COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOSE CINTRON, ) No. 08-05-00176-CR
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Appellant, ) Appeal from
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v. ) County Court at Law No. 4
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THE STATE OF TEXAS, ) of El Paso County, Texas
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Appellee. ) (TC# 20040C02414)
O P I N I O N
Jose Cintron appeals a jury conviction for unlawfully carrying a weapon. The court assessed punishment at one year in the county jail, probated; a fine of $300, probated; and forfeiture of the weapon. We affirm.
FACTUAL SUMMARY
On December 14, 2003, at approximately 5:10 a.m., Officer Trujillo and Officer Montes were dispatched to a traffic accident on Ramp H from I-10 East to U.S. 54 North. When the officers arrived, they observed a 2002 Harley-Davidson motorcycle laying on its right side with Appellant trapped underneath. Paramedics were already at the scene and no other vehicles were involved.
Approximately fifteen minutes later, Appellant was taken to the hospital, accompanied by Officer Trujillo. Officer Montes remained at the scene. Doctors informed Officer Trujillo that Appellant had a broken ankle and he in turn notified Officer Montes of Appellant’s condition. Officer Montes proceeded to diagram the accident scene. Both officers testified that the motorcycle was not drivable. Officer Montes began an inventory check according to procedure for impounding a vehicle and found a .38 caliber handgun inside the right-side compartment beneath the driver’s seat. The compartment was unlocked and within arm’s reach when sitting on or standing next to the motorcycle.
Appellant stipulated at trial that he did not have a license to carry a handgun. It was also stipulated that the only identifiable fingerprints found on the gun were those of Officer Trujillo. Both officers handled the gun while they were filling out paperwork on the case.
George Anthony Tork, an employee of Barnett Harley-Davidson, testified that he sold Appellant the motorcycle involved in the accident. He opined that the right-hand saddlebag could not be accessed by a person sitting on the motorcycle without that person materially changing his position. Tork explained that there are two small hooks underneath the lid and that it takes both hands to unlatch the hinge and lift the lid back. This cannot be done while a person is driving the motorcycle although the lid of the saddlebag is within arm’s reach of the driver.
MOTION FOR MISTRIAL
In his first and second points of error, Appellant complains that the trial court erred in denying his motion for mistrial because the prosecution commented on his failure to testify. In his first example, the prosecutor argued, “Now, he did testify that -- that he was driving and that -- the reasons why the accident occurred, but does it matter, you know, whether the accident occurred, you know, at his fault. . . .” Appellant, who did not testify, argues this comment created the impression that he testified outside the jury’s presence and not inside the courtroom. In his second example, he points to the prosecutor’s question, “Why weren’t the Defendant’s fingerprints on the gun?” This, he suggests, was a comment on his failure to testify because the only person who could provide this information was Appellant himself.
Standard of Review
We review the denial of a mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070, 120 S. Ct. 1680, 146 L. Ed. 2d 487 (2000). An abuse of discretion occurs only when the decision of the trial court falls outside the zone of reasonable agreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). In other words, the trial court’s decision must have been arbitrary, unreasonable, and made without reference to any guiding rules or principles. Pena v. State, 155 S.W.3d 238, 243-44 (Tex.App.--El Paso 2004, no pet.). The particular facts of the case must be examined in determining whether an error necessitates a mistrial. Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990), cert. denied, 500 U.S. 960, 111 S. Ct. 2275, 114 L. Ed. 2d 726 (1991). Generally, improper jury argument may be cured by an instruction to disregard, unless “in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused.” Hawkins v. State, 135 S.W.3d 72, 75 (Tex.Crim.App. 2004), citing Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 927, 113 S. Ct. 3048, 125 L. Ed. 2d 732 (1993). “[A]n event that could have been prevented by timely objection or cured by instruction to the jury will not lead an appellate court to reverse a judgment on an appeal by the party who did not request these lesser remedies in the trial court.” Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004).
Determining whether a mistrial should have been granted requires a harm analysis. Hawkins, 135 S.W.3d at 77. The analysis is conducted in light of any curative instruction from the trial court, and a mistrial will only be required in those extreme circumstances where the prejudice can not be cured. Id. Whether the instruction to disregard cured the error, and whether the motion for mistrial should have been granted, requires us to determine beyond a reasonable doubt if the comment on Appellant’s failure to testify contributed to his conviction. Brown v. State, 92 S.W.3d 655, 668 (Tex.App.--Dallas 2002), aff’d, 122 S.W.3d 794 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 938, 124 S. Ct. 1678, 158 L. Ed. 2d 359 (2004); Tex.R.App.P. § 44.2(a); Hough v. State, 828 S.W.2d 97, 100 (Tex.App.--Beaumont 1992, pet. ref’d). We review the record in a neutral light and not in the light most favorable to the verdict. Brown, 92 S.W.3d at 668. In considering the impact of the error on the jury, we should determine “if there was a reasonable possibility that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question.” Id. citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000).
Comment on the Failure to Testify
The failure of an accused to testify may not be commented upon by the judge or the prosecution because it offends the constitutional privilege against self-incrimination. Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001); U.S. Const. amend. V; Tex. Const. art. I, § 10. In determining if this privilege has been violated, the offending statement should be viewed from the standpoint of the jury, and the implication that the comment referred to the defendant’s failure to testify must be clear. Bustamante, 48 S.W.3d at 765; Rodriguez v. State, 90 S.W.3d 340, 367 (Tex. App.--El Paso 2001, pet. ref’d). It is not enough that the statement may be construed as an indirect or implied allusion to the accused’s failure to testify. Id. The language used by the prosecutor amounts to a comment on the defendant’s failure to testify if the language was manifestly intended to do so or was of such character that a typical jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Id.; United States v. Jefferson, 258 F.3d 405, 414 (5th Cir. 2001). “A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant’s failure to produce evidence other than his own testimony, the comment is not improper.” Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106, 116 S. Ct. 1323, 134 L. Ed. 2d 475 (1996).
Here, the statement “he did testify” would not necessarily allow a jury to conclude that Appellant had testified outside of their presence. Many courts have held that a prosecutor’s incorrect reference to a defendant’s words through phrases such as “defendant’s testimony” and “defendant testified” did not warrant reversal. Phillips v. State, 139 Tex. Crim. 574, 587, 141 S.W.2d 371, 379 (1940); Williams v. State, 169 Tex. Crim. 370, 375, 333 S.W.2d 846 (1960); Eurine v. State, 463 S.W.2d 2, 3-4 (Tex.Crim.App. 1971). Looking at the statement made here, it is likely that the prosecutor meant to say “he told” rather than “he did testify” when referencing Appellant’s statements to Officer Trujillo. See Harris v. State, 684 S.W.2d 687, 690 (Tex.Crim.App. 1984)(holding that, where the prosecutor was reminding the jury of appellant’s statements to a police officer, the statement, “I ask you also to recall the testimony of this man -- not the testimony but the words that came out of this man’s own . . .” was a reference to defendant’s words as related in the officer’s testimony and did not warrant a mistrial).
An instruction to disregard will generally cure any harm resulting from a comment on defendant’s failure to testify, except for the most blatant of comments. Brown, 92 S.W.3d at 668. Assuming the statement did amount to a comment on Appellant’s failure to testify, it was not so blatant that an instruction to disregard would not have cured the harm. Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999). Despite the fact that Appellant did not object to the statement, the trial court advised the jury that Appellant chose not to testify, and that his failure to testify could not be taken as a circumstance against him. Where a defendant fails to request an instruction to disregard, and the instruction would have cured any harm, the trial court does not abuse its discretion in denying a motion for mistrial. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004). We overrule Point of Error One.
Regarding the second example, Appellant claims the rhetorical question “[w]hy weren’t the defendant’s fingerprints on the gun?” was impermissible as the only person who could supply this information was Appellant. Rhetorical questions are generally within the scope of jury argument provided they are based on a reasonable deduction from the evidence. Rodriguez v. State, 90 S.W.3d 340, 367 (Tex.App.--El Paso 2001, pet. ref’d). However, a rhetorical question may be an impermissible comment on the failure to testify if it is accompanied by a statement pointing to the lack of an explanation. Id.; Wolfe v. State, 917 S.W.2d 270, 280 (Tex.Crim.App. 1996)(holding a rhetorical question may be permissible unless the prosecutor adds that there is no explanation). The prosecutor here did not follow the question with a statement pointing to the lack of an explanation that could only be provided by Appellant. Moreover, the trial court instructed the jury to disregard the statement. Because the trial court did not abuse its discretion in denying the mistrial, we overrule Point of Error Two.
CHARGE ERROR
Appellant was prosecuted under Section 46.02(a) of the Texas Penal Code, which states a person commits the offense of unlawful carrying of a weapon “if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.” Tex.Penal Code Ann. § 46.02(a)(Vernon 2003). Appellant claims the phrase “about the person” is nebulous or vague and therefore should have been defined in the jury charge. He tendered the following definition for the phrase “on or about”:
The term “about,” as used in the phrase “about his person,” as used herein means nearby, close at hand, convenient of access and within such distance of the party as that party could, without materially changing his position, get his hands on it.
If a phrase, term, or word is statutorily defined, the trial court should submit the statutory definition to the jury. Roise v. State, 7 S.W.3d 225, 242 (Tex. App.--Austin 1999, pet. ref’d), cert. denied, 531 U.S. 895, 121 S. Ct. 225, 148 L. Ed. 2d 160 (2000). The trial court is not required to define a term or phrase that is not statutorily defined. Id. A word, term, or phrase which is not defined by statute is to be taken and understood in its usual acceptance in common and ordinary language and speech. Andrews v. State, 652 S.W.2d 370, 377 (Tex.Crim.App. 1983). Only if the term or phrase does not have a common and ordinary meaning that jurors can be fairly presumed to know and apply must a definition be supplied. Holmes v. State, 962 S.W.2d 663, 674 (Tex.App.--Waco 1998, pet. ref’d, untimely filed). The trial court is allowed broad discretion in submitting proper definitions and explanatory phrases to the jury. Macias v. State, 959 S.W.2d 332, 336 (Tex.App.--Houston [14th Dist.] 1997, pet. ref’d).
We perceive no abuse of discretion. The phrase carries a common and ordinary meaning that the typical juror would be able to grasp and understand without ambiguity. And as it has no statutory definition, the court was not compelled to provide one. Roise, 7 S.W.3d at 242. Moreover, defense counsel ably suggested his own definition during his closing arguments. We overrule Point of Error Three.
FACTUAL INSUFFICIENCY
Finally, Appellant argues that the evidence was factually insufficient because it demonstrated that a person riding the bike could not have retrieved the handgun while operating the motorcycle. Thus, he contends the handgun could not have been “on or about” his person.
Standard of Review
In reviewing the factual sufficiency of the evidence, the reviewing court considers all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). There are two ways in which the evidence may be insufficient. Zuniga, 144 S.W.3d at 484. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, in weighing both evidence supporting the verdict and evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. Deference is given to the jury’s verdict, as well as to the jury’s determinations involving credibility and demeanor of witnesses. Id. at 481. The reviewing court may not assume the role of fact finder or substitute its judgment for that of the jury. Id. at 482. A jury verdict should not be overturned unless evidence supporting the verdict is so weak that it renders the verdict wrong and manifestly unjust so that the verdict “shocks the conscience” or “clearly demonstrates bias” Id. at 481.
The Statute
The offense of unlawful carrying of a weapon is committed when one intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. Tex.Penal Code Ann. § 46.02(a). Carrying “on or about the person” includes weapons present on or within one’s personal means of transportation. Contreras v. State, 853 S.W.2d 694, 696 (Tex.App.--Houston [1st Dist.] 1993, no pet.); see also Christian v. State, 686 S.W.2d 930, 933 (Tex.Crim.App. 1985)(recognizing “on or about the person” to cover at least the interior of an automobile). Any compartment on a motorcycle fits within this expanded definition. See Burks v. State, 693 S.W.2d 747, 751 (Tex.App.--Houston [14th Dist.] 1985, pet. ref’d)(adding that it makes no difference whether or not the motorcycle compartment is locked as long as the compartment is within close proximity and within the appellant’s reach).
Considering the evidence in a neutral light, we must conclude that it was not so weak that it could not support the jury’s verdict beyond a reasonable doubt. The handgun was found inside the right side compartment of the motorcycle beneath the driver’s seat. Officer Montes testified the compartment was unlocked and easily opened. Testimony also revealed that the compartment was within arm’s reach of a person sitting on or standing next to the motorcycle. Although the defense witness testified that a person sitting on the motorcycle would have to dismount in order to open the right side compartment, even he acknowledged that the driver could reach the compartment while sitting on the bike. In viewing the evidence in a neutral light, the contrary evidence was not so strong that the standard of beyond a reasonable doubt could not be met. Because the evidence was factually sufficient, we overrule Point of Error Four and affirm the judgment of the trial court.
August 31, 2006
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)