Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00750-CR
Larry CASTRO,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR0307A
Honorable Melisa Skinner, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: October 8, 2014
AFFIRMED
A jury found appellant, Larry Castro, guilty of murder, and assessed punishment at twenty-
two years’ confinement. On appeal, appellant asserts the trial court erred (1) by denying him a
lesser-included offense instruction in the jury charge; (2) when it overruled his objection to the
State’s improper closing argument; (3) when it overruled his objection to the State’s misstatement
of the law regarding self-defense during its closing arguments; and (4) when it failed to grant his
motion for a mistrial after the State shifted the burden of proof regarding self-defense during its
closing argument. We affirm.
04-13-00750-CR
BACKGROUND
Appellant was charged with the murder of Juan Romero by striking and kicking him to
death. Appellant and Romero were members of the same pool league and had known each for
approximately six years. On October 15, 2012, appellant and Romero were playing pool at
Coach’s Corner, a bar where a pool tournament was being held. At approximately 9:45 p.m.,
Romero walked across the street to buy cigarettes from a convenience store and was followed by
appellant, Bernardo Crisanto, and Jose Velez. Romero was confronted as he exited the store.
When Romero attempted to re-enter the convenience store, appellant charged at Romero and threw
him to the ground, where Romero was kicked repeatedly by the three men. Romero died at a
hospital shortly thereafter.
At trial, appellant’s defensive theory was that he acted in self-defense. According to
appellant, during the time that he knew Romero, Romero told him that he stabbed several people
and tried to kill his ex-wife’s boyfriend by running him over with a car and shooting him.
Additionally, three months prior to the night of Romero’s death, Romero assaulted appellant with
a cue stick and had since threatened to kill him. Appellant argued that his fear of Romero was
reasonable based on his knowledge of Romero’s past conduct and the threats Romero made toward
him. The jury rejected appellant’s self-defense theory and found him guilty of murder. This appeal
ensued.
LESSER-INCLUDED OFFENSE INSTRUCTION
The jury charge included instructions on the law of parties and self-defense. In his first
issue, appellant asserts he was also entitled to an instruction on the lesser-included offense of
manslaughter.
-2-
04-13-00750-CR
1. Applicable Law
The determination of whether the trial court should give a lesser-included offense
instruction requested by a defendant requires a two-step analysis. Cavazos v. State, 382 S.W.3d
377, 382 (Tex. Crim. App. 2012). The court first determines whether the proof necessary to
establish the charged offense also includes the lesser offense as a matter of law. See id. (stating
first prong is a question of law and involves comparing elements in indictment with elements of
lesser offense). An offense is a lesser-included offense if it differs from the offense charged only
in the respect that a less culpable mental state suffices to establish its commission. TEX. CODE
CRIM. PROC. ANN. art. 37.09(3) (West 2014).
If the first prong is established, the court then evaluates whether the trial evidence shows
that if the defendant is guilty, he is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d
185, 188–89 (Tex. Crim. App. 2006). A defendant is entitled to a lesser-included instruction in
the jury charge, “if some evidence from any source raises a fact issue on whether he is guilty of
only the lesser, regardless of whether the evidence is weak, impeached, or contradicted.” Cavazos,
382 S.W.3d at 383. Evidence may indicate a defendant is guilty of only the lesser offense if it
“refutes or negates other evidence establishing the greater offense,” or if “the evidence presented
regarding the defendant’s awareness of the risk may be subject to two different interpretations, in
which case the jury should be instructed on both inferences.” Id. at 385. A defendant is entitled
to an instruction on the lesser-included offense only if both prongs are met. Guzman, 188 S.W.3d
at 189.
2. Discussion
The indictment in this case alleged that a person commits the offense of murder if he
intends to cause serious bodily injury and commits an act clearly dangerous to human life that
causes the death of the individual. See TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011). A
-3-
04-13-00750-CR
person commits manslaughter if he recklessly causes the death of a person. Id. § 19.04(a). A
person acts recklessly with respect to circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. Id. § 6.03(c).
In this case, the State does not dispute that manslaughter constitutes a lesser-included
offense of murder. See Cavazos, 382 S.W.3d at 384. The State argues, however, that there is no
evidence in the record that would permit a rational jury to find that if appellant is guilty, he is
guilty only of manslaughter. Appellant contends he was entitled to the manslaughter instruction
because he acted recklessly and argues there is no evidence that he intended to cause Romero’s
death. We disagree with appellant.
During the trial, appellant denied that he intended to kill Romero. However, appellant
admitted to repeatedly kicking Romero and testified that he understood kicking Romero would
hurt him. In addition to appellant’s own testimony that he intentionally and repeatedly kicked
Romero, the State also introduced a video recording of the attack captured by the convenience
store’s surveillance system. In the recording, appellant’s accomplices can be seen following
Romero as he exited the store and confronting Romero outside the entrance to the store. Romero
then attempts to walk away and re-enter the store. As Romero opens the door to re-enter the store,
appellant charges at Romero, slamming the door shut and preventing Romero from re-entering.
Appellant then grabs Romero by the neck and throws him to the ground. After Romero has been
thrown to the ground, appellant and his accomplices can be seen repeatedly kicking Romero.
This evidence does not support an inference that appellant acted recklessly and does not
rise to the level that would allow a rational jury to find that appellant is guilty of only manslaughter.
See Cavazos, 382 S.W.3d at 385; Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002)
(holding a defendant’s self-serving statement that he did not intend to kill “does not amount to
-4-
04-13-00750-CR
evidence which a jury could rationally find appellant only acted recklessly with respect to killing
[the victim], and not intentionally”) (emphasis in original); see also Orona v. State, 341 S.W.3d
452, 461 (Tex. App.—Fort Worth 2011, pet. ref’d) (holding specific intent to kill may be inferred
from kicking a victim); Valenzuela v. State, No. 11-11-00336-CR, 2013 WL 3203685, at *3 (Tex.
App.—Eastland June 20, 2013, pet. ref’d) (mem. op., not designated for publication) (“Throwing
someone to the ground [and] repeatedly kicking them . . . and doing nothing to assist the victim
does not rationally support an inference that [a defendant] acted recklessly . . . .”). Thus, the
evidence in this case was sufficient for the jury to conclude that appellant intended to cause serious
bodily injury to Romero and committed an act clearly dangerous to human life. Accordingly, we
conclude the trial court did not err by refusing to instruct the jury on manslaughter.
IMPROPER JURY ARGUMENT
A. Facts Not in Evidence
In his second issue, appellant asserts the State improperly injected facts not in evidence.
He contends the trial court erred by denying his request for a mistrial and overruling his objection
to the following portion of the State’s jury argument:
State: Now, let me ask you, if the defendant was so scared of Romero, then why
would he not continue on to contact—to contact law enforcement? Ladies and
gentlemen, we have rules, we have laws for specific reasons. For serious reasons
like this.
Defense: Your Honor, I’m going to object to [the State’s] testimony. It’s evidence
outside the record. It’s improper. It’s not a reasonable [deduction] from the
evidence and we object on that.
The Court: Sustained.
State: Judge, I’ll move on.
Defense: Your Honor, I’m going to ask for an instruction for the jury to disregard
[the State’s] comments.
Court: The jury is to disregard the last comments made by the prosecutor.
-5-
04-13-00750-CR
Defense: Your Honor, I’ll move for a mistrial.
Court: Denied.
State: Now . . . the [appellant], he called the police before. He called the police
three months prior to this event. So he had the capable means and wherewithal to
contact law enforcement if threats were [] being made or if he felt like he—
Defense: Your Honor, again, [the State is] going right back to the same argument
that [it] was prohibited from going into. I’m going to object on that.
Court: This is overruled. Based on what [the State] is saying.
....
We review a trial court’s ruling on an objection to a jury argument under an abuse of
discretion standard. Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.—San Antonio 2009, pet.
ref’d). In examining challenges to a jury argument, a court considers the remark in the context in
which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Proper jury
argument may include: (1) summation of the evidence, (2) reasonable deduction from the evidence,
(3) answer to an argument of opposing counsel, and (4) pleas for law enforcement. Freeman v.
State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). However, argument outside one of these
general areas is not reversible error unless, in light of the record as a whole, “the argument is
extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to
the accused into the trial proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000). The remarks must have been a willful and calculated effort on the part of the State to
deprive a defendant of a fair and impartial trial. Id. An instruction to disregard will generally cure
error. Id.
It was improper for the State to invite the jury to speculate on facts not in evidence.
However, the State’s argument that if appellant “was so scared of Romero, why would he not
continue . . . to contact law enforcement,” was immediately followed by an objection and an
-6-
04-13-00750-CR
instruction from the trial court for the jury to disregard the argument. Such instructions to
disregard are presumed to have been complied with by the jury. Archie v. State, 340 S.W.3d 734,
741 (Tex. Crim. App. 2011). Here, the first argument was not so extreme that the trial court’s
instruction to disregard was ineffective. See Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim.
App. 2000) (prosecutor argument that “spurned lovers kill the other person, particularly, when
they come in and, perhaps, see her with another person” not so extreme as to render instruction to
disregard ineffective); Wesbrook, 29 S.W.3d at 115–16 (prosecutor argument that defendant gave
two different stories, one to jury and another to police that was never entered into evidence “not
so flagrant that the instruction to disregard was ineffective”); Sanchez v. State, No. 04-05-00766-
CR, 2006 WL 3204900, at *3 (Tex. App.—San Antonio Nov. 9, 2006, no pet.) (mem. op., not
designated for publication) (prosecutor argument that defendant “had a dead body in his car,” did
not render instruction to disregard ineffective). Therefore, we conclude that the trial court’s
instruction to disregard the State’s first argument cured any error.
Appellant also complains the trial court erred by overruling his objection to the State’s
second argument that he called police three months before the night of Romero’s death and had
the ability to contact police again if Romero continued threatening him. Before the State stated its
argument in its entirety, defense counsel lodged an objection, which the trial court overruled. After
the trial court overruled the objection, no further reference was made by the State regarding this
topic.
During the trial, appellant testified that he was assaulted by Romero on July 21, 2012,
approximately three months before Romero was killed. Appellant also testified that he contacted
the police to report the incident. The State’s second argument summarized evidence already
admitted, that appellant had previously contacted police, and made a reasonable deduction that
-7-
04-13-00750-CR
appellant had the ability to do so again. Thus, we conclude the trial court did not abuse its
discretion in overruling appellant’s objection to the State’s second argument.
B. Burden of Proof
In issues three and four, appellant asserts the trial court erred by overruling his objection
and denying his motion for mistrial because the State’s jury argument misstated the law and
improperly shifted the burden of proof regarding self-defense. Appellant complains of the
following jury argument:
State: Self-defense. When they talk about the justification of self-defense. And if
you remember anything I say at all . . . it’s this, self-defense justification depends
on the defendant having a reasonable belief that it was imminently necessary to
protect himself against the other’s use of deadly force. Reasonable belief is not just
what he had in his mind. It’s an objective and subjective standard. It means he must
believe it and it means an ordinary and prudent person standing in his shoes faced
with those same circumstances would have to believe it. Okay. Not just his belief.
Although I suggest to you that the evidence doesn’t show that he even
believed he was in danger, but an ordinary and prudent person standing in his shoes
would have to believe it as well for him to get the benefit of that justification.
Ladies and gentlemen, watch that tape if you need to. And watch it over and
over again. And you should tell me, and you identify for the other jurors what
provoking conduct [Romero] does, that called him to get that—to get that—
The Court: I’m sorry, we can’t hear you.
Defense: Judge, he’s misstating the law. We don’t have to establish provocation,
we have to establish reasonable belief, Your Honor. And he’s misstated the law and
I object to that.
The Court: Overruled. Continue please.
State: You look at that, if you need to, frame by frame. And you look at it at any
point, and you reflect on the testimony as well that [Romero], did anything to
provoke him that night that deserved—that made it imminently necessary for this
man to take his life.
Defense: Your Honor, again, I’m going to object. That’s—
The Court: Ladies and gentlemen, you will read that charge and understand the law
from the charge. What the prosecutor is saying, what anyone says in this court other
-8-
04-13-00750-CR
than the law that’s given to you in the charge is not the law or the evidence. Please
continue.
Defense: Your Honor, because the prosecutor is trying to misdirect the jury on their
burden I’m going to ask for a mistrial.
The Court: Denied.
State: The charge says as I said, that you must find that it was imminent that the
defendant reasonably believed that it was imminently necessary to protect himself
against [Romero’s] unlawful use of deadly force . . . . Imminently necessary to
protect himself against the unlawful use of force against him. Deadly force. It
doesn’t exist.
....
Appellant asserts the State’s argument required him to show that he was provoked in order
to establish that he acted in self-defense. Thus, he contends the argument improperly shifted the
State’s burden to disprove the defense beyond a reasonable doubt.
A defendant has the initial burden of producing some evidence to support a claim of self-
defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once evidence is produced,
the burden shifts to the State to disprove the defense beyond a reasonable doubt. Saxton v. State,
804 S.W.2d 910, 913 (Tex. Crim. App. 1991). This burden of persuasion does not require the
State to produce evidence to refute the self-defense claim, but requires only that it prove its case
beyond a reasonable doubt. Id.
In order for deadly force in defense of a person to be justified, a person must reasonably
believe that deadly force is immediately necessary to protect against another person’s use of deadly
force. See TEX. PENAL CODE § 9.32(a) (emphasis added). In its jury argument, the State argued
that “provoking conduct” by Romero did not exist, and urged the jury to review the recording to
look for evidence supporting appellant’s defensive theory that he reasonably believed the use of
deadly force was immediately necessary to protect himself. In other words, the State argued that
the recording did not show that appellant’s use of deadly force was immediately necessary because
-9-
04-13-00750-CR
Romero was not attempting to use deadly force against appellant. When read in the context of the
record as a whole, the State’s argument summarized the events captured on the recording as well
as testimony presented at trial, and challenged appellant’s defensive theory that his use of deadly
force was immediately necessary. Thus, the State’s argument was not a misstatement of law and
did not improperly shift the State’s burden to disprove the defense beyond a reasonable doubt. Cf.
Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990) (finding error in State’s repeated and
deliberate misstatements that jury should not require the State to prove anything beyond the
elements of the offense—shifting State’s burden to disprove defense beyond a reasonable doubt);
Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983) (prosecutor statement that the law
“tells you before you take another person’s life you’re going to have to be willing to take a beating
. . . not only erroneous but was so manifestly improper, under the circumstances, to require the
reversal of judgment”). Accordingly, we conclude the trial court did not abuse its discretion in
overruling appellant’s objection and denying his motion for mistrial.
CONCLUSION
We conclude the trial court did not err by refusing to instruct the jury on manslaughter, and
the trial court’s instruction to disregard the State’s improper jury argument cured any error. We
further conclude the trial court did not abuse its discretion in overruling appellant’s objection and
denying his motion for mistrial to an improper jury argument. Therefore, we affirm the trial court’s
judgment.
Sandee Bryan Marion, Justice
Do not publish
- 10 -