Id. at 947–49. Two significant
factors distinguish Jones from this case. First, in Jones, the government tracked
the vehicle’s movements in an effort to secure evidence to obtain an indictment for
drug trafficking conspiracy charges. Id. at 946. Here, a warrant for Amilpas’s
arrest for evading arrest had issued before police obtained Amilpas’s cell phone
data, and the police requested and used the cell phone data merely to locate
Amilpas in order to execute the outstanding warrant. Second, in Jones, the
government obtained information about the defendant’s location by mounting a
GPS tracking device to his vehicle. Id. at 949. Here, Sprint-Nextel compiled and
stored Amilpas’s cell phone data for its own business purposes and Officer Vigil
obtained that data from Sprint-Nextel, rather than gathering the data himself. See
Barfield v. State, 416 S.W.3d 743, 748–49 (Tex. App.—Houston [14th Dist.] 2013,
8 no pet.) (trial court did not violate exclusionary rule in admitting cell tower records
and expert testimony because police obtaining information and data related to
appellant’s cell phone that third-party cell phone provider had collected and stored
for its own business purposes did not violate appellant’s reasonable privacy
expectations under Fourth Amendment). Accordingly, Jones is distinguishable and
does not support Amilpas’s argument.
As the State correctly notes, article 18.21 of the Code of Criminal Procedure
makes no mention of the circumstances under which an order for the disclosure of
pen register information may be unsealed. See TEX. CODE CRIM. PROC. ANN. art.
18.21, §2(g) (“The district court shall seal an application and order granted under
this article” in which a police officer seeks order for information related to cell
tower records). That does not end the inquiry, however, because Amilpas does not
contend that the trial court’s refusal to unseal the order violated article 18.21 of the
Code of Criminal Procedure. Rather, Amilpas’s complaints are constitutional.
But, even constitutional errors must be harmful in order to warrant reversal. TEX.
R. APP. P. 44.2(a) (constitutional error warrants reversal “unless the court
determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment”). Here, we need not decide whether any of Amilpas’s
claims of constitutional error have merit because even assuming that the trial
9 court’s refusal to unseal the article 18.21 order amounted to a constitutional error,
we conclude that it would have been harmless beyond a reasonable doubt.
Mazuca guides our analysis of whether Amilpas can show harm resulting
from an alleged constitutional error. It sets forth a three-factor test we use to
determine whether discovery of physical evidence is too attenuated from a
violation of law to warrant suppression. See Mazuca, 375 S.W.3d at 301–07. The
first of the three factors we consider is the temporal proximity of the violation of
law and the seizure of physical evidence. See id. at 306. Here, the officers seized
the cocaine within only a few moments of locating Amilpas using the pen register
data. Thus, this factor in isolation favors suppression. See McKinney v. State, 444
S.W.3d 128, 135 (Tex. App.—San Antonio 2014, pet. ref’d) (temporal proximity
weighed in favor of suppression where officer searched defendant and found
cocaine immediately after detaining him). However, as the Court of Criminal
Appeals recognized in Mazuca, this factor “will sometimes prove to be, in the
context of the seizure of physical evidence, ‘the least important factor’—at least
relative to the other two.” Mazuca, 375 S.W.3d at 306.
Under the second Mazuca factor, we consider the presence of intervening
circumstances—that is, we consider what occurred between the time the suspect
was detained using the pen register data and the time the challenged evidence was
seized. Id. at 306. Here, the officers observed Amilpas commit a crime—
10 possession of cocaine—in the cell phone store between the time they arrived to
execute the arrest warrant for evading arrest and the time they seized the cocaine.
Thus, even assuming police obtained the article 18.21 order and located Amilpas in
violation of law, their observation of Amilpas committing the charged offense was
a significant intervening circumstance between the time of the purported violation
of law and the discovery of evidence. We conclude that this factor weighs against
suppression. See Mazuca, 375 S.W.3d at 306 (recognizing that evidence need not
be suppressed where there are intervening circumstances between the discovery of
physical evidence and the violation of law); Roberts v. State, No. 03-12-00194-CR,
2014 WL 1910428, at *1–2 (Tex. App.—Austin May 8, 2014, no pet.) (mem. op.,
not designated for publication) (“need not address the propriety of [officer’s]
actions” where officer initially stopped appellant without justification, but
subsequently observed appellant drive with headlights off, which was a violation
of the law that independently justified the stop); Matienza v. State, 699 S.W.2d
626, 628 (Tex. App.—Dallas 1985, pet. ref’d) (after officer detained defendant,
defendant pulled gun and pointed it at officer, which constituted intervening
offense that purged taint of any illegality of initial detention).
Under the third Mazuca factor, we consider the purposefulness or flagrancy
of the police misconduct. See Mazuca, 375 S.W.3d at 306 (considering “whether
the police have deliberately perpetrated what they know to be an illegal stop in the
11 specific hope or expectation that it will generate some legitimate after-the-fact
justification to arrest and/or search, or they have otherwise conducted themselves
in particularly egregious disregard of the right to privacy and/or personal integrity
that the Fourth Amendment protects”). Here, the officers obtained the order
directed to Sprint-Nextel in accordance with the statute’s terms and acted pursuant
to the order in locating Amilpas to execute his arrest warrant for evading arrest.
We conclude that there is no indication in the record that the officers engaged in
misconduct of any sort. See Mazuca, 375 S.W.3d at 310 (behavior was not so
particularly purposeful or flagrant that intervening factor could not purge the taint
where officer “never went beyond the bounds of what would have been
constitutionally permissible had the stop been justified at its inception”).
Having considered all three Mazuca factors, we conclude that the significant
intervening circumstance between the officers’ detention of Amilpas and their
seizure of the challenged evidence—their observation of Amilpas possessing
cocaine—together with the absence of any misconduct on the part of police renders
the evidence sufficiently attenuated from the alleged violation of law in obtaining
and failing to disclose the contents of the article 18.21 order that the trial court
would not have erred in denying a motion to suppress the cocaine even if Amilpas
had learned of and challenged the article 18.21 order pre-trial. For the same
reason, we overrule Amilpas’s arguments that the trial court’s failure to unseal the
12 article 18.21 order violated his right to evaluate evidence against him, subpoena
rebuttal witnesses, and confront witnesses, as well as his right to due process of
law. Because any theoretical infirmity in the article 18.21 order would have been
sufficiently attenuated from the seizure of evidence under Mazuca, article 38.23
would not require suppression. Accordingly, we hold that constitutional error in
the trial court’s refusal to unseal the court order, if any, would have been harmless
beyond a reasonable doubt. See TEX. R. APP. P. 44.2(a).
We overrule Amilpas’s first and second issues.
Sufficiency of the Evidence
In his third issue, Amilpas contends that the evidence was legally
insufficient to support his conviction.
A. Standard of Review
Evidence is insufficient to support a conviction if, considering all record
evidence in the light most favorable to the verdict, a factfinder could not have
rationally found that each essential element of the charged offense was proven
beyond a reasonable doubt. Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979)). We determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d
13 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17
(Tex. Crim. App. 2007)). When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer
to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235
S.W.3d at 778. We likewise defer to the factfinder’s evaluation of the credibility
of the evidence and the weight to give the evidence. Gonzalez, 337 S.W.3d at 479
(citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The
reviewing court must also “consider all evidence which the jury was permitted,
whether rightly or wrongly, to consider.” Thomas v. State, 753 S.W.2d 688, 695
(Tex. Crim. App. 1988) (en banc) (emphasis omitted).
B. Applicable Law
To prove unlawful possession of a controlled substance, the State must
prove beyond a reasonable doubt that the defendant exercised control,
management, or care over the substance and that he knew the matter possessed was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).
Regardless of whether the evidence is direct or circumstantial, it must establish that
a defendant’s connection to the contraband was more than fortuitous. Id. at 405–
06. This “affirmative links rule is designed to protect the innocent bystander from
conviction based solely upon his fortuitous proximity to someone else’s drugs.”
Id. at 406 (internal quotations omitted). Thus, “[w]hen the accused is not in
14 exclusive possession of the place where the substance is found, it cannot be
concluded that the accused had knowledge of and control over the contraband
unless there are additional independent facts and circumstances which
affirmatively link the accused to the contraband.” Deshong v. State, 625 S.W.2d
327, 329 (Tex. Crim. App. [Panel Op.] 1981) (citing Wiersing v. State, 571 S.W.2d
188, 190 (Tex. Crim. App. 1978)).
Though not an exhaustive list, the Court of Criminal Appeals has recognized
the following affirmative links:
(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Gilbert
v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). It
is not the number of links that is dispositive, but rather, the logical force of all the
evidence, both direct and circumstantial. Evans, 202 S.W.3d at 162. Therefore,
each case must be examined according to its own facts on a case-by-case basis.
15 Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d). A factor that contributes to sufficiency in one situation may be of little
value under a different set of facts. Id.
C. Analysis
Amilpas contends that there is legally insufficient evidence to support his
conviction because the police officers did not see that the item he threw over the
counter was cocaine, there was evidence that the item he threw was a knife, and
there is no evidence of several affirmative links.
We conclude sufficient evidence connects Amilpas with the cocaine. First,
Amilpas was present at the scene when police arrived. See Evans, 202 S.W.3d at
162, n. 12 (presence when search conducted is affirmative link). Second, Officer
Vigil and Sergeant Vega both testified that Amilpas would not obey their
commands until after he removed an object from his clothing and threw it over the
store counter. See id. (furtive gestures and conduct evidencing consciousness of
guilt are affirmative links). Third, both officers testified that they saw Amilpas
throw an object behind the counter, and Officer Yanez testified that he found seven
small plastic bags containing cocaine inside a larger plastic bag in the location in
which Sergeant Vega told Officer Yanez the object landed. The cocaine was in
plain view, on the floor of the store, and was located near where Amilpas had been
standing when he threw the object. See id. (whether contraband was in plain view,
16 as well as proximity and accessibility of contraband to appellant are affirmative
links). Fourth, Amilpas had approximately $3,070 in cash on his person. See id.
(large amount of cash on defendant’s person is affirmative link). Finally, the
cocaine weighed approximately 64.7 grams and had a value between $2,200 and
$3,000. See Roberson, 80 S.W.3d at 740 (“The amount of contraband found is a
factor we can consider in determining if an affirmative link exists.”).
Amilpas contends that the judgment must be reversed because evidence of
many of the affirmative links is absent in this case. In support of his argument,
Amilpas cites to Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.),
because the Allen court held there was insufficient evidence to support Allen’s
conviction where many links were absent. In Allen, the evidence showed that
Allen did not live at the apartment where the cocaine was found, no cocaine was
found on his person, Allen did not attempt to flee or hide any items when officers
entered, Allen cooperated with the police and made no furitive gestures, and most
of the cocaine was hidden in a different room. Id. at 694, 702. Although several of
the same links are absent in this case, unlike in Allen, here, there is evidence that
(1) Amilpas was carrying a significant amount of cash and (2) attempted to rid
himself of the cocaine that he carried on his person when the officers entered the
store. Accordingly, Allen does not support Amilpas’s argument. See id.; Lair v.
State, 265 S.W.3d 580, 588 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)
17 (evidence was sufficient to support conviction where nine links were not present
because “possible links that do not exist . . . do not negate the links that are
present”); see also Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (“The absence of various links does not constitute
evidence of innocence to be weighed against the links present.”).
Amilpas also contends that evidence that he threw an object over the counter
is insufficient evidence to link him to the cocaine because (1) Sergeant Vega
testified that the object appeared to be a knife and (2) other people who may have
possessed the cocaine were present in the store. While there was some evidence
from which a rational juror could infer that the object Amilpas threw was a knife,
the jury rejected that conclusion. We presume the jury resolved conflicting
evidence in favor of the verdict and defer to that determination. Merritt v. State,
368 S.W.3d 516, 526 (Tex. Crim. App. 2012); see also Henson v. State, 388
S.W.3d 762, 773 (Tex. App.—Houston [1st Dist.] 2012) (“verdict of guilty is an
implicit finding rejecting the defendant’s [defensive] theory”), aff’d, 407 S.W.3d
764 (Tex. Crim. App. 2013).
Considering all of the evidence in the light most favorable to the verdict, we
conclude that sufficient affirmative links connect Amilpas to the cocaine and that a
rational trier of fact could have found beyond a reasonable doubt that Amilpas
exercised care, custody, or control over the cocaine knowing that it was
18 contraband. See Evans, 202 S.W.3d at 166 (“amply sufficient evidence connecting
appellant to the actual care, custody, control or management of the cocaine” when
viewing circumstantial evidence “in combination and its sum total”); Noah v. State,
495 S.W.2d 260, 263 (Tex. Crim. App. 1973) (sufficient evidence to support
possession of heroin conviction where officer saw defendant throw package, he
returned to place where package had been thrown to recover it three to five
minutes after defendant had thrown it, and package contained heroin); Sneed v.
State, 875 S.W.2d 792, 795 (Tex. App.—Fort Worth 1994, no pet.) (although
defendant did not have exclusive control over place where cocaine was found,
evidence of possession sufficient where officer saw defendant take cocaine out of
pocket and throw it on floor).
We overrule Amilpas’s third issue.
Permissible Jury Argument
In his fourth issue, Amilpas contends that the prosecutor made an improper
closing argument because he referred to Amilpas’s subpoena power, which was an
attempt to shift the burden of proof.
“The law provides for, and presumes, a fair trial free from improper
argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) (citing Long v. State, 823 S.W.2d 259, 267
19 (Tex. Crim. App. 1991) (en banc)). The approved areas of jury argument are
(1) summation of the evidence, (2) reasonable deduction from the evidence,
(3) answer to the argument of opposing counsel, and (4) plea for law enforcement.
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Andrade
v. State, 246 S.W.3d 217, 229–30 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d). In examining challenges to a jury argument, a court considers the remark in
the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
App. 1988).
Courts have held that, during jury argument, the State may comment on a
defendant’s failure to present evidence in his favor. See Jackson v. State, 17
S.W.3d 664, 674 (Tex. Crim. App. 2000) (“We have held that the prosecutor may
comment on the defendant’s failure to produce witnesses and evidence so long as
the remark does not fault the defendant for exercising his right not to testify.”);
Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) ( “[I]f the language
can reasonably be construed to refer to appellant’s failure to produce evidence
other than his own testimony, the comment is not improper.”). Jury argument
pointing out that the defendant has failed to present evidence in his favor does not
shift the burden of proof but instead summarizes the state of the evidence and is a
reasonable deduction from the evidence. See Caron v. State, 162 S.W.3d 614, 618
(Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that prosecutor’s
20 statement that “[i]f there is something out there that is going to exonerate you, you
want to make it known” was permissible jury argument).
Amilpas complains that the prosecutor’s closing argument was improper
because he referred to Amilpas’s subpoena power and the fact that no witness had
testified that the cocaine found in the store belonged to her. Before the prosecutor
made the argument, Amilpas’s counsel argued that Amilpas’s girlfriend was also
present at the store and that the cocaine could have been hers.
The prosecutor responded:
[T]he girl who was next to the defendant in that store was between 5 and 8 feet away dealing with a clerk as they entered. More importantly, the only person who threw anything behind the counter, the only person who possessed the cocaine those officers found wasn’t some mysterious girl. It was the defendant.
Ladies and gentlemen, keep in mind the burden is with the State and the State has the burden alone. [Amilpas] has rights, including the right of subpoena power. Did you see any girl standing here today saying: Yeah, it was my cocaine?
Amilpas objected that the State was “shifting the burden of proof,” and the trial
court overruled his objection.
Having considered the allegedly improper argument in context, we conclude
that the prosecutor’s statement was a permissible response to Amilpas’s counsel’s
argument because it was a remark on Amilpas’s failure to produce evidence from
other sources. See Wesbrook, 29 S.W.3d at 115 (answer to argument of opposing
21 counsel is an approved area of jury argument); Harris v. State, 122 S.W.3d 871,
884 (Tex. App.—Fort Worth 2003, pet. ref’d) (prosecutor’s comment “about the
subpoena power of a defendant is proper if it refers to the defendant’s failure to
produce evidence from other sources”). Accordingly, the prosecutor’s statement
did not shift the burden of proof to Amilpas. See Baines v. State, 401 S.W.3d 104,
109 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (prosecutor’s statement that
defendant “has the same subpoena power” and could have called witnesses to
testify in his defense was “a permissible remark about appellant’s failure to
produce evidence in his favor on his defense and did not shift the burden of proof
to appellant”). We hold that the trial court did not err in overruling Amilpas’s
objection to improper jury argument.
We overrule Amilpas’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Justices Jennings, Higley, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).