David Cruz v. the State of Texas ( 2023 )

Opinion issued December 21, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00070-CR
———————————
DAVID CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1641590
MEMORANDUM OPINION
Appellant David Cruz was convicted of murder, pleaded true to an
enhancement, and was sentenced to 40 years’ confinement. Cruz raises eight issues
on appeal: (1) a directed verdict should have been granted because of insufficient
evidence; (2) there is insufficient evidence to support the verdict; (3) an instruction
on the lesser-included offense of manslaughter should have been submitted to the
jury; (4) testimony was improperly excluded; (5) evidence of the complainant’s
criminal history should have been admitted; (6) a mistrial should have been granted
because the State commented on Cruz’s failure to testify; (7) a mistrial should have
been granted because the State shifted the burden of proof to him in its closing
argument; and (8) the State made improper closing argument based on personal
opinion. Because there is sufficient evidence, a lesser-included instruction was not
required, evidence was properly excluded, a mistrial was not required, and any
improper arguments were harmless, we affirm.
Background
Cruz, Christian Tristian, L. Hernandez, and D. Pate were drinking at Tristian’s
home. Cruz, who was carrying a firearm, began acting aggressively. Sometime after
Hernandez and Pate left, police were called to a shooting at Tristian’s home. Tristian
was found deceased with a gunshot wound to his head. Police spoke to Cruz’s father,
M. Cruz, and sister, Cynthia, who were on the sidewalk nearby. They told police that
Cruz was at his uncle’s home.
Police found Cruz at his uncle’s home a few miles away. While in custody,
Cruz told officers, “I did it, man, I did it. I should have stayed.” He stated he fled the
scene and threw the firearm out of his car, but police failed to locate the weapon. An
autopsy revealed that a firearm was fired in direct contact with Tristian’s head.
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At trial, the jury heard from multiple witnesses, including Hernandez and
Pate, Tristian’s friends who were drinking with Cruz and Tristian before Tristian’s
death; J. Perez, Tristian’s wife; Lieutenant M. Nava of the Houston Police
Department, who investigated Tristian’s death; A. Reyes, a crime scene investigator
who responded to Tristian’s death; Dr. D. Wolf, the deputy chief medical examiner
at the Harris County Institute of Forensic Sciences who reviewed and cosigned
Tristian’s autopsy report; and Cynthia Cruz, Cruz’s sister.
The jury found Cruz guilty of murder, and the trial court sentenced Cruz to 40
years’ confinement.
Sufficiency of the Evidence
Cruz contends the trial court should have granted a directed verdict and that
there is insufficient evidence to support his conviction. Because Cruz’s first two
issues overlap, we address them together. See Lewis v. State, 193 S.W.3d 137, 139–
40 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (appeal from denial of directed
verdict motion is treated as challenge to legal sufficiency of evidence supporting
conviction).
A. Standard of Review
The Fourteenth Amendment’s due process guarantee prohibits a criminal
defendant from being convicted of an offense and denied their liberty unless there is
sufficient evidence for a rational factfinder to find them guilty beyond a reasonable
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doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). When
reviewing the sufficiency of the evidence, we view the evidence in the light most
favorable to the jury’s verdict to determine whether any rational factfinder could
have found the elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979); see Adames v. State, 353 S.W.3d 854, 859
(Tex. Crim. App. 2011) (holding that Jackson applies when determining sufficiency
of evidence).
B. Analysis
A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual, or if he intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE § 19.02(b)(1), (2). The State must prove beyond a reasonable
doubt that the defendant committed the offense charged. See Johnson v. State, 673
S.W.2d 190, 196 (Tex. Crim. App. 1984).
The parties do not dispute that Tristian died from a gunshot wound. Cruz only
argues that the State did not show that Cruz caused Tristian’s death. Cruz points to
a lack of motive or animosity toward Tristian, narcotics found next to Tristian’s body
that were likely either methamphetamine or cocaine, and testimony that it was
unclear whether Tristian’s death was a suicide, an accident, or intentional.
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Direct and circumstantial evidence are treated equally in establishing guilt,
and circumstantial evidence alone may suffice. Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011). Each fact need not point directly and independently to
the defendant’s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The combined force of the incriminating circumstances can be enough to support the
conviction. Id. But if considering all the evidence, a rational factfinder would have
a reasonable doubt as to the defendant’s guilt, then due process requires a reversal
and an acquittal. Swearingen, 101 S.W.3d at 95. While Cruz seeks to parse the
State’s evidence, each fact need not point directly and independently to his guilt if
the cumulative force of all the incriminating evidence supports his conviction. See
Hooper, 214 S.W.3d at 13.
The evidence showed that Cruz, Tristian, and friends were at Tristian’s home.
Hernandez and Pate testified that Cruz had a firearm and was acting aggressively.
Photographs show Cruz and Tristian handling a firearm matching the description
Hernandez provided. At some point, the friends left, and Cruz and Tristian were
alone. Later, police responded to a call about a shooting. Upon arriving at Tristian’s
home, police found Tristian’s body on the floor with a gunshot wound to his head.
Police located Cruz soon after. He told law enforcement he “did it” but he was scared
so he fled. The jury also heard that Cruz disposed of the firearm after the shooting.
A. Reyes, crime scene investigator for the Houston Forensic Science Center, stated
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that she could not determine whether Tristian’s death was caused intentionally,
negligently, or recklessly. Lieutenant Nava of the Houston Police Department
testified that he could not determine whether Tristian’s death was a suicide, an
accident, or a murder. An autopsy revealed Tristian had a muzzle imprint on his
head, and there was no stippling outside the gunshot wound. Dr. D. Wolf, deputy
chief medical examiner at the Harris County Institute of Forensic Sciences, testified
that the autopsy showed the firearm was discharged with direct contact with
Tristian’s head, but he could not say whether the shooting was intentional, negligent,
reckless, or self-inflicted. Dr. Wolf added that the toxicology report showed that
Tristian had a blood alcohol concentration level of .089 and that methamphetamine
and amphetamine were present in Tristian’s system at his death.
“A jury may infer intent from any facts which tend to prove its existence,
including the acts, words, and conduct of the accused, and the method of committing
the crime and from the nature of wounds inflicted on the victims.” See Hart v. State,
89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (quoting Manrique v. State, 994 S.W.2d
640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). A firearm is also a deadly
weapon per se. TEX. PENAL CODE § 1.07(a)(17) (West 2019); Sholars v. State, 312
S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). The intent to kill
someone may be inferred from the use of a deadly weapon in a deadly manner.
Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). “When a deadly
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weapon is fired at close range, and death results, the law presumes an intent to kill.”
Sholars, 312 S.W.3d at 703.
Viewing all the evidence in the light most favorable to the verdict, the
evidence shows that Cruz had a firearm at Tristian’s home, Tristian was found
deceased with a gunshot wound to the head, and Tristian’s wound was consistent
with a gunshot fired at close range. Cruz admitted that he “did it” and should not
have left, and Cruz disposed of the firearm after leaving Tristian’s home. Although
some evidence is circumstantial, its cumulative force provided more than a scintilla
of evidence to support a reasonable conclusion that Cruz intentionally shot and killed
Tristian. See Jackson, 443 U.S. at 320 (setting forth standard for legal insufficiency);
Galvan-Cerna v. State, 509 S.W.3d 398, 404 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (jury can use common sense to infer intent from conduct). Even if there were
evidence suggesting otherwise—such as Cruz’s friendship with Tristian, Tristian’s
narcotics use, and testimony about the unknown intent of the shooter—the jury had
the exclusive role as factfinder to weigh the evidence and the witnesses’ credibility,
and we defer to its determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008); Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008) (jury is exclusive judge of facts proved and weight to be given to testimony);
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (we resolve any
inconsistencies in testimony in favor of jury’s verdict).
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Accordingly, we overrule Cruz’s first two issues.
Jury Instruction
Cruz contends the trial court should have instructed the jury on the
lesser-included offense of manslaughter because there was evidence that the
shooting was unintentional.
A. Standard of Review
We review a trial court’s denial of a lesser-included offense instruction in the
jury charge for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666
(Tex. Crim. App. 2004); Steele v. State, 490 S.W.3d 117, 126 (Tex. App.—Houston
[1st Dist.] 2016, no pet.).
B. Analysis
A defendant is entitled to a charge on a lesser-included offense if (1) the
lesser-included offense is included within the proof necessary to establish the
offense charged, and (2) some evidence exists in the record that would permit a jury
rationally to find that the defendant is guilty only of the lesser offense. Cavazos v.
State, 382 S.W.3d 377, 382–83 (Tex. Crim. App. 2012); Mathis v. State, 67 S.W.3d
918, 925 (Tex. Crim. App. 2002). An offense may be a lesser-included offense if it
differs from the charged offense only in the respect that a less culpable mental state
is enough to establish its commission. See TEX. CODE CRIM. PROC. art. 37.09(3).
8
Manslaughter is a lesser-included offense of murder. Moore v. State, 969
S.W.2d 4, 9 (Tex. Crim. App. 1998). A person commits the offense of manslaughter
if he recklessly causes the death of an individual. See TEX. PENAL CODE § 19.04. A
person acts recklessly, or is reckless, with respect to the result of his conduct when
he is aware of but consciously disregards a substantial and unjustifiable risk that the
result will occur. Id. § 6.03(c). “Manslaughter is a result-oriented offense: the mental
state [of recklessness] must relate to the results of the defendant’s actions.” Britain
v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).
In determining whether there is evidence to support a charge on recklessness,
a statement that the defendant did not intend to kill the victim “cannot be plucked
out of the record and examined in a vacuum.” Gahagan v. State, 242 S.W.3d 80, 86
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (quoting Godsey v. State, 719
S.W.2d 578, 584 (Tex. Crim. App. 1986)). At the same time, the credibility of the
evidence and whether it conflicts with other evidence or is controverted may not be
considered in determining whether an instruction on a lesser-included offense should
be given. Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994). Regardless of
its strength or weakness, if any evidence raises the issue that the defendant was guilty
only of the lesser offense, then the charge must be given. Saunders v. State, 840
S.W.2d 390, 391 (Tex. Crim. App. 1992); Cavazos, 382 S.W.3d at 383.
9
Cruz argues that there was testimony that he shot Tristian by accident and that
he would never harm Tristian. Cruz also points to evidence that he and Tristian were
friends and that there was no animosity observed between them that day.
Photographs of Cruz and Tristian together pointing a firearm at the camera were
submitted to the jury as well. Cruz also highlighted that they had drank and used
drugs that day and that there was testimony about how people who do so become
impaired and can get reckless. Lastly, Cruz notes that none of the State’s witnesses
could say whether the shooting was intentional.
The State compares Cruz’s statement to the Cavazos defendant’s denial of
intent, which the Texas Court of Criminal Appeals held insufficient for a
manslaughter instruction. See Cavazos, 382 S.W.3d at 385. Cavazos turned on the
specific facts of that case: “Pulling out a gun, pointing it at someone, pulling the
trigger twice, fleeing the scene (and the country), and later telling a friend ‘I didn’t
mean to shoot anyone’ does not rationally support an inference that [the appellant]
acted recklessly at the moment he fired the shots.” Id. Without additional evidence
supporting a recklessness finding, defendant’s testimony alone did not require an
instruction on the lesser-included offense of manslaughter. Id. at 385–86.
Manslaughter is a result-of-conduct type offense, so evidence of recklessness must
go to the conduct causing Tristian’s death, i.e., the shooting. Gilbert v. State, 196
S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Here, Cruz only
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offers that he told an officer that he accidentally shot Tristian. The only context
provided is that Tristian and Cruz were friends, there were narcotics in Tristian’s
system when he died, Cruz had been aggressively handling the weapon when
Hernandez and Pate were there, and no one else was around when the shooting
occurred. But none of these facts show that Cruz was reckless in discharging the
firearm. See id. (shooting near complainant to scare him is an example where
manslaughter would be raised); O’Brien v. State, 89 S.W.3d 753, 756 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) (relying on testimony “that the gun accidentally
went off after [the defendant] was hit” by a wooden board causing him to clench
while holding firearm); Hayes v. State, 728 S.W.2d 804, 809–10 (Tex. Crim. App.
1987) (noting some evidence that “actual discharge of the gun was accidental,
occurring during a struggle between appellant and the complainant”); Johnson v.
State, 828 S.W.2d 511, 513–14, 516 (Tex. App.—Waco 1992, pet. ref’d) (shooting
twice while wrestling with complainant was evidence of recklessness).
Courts have typically found that a manslaughter instruction is required when
there is some evidence that the gun was accidentally discharged or that the defendant
only intended to frighten the complainant. See, e.g., Trujillo v. State, 227 S.W.3d
164 (Tex. App.—Houston [1st Dist.], 2006, pet. ref’d). A defendant’s denial that he
intended to kill the victim does not, on its own, raise the issue of manslaughter. See
Arnold v. State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th Dist.] 2007, no
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pet.). Given the state of the entire record, Cruz’s statement that the shooting was an
accident is not evidence allowing a jury to find that Cruz’s actions were reckless.
See Mathis, 67 S.W.3d at 926 (apart from defendant’s own testimony that he did not
intend to kill anyone, there was no other evidence to support his theory); Gahagan,
242 S.W.3d at 86 (statement that defendant did not intend to kill complainant
“cannot be plucked out of the record and examined in a vacuum.”).
Accordingly, the trial court did not abuse its discretion in denying the request
for a manslaughter instruction. We overrule Cruz’s third issue.
Excluded Evidence: Testimony
Cruz contends that the trial court erred by denying his bill of exception by not
allowing the introduction of evidence that he told police “I would never harm him,”
referring to Tristian.
A. Standard of Review
A trial court’s decision on the admissibility of evidence is reviewed for an
abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016).
A trial court abuses its discretion when its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Id. at 83. A
reviewing court must uphold a trial court’s evidentiary ruling if it is correct on any
theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344
(Tex. Crim. App. 2009). If there is error, it is reversible only when it has a substantial
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and injurious effect or influence in determining the jury’s verdict. TEX. R. APP. P.
44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not
overturn the conviction if, after examining the record, we determine that the error
did not influence the jury, or only had a slight effect. Taylor v. State, 268 S.W.3d
571, 579 (Tex. Crim. App. 2008).
B. Analysis
Cruz complains that he was not allowed to introduce testimony from
Lieutenant Nava. The relevant portion of the record reads:
[Defense Counsel]: Right. And that was a recording that hasn’t been
played, right? See if this refreshes your recollection. You said this is a
difficult situation. He says to you, you’ll never understand, right?
[Lt. Nava]: Yes.
[Defense Counsel]: Then he says to you, I will never harm him, right?
[Lt. Nava]: I don’t remember exactly the words that he said, but he got
agitated. And I remember hearing the first part that you just said and
the rest was difficult to hear from where I was standing.
[Defense Counsel]: He told you, I would never harm him, didn’t he?
[Lt. Nava]: I think so. It’s on the video I’m sure. I don’t have a reason
to think he didn’t say that.
Later in the trial, defense counsel complained that he was unable to admit testimony
from Lieutenant Nava that Cruz had said, “I would never harm him.”
[Defense Counsel]: Here’s what I anticipate the evidence will show.
When Lieutenant Nava testified earlier, he said that there was an
Officer Velasco who was part of a team that was out at the Velasco
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address. . . . I’ve isolated a portion of the body worn camera
that . . . would lead into the part that I would want to introduce and
question Officer Nava about. It is David Cruz’[s] father talking to
David about where’s the gun. During the course of that conversation
Lieutenant Nava comes up, is visible in the screen, and Lieutenant Nava
starts talking to . . . . David and he says, he, Nava says, I understand.
David Cruz in affect says, no, you don’t understand, no, you don’t.
Yeah, I do, man. You don’t understand. And then David Cruz says, you
don't understand, I would never harm him. Yesterday when I had
Lieutenant Nava on the stand, he said he didn’t remember seeing that.
I’ve had the opportunity to play that portion for him and he’s here. And
he recognizes that David Cruz did say that. I’m offering it for two
reasons; one, it would be to either refresh his recollection or to impeach
him with the prior inconsistent statement that David Cruz didn’t say
that or he didn’t remember it. So that’s number one; I’d offer it for that.
Number two, that portion of it, because they’re talking about the guns,
is admissible under Rule 106 and 107 as under the Rule of Optional
Completeness to give full effect to the conversation about where the
gun is.
...
[Trial Court]: So, yeah, again your request is denied.
Assuming, without deciding, that the trial court erred by limiting Cruz’s
cross-examination, any error was harmless. A violation of the Texas Rules of
Evidence is reviewed under the standard for non-constitutional error contained in
Rule 44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); Smith v.
State, 355 S.W.3d 138, 152 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Error
in the exclusion of evidence is rendered harmless where the same evidence is
admitted elsewhere without objection. See, e.g., Preston v. State, 481 S.W.2d 408,
409 (Tex. Crim. App. 1972) (“This Court has consistently held reversal is not
14
required by exclusion of evidence where same testimony was later admitted without
objection.”); Montgomery v. State, 383 S.W.3d 722, 727 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (error in exclusion of evidence is harmless when same evidence
is admitted elsewhere at trial). Any error the trial court made in sustaining the State’s
objections was rendered harmless beyond a reasonable doubt by the fact that the
same evidence was admitted elsewhere in the proceedings without objection.
We overrule Cruz’s fourth issue.
Excluded Evidence: Criminal History
Cruz contends Tristian’s prior criminal history should have been admitted
once the State’s witness testified about Tristian’s good character.
A. Standard of Review
We review a trial court’s decision to exclude evidence of a decedent’s
character for an abuse of discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex.
Crim. App. 2018). A trial court abuses its discretion if its ruling is so clearly wrong
that it lies outside the zone within which reasonable people might disagree. Id.B. Analysis
Character evidence may be admissible when a witness in a murder case “opens
the door” to rebuttal character evidence by placing the decedent’s character at issue.
Allen v. State, 473 S.W.3d 426, 454 (Tex. App.—Houston [14th Dist.] 2015, pet.
dism’d); see Daggett v. State, 187 S.W.3d 444, 453 n.24 (Tex. Crim. App.
15
2005) (“When a witness makes a broad statement of good conduct or character on a
collateral issue, the opposing party may cross-examine the witness with specific
instances rebutting that false impression, but generally may not offer extrinsic
evidence to prove the impeachment acts.”). Generally, prior offenses are
inadmissible for impeachment purposes unless the offense resulted in a final
conviction for either a felony or a crime involving moral turpitude and the conviction
is not too remote in time. See Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App.
1972); see also TEX. R. EVID. 608, 609. But an exception arises when a witness
testifies and leaves a false impression as to the extent of prior arrests, convictions,
charges, or “trouble” with the police generally. See Prescott v. State, 744 S.W.2d
128, 131 (Tex. Crim. App. 1988).
During the State’s direct examination of J. Perez, Tristian’s wife, she testified
her husband was making personal progress:
[State]: Ms. Perez, without getting into specific statements or things
that [Tristian] told you, do you know why – why there was a change?
[Perez]: Yes.
[State]: Okay. And can you tell us why, based on what you know, can
you tell us why there was a change?
[Perez]: Because David didn’t know how to act. He was aggressive.
[State]: Okay. But based on your observation — well–excuse me. You
may answer the question.
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[Perez]: [Tristian] was going another route. He was going – being a
family man, trying to progress in his job. He got a promotion. And he
was trying to go to the right while he knew David wasn’t trying –
[Defense Counsel]: I’m going to object. Excuse me, excuse me. That’s
an objection and that’s hearsay. Objection, Your Honor.
[Trial Court]: Sustained. Can you rephrase your question?
[Defense Counsel]: And I’d ask the Court to instruct the jury to
disregard the last answer.
[Trial Court]: Disregard.
[Defense Counsel]: And move for a mistrial, respectfully, Judge.
[Trial Court]: Denied.
Before cross-examining Perez, defense counsel advised the trial court
that he wanted to bring up Tristian’s prior convictions. Defense counsel said
these were admissible because Perez had “created the false impression of
[Tristian] and his character.” The trial court sustained the State’s objection to
this evidence.
Inadmissible evidence may become admissible if it corrects a false
impression created by an opposing party. See Tovar v. State, 221 S.W.3d 185,
191 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (when defense
questioning created false impression that video contained exculpatory
statement by complainant, State could introduce video); Redmond v. State,
629 S.W.3d 534, 546 (Tex. App.—Fort Worth 2021, pet. ref’d) (when
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defendant described robbing bank as a “crazy decision” and created
impression it was out of character for him, State could introduce evidence of
other bank robberies). Perez’s testimony that Tristian was changing his life
did not create a false impression that he had never been in trouble with the
law, or that his record was clear of any prior arrests. See West v. State, 169
S.W.3d 275, 281 (Tex. App.—Fort Worth 2005, pet. ref’d) (testimony about
“shock” over being arrested did not create false impression about prior
criminal history). Moreover, instructions to disregard “are generally
considered sufficient to cure improprieties that occur during trial.” Gamboa
v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
Accordingly, overrule Cruz’s fifth issue.
Mistrial
In his sixth issue, Cruz contends the State improperly commented on his right
to remain silent and not produce evidence at trial. In his seventh issue, Cruz contends
the State impermissibly shifted the burden to the defense. Because these issues
overlap, we address them together.
A. Standard of Review
When the trial court sustains an objection and instructs the jury to disregard
but denies a defendant’s motion for mistrial, the issue is whether the trial court
abused its discretion by denying the mistrial. Archie v. State, 340 S.W.3d 734, 738–
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39 (Tex. Crim. App. 2011) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.
App. 2004)); Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view
the evidence in the light most favorable to the trial court’s ruling, considering only
the arguments before the trial court at the time of its ruling. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Wead v. State, 129 S.W.3d 126,
129 (Tex. Crim. App. 2004)). The ruling must be upheld if it was within the zone of
reasonable disagreement. Id. A mistrial is required only when the prejudice is
incurable. Hawkins, 135 S.W.3d at 77; Ocon, 284 S.W.3d at 884–85 (mistrial should
be granted when less drastic alternatives fail to cure prejudice).
B. Analysis
During closing, the State discussed the testimony of the Cruz’s sister, Cynthia,
who said Cruz called her after the shooting and claimed the shooting was an accident.
The State pointed out that Cruz had produced no evidence about how it was an
accident, “[n]ot a single piece of evidence regarding a misfire, a slip of the finger.”
Cruz objected that the State was “attempting to shift the burden” from the
State to the defense. The trial court sustained the objection and, at Cruz’s request,
instructed the jury to disregard the State’s comment. Cruz moved for a mistrial,
which the trial court denied.
On appeal, Cruz argues that the State’s argument was a comment on his failure
to testify and an attempt to shift the burden. The State may not comment on the
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accused’s failure to testify. U.S. CONST. amend. V; TEX. CONST. art. 1, § 10. Such a
violation occurs when “the language used was manifestly intended or was of such a
character that the jury would necessarily and naturally take it as a comment on the
defendant's failure to testify.” Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App.
2007). A defendant’s failure to testify in his own behalf in a criminal trial may not
be taken as a circumstance against him, and neither counsel may allude to or
comment on such a refusal. See TEX. CODE CRIM. PROC. art. 38.08. To constitute
error, however, the argument, when viewed from the jury’s standpoint, must
manifestly be of such a character that the jury would necessarily and naturally take
it as a comment on the defendant’s failure to testify. See Swallow v. State, 829
S.W.2d 223, 225 (Tex. Crim. App. 1992). That the challenged language might be
construed as an implied or indirect allusion to the defendant’s failure to testify does
not establish a violation. Staley v. State, 887 S.W.2d 885, 895 (Tex. Crim. App.
1994). Language that can reasonably be construed as a failure to present evidence
other than the defendant’s testimony is not a comment on his failure to testify. See
Wolfe v. State, 917 S.W.2d 270, 279 (Tex. Crim. App. 1996); Welch v. State, No.
01-18-00223-CR, 2019 WL 1940640, at *6 (Tex. App.—Houston [1st Dist.] May 2,
2019, no pet.) (mem. op., not designated for publication) (if State’s language can be
reasonably construed as referring to defendant’s failure to produce testimony or
evidence from sources other than himself, reversal is not required). Additionally, the
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State may comment on the defendant’s failure to present evidence in his favor. See
Thomas v. State, 638 S.W.2d 481, 482 (Tex. Crim. App. 1982).
The State argues that Cruz did not preserve his complaint about the State
commenting on his failure to testify for our review. Because the only other person
who could have testified about the details of what occurred at the time of the shooting
would be Cruz, we think the jury would have construed this as an invitation to
consider Cruz’s failure to testify. See Archie, 340 S.W.3d at 740. In this context,
Cruz’s objection to the State’s attempt to shift the burden of proof preserved the
issue of commenting on his decision not to testify.
We now consider whether denial of a mistrial on these two issues was an abuse
of discretion. To evaluate whether the trial court abused its discretion in denying a
mistrial for improper jury argument, we apply the three factors from Mosley v. State,
which balance: (1) the severity of the misconduct, (2) the measures adopted to cure
the misconduct, and (3) the strength of the evidence supporting the conviction. 983
S.W.2d 249, 259 (Tex. Crim. App. 1998).
The first Mosley factor considers the severity of the misconduct. As to both
issues, because the improper argument was embedded within other remarks that
invited the jury to draw a legitimate inference about the credibility of Cynthia’s
testimony, we conclude the magnitude of the prejudice was diminished. The
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prejudice was not so great here as to render a firm and timely curative instruction
ineffective.
Under the second Mosley factor, the reviewing court considers the character
of the measures adopted to cure the misconduct. The trial court sustained the
objection to the State’s argument and immediately instructed the jury to disregard
the State’s comments. Specifically on the argument about a failure to testify, the trial
court also instructed the jurors on Cruz’s right to remain silent and their duty not to
comment on or allude to Cruz’s failure to testify. Separately, on the argument about
shifting the burden, the State discussed that it had the burden here, and the trial court
instructed the jurors that all persons are presumed to be innocent, that “the law does
not require a defendant to prove his innocence or produce any evidence at all,” and
that the State “has the burden of proving the defendant guilty.” The law generally
presumes that the jury will follow instructions to disregard and other cautionary
instructions. Archie, 340 S.W.3d at 741; Buentello v. State, 512 S.W.3d 508, 516
(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (citing Dinkins v. State, 894
S.W.2d 330, 357 (Tex. Crim. App. 1995)).
Lastly, we look to the certainty of conviction without the misconduct. Again
as to both issues, the evidence showed that Cruz, Tristian, and friends were at
Tristian’s home; that Cruz had a firearm and was acting aggressively with it; that
Cruz and Tristian were alone at the home; that Tristian’s body was found on the floor
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with a gunshot wound to his head; that Cruz told police he “did it” but he was scared
so he fled; that Cruz disposed of the firearm after the shooting; and that the firearm
was discharged while it was in direct contact with Tristian’s head.
Under these circumstances, we hold that it was within the trial court’s
discretion to deny Cruz’s motion for mistrial.
We overrule Cruz’s sixth and seventh issues.
Improper Jury Argument
In his final issue, Cruz contends the trial court erred by overruling his
objection to the State’s closing argument based on personal opinion.
A. Standard of Review
We review a trial court’s ruling on an objection to improper jury argument for
abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004).
B. Analysis
The law provides for, and presumes, a fair trial, free from improper argument
by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). There are
four permissible areas of jury argument: (1) summation of the evidence,
(2) reasonable deductions from the evidence, (3) answers to the argument of
opposing counsel, and (4) pleas for law enforcement. Davis v. State, 329 S.W.3d
23798, 821 (Tex. Crim. App. 2010); Cifuentes v. State, 983 S.W.2d 891, 895 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d).
During closing, the State pointed out that even if Cynthia were close to
Tristian, she had an incentive to testify in Cruz’s favor. “[S]he can’t bring Christian
Tristian back from six feet under . . . . But what she can do is keep [Cruz] from
getting in trouble.” The State argued that Cynthia’s testimony about her reaction to
a phone call from Cruz after the shooting did not make sense. The State summarized
her testimony as having received a call from Cruz that he accidentally shot Tristian
but that she did not believe him and went to work. The State continued, “[i]f my
brother called me on the phone before I was going to work and told me he shot
[Tristian] . . . .” Defense counsel objected, and the trial court overruled counsel’s
objection.
Even if the trial court erred by overruling Cruz’s objection to the State’s
closing argument, any error was harmless. We review improper jury argument under
a non-constitutional harm analysis. TEX. R. APP. P. 44.2(b); Threadgill v. State, 146
S.W.3d 654, 666 (Tex. Crim. App. 2004). Under Rule 44.2(b), the reviewing court
disregards the error if it does not affect the defendant’s substantial rights. TEX. R.
APP. P. 44.2(b); see Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000).
Courts weigh three factors in determining whether an improper jury argument is
harmful under Rule 44.2(b): (1) the severity of the misconduct, (2) any curative
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measures adopted, and (3) the strength of the evidence supporting the conviction.
Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259.
First, any prejudicial effect was minimal. The challenged statement was only
a short portion of the State’s overall closing argument, which emphasized evidence
of Cruz being armed and aggressive before Tristian’s death, Cruz’s admission that
he shot Tristian, and that Tristian was shot in the head at “point blank” range.
Considering the State’s entire closing argument, the statement challenged on appeal
lacked the severity to infringe Cruz’s substantial rights.
As to the second factor, because the trial court overruled Cruz’s objection, no
curative action was taken.
Lastly, the certainty of conviction was high. The evidence shows that Cruz
had a firearm and was acting aggressively with it while at Tristian’s home,
photographs show Cruz and Tristian handling a firearm matching Hernandez’s
description of Cruz’s firearm, Tristian was found with a close-range gunshot wound
to the head, Cruz admitted that he “did it” and should not have left, and Cruz
disposed of the firearm after leaving Tristian’s home.
Because the foundation of the State’s closing argument consisted of
recounting the evidence and asking the jury to rely on it in determining guilt, the
challenged statement did not have a substantial and injurious effect on the jury’s
verdict. See King, 953 S.W.2d at 271.
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We overrule Cruz’s final issue.
Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau
Justice
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).
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