COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-155-CR
RICARDO SANMIGUEL CAMPOS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
In two points, appellant Ricardo Sanmiguel Campos argues that the trial
court erred by overruling his objection to the State’s alleged comment on his
failure to testify and that the trial court abused its discretion by denying his
motion for mistrial after the State made an improper argument regarding
Campos’s other crimes. We will affirm.
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… See Tex. R. App. P. 47.4.
II. P ROCEDURAL B ACKGROUND
Campos was charged with both aggravated sexual assault of a child and
indecency with a child, and a jury convicted him of indecency with a child.
Campos pleaded “true” to the felony repetition enhancement allegation in the
indictment. After the jury found the enhancement allegation to be true, it
assessed punishment at fifty years’ imprisonment and assessed a $10,000 fine.
The trial court sentenced Campos accordingly.
III. A LLEGED C OMMENT ON C AMPOS’S F AILURE TO T ESTIFY
In his first point, Campos contends that the trial court erred by overruling
his objection during closing argument that the prosecutor commented on his
failure to testify. During closing argument, the prosecutor stated:
Do you remember in opening statements the defense got up there
and told you that he’s [Campos] . . . guilty of being old and poor
health, uneducated. You didn’t hear any evidence of that. And I
would submit to y’all that there was ample opportunity for the
defense to ask that. [Campos’s step-daughter] Lisa took the stand.
They never asked her those questions.
Campos objected that this remark improperly commented on his failure to
testify; the trial court overruled his objection.
The Texas Code of Criminal Procedure provides that a defendant’s failure
to testify on the defendant’s own behalf may not be held against the defendant
and that counsel may not allude to the defendant’s failure to testify. Tex. Code
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Crim. Proc. Ann. art. 38.08 (Vernon 2005). To determine whether a
prosecutor’s comment violated article 38.08 and constituted an impermissible
reference to an accused’s failure to testify, we must decide whether the
language used was manifestly intended or was of such a character that the jury
naturally and necessarily would have considered it to be a comment on the
defendant’s failure to testify. Id.; see Bustamante v. State, 48 S.W.3d 761,
765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex.
Crim. App.), cert. denied, 528 U.S. 1026 (1999).
The offending language must be viewed from the jury’s standpoint, and
the implication that the comment referred to the accused’s failure to testify
must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d
223, 225 (Tex. Crim. App. 1992). A mere indirect or implied allusion to the
defendant’s failure to testify does not violate the accused’s right to remain
silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick
v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995), cert. denied, 517
U.S. 1106 (1996).
If the prosecutor’s remark calls to the jury’s attention the absence of
evidence that only the defendant’s testimony could supply, the comment is an
improper comment on the defendant’s failure to testify. See Fuentes, 991
S.W.2d at 275. But if the remark reasonably can be construed to refer to the
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defendant’s failure to present evidence other than his own testimony, the
comment is not improper. Id.; Wolfe v. State, 917 S.W.2d 270, 279 (Tex.
Crim. App. 1996); Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App.
1990), cert. denied, 499 U.S. 954 (1991); Harris v. State, 122 S.W.3d 871,
884 (Tex. App.—Fort Worth 2003, no pet.).
Here, during the defense’s opening statement, the defense attorney set
forth what evidence the defense would present at trial and stated that “Mr.
Campos is guilty of being old, he’s guilty of being in poor health, he is blind in
one eye, he is uneducated, guilty of that. He’s guilty of not being the brightest
tool in the shed. He has borderline intellectual functioning.” By referring back
to this argument during its closing argument, the State was not making a
comment on Campos’s failure to testify; the State was pointing out that the
defense had failed to produce any evidence to support its contention that
Campos was old, in poor health, and uneducated. See Fuentes, 991 S.W.2d
at 275; Harris, 122 S.W.3d at 884–85 (holding State’s comment as proper
summation of evidence where it specifically pointed out lack of testimony from
other witnesses concerning any motive for female witnesses to falsely accuse
appellant of sexual assault); Singh v. State, No. 02-04-00338-CR, 2005 WL
1542665, at *4 (Tex. App.—Fort Worth June 30, 2005, pet. ref’d) (not
designated for publication) (holding that prosecution’s argument was not
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improper because it “pointed to the absence of testimony from sources other
than [appellant]”). This evidence could have come from witness testimony, not
just from Campos’s own testimony. As the State pointed out in its closing
argument, the defense could have asked Campos’s step-daughter Lisa questions
regarding Campos’s mental and physical infirmities. Furthermore, the argument
was a proper response to the defense’s remarks during its opening statement.
See Strickland v. State, 193 S.W.3d 662, 669–70 (Tex. App.—Fort Worth
2006, pet. ref’d); Martinez v. State, 851 S.W.2d 387, 389–90 (Tex.
App.—Corpus Christi 1993, pet. ref’d) (noting that State may answer opposing
counsel’s jury argument, even if it includes a comment on the defendant’s
failure to testify) (citing Porter v. State, 601 S.W.2d 721, 723 (Tex. Crim. App.
1980)).
After reviewing the prosecutor’s comments in context, we conclude that
they were not manifestly intended, or of such a character that the jury would
naturally and necessarily consider them, to be a comment on Campos’s failure
to testify. See Tex. Code Crim. Proc. Ann. art 38.08; Fuentes, 991 S.W.2d at
275; Strickland, 193 S.W.3d at 669–70. Consequently, we hold that the trial
court did not err by overruling Campos’s objection. We overrule Campos’s first
point.
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IV. M OTION FOR M ISTRIAL
In his second point, Campos argues that the trial court abused its
discretion by denying his motion for mistrial after sustaining his objection to a
different portion of the prosecutor’s jury argument. The prosecutor made the
following comment during closing argument:
[Prosecutor]: When does it end? When do we say, you know
what, maybe there’s been other things along the way we missed
too, but now we know those two things, and we know what your
intent is.
[Defense Attorney]: Object to the statement there’s other
things along the way. We would vigorously object to that. There’s
no evidence.
The Court: Sustained.
[Defense Attorney]: We’d ask the jury to be instructed to
disregard the statement of the prosecutor.
The Court: You’ll disregard that statement made by the
prosecutor.
[Defense Attorney]: We would ask the Court – my duty
requires to ask the Court for a mistrial.
The Court: That’s denied.
Campos argues that the prosecutor’s comment improperly asked the jury to
consider his prior crimes in arriving at its verdict. He claims that the harm from
this improper argument could not be cured by a jury instruction to disregard the
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comment and that, consequently, the trial court abused its discretion by
denying his motion for mistrial.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973).
When the trial court sustains an objection and instructs the jury to
disregard but denies a defendant’s motion for a mistrial, the issue is whether
the trial court abused its discretion in denying the mistrial. Hawkins v. State,
135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in extreme circumstances,
when the prejudice caused by the improper argument is incurable, i.e., “so
prejudicial that expenditure of further time and expense would be wasteful and
futile,” will a mistrial be required. Id.; see Simpson v. State, 119 S.W.3d 262,
272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).
In determining whether the trial court abused its discretion by denying the
mistrial, we balance three factors: (1) the severity of the misconduct
(prejudicial effect), (2) curative measures, and (3) the strength of the State’s
case against Campos. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
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1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); accord Hawkins,
135 S.W.3d at 77.
Looking at the first factor—the severity of the misconduct—evidence at
trial showed that two years prior to Campos’s incident with the complainant,
the complainant’s older brother also had complained that Campos had touched
him in an inappropriate manner. Thus, the prosecutor could have been referring
to this when she made the complained-of comment. The comment does not
directly impinge Campos’s failure to testify and is not inflammatory in nature.
Regarding the second factor—the curative measures taken—the trial court cured
any prejudice from the prosecutor’s comment by immediately instructing the
jury to disregard it, and we presume that the jury complied with the instruction.
See Mosley, 983 S.W.2d at 259; Simpson, 119 S.W.3d at 272; Wesbrook v.
State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000), cert. denied., 532 U.S.
944 (2001). Concerning the third factor—the strength of the State’s case—the
complainant testified that Campos touched her private area, and the
complainant’s mother, the mother’s fiancé, and a nurse practitioner who
examined the complainant corroborated her testimony. A CPS investigator also
testified that Campos confessed to her that he had inappropriately touched the
complainant. The jury acquitted Campos of sexual assault and convicted him
of the less serious offense of indecency with a child. Given the mildness of the
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prosecutor’s remark during closing argument and the strength of the State’s
case against Campos, any error was harmless.
Thus, weighing the appropriate factors, we hold that the trial court did
not abuse its discretion by denying Campos’s motion for mistrial. See Mosley,
983 S.W.2d at 259; Simpson, 119 S.W.3d at 272. We overrule Campos’s
second point.
V. C ONCLUSION
Having overruled Campos’s two points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2009
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