Paul Lozano v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-227-CR
PAUL LOZANO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Upon his guilty plea, a jury convicted Appellant Paul Lozano of aggravated
assault–serious bodily injury and assessed his punishment at twelve years’
confinement and a $10,000 fine. The trial court sentenced him accordingly. In his
sole issue, Appellant contends that the trial court abused its discretion by denying
his motion for mistrial after the prosecutor commented on Appellant’s failure to testify
in the State’s final argument at the punishment phase. Applying the standard of
review we are compelled to employ, we hold that the trial court did not abuse its
1
 See Tex. R. App. P. 47.4.
discretion in denying Appellant’s motion for mistrial. W e therefore affirm the trial
court’s judgment.
I. Facts
Appellant was indicted for aggravated assault causing serious bodily injury to
his wife, Natasha. He pled not guilty, and a jury trial began on June 15, 2009. On
the first day of trial, Dr. Emily McLaughlin testified for the State about Natasha’s
injuries resulting from the assault. On June 17, 2009, the second day of trial,
Appellant changed his plea to guilty and made an application for community
supervision.
During the punishment phase, Appellant put on evidence relating to his need
for rehabilitation for alcoholism. During the State’s final argument, the prosecutor
stated, “Did [Appellant] come in here and say, man, I’m an alcoholic and, yeah, I
plead guilty?” Appellant objected. The conscientious trial judge immediately
recognized the direct comment on Appellant’s invocation of his constitutional and
statutory right to remain silent, sustained Appellant’s objection to the improper
argument, and sua sponte instructed the jury to disregard the improper argument.
Appellant requested a mistrial, and the trial court denied the request. The issue, as
Appellant points out, is whether the trial court abused its discretion by denying the
mistrial.2
2
 See Hawkins v. State, 135 S.W .3d 72, 77 (Tex. Crim. App. 2004).
2
II. Substantive Law
The right to remain silent is guaranteed, not only at the guilt phase of a trial,
but also at the punishment phase. 3 A comment on a criminal defendant’s election
to invoke his right to remain silent under both the state and federal constitutions, as
well as under article 38.08 of the Texas Code of Criminal Procedure, violates the
constitutional and statutory guarantees that protect us all. 4
Article 38.08 provides that a defendant’s failure to testify on the defendant’s
own behalf may not be held against the defendant and that counsel may not allude
to the defendant’s failure to testify. 5 To determine if a prosecutor’s comment violated
article 38.08 and constituted an impermissible reference to an accused’s failure to
testify, we must decide whether the language used was manifestly intended or was
of such a character that the jury naturally and necessarily would have considered it
to be a comment on the defendant’s failure to testify. 6 The offending language must
be viewed from the jury’s standpoint, and the implication that the comment referred
3
 Carroll v. State, 68 S.W .3d 250, 253 (Tex. App.—Fort W orth 2002, no
pet.).
4
 See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc.
Ann. art. 38.08 (Vernon 2005).
5
 Tex. Code Crim. Proc. Ann. art. 38.08.
6
 Id.; see Bustamante v. State, 48 S.W .3d 761, 765 (Tex. Crim. App. 2001);
Fuentes v. State, 991 S.W .2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S.
1026 (1999).
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to the accused’s failure to testify must be clear. 7 A mere indirect or implied allusion
to the defendant’s failure to testify does not violate the accused’s right to remain
silent.8
W e are required to balance three factors in determining whether the trial court
abused its discretion by denying the motion for mistrial: (1) the magnitude of the
prejudicial effect of the prosecutor’s remarks, that is, the severity of the misconduct,
(2) the curative measures taken by the trial court, and (3) the certainty of the
punishment assessed. 9 Normally, an instruction to disregard the comment on a
defendant’s election not to testify can cure the prejudicial effect caused by the
improper comment. 10 A jury is presumed to follow the instructions of the trial court
to disregard the improper statement. 11
III. Analysis
A. Severity of the Misconduct
7
 Bustamante, 48 S.W .3d at 765; Swallow v. State, 829 S.W .2d 223, 225
(Tex. Crim. App. 1992).
8
 Wead v. State, 129 S.W .3d 126, 130 (Tex. Crim. App. 2004); Patrick v.
State, 906 S.W .2d 481, 490–91 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106
(1996).
9
 Archie v. State, 221 S.W .3d 695, 700 (Tex. Crim. App. 2007); Hawkins,
135 S.W .3d at 77.
10
 Moore v. State, 999 S.W .2d 385, 405 (Tex. Crim. App. 1999), cert. denied,
530 U.S. 1216 (2000).
11
 Wesbrook v. State, 29 S.W .3d 103, 116 (Tex. Crim. App. 2000), cert.
denied, 532 U.S. 944 (2001).
4
The State made the improper statement at issue but did not return to the
subject in its argument. The State made no previous statement or comment on
Appellant’s decision not to testify. The statement was direct, but it was brief. It also
involved Appellant’s initial plea of not guilty and then his changing his plea to guilty.
Given the record as a whole, the magnitude of the prejudicial effect of the State’s
comment is not great.
B. Curative Measures
The trial court immediately instructed the jury to disregard the improper
argument without request from Appellant. The instruction was clear and unequivocal
that the jury was to disregard the prosecutor’s statement. During voir dire, the trial
court had informed the venire members regarding Appellant’s right to remain silent
and had questioned the members of the venire as to whether they could follow that
specific provision of the law. The jury charge instructed the jury that it could not “and
must not, refer to or allude to the election of any defendant to not testify when”
entering deliberations “or take such election into consideration for any purpose
whatever as evidence or a circumstance against the defendant.” The curative
measures were certainly sufficient.
C. Certainty of the Punishment Assessed Absent the Misconduct
The punishment was not unrealistic in relation to the facts of the case.
Appellant threatened to kill his wife. He beat her badly. Her injuries were extensive.
There was evidence of prior assaults. It is true that the violence seemed to be
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triggered by alcohol consumption, and it is also true that Appellant was immediately
remorseful when he realized what he had done. Nevertheless, although Appellant
was eligible for community supervision, the jury was not obligated to recommend
suspending the imposition of the sentence and placing Appellant on community
supervision.
Punishment for aggravated assault ranges from two to twenty years’
confinement and may include a fine of up to $10,000. 12 After the State improperly
argued without objection that
[t]he fine is going to be purely symbolic. It will never be paid. Some
juries do it to send a message to the parole board, but it’s purely
symbolic. That’s simply the way it goes. If someone is sentenced to
the penitentiary, regardless of a fine, that never gets paid. It doesn’t go
to the victim, it doesn’t go to some state fund. It just never gets paid[,]
the jury assessed the maximum fine, but it also assessed a term of imprisonment
which was only a little more than half of the maximum term available.
IV. Conclusion
Balancing the factors, we cannot conclude that the trial court abused its
discretion by denying Appellant’s motion for mistrial. W e therefore are compelled
to overrule Appellant’s sole issue and affirm the trial court’s judgment.
LEE ANN DAUPHINOT
12
 See Tex. Penal Code Ann. § 12.33 (Vernon Supp. 2009).
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JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 15, 2010
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