Opinion
NO. 14-19-00129-CR
03-02-2021
ALLEN EDUARDO MONROY-PENA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas
Trial Court Cause No. 1437793
MEMORANDUM OPINION
A jury convicted appellant Allen Eduardo Monroy-Pena of murder and sentenced him to life in prison. In three issues, appellant challenges his conviction. We affirm in part, reverse in part, and remand.
I. BACKGROUND
In July 2014, the appellant and his girlfriend, Fabiola Martinez ("Martinez"), lived with appellant's mother, Blanca Pena ("complainant"), and her husband Jose Reyes-Lazo ("Reyes-Lazo") in a house in Houston, Texas. On the afternoon of July 25, 2014, Reyes-Lazo drove to an out-of-town job in El Campo, Texas. The same afternoon, appellant made plans with his friend, Jose Hernandez ("Hernandez"), to go out to a bar later that night. Around 8:00 p.m., appellant drove Fabiola to the bar where she worked and then picked up Hernandez in a silver Toyota Celica that Fabiola owned, but appellant frequently drove. Appellant and Hernandez returned to appellant's house, and Hernandez met the complainant, who was doing housework. At around 9:30 p.m., appellant and Hernandez left the house for the bar. At that time, the complainant was at the residence. Around 10:00 p.m., Reyes-Lazo spoke with the complainant over the phone and she was at home.
Reyes-Lazo is appellant's stepfather.
At the bar, appellant and Hernandez drank beer and took shots together. At some point, Hernandez, who had started playing pool with someone else, realized he "didn't see [appellant] anymore" and began looking for appellant in the bar. Appellant was supposed to be Hernandez's ride home. Because he could not find appellant in the bar, Hernandez went outside the bar and called appellant's cell phone eight times between 11:20 p.m. and 11:31 p.m. Appellant did not answer his phone. Hernandez called his cousin, who gave him a ride home from the bar.
At approximately 2:29 a.m. on July 26, Martinez began repeatedly calling appellant to come pick her up from work. Over the course of an hour, between 2:29 a.m. and 3:27 a.m., Martinez called appellant eight or nine times. With regard to her first three phone calls, the calls to appellant's phone were not connecting to a cell site, consistent with appellant's phone being turned off. However, at 2:56 a.m. and again at 3:09 a.m., Martinez called appellant and his cell phone connected to a cell site near his home; it did not connect to a cell site near the bar where he had been earlier with Hernandez. Martinez made additional phone calls to appellant at 3:19 a.m. and 3:27 a.m., during which the data showed appellant's cell phone moved from his house in the direction of the bar where Martinez worked. Appellant picked Martinez up from work; they returned home around 3:45-4:00 a.m., and went to bed.
Later that morning, around 9:00 or 9:30 a.m., Reyes-Lazo, who was still in El Campo, received a call from his brother-in-law, Marvin, advising that the complainant's employer had called him when the complainant did not show up at her work that morning and was not answering her phone. Reyes-Lazo called his wife, but his call went straight to her voicemail. Around 9:45 or 10:00 a.m., Reyes-Lazo then called appellant, who answered the phone. Reyes-Lazo asked appellant to go into the complainant's bedroom and see if she was there. Appellant agreed and called back, reporting to Reyes-Lazo that the complainant was not in her bedroom and that there was a lot of blood in her bedroom. Reyes-Lazo asked appellant to call the police. "[V]ery worried[,]" Reyes-Lazo left his jobsite in El Campo and began driving home.
Appellant called 911 and reported his mother as missing. Around 11:09 a.m., Harris County Sheriff's Office ("HCSO") Deputy John Garcia ("Deputy Garcia") arrived at the complainant's home and began a preliminary investigation. Deputy Garcia met with appellant and Martinez, who were waiting in the garage, and obtained initial statements from them. While securing the scene, Deputy Garcia observed in the complainant's bedroom a large amount of blood pooled in the fibers of the shag carpet with what appeared to be vacuum streak marks through the blood; he noticed the complainant's bed had no comforter and no blankets. Deputy Garcia also observed blood dripped onto the garage floor and blood swiped across the fenders of the vehicles parked in the driveway. Given the amount of blood and type of blood loss at the scene, HCSO homicide division was called to proceed with an investigation.
Around 1:30 p.m., HCSO homicide investigator Mario Quintanilla ("Deputy Quintanilla") arrived at the scene. Deputy Quintanilla interviewed appellant and Martinez again, and also interviewed Reyes-Lazo when he arrived. Appellant told Deputy Quintanilla that he left the house around 9:30 p.m. and did not return until 3:45 a.m., asserting he was with Hernandez at the bar the entire time until it closed. Appellant also told Deputy Quintanilla that the front door was unlocked when he and Martinez returned.
At the scene, Deputy Quintanilla observed the same blood stains as Deputy Garcia, as well as bloody "drag marks" trailing from the complainant's bedroom to the garage. The "drag marks" became lighter as if someone had washed them off. "Drag marks" also were visible on the outside of both vehicles parked in the driveway-Martinez's Toyota Celica and the complainant's Toyota 4Runner. Deputy Quintanilla obtained appellant's consent to search the house, including appellant's bedroom, and obtained appellant's and Martinez's consent to search the Toyota Celica. Deputy Quintanilla had the Celica towed to a police lot for examination where the police crime scene investigator observed what appeared to be blood on the outside of the trunk-area of the vehicle, including on the locking mechanism on the hatchback, on the spare tire rim, and on the plastic molding of the vehicle's trunk. Deputy Quintanilla also obtained consent for specimens and collected DNA samples from appellant, Martinez, and Reyes-Lazo. Deputy Quintanilla noted that appellant's demeanor was unemotional for the circumstances, but released appellant, Reyes-Lazo, and Martinez at the scene after concluding his interviews with them. Upon his release, appellant immediately left the scene.
HCSO crime scene investigator, Jose Ortiz ("Deputy Ortiz"), after observing the sliding door and front door of the house, noted there was no forced entry into the complainant's residence. The complainant's bedroom door, however, appeared to be damaged by forced entry. Although there were items that suspects in home invasions typically would take (e.g., jewelry, televisions, weapons, china, or other valuable items that can be sold or pawned), nothing appeared to be missing or even moved inside the house. Deputy Ortiz believed that somebody had attempted to clean the scene up because there were stains in the master bedroom consistent with using a vacuum cleaner to vacuum up blood. He observed reddish residue within the clear vacuum cleaner tube. Deputy Ortiz took swabs and samples, tagging over a hundred items as evidence. There were bloodstains on clothing and a laundry basket in the appellant's bedroom. One of appellant's shirts was the sole item inside the washing machine in the house.
Upon returning inside the house, Reyes-Lazo noticed all of the bedding (e.g., sheets, blankets, and pillows) was gone from his and the complainant's bedroom. The complainant's purse also was missing. The complainant's daughter and the complainant's sister noticed that a large knife was missing from the kitchen.
A day or two later, Martinez returned to the complainant's house to pick up clothing. Martinez told Reyes-Lazo that she and appellant were staying with her sister.
Appellant never returned to the house. Over the next two days, the complainant's family and friends searched for the complainant; appellant did not assist with or inquire about the search and stopped answering the family's calls.
On July 28, 2014, Reyes-Lazo was notified that the complainant's decomposing body had been found on the side of the road in a densely wooded area approximately two miles from her home. The complainant's body was wrapped in a blanket that matched the description of missing bedding from the complainant's bedroom. The cause of death was sharp force injuries of the neck, consistent with cuts from a big, sharp knife, such as a butcher knife. Reyes-Lazo identified the complainant's body from photographs of her tattoos.
Appellant did not attend the complainant's funeral. Instead, appellant attempted to flee to Canada, where, on or about August 4, 2014, he was apprehended by United States Border Patrol agents.
Appellant was extradited to Texas, where he was charged with the complainant's murder. The State also included one punishment-enhancement allegation in the indictment. On February 6, 2019, a jury found the appellant guilty of the offense, as charged. On February 7, 2019, the jury found the State's punishment-enhancement allegation "true" and assessed the appellant's punishment at confinement in the Texas Department of Criminal Justice, Correctional Institutions Division, for life and a $10,000.00 fine. On that same date and in accordance with the jury's verdict, the trial court sentenced appellant in open court. The trial court's written judgment of conviction included an affirmative deadly weapon finding and certified appellant's right of appeal. Appellant timely filed this appeal.
II. ANALYSIS
Appellant presents the following three issues on appeal:
1). The evidence is insufficient as a matter of law to sustain appellant's conviction for the offense of murder.
2). The trial court erred when it overruled appellant's objection to the improper argument of the prosecutor commenting on appellant's right to remain silent and not produce any evidence at trial in violation of the Fifth Amendment to the United States Constitution as well as Article 1, Section 10 of the Texas Constitution and Article 38.08 of the Texas Code of Criminal Procedure.
3). The trial court erred when it overruled appellant's objection to the punishment jury charge which included references to the award of good time credits where appellant had been convicted of a 3G offense to which good time credits do not apply.
A. SUFFICIENCY OF THE EVIDENCE
1. STANDARD OF REVIEW AND APPLICABLE LAW
We apply a legal-sufficiency standard of review in determining whether the evidence supports each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we examine all the evidence adduced at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). We consider all evidence in the record, whether admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The standard of review is the same for both direct and circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We will uphold the jury's verdict unless a rational factfinder must have had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd).
We consider all evidence presented at trial, but we do not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the witness' credibility and the weight given to their testimony, we resolve any evidentiary conflicts or inconsistencies in favor of the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
We measure sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge and as authorized in the indictment. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The hypothetically correct jury charge is one that 'accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). "The 'law as authorized by the indictment' includes the statutory elements of the offense and those elements as modified by the indictment." Id. (quoting Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)).
In this case, appellant challenges the sufficiency of the evidence to sustain his conviction. Under Texas Penal Code section 19.02, a person commits the offense of murder if he (1) intentionally or knowingly causes the death of an individual; or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Penal Code § 19.02(b)(1), (2). It is the State's burden to prove beyond a reasonable doubt that appellant caused the death of the complainant as alleged in the indictment.
2. APPLICATION
In his first issue, appellant contends the evidence is legally insufficient to support his conviction, arguing there was no evidence of appellant's motive to kill the complainant.
Appellant maintains the jury heard Reyes-Lazo testify that appellant and the complainant had a good relationship and "always got along well." Reyes-Lazo did not see appellant and the complainant fight or show signs of discord. Reyes-Lazo agreed that the complainant and appellant had a normal mother and son relationship. Appellant asserts "the total absence of any indication of animosity, ill-will or evidence that [a]ppellant did not like his own mother must be a major consideration in this court's legal sufficiency review." Motive is a circumstance indicative of guilt; however, motive is not an element of the offense of murder. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). It is not required that the State show a motive in order to sustain a conviction of murder. Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (citing Garcia v. State, 495 S.W.2d 257, 259 (Tex. Crim. App. 1973)); see also Perry v. State, No. 14-15-00471-CR, 2016 WL 4371709, at *4 (Tex. App.—Houston [14th Dist.] Aug. 16, 2016, pet. ref d) (mem. op.) ("Neither does the State have to prove a motive in a murder prosecution, as motive is not an element of murder."); Delacruz v. State, 278 S.W.3d 483, 491 (Tex. App.—Houston [14th Dist.] 2009, pet. ref d) ("[M]otive is not an element of murder, thus the State does not have to prove [the defendant's] motive for killing [the victim].").
Additionally, the jury heard that appellant was responsible for contacting 911 to report that his mother was missing, and that he did not leave the house prior to the police arriving. Appellant cooperated with law enforcement when they arrived by signing a consent to search form, allowing a swab for DNA, and providing a statement. No DNA evidence from appellant connected him to the death of the complainant. The jury also heard that no weapon was ever recovered or connected in any way to appellant. There was no surveillance video from the residence or the location where the complainant's body was found.
The main element in dispute in this sufficiency challenge is identity—i.e., whether appellant was the person who caused the complainant's death. There is no direct evidence in support of that element, but a conviction does not require direct evidence. See Clayton, 235 S.W.3d at 778. Circumstantial evidence is just as probative as direct evidence. Id. The record here contains an abundance of circumstantial evidence establishing that appellant was the offender. Jenkins, 493 S.W.3d at 599 ("A lack of direct evidence is not dispositive of the issue of guilt."); see Guevara, 152 S.W.3d at 49 ("Circumstantial evidence alone is sufficient to establish guilt."); see Temple v. State, 342 S.W.3d 572, 640 (Tex. App.—Houston [14th Dist.] 2010) (finding absence of DNA or blood evidence not dispositive), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013). The circumstantial evidence not only tends to prove that the crime occurred, but also tends to point specifically to appellant as the guilty party. See Guevara, 152 S.W.3d at 50.
The Jury could have found Appellant's Statement to Police that he was with
Hernandez at the Bar all Night Inconsistent with Hernandez's Testimony that
Appellant could not be Located at the Bar
The jury could have inferred guilt from inconsistencies in Hernandez's testimony, which contradicts appellant's statement to investigating officers. Appellant told detectives that he was at the bar with Hernandez and did not return home until 3:45 a.m. with Martinez. Hernandez testified, however, that he could not locate appellant at the bar, that he tried calling appellant's cell phone eight times between 11:20 p.m. and 11:31 p.m., but appellant did not answer the phone, and that Hernandez left the bar and got a ride home from his cousin. See Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010) (recognizing that rational fact finder can consider a defendant's untruthful statement as affirmative evidence of guilt); see also Gear v. State, 340 S.W.3d 743, 747 (Tex. Crim. App. 2011) (explaining that a jury may consider a defendant's inconsistent statements as affirmative evidence of guilt); King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (a defendant's conduct in lying to police officers shows a consciousness of guilt and may be considered as circumstantial evidence of guilt).
The Jury could have Inferred from Cell Phone Record Evidence that Appellant Left
the Bar and was at his House and/or the Location Where the Complainant's Body
was Subsequently Found
Additionally, the jury could have found Hernandez's testimony to be credible because it is corroborated by the appellant's, Martinez's, and Hernandez's cell phone records. Specifically, the cell phone records show that, between 11:20 p.m. and 11:31 p.m., Hernandez called the appellant eight times, and could not locate appellant at the bar. Further, the records show that Martinez called appellant three times between 2:29 a.m. and 2:40 a.m., during which time appellant's phone did not register the calls or connect to a cell site, indicating that his phone was off. At 2:56 a.m., Martinez called the appellant again; the call connected for 50 seconds, and the appellant's phone connected to a cell site near the complainant's house, not near the bar. At 3:09 a.m., there was more activity between the appellant's phone and Martinez's phone, during which the cell site location information indicated that the appellant's phone was still in the area of either the complainant's house or the location where her body was subsequently found. Lastly, several calls were made from appellant's phone to Martinez between 3:19 a.m. and 3:27 a.m., at which point cell site location information showed that appellant's phone was finally moving from the area of either the complainant's house or the location of the body toward the direction of Martinez's workplace.
A jury could have inferred guilt based on these inconsistencies and from appellant's unexplained gap in his alibi timeline. This evidence, along with evidence that appellant was at or near the scene of the murder, further strengthens the reasonable inference appellant murdered the complainant, because appellant misrepresented his actual whereabouts during the time of the murder. See, e.g., Mamolejo v. State, No. 08-11-00108, 2013 WL 1846672, at *9 (Tex. App. El Paso Apr. 30, 2013, no pet.) (not designated for publication) (cell phone records contradicted the defendant's statement as to his whereabouts during the time of the murder); Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (concluding evidence was legally sufficient to support jury verdict finding appellant guilty of murder where evidence included appellant's cell phone records indicating that his phone was located near the murder scene until the time of the shooting, then the phone moved towards appellant's residence on the other side of town).
The Jury could have Inferred Evidence at the Crime Scene Inconsistent with
Murder by a Stranger and Indicative of Appellant's Guilt
The jury also could have inferred appellant's guilt in the complainant's murder because there were no signs of forced entry to the house, indicating the killer had access to the house, which appellant did, as a resident. The crime scene itself was inconsistent with a murder committed by a stranger during a home invasion or robbery because, aside from the complainant's purse, no jewelry, electronics, or other valuables were stolen, moved, or missing. Also, the perpetrator attempted to "clean up" the crime scene by vacuuming up blood, washing the sink, and spraying water on the concrete in the garage; trial testimony explained that is unusual when the perpetrator is a stranger, but more common when the assailant is a family member or resident of a household where a violent crime occurs, as in this case.
Other evidence further implicated appellant in complainant's murder. There were bloodstains on clothing and a laundry basket in appellant's bedroom. One of appellant's shirts was the sole item inside the washing machine in the home. Reyes-Lazo explained that it was "very strange that only that clothing would be in the washing machine and nothing else washing[,]" such as a full load of laundry. See Melgar v. State, 593 S.W.3d 913, 921-22 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (finding circumstantial evidence sufficient to establish the defendant's identity as the murderer when, among other circumstances, the evidence showed that: the defendant was at the crime scene during the murder; the doors and windows around the home were intact, thus supporting the inference that a stranger or home invader did not commit the murder; and the defendant's demeanor was unusual and unemotional, thus indicating her guilt).
The Jury could have Inferred Appellant's Guilt as Complainant's Blood was
Found on the Toyota Celica Appellant was Driving the Night of the Murder
Moreover, the jury could have inferred that the Toyota Celica appellant was driving on the night of the offense was at the crime scene at least shortly after the murder, given that the complainant's blood was on the vehicle's fender. Because the appellant was driving the Toyota Celica before and after the crime, the jury could have rationally inferred that the appellant, too, was at the crime scene around the time of the murder. Further, given that a substantial amount of the complainant's blood was found on the trunk latch and throughout the interior of the trunk of the Toyota Celica, the jury could have inferred that after the complainant was stabbed, her body was placed in the trunk of the car, which appellant was driving on the night of the murder. Cf. Clayton, 235 S.W.3d at 779 (noting that the defendant's bloody fingerprints at the crime scene were circumstantial evidence placing the defendant at the crime scene sometime after the victim was shot).
The Jury could have Inferred Post-Crime Suspicious Conduct by Appellant As
Evidence of Guilt
A jury could have inferred circumstantial evidence of guilt from appellant's demeanor, which officers described as being "weird", "not appropriate for what was happening", unconcerned, and unemotional, during the police's initial investigation and in the days that followed. Similarly, a jury could have viewed appellant's behavior as suspicious and indicative of guilt. After being released from questioning at the crime scene, appellant never returned; he did not assist with the search for complainant; he stopped answering phone calls from family members; and, after the complainant's body was found, he did not attend the complainant's funeral. Guevara, 152 S.W.3d at 51 (noting appellant showed little to no emotion after discovering his wife, nor did he appear to be upset at the crime scene).
The Jury could have Inferred Appellant's Attempt to Flee the United States was
Evidence of Consciousness of Guilt
Finally, the jury could have inferred appellant's guilt by appellant's attempt to flee the United States to Canada in the days immediately after the murder. On August 4, 2014, United States Border Patrol agents apprehended appellant as he was attempting to flee into Canada. Since appellant was already identified as a suspect in this case, his flight to Canada was relevant to the issue of whether he committed the complainant's murder. Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994) ("Evidence of flight is admissible as a circumstance from which an inference of guilt may be drawn."); see also Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (explaining that evidence of flight evinces consciousness of guilt); Hedrick v. State, 473 S.W.3d 824, 831 (Tex. App.— Houston [14th Dist.] 2015, no pet.) (reiterating that flight shows consciousness of guilt and that "[a] consciousness of guilt is perhaps one of the strongest kinds of evidence of guilt.").
Based on our review of the record, we conclude any rational trier of fact could have found the essential elements of murder - appellant intentionally or knowingly caused the complainant's death or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the complainant's death - beyond a reasonable doubt. Clayton, 235 S.W.3d at 778; see Tex. Pen. Code 19.02(b)(1),(b)(2). The inferences necessary to support the jury's guilty verdict are reasonable based on the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Hooper, 214 S.W.3d at 16-17; see also Clayton, 235 S.W.3d at 778 (when the record supports conflicting inferences, appellate courts presume the jury resolved the conflicts in favor of the verdict and defer to that determination in a legal sufficiency review).
Appellant's first issue is overruled.
B. CLOSING ARGUMENT
In his second issue, appellant contends the trial court erred when it overruled his objection to the prosecutor's closing arguments, which the appellant argues was an improper comment on his right to remain silent, in violation of the Fifth Amendment of the United States Constitution as well as Article 1, Section 10, of the Texas Constitution and Article 38.08 of the Texas Code of Criminal Procedure.
The State argues that the trial court correctly overruled the appellant's objection because the prosecutor's complained-of remarks that the appellant's detachment from his family and flight to Canada were his "testimony", may be reasonably interpreted as an argument that the jury could infer from the appellant's behavior that the appellant was highly conscious of his guilt and was, essentially, confessing to the crime through his actions. The State further argues that the prosecutor's closing argument, even if erroneous, was harmless, alleging "there is no reasonable possibility that it contributed to the appellant's conviction."
1. STANDARD OF REVIEW AND GOVERNING LAW
We review the trial court's ruling on an objection to allegedly improper jury argument for an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). "[P]roper jury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement." Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987); Hernandez v. State, 171 S.W.3d 347, 357 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Counsel's remarks during final argument must be considered in the context in which they appear. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
A comment on the defendant's failure to testify violates the United States and Texas Constitutions, as well as Texas statutory law. See U.S. Const. amend. V (guaranteeing a criminal defendant the right to remain silent); Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08 ("[T]he failure of any defendant to. . . testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause."); Griffin v. California, 380 U.S. 609, 615 (1965) ("[T]he Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt."); Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011) (explaining that a defendant has a constitutional privilege not to testify in either the guilt or punishment phases of his trial and, thus, a comment on the defendant's failure to testify in either phase is improper).
To assess whether a particular statement was a comment on the defendant's right not to testify, an appellate court must both view both the State's comment from the standpoint of the jury in light of the context in which the statement was made and must also resolve any ambiguities in the language in favor of the comment being a permissible argument. See Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). A violation occurs only if the spoken words clearly refer to the defendant's failure to testify. Id. An improper comment on an accused's failure to testify occurs when it 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. Id. If the prosecutor's language might reasonably be construed as merely an implied or indirect allusion to the defendant's silence or failure to testify, there is no violation. Randolph, 353 S.W.3d at 891.
2. RELEVANT PORTIONS OF PROSECUTOR'S CLOSING ARGUMENT
The complained-of portions of the prosecutor's closing arguments arose in the following context. On appeal, appellant challenges the remarks below:
[Prosecutor]: We've also talked about motive. I wish I knew why, what would drive someone to do this to there [sic] own mother. What level of rage or anger or -- I don't know. I can't fathom. I can't fathom why anyone would do this to another human being, particularly their own mother. All we know is that he did it. And it is not the State's burden to prove why because the only person who knows, the only person who knows is the person sitting right there. And you know what? He might not even know why he did it. But it doesn't matter because we know that he did do it. (emphasis added).Appellant also challenges the following comments, which were later argued by the State in closing:
Multiple witnesses testified, he didn't show concern about his mother. If he's innocent, if he's not guilty, that means that he woke up that morning and found his mother's bedroom door kicked open with blood all over the place. And he didn't show me concern, no worry, the way all of her other relatives did.
He didn't help search. Why? Because he was on his way to Canada. The rest of her family members and Samuel, they're doing everything in their power to find her, to find out what happened to her. But one person knew exactly what happened to her is getting out of the country as fast as he possibly can.
He didn't go to her funeral. He didn't show any concern. He didn't help search. He knew where she was. He knew what happened to her because he's the one that did it.
This is the most damaging piece of evidence. The blood in her trunk. And you'll be able to look at these swabs. These are picture of two of the places. They got blood from -- her blood is in several places inside that trunk. Not just on the outside of the car where he drug the body past, but inside the car. The car that he admitted that he was driving, the car that Jose said he was driving, the car that they said had only one set of keys.
He left that bar in that Toyota Celica, drove home, butchered his mother, drug her body out of the house and stuffed it in the trunk of his car and drove to that abandoned spot and dumped it. And then he fled to Canada.
You have the instruction in your jury charge that say [sic] that the defendant has a right not to testify against himself and you cannot consider that fact against him . If you want his testimony, there it is. This is his testimony. He didn't wait around to see -- he didn't know what the police had or didn't have. But he knew what they were going to find. Twenty-five hundred miles through eight states, he was getting away from his crime as far as he could. That's his testimony . That's the defendant's [sic] saying to you , saying to everyone loud and clear , I'm guilty. I'm guilty of killing my mother.
[Defense Counsel]: I'm going to object to this argument. That is a
comment on my client's election not to testify. I'm going to ask that you instruct to jury to disregard those statements.
[Trial Court]: Overruled. Reasonable inference on the evidence. (emphasis added).
3. APPLICATION
a. FAILURE TO OBJECT TO PROSECUTOR'S FIRST STATEMENT
Appellant failed to object to the portion of the State's closing argument wherein the State argues "[a]nd it is not the State's burden to prove why because the only person who knows, the only person who knows is the person sitting right there." By failing to object and obtain a ruling from the court, appellant failed to preserve error regarding his challenge to that portion of the State's closing argument. See Tex. R. App. P. 33.1(a)(1)-(2). Because appellant raises this argument for the first time on appeal, any error is waived. See Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) ("At the outset, the court of appeals erred in even considering appellant's argument that the prosecutor's comment amounted to a comment on appellant's failure to testify, since appellant made no such argument in the trial court."); Tyson v. State, 857 S.W.2d 697, 699 (Tex. App.—Houston [14th Dist.] 1993, no pet.) (finding that, because the defendant did not object to the prosecutor's argument, he waived any error concerning the propriety of the statements).
b. PROSECUTOR'S SECOND STATEMENTS OUTSIDE PERMISSIBLE ARGUMENT
Appellant argues that the State erroneously told the jury that the jury charge said that the "defendant has a right not to testify against himself" and that "[i]f you want his testimony, there it is. This is his testimony." The State prosecutor also stated appellant "didn't wait around to see - he didn't know what the police had or didn't have. But he knew what they were going to find. Twenty-five hundred miles through eight states, he was getting away from his crime as far as he could. That's his testimony. That's the defendant's saying to you, saying to everyone loud and clear, I'm guilty. I'm guilty of killing my mother." The appellant objected, and the trial court overruled the objection, finding the prosecutor's statements to be a reasonable inference from the evidence.
Contrary to the State's contention, the prosecutor's complained-of remarks in this case went beyond any reasonable inference. The prosecutor's remarks were neither vague or oblique; rather, the prosecutor's argument necessarily referred to appellant and juxtaposed his purportedly testimonial conduct with his failure to testify. The jury could only interpret the prosecutor's remarks as comments on appellant's choice not to testify at trial, particularly in light of the aforementioned reference to appellant being the only person who knew what happened. See Crocker v. State, 248 S.W.3d 299, 307 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("The defendant does not testify at trial, electing instead to hold the State to its burden of proof beyond a reasonable doubt.").
Next, the prosecutor references appellant's attempt to flee the United States, an issue from which an inference of consciousness of guilt could have been reasonably made; the prosecutor, however, did not stop with that inference. Instead, the prosecutor again commented on appellant's right to remain silent, overreaching with statements "That's his testimony. That's the defendant's [sic] saying to you, saying to everyone loud and clear, I'm guilty. I'm guilty of killing my mother." This improperly called the jury's attention to testimony only appellant could supply: "I'm guilty. I'm guilty of killing my mother." When the remark calls the jury's attention to the absence of evidence that only a defendant's testimony could supply, the conviction is subject to reversal. See Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982) (explaining that "an implied or indirect allusion to the failure of the appellant to testify" is not enough to support error unless the comment calls "for a denial of an assertion of fact . . . that only the appellant was in a position to offer"); see also Trevino v. State, 979 S.W.2d 78, 79-80 (Tex. App.—Austin 1998, pet. ref'd) (holding that prosecutor's comment to jury that "[t]wo people were there that night that know what happened, [the defendant] and [the complainant]" emphasized the absence of appellant's testimony and constituted reversible error); Norton v. State, 851 S.W.2d 341, 346 (Tex. App.—Dallas 1993, pet. ref'd) (holding that prosecutor's comment to jury that "[t]here were only two people out there and we heard from one of them" was comment on defendant's failure to testify and constituted reversible error).
The prosecutor's remarks were improper as they were a direct reference to what the jury had not heard from the appellant. See Mercer v. State, 658 S.W.2d 170, 171 (Tex. Crim. App. 1983). Further, such highly inflammatory statements were not de minimus, particularly in light of purely circumstantial evidence before the jury.
The necessary and natural effect of the prosecutor's comments, viewed from the standpoint of the jury, was to direct the jury's attention to appellant's invocation of his right to remain silent. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08. Because the prosecutor's comments were clearly a direct comment on appellant's failure to testify, we conclude the trial court abused its discretion in overruling appellant's objection. See Bustamante, 48 S.W.3d at 765.
Having determined that the prosecutor's comments were outside the areas of permissible argument, we must determine whether the error warrants reversal.
c. HARM ANALYSIS
"When a prosecutorial remark impinges upon an appellant's privilege against self-incrimination under the constitution of Texas or of the United States, it is error of constitutional magnitude" and must be analyzed under Rule 44.2(a) of the Texas Rules of Appellate Procedure." Snowden v. State, 353 S.W.3d 815, 817 (Tex. Crim. App. 2011). Rule 44.2(a) provides that "the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex. R. App. P. 44.2(a). When confronted with a constitutional error, as here, we analyze the error under Rule 44.2(a), reversing the judgment unless we can conclude beyond a reasonable doubt that the error did not contribute to the defendant's conviction or punishment. See id.
Under this harm analysis, we must determine the likelihood that the error genuinely corrupted the fact-finding process. Snowden, 353 S.W.3d at 819. A constitutional error does not contribute to a defendant's conviction, and is therefore harmless, if the verdict would have been the same absent the error. Crayton v. State, 463 S.W.3d 531, 536 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007)).
An analysis for whether a particular constitutional error is harmless should consider every circumstance apparent in the record that logically informs the analysis. Snowden, 353 S.W.3d at 822. "There is no set formula for conducting a harm analysis that necessarily applies across the board, to every case and every type of constitutional error." Id. at 822 n.31. Non-exclusive factors may include the nature of the error, whether it was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to it in the course of its deliberations. Id. We also consider the presence of overwhelming evidence of guilt. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). "At bottom, an analysis for whether a particular constitutional error is harmless should take into account any and every circumstance apparent in the record that logically informs an appellate determination 'whether beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment.'" Snowden, 353 S.W.3d at 822 (alteration in original) (quoting Tex. R. App. P. 44.2(a)).
Nature and emphasis of the error
Here, the nature of the error at issue is the State's improper argument to the jury. It was brought about by the prosecutor, and directly violated the appellant's right against self-incrimination. The error was compounded by the trial court's overruling of appellant's timely objection, leaving the jury with the impression that the argument was sanctioned by the trial court. "Generally, a comment on a defendant's failure to testify implicates an illegitimate inference by the jury that such failure indicates a defendant's guilt because the defendant does not affirmatively deny the State's allegations. Such an inference is, of course, in derogation of a defendant's constitutional right to remain silent." Thompson v. State, 426 S.W.3d 206, 212 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (citing Snowden, 353 S.W.3d at 824-25). The nature and source of the error, and the direct comment by the prosecutor are factors that weigh heavily in favor of a finding of harm.
Because the trial court overruled appellant's objection, no curative instructions were given.
Probable implications of error and weight
Next, we consider the probable implication of the error and the weight the jury likely would have placed upon it. See Snowden, 353 S.W.3d at 822. In this case, a review of the record shows that the State based its case entirely on circumstantial evidence. There was no eyewitness, no weapon recovered, and no substantial physical evidence directly linking appellant to the complainant's murder. There was testimony that appellant and his mother got along and there was no animosity between her and appellant. While acknowledging the State was not required to prove motive, defense counsel argued in his closing that appellant had no motive to kill his mother and it was inconsistent with appellant's past behavior toward his mother. The jury also heard testimony that appellant cooperated with the officers at the scene of the crime, consented to a search of the house, and agreed to a DNA swab. Given the facts of this case, it is possible that a juror gave at least some weight to the prosecutor's repeated encroachment on appellant's right to remain silent.
The prosecutor did not make an isolated statement. As referenced above, the first improper remark went unobjected to and thus was waived. However, the improper comments did not stop; instead, the prosecution's subsequent comments alleviated any ambiguity that the State's initial argument during closing concerned appellant's failure to testify.
Moreover, the facts here are similar to those in many criminal prosecutions in that a crime occurred with possibly only two individuals present-the victim and the perpetrator. Crocker, 248 S.W.3d at 307. As our sister court explained:
The defendant does not testify at trial, electing instead to hold the State to its burden of proof beyond a reasonable doubt. During closing arguments, the defense presents its theory that the State has failed to meet its burden. To declare a comment on a defendant's failure to testify harmless here has some potential to open the door to similar comments in other cases.Id.
Based on our review of the argument, the entire record and the federal and state constitutional implications of the errors, we hold the prosecutor's comments were of such character that the jury would necessarily and naturally take them as comments on appellant's failure to testify. See Bustamante, 48 S.W.3d at 765. Given this record, we cannot conclude beyond a reasonable doubt that the prosecutor's improper comments on appellant's right to remain silent did not contribute to the appellant's conviction or punishment. See Snowden, 353 S.W.3d at 822; Tex. R. App. P. 44.2(a).
Accordingly, we must sustain appellant's second issue. In light of our disposition of this issue, we need not reach appellant's remaining issue on charge error.
III. CONCLUSION
We affirm the trial court's judgment in part as to the first issue, reverse in part as to the second issue, and remand the case for further proceedings.
/s/ Margaret "Meg" Poissant
Justice Panel consists of Justices Bourliot, Hassan, and Poissant. Do Not Publish - Tex. R. App. P. 47.2(b).