Pedro Beltran Batalla v. State , 533 S.W.3d 374 ( 2015 )

Affirmed and Memorandum Opinion filed April 16, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00810-CR
PEDRO BELTRAN BATALLA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1287753
MEMORANDUM OPINION
A jury convicted Pedro Beltran Batalla of indecency with a child and found
the enhancement paragraph alleging a prior conviction for indecency with a child
to be true. The jury sentenced appellant to confinement for life. Appellant filed a
timely notice of appeal and complains of two instances of improper jury argument
by the State. Concluding that one argument was not improper and that appellant’s
complaint regarding the other argument was not preserved, we affirm.
BACKGROUND
The complainant, appellant’s four-year old granddaughter, told her mother,
appellant’s daughter, that appellant had touched her genitalia. Appellant was
confronted with the allegation at a family meeting two days later and admitted to
molesting the complainant. Appellant requested that he be allowed to turn himself
into the police, but his daughter reported appellant’s conduct. Appellant fled the
home shortly after the meeting and was not seen by his son or daughter until the
trial.
IMPROPER ARGUMENT
Appellant’s sole issue on appeal claims the trial court erred in permitting
improper argument by the State. Appellant’s brief refers to two arguments made by
the State during closing argument in the guilt-innocence phase. The first reference
is to the following:
And when you’re looking at the evidence, folks, what does it boil
down to? It boils down to whether or not you believe this child. And
when you come out here with your verdict, you’re letting this child
know whether or not you believe her. And she’s --
[Defense Counsel]: Judge, I’m going to object. It’s improper
argument whether they believe the child.
THE COURT: Overruled.
The record reflects that before the State made this argument, defense counsel
argued in his closing statement that the complainant’s testimony was not credible.
Counsel stated that “what you heard from [the complainant] was quite a different
story than what was, I believe, mentioned in the medical records, what her mother
mentioned she said, what she told you just a couple of days ago . . . .” Counsel
referred to specific inconsistencies between the testimony of the complainant and
her mother. Counsel challenged the complainant’s version of events, asking “is that
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reasonable? Does that make sense? It doesn’t. Because it didn’t happen there.”
Counsel recounted the complainant’s testimony that her mother “would ask [her]
questions and would tell [her] what happened.” Counsel argued “when you go
through all the inconsistencies, especially how [the complainant] says it happened
and what her mother saw . . . . There’s doubt there . . . .” Counsel pointed out that
“[o]ne of the final things that [the complainant] said during her interview—during
the interview was that it happened in [his son’s] room also. Well, we clearly know
that, according to [the complainant’s] testimony, that never happened. Mom even
said that she’s never been in that room. So, just yet another thing. There are too
many inconsistencies in this case, and we don’t know what the [complainant] was
told or what to say by Mom way back when.”
To be permissible, jury argument must fall into one of four areas: (1)
summation of evidence; (2) reasonable deduction from the evidence; (3) an answer
to the argument of opposing counsel; or (4) a plea for law enforcement. Gallo v.
State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007); Mason v. State, 416 S.W.3d
720, 736 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Counsel’s remarks
during final argument must be considered in the context in which they appear. See
Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim. App. 1983).
Defense counsel argued in his closing that the complainant’s testimony was
inconsistent and possibly the result of being coached by her mother, thereby
challenging the credibility of the complainant. Because the State’s argument was
made in answer to defense counsel’s arguments, we hold it was not manifestly
improper. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
Appellant’s second reference is to this argument:
And if the defense wanted to bring in witnesses that disputed that
confession, for example, if you wanted to hear from this man’s wife or
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his daughter --
[Defense Counsel]: Judge, I’d object at this point that the prosecutor’s
shifting the burden that the defense provide any kind of evidence.
THE COURT: That’s sustained.
“To preserve error in prosecutorial argument, a defendant must pursue to an
adverse ruling his objections to jury argument.” Archie v. State, 221 S.W.3d 695,
699 (Tex. Crim. App. 2007). The failure to request an instruction for the jury to
disregard forfeits appellate review of errors that could have been cured by such an
instruction. See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). If such
an instruction could not have “cured” the objectionable event, a motion for mistrial
is the only essential prerequisite to presenting the complaint on appeal. Id. In this
instance, no request for an instruction to disregard was made and there was no
motion for a mistrial. Because the trial court afforded appellant all the relief he
requested, nothing is presented for our review concerning this argument. See Tex.
R. App. P. 33.1.
For the reasons stated above, we overrule appellant’s issue and affirm the
trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
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