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).
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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
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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.
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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,
77 (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
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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
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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