Opinion issued April 21,2005

In The

For The

NO. 01-04-00491-CR

PAULO CESAR SOLIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause No. 927855

MEMORANDUM OPINION A jury found appellant, Paulo Cesar Solis, guilty ofthe offense of aggravated assault1 and assessed his punishment at confinement for 20 years. In three points of error, appellant contends that (1) the trial court erred in overruling his objections to the State's improperjury argument at the punishment phase oftrial, (2) thetrial court erred in denying his requests for a mistrial following allegedly improper cross- examination of appellant during the guilt phase of trial, and (3) the evidence was legally and factually insufficient to support his conviction. We affirm.

Factual and Procedural Background Daniel Maldonado, the complainant, testified that, at approximately 1:00 a.m. on August 17,2002, he was outsidethe Los Primosbar near downtown Houston. He saw appellant, whom he knew as "Sapo," drive a Lincoln Navigator into the bar's parking lot. After appellant stopped the Navigator, Joe Jasso, the front seat passenger, exited the vehicle, approached the complainant, and started to fight with him. Whenthe complainantsaw appellant cometowards him, he ran towardthe front of the bar. The complainant then heard Jasso scream "shoot him," and, as the complainant turned, he saw appellant pull a gun from his waistband. The complainant openedthe bar door,and he heard approximately eight to ten gun shots.

Appellant followed the complainant into the bar and called out for the complainant, who was hiding inside the diskjockey booth. Appellant then left the scene. While

TEX. PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2004-2005). inside the bar,thecomplainant noticed thathe hadbeenshot in the foot. When police officers arrived, the complainant told themthat appellant had shot him. After he was released fromthehospital,thecomplainantexplained to apolice officerthat appellant had shot him because of a fight that they had two months earlier.

The complainant's friend, Francisco Santibanez, also testified that, on the morning of August 17, 2002, while he was with the complainant outside the Los Primos bar, appellant drove up in a Lincoln Navigator with Jose Jasso in the passenger seat. According to Santibanez, after Jasso and thecomplainant got into a fight, appellant approached thecomplainant, thecomplainant broke free from Jasso, Jassoshouted"shoot him," and appellantpulleda gun,aimedat the complainant, and shot. As Santibanez ran for cover, he heard eight to nine shots.

Richard Olvera testified that, sometime after 2:00 a.m on the morning of August 17, 2002, three men, including appellant and Jasso, approached the V

complainant outside the Los Primos bar. Jasso attempted to grab the complainant, but the complainant got away. Olvera then heard gunshots and ran inside the bar, and the complainant followed him into the bar. As Olvera was hiding in the bar, he saw appellant enter the barwith a gun and call for the complainant. After appellant left the bar, Olvera and the complainant walked out ofthe bar and police officers arrived at the scene.

In his defense, appellant testified that he did not shoot the complainant.

Appellant also presented two alibi witnesses who testified that appellant was with themduring the earlymorning hours ofAugust 17,2002 at the timeofthe shooting.

Improper Jury Argument In his first point of error, appellant contends that the trial court erred in overruling his objectionto a portion ofthe State's jury argument in the punishment phase of the trial. Appellant argues that the following argument was improper and highly prejudicial because it encouraged the jury to speculate on matters outside of the record:

[State]: You also had the opportunity to consider what type of person this is. Well, we talked a little bit about his criminal history and some ofthe things he's done. You're entitled to consider how it is that this individual was a landscaper, managed to put down over $11,000 on cash on a Lincoln Navigator with a sticker price of over $50,000.

[Defense Counsel]: Excuse me. Judge, I'm going to object to that again as not being material or relevant to any issue in this case.

[Trial Court]: Well, it's part of the record, so it will be overruled.

[State]: For punishment purposes, you're entitled to consider that. Where is he getting that kind of cash? As I— [Defense Counsel]: Excuse me. Judge, I object to that not being material or relevant And she is encouraging the jury to speculate.

[Trial Court]: It's overruled.

[State]: You're entitled to ask yourselves the question, where is he getting that kind of cash? He goes in to buy some high dollar rims for his car at a sticker price of over $6,000, for wheels. Once again, ladies and gentlemen, where is he getting that kind of cash? I think everybody on this panel can leap—cantakewhateverconclusionyouwant out of that. But it's ridiculous for the defendantto say that he's mowing lawns, he's a landscaperyet has the kind ofcash to throw down on those types of luxuries.

[Defense Counsel]: Again, Judge, we object to counsel arguing outside the record and bringing—attempting to encourage the Jury to speculate on matters that are not material or relevant to any issue in this portion ofthe case.

[Trial Court]: Well, it's overruled. Move on to something else.

Appellant asserts that the above arguments were made to encourage the jury to speculate that he had obtained the funds for the purchase of hisvehicle and rims forhis vehicle through illegal means, butthat there was no evidence in the record to support such speculation.

The law provides for, and presumes, a fair trial free from improper argument bytheState. Long v. State, 823 S.W.2d259,267 (Tex. Crim. App. 1991); Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist] 2002, pet. refd).

Permissible jury argument generally falls within one of four categories: (1) summationofthe evidence; (2) reasonable deductions from the evidence;(3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Thompson, 89 S.W.3d at 850.

It has longbeen established that the Statecannot use closing argument to get before the jury evidence that is outside the record and prejudicial to the accused.

Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). Arguments referencing matters that are neither in evidence nor inferable from the evidence are usually "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990); Thompson, 89 S.W.3d at850. However, the State isallowed wide latitude indrawing inferences from the evidence so longasthe inferences are"reasonable, fair, legitimate andoffered in goodfaith." Shannon v. State, 942 S.W.2d 591,597 (Tex. Crim. App. 1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

Here, the challenged arguments discussed evidence, some of which was introduced byappellant, inthe record.2 Atthe time the State made thecomments, the juryhadbeen presented with evidence that appellant owned theexpensiveNavigator, that he had madea down paymenton it,andthat he had purchased expensiverims for it. Thejury also heard evidence thatappellant owned a landscaping business or was thegeneral manager ofa landscaping business, thatappellant's take-home pay from this job averaged about $8,900 per month during the summer months, and that appellant's wife was also employed.

The State did not expressly argue that appellant had engaged in illegal activities in orderto finance his purchase of theNavigator and its rims. However, in arguing for amore severe punishment,the State did implythatappellanthad obtained the money for these purchases unlawfully, and that thejurywas "entitled toconsider" thatinassessing hispunishment. Because there isnoevidence to show thatappellant unlawfully obtained the money for these purchases, the State's implication wasnot a reasonable deduction from the evidence. Therefore, we conclude that the trial court erred in overruling appellant'sobjections to the State'sjury argument. Weconsider

State's witness Isaac Hernandez testified, after the trial court overruled appellant's relevance objection, that appellant made a down payment of$11,000on his Lincoln Navigator. Mr. Hernandez also testified that the total purchaseprice of appellant's vehicle was approximately $50,000. Appellant's witness, Feliciano Davila, testified thatappellant paid$6,3819.15 for hisvehicle'srims. Appellant also introduced into evidence a receipt of appellant's purchase of his rims. the State's comments, like most comments that fall outside the areas ofpermissible jury argument, to be nonconstitutional error. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). We must now evaluatethis error under rule 44.2(b), which provides that "nonconstitutional error that does not affect substantial rights must be disregarded." TEX.. R. APP. P.44.2(b). Wewill affirmthejudgmentofthetrial court ifwe have "fair assurance that the error did not influence the jury or had but a slight effect." Johnsonv. State, 967 S.W.2d 410,417 (Tex. Crim. App. 1998). Determining whether the non-constitutional error affected appellant's substantial rights requires us to consider (1) the severity ofthe misconduct, (2) curative measures, and (3) the certainty of the punishmentabsent the misconduct. Hawkins v. State, 135 S.W.3d72, (Tex. Crim. App. 2004).

As to the severity of the misconduct, we find that any prejudicial effect of the State's comments was minimal because the comments were based on facts in the record. The State did not attempt to interject specific unsupported facts about appellant or expressly accuse appellant of engaging in unrelated illegal activities.

Additionally, even though the State's improper argument occurred at the punishment phase, appellant had previously addressed the evidence concerning the cost of his vehicle and rims in his jury argument at the guilt phase of the trial by arguing that such evidence was irrelevant, that appellant worked for his money, that, at most, appellant was a "wasteful spender,'* and that the evidence concerning appellant's spending habitswasnothingmorethana"rabbittrail"offeredbythe Stateto account for an otherwise weak case. We conclude that the severity ofthe misconduct from the State's implication that appellant had unlawfully obtained the money for his purchases was minimal.

As to the second factor, the trial court overruled appellant's objections.

However, the trial court's charge specifically instructed the jury that in assessing appellant's punishment, it could consider evidence ofan extraneous crimeor other bad act "only ifthe extraneous crime or bad act has been shown by the State beyond a reasonabledoubtto have been committed by the defendant or is one for which the defendant could be held criminally responsible.'* Absent evidence to the contrary, we presume that thejury followed this instruction. Hutch v. State, 922S.W.2d 166, 170(Tex. Crim. App. 1996).

Finally, in addressing the certainty of appellant's punishment absent the misconduct, we must examine the entire proceeding, including all the evidence presented during thepunishment phase. Because thejury found theallegation inthe enhancement paragraph that appellant had previously been convicted of a felony offense to be true, he faced a punishment by confinement ofnot less than five years nor more than ninety-nine years or life. TEX. PEN. Code Ann. §§ 12.33 (Vernon 2003), 22.02(a)(2) (Vernon Supp. 2004-2005).

During thepunishment phase, theState presentedevidence ofdefendant's prior conviction ofthe felonyoffenseofautotheft. The Statealso presented evidence that the appellanthad been chargedwith driving while intoxicated. Appellant presented the testimony ofhis wife,who testified, among otherthings, that appellant served as a providerfor his two children. Appellantalso disputedthe merit ofhis DWIcharge.

In its jury argument during the punishment phase, the State focused on the dangerousness of the crime of which appellant had been convicted and emphasized that the evidence establishedthat appellant fired multiple shots in a crowdedparking lot, that he hit the complainant and another person, and that he followed the complainant into a crowded bar brandishing a gun. The State requested a sentence of 25 to 35 years and appellant requested a punishment of no more than five years.

Given the evidence of the severity of appellant's actions in committing the offense Y

andhis priorfelony conviction, we conclude thatany impact ofthe State's improper punishment argument on the jury's assessment of punishment, confinement for 20 years, was negligible.

Accordingly, considering that the State's comments, when taken in context, were not severe, and considering the court's charge regarding extraneous offenses, the other evidence before the jury, and the negligible impact of the State's improper comments on the jury, we further conclude with fair assurance that the trial court's error in overruling appellant's objection to the State's punishment argument did not influence thejury or hadbuta slightaffect, andthussucherror shouldbedisregarded.

We overrule appellant's first point oferror.

Request for Mistrial In his second point of error, appellant contends that the trial court erred in denying hisrequests for a mistrial during theguiltphaseoftrial. Appellant madethe requests during the State's cross-examination of appellant, when the State asked appellant (1) if hehad paid $55,000 for the Navigator, (2) if he would agree to the approximate price of the vehicle, and (3) if he would agree that he put some cash down on the vehicle. In response to the first question, appellant answered that he bought the vehicle on credit. Appellant did not answer the second and third questions, as appellant timely and specifically objected to them on grounds of <r

relevance, and the trial court sustained his objections. The trial court alsoinstructed thejury to disregard the State's questions.

We review a trial court's denial of a motion for mistrial for an abuse of discretion. Laddv. State, 3 S.W.3d 547,567 (Tex. Crim. App. 1999). A trial court may declare a mistrial when anerror occurs that isso prejudicial thatthe expenditure of further time and expense would be wasteful. Wood v. State, 18 S.W.3d 642,648 (Tex. Crim. App. 2000). Improper evidence will seldom call for a mistrial because any harm can usually be cured by an instruction to disregard. Id. Pursuant to the appellant's request, the trial court instructed the jury to disregard the State's questions, and we presume the jury complied with this instruction. Wesbrookv. State, 29 S.W.3d 103,116 (Tex. Crim. App. 2000). During a bench conference, the trial court also told the State that its questioning "had nothing to do with this case" and instructed it to "move on." "Only offensive or flagrant error warrants reversal when there has been an instruction to disregard." Id.; see also Gardner v. State, 730 S.W.2d 675,696-97 (Tex. Crim. App. 1987). In this case, the error was not so offensive or flagrant that the trial court's instruction was ineffective, and thus we hold that any possible error was cured by the trial court's instructions and that the trial court did not err in denying appellant's motions for mistrial.3 We overrule appellant's second point of error.

Legal and Factual Sufficiency In his third point oferror, appellant contends that the evidence was legally and factually insufficient to support the jury's guilty verdict. We review a challenge to

3 We also note that while the trial court prohibited the State from questioning the appellant about the price ofhis vehicle and the amount ofappellant's down payment, other witnesses presented testimony on these facts. the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine ifany rational fact finder could have found the essential elements of the offense beyond a reasonable doubt King v. State, 29 S.W.3d 556,562 (Tex. Crim. App. 2000). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id Wereview a challengeto the factual sufficiency ofthe evidence by examining all ofthe evidenceneutrally, not in the lightmostfavorable to the verdict,and we will set asidethe verdict"only ifthe evidence is so weak that the verdict is clearlywrong or manifestly unjust, or the contrary evidence is so strongthat the standard of proof beyond a reasonable doubt could nothave been met" Escamillav. State, 143 S.W.3d 814,817 (Tex. Crim. App. 2004); seealso Johnson v. State,23 S.W.3d 1,6-7 (Tex. Crim. App. 2000). Although ouranalysis considers all the evidence presented attrial, thetrier offact istheexclusivejudge ofthe facts, thecredibility ofthewitnesses, and theweight to begiven to theirtestimony. Sharp v. State, 707S.W.2d 611,614 (Tex. Crim. App. 1986). Unless the record clearly reveals that a different result is appropriate, wemust defertothejury'sdeterminationconcerningwhatweight togive contradictory testimonial evidence because thejurors were in attendance when the testimony was delivered. Johnson, 23 S.W.3d at 8.

A person commits the offense ofaggravated assaultifthe person intentionally or knowingly causes bodily injury to another and he uses and exhibits a deadly weapon during the commission of the assault TEX. PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2004-2005).

Here, appellant testified that he was not present at the Los Primos bar on the morning of August 17, 2002 and did not shoot the complainant. Appellant also presented two alibi witnesses who testified that appellant was with them at another bar at the time ofthe shooting. However, the complainant identified appellant as the shooter to police officers shortly afterthe incident and two days laterwhen he again met with a police officer. Two other witnesses also identified appellant as the shooter. Santibaneztestified that appellant approached the complainant outside the barand that appellant pulleda gunand shot toward the complainant. Olveratestified that three men, including appellant, approached the complainant, that he then heard gunshots and ran inside the bar and the complainant followed right behind him. i-

Olvera also testified that, when he was hiding in the bar, he saw appellant enter the bar with a gun and call for the complainant.

Thus, the jury was presented with the testimony of three witnesses that appellant wastheperson whoshotat complainant onthemorning ofAugust 17,2002.

Thejury may simply have found appellant's testimony andthe testimony of his alibi witnesses not credible. The jury, as the trier of fact, was the sole judge of the credibility ofthese witnesses and was free to accept or to reject all or part ofthe their testimony. Jones v. State, 944 S.W.2d642,647 (Tex. Crim. App. 1996). It was the "exclusive province ofthe jury" to reconcile the conflicting testimony. Wesbrook, 29S.W3datllL Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant committed the felony of aggravated assault Thus, we hold that the evidence was legally sufficient to support appellant's conviction.

Additionally, viewing all of the evidence neutrally, we conclude that the evidence was not so weak that the verdict was clearly wrong or manifestly unjust and that the contrary evidence was not so strong that the standard of proofbeyond a reasonable doubtcouldnot have beenmet. Accordingly, we hold that the evidencewas factually sufficientto support appellant's conviction.

We overrule appellant's third point oferror.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

Do not publish. TEX. R. APP. P. 47.2(b).