Jose Amilpas v. State

Opinion issued April 23, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00053-CR
———————————
JOSE AMILPAS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1334791

MEMORANDUM OPINION

Appellant Jose Amilpas was charged by indictment with felony possession

of more than four grams and less than 200 grams of cocaine with intent to deliver.

The indictment included two enhancement allegations for felony possession of a

controlled substance and felony possession of a weapon. After a jury found
Amilpas guilty, Amilpas and the State agreed to a plea bargain on sentencing—30

years’ confinement. Once Amilpas pleaded true to the enhancement allegations,

the trial court sentenced him to 30 years’ confinement in prison, in accordance

with the plea bargain. On appeal, Amilpas contends that the evidence was legally

insufficient to support his conviction. Amilpas also complains that the trial court

erred by (1) denying his request to unseal a court order requiring Amilpas’s cell

phone service provider to disclose to police data allowing them to ascertain the

location of his cell phone and (2) overruling his objection to the prosecutor’s

allegedly improper argument during closing. We affirm.

Background

On January 11, 2012, Houston Police Department’s East Side Tactical Unit

began searching for Amilpas to serve an arrest warrant for a felony evading arrest

charge. Unable to locate Amilpas, they requested assistance from Officer Vigil of

the Houston Police Department Criminal Intelligence Division.

Officer Vigil testified that, on January 26, 2012, his division obtained a

“probable cause based court order,” signed under seal by a judge, which ordered

Sprint-Nextel to provide information regarding Amilpas’s cell phone. Specifically,

Officer Vigil obtained information showing the signal strengths from various cell

towers in relation to Amilpas’s phone and used it to triangulate possible locations

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of Amilpas’s cell phone. Based on this data, Officer Vigil formed the belief that

Amilpas could be found at a local cell phone store.

Officer Vigil and Sergeant Vega of the Houston Police Department drove to

the store, where Officer Vigil saw and recognized Amilpas and entered the store

with Sergeant Vega immediately behind him. Officer Vigil testified that he

identified himself as a Houston police officer as he entered the store. At that point,

Amilpas turned around, reached into his waistband, and threw a small object over

the store counter. Officer Vigil also testified that there were at least two other

people in the store, but neither was standing near Amilpas and he did not see either

of them throw anything into the area where Amilpas had thrown the object.

Sergeant Vega’s testimony was consistent with Officer Vigil’s. He testified

that Amilpas looked “surprised” when he and Officer Vigil entered the store.

When Sergeant Vega identified himself as an officer and directed Amilpas to “get

on the ground,” Amilpas did not comply. Rather, he turned around, reached into

his waistband, pulled out what appeared to be a knife, and threw it over the counter

before complying with the officers’ commands to get on the ground. Vega

testified that he saw the general area in which the object landed and that Amilpas’s

girlfriend was standing by the counter talking to a store employee, which was not

“very close” to Amilpas.

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 After Amilpas was handcuffed, Sergeant Vega directed Officer Yanez of the

Houston Police Department to find the object that Amilpas had thrown over the

counter. Officer Yanez testified that he walked behind the counter to the location

where Sergeant Vega said that Amilpas had thrown an object, and he found a clear

plastic bag, which contained seven smaller bags. The smaller bags contained a

powdery substance, which Officer Yanez believed was cocaine. The officers also

found that Amilpas was carrying $3,070 in cash.

Mona Colca, a criminalist with the Houston Police Department Crime

Laboratory, tested the powdery substance recovered at the scene and determined

that it was 64.7 grams of cocaine. The lab report containing the test results was

admitted at trial.

Officer Aguirre of the Houston Police Department testified that finding that

quantity of cocaine packaged in seven individual bags and $3,070 in cash on a

defendant’s person indicates that the defendant is a drug dealer and intends to sell

the individual bags of cocaine. According to Officer Aguirre, the cocaine had an

approximate street value of $2,200 to $3,000.

Sealed Court Order for Disclosure of Amilpas’s Cell Phone Information

In his first and second issues, Amilpas complains that the trial court erred in

denying his request to unseal the court order directing Sprint-Nextel to disclose

Amilpas’s cell phone data. He contends in his first issue that this prevented him

4
from evaluating the evidence against him, subpoenaing rebuttal witnesses, and

questioning witnesses in violation of his right to confront witnesses guaranteed by

the Sixth Amendment of the United States Constitution and Article 1 Section 10 of

the Texas Constitution. In his second issue, Amilpas argues that the same ruling

deprived him of due process of law.

A. Applicable Law

Section 18.21 of the Texas Code of Criminal Procedure provides that a

police officer from an incorporated area may seek, by court order signed by a

district judge, pen register information, trap and trace devices, and mobile tracking

devices. TEX. CODE CRIM. PROC. ANN. art. 18.21 (West Supp. 2014). A pen

register “means a device or process that records or decodes dialing, routing,

addressing, or signaling information transmitted by an instrument or facility from

which a wire or electronic communication is transmitted, if the information does

not include the contents of the communication.” TEX. CODE CRIM. PROC. ANN. art.

18.21, § 1(6) (West Supp. 2014). A prosecutor with jurisdiction in a county “may

file an application for the installation and use of a pen register . . . .” Id. § 2(a)

(West Supp. 2014). The application must be in writing, under oath, include the

subscriber name, information, telephone number, and location of the device, and

“state that the installation and use of the device or equipment will likely produce

information that is material to an ongoing criminal investigation.” Id. § 2(c). “On

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presentation of the application, the judge may order the . . . use of the pen register

. . . and, on request of the applicant, the judge shall direct in the order that a

communication common carrier or a provider of electronic communications

service furnish all information, facilities, and technical assistance necessary to

facilitate the installation and use of the device . . . .” Id. § 2(d).

Additionally, the statute requires that “[t]he district court shall seal an application

and order granted under this article” and includes no mention of any process by

which the application or order may be unsealed. Id. § 2(g).

Article 38.23(a) of the Code of Criminal Procedure provides that “[n]o

evidence obtained by an officer or other person in violation of any provisions of

the Constitution or laws of the State of Texas, or of the Constitution or laws of the

United States of America, shall be admitted in evidence against the accused on the

trial of any criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West

2005). The primary purpose of article 38.23(a) is to deter unlawful actions that

violate the rights of criminal suspects in the acquisition of evidence for

prosecution. Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010).

However, if the evidence seized is sufficiently attenuated from the violation

of the law, the evidence is not considered to be obtained in violation of the law for

the purpose of article 38.23. Johnson v. State, 871 S.W.2d 744, 750 (Tex. Crim.

App. 1994). To determine whether the discovery of physical evidence is

6
sufficiently attenuated from the violation, we consider: (1) the temporal proximity

of the violation of law and the seizure of physical evidence, (2) the presence of

intervening circumstances, and (3) the purposefulness or flagrancy of the police

misconduct. See State v. Mazuca, 375 S.W.3d 294, 301–07 (Tex. Crim. App.

2012).

In Mazuca, the trial court found that the officers’ stop of the car in which

Mazuca was a passenger was illegal. Id. at 296–97. Accordingly, the trial court

suppressed ecstasy that the officers discovered in Mazuca’s pocket during the

detention, and the court of appeals affirmed. Id. at 298–99. The Court of Criminal

Appeals reversed, concluding that the discovery of the ecstasy was sufficiently

attenuated from the illegal stop. Id. at 308. The Court of Criminal Appeals

reasoned that the officers’ discovery of Mazuca’s outstanding arrest warrants

between the time they made the illegal stop and the time they found the ecstasy

was an intervening circumstance and the officers’ misconduct was not “particularly

purposeful and flagrant.” Id.

B. Analysis

Amilpas’s counsel first learned during trial of the existence of the order

directing disclosure of Amilpas’s cell tower data. Amilpas’s counsel argued that

had he known of the order earlier, he would have moved to suppress any evidence

that the officers discovered after arriving at the cell phone store. Amilpas argued

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that the officers’ use of Amilpas’s cell phone data to locate him constituted an

illegal search. He requested that the trial court unseal the order, and he moved for

a continuance. The trial court denied Amilpas’s motions to suppress and for

continuance.

Amilpas relies on United States v. Jones, 132 S. Ct. 945 (2012), to argue for

reversal. In Jones, the Supreme Court held that the government’s placement of a

GPS tracking device on a subject’s vehicle and subsequent use of information

obtained from the GPS device to secure his arrest warrant amounted to an illegal

search in violation of the Fourth Amendment. Id. at 947–49. Two significant

factors distinguish Jones from this case. First, in Jones, the government tracked

the vehicle’s movements in an effort to secure evidence to obtain an indictment for

drug trafficking conspiracy charges. Id. at 946. Here, a warrant for Amilpas’s

arrest for evading arrest had issued before police obtained Amilpas’s cell phone

data, and the police requested and used the cell phone data merely to locate

Amilpas in order to execute the outstanding warrant. Second, in Jones, the

government obtained information about the defendant’s location by mounting a

GPS tracking device to his vehicle. Id. at 949. Here, Sprint-Nextel compiled and

stored Amilpas’s cell phone data for its own business purposes and Officer Vigil

obtained that data from Sprint-Nextel, rather than gathering the data himself. See

Barfield v. State, 416 S.W.3d 743, 748–49 (Tex. App.—Houston [14th Dist.] 2013,

8
no pet.) (trial court did not violate exclusionary rule in admitting cell tower records

and expert testimony because police obtaining information and data related to

appellant’s cell phone that third-party cell phone provider had collected and stored

for its own business purposes did not violate appellant’s reasonable privacy

expectations under Fourth Amendment). Accordingly, Jones is distinguishable and

does not support Amilpas’s argument.

As the State correctly notes, article 18.21 of the Code of Criminal Procedure

makes no mention of the circumstances under which an order for the disclosure of

pen register information may be unsealed. See TEX. CODE CRIM. PROC. ANN. art.

18.21, §2(g) (“The district court shall seal an application and order granted under

this article” in which a police officer seeks order for information related to cell

tower records). That does not end the inquiry, however, because Amilpas does not

contend that the trial court’s refusal to unseal the order violated article 18.21 of the

Code of Criminal Procedure. Rather, Amilpas’s complaints are constitutional.

But, even constitutional errors must be harmful in order to warrant reversal. TEX.

R. APP. P. 44.2(a) (constitutional error warrants reversal “unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment”). Here, we need not decide whether any of Amilpas’s

claims of constitutional error have merit because even assuming that the trial

9
court’s refusal to unseal the article 18.21 order amounted to a constitutional error,

we conclude that it would have been harmless beyond a reasonable doubt.

Mazuca guides our analysis of whether Amilpas can show harm resulting

from an alleged constitutional error. It sets forth a three-factor test we use to

determine whether discovery of physical evidence is too attenuated from a

violation of law to warrant suppression. See Mazuca, 375 S.W.3d at 301–07. The

first of the three factors we consider is the temporal proximity of the violation of

law and the seizure of physical evidence. See id. at 306. Here, the officers seized

the cocaine within only a few moments of locating Amilpas using the pen register

data. Thus, this factor in isolation favors suppression. See McKinney v. State, 444

S.W.3d 128, 135 (Tex. App.—San Antonio 2014, pet. ref’d) (temporal proximity

weighed in favor of suppression where officer searched defendant and found

cocaine immediately after detaining him). However, as the Court of Criminal

Appeals recognized in Mazuca, this factor “will sometimes prove to be, in the

context of the seizure of physical evidence, ‘the least important factor’—at least

relative to the other two.” Mazuca, 375 S.W.3d at 306.

Under the second Mazuca factor, we consider the presence of intervening

circumstances—that is, we consider what occurred between the time the suspect

was detained using the pen register data and the time the challenged evidence was

seized. Id. at 306. Here, the officers observed Amilpas commit a crime—

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possession of cocaine—in the cell phone store between the time they arrived to

execute the arrest warrant for evading arrest and the time they seized the cocaine.

Thus, even assuming police obtained the article 18.21 order and located Amilpas in

violation of law, their observation of Amilpas committing the charged offense was

a significant intervening circumstance between the time of the purported violation

of law and the discovery of evidence. We conclude that this factor weighs against

suppression. See Mazuca, 375 S.W.3d at 306 (recognizing that evidence need not

be suppressed where there are intervening circumstances between the discovery of

physical evidence and the violation of law); Roberts v. State, No. 03-12-00194-CR,

2014 WL 1910428, at *1–2 (Tex. App.—Austin May 8, 2014, no pet.) (mem. op.,

not designated for publication) (“need not address the propriety of [officer’s]

actions” where officer initially stopped appellant without justification, but

subsequently observed appellant drive with headlights off, which was a violation

of the law that independently justified the stop); Matienza v. State, 699 S.W.2d

626, 628 (Tex. App.—Dallas 1985, pet. ref’d) (after officer detained defendant,

defendant pulled gun and pointed it at officer, which constituted intervening

offense that purged taint of any illegality of initial detention).

Under the third Mazuca factor, we consider the purposefulness or flagrancy

of the police misconduct. See Mazuca, 375 S.W.3d at 306 (considering “whether

the police have deliberately perpetrated what they know to be an illegal stop in the

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specific hope or expectation that it will generate some legitimate after-the-fact

justification to arrest and/or search, or they have otherwise conducted themselves

in particularly egregious disregard of the right to privacy and/or personal integrity

that the Fourth Amendment protects”). Here, the officers obtained the order

directed to Sprint-Nextel in accordance with the statute’s terms and acted pursuant

to the order in locating Amilpas to execute his arrest warrant for evading arrest.

We conclude that there is no indication in the record that the officers engaged in

misconduct of any sort. See Mazuca, 375 S.W.3d at 310 (behavior was not so

particularly purposeful or flagrant that intervening factor could not purge the taint

where officer “never went beyond the bounds of what would have been

constitutionally permissible had the stop been justified at its inception”).

Having considered all three Mazuca factors, we conclude that the significant

intervening circumstance between the officers’ detention of Amilpas and their

seizure of the challenged evidence—their observation of Amilpas possessing

cocaine—together with the absence of any misconduct on the part of police renders

the evidence sufficiently attenuated from the alleged violation of law in obtaining

and failing to disclose the contents of the article 18.21 order that the trial court

would not have erred in denying a motion to suppress the cocaine even if Amilpas

had learned of and challenged the article 18.21 order pre-trial. For the same

reason, we overrule Amilpas’s arguments that the trial court’s failure to unseal the

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article 18.21 order violated his right to evaluate evidence against him, subpoena

rebuttal witnesses, and confront witnesses, as well as his right to due process of

law. Because any theoretical infirmity in the article 18.21 order would have been

sufficiently attenuated from the seizure of evidence under Mazuca, article 38.23

would not require suppression. Accordingly, we hold that constitutional error in

the trial court’s refusal to unseal the court order, if any, would have been harmless

beyond a reasonable doubt. See TEX. R. APP. P. 44.2(a).

We overrule Amilpas’s first and second issues.

Sufficiency of the Evidence

In his third issue, Amilpas contends that the evidence was legally

insufficient to support his conviction.

A. Standard of Review

Evidence is insufficient to support a conviction if, considering all record

evidence in the light most favorable to the verdict, a factfinder could not have

rationally found that each essential element of the charged offense was proven

beyond a reasonable doubt. Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979)). We determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d

13
772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17

(Tex. Crim. App. 2007)). When the record supports conflicting inferences, we

presume that the factfinder resolved the conflicts in favor of the verdict and defer

to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W.3d at 778. We likewise defer to the factfinder’s evaluation of the credibility

of the evidence and the weight to give the evidence. Gonzalez, 337 S.W.3d at 479

(citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The

reviewing court must also “consider all evidence which the jury was permitted,

whether rightly or wrongly, to consider.” Thomas v. State, 753 S.W.2d 688, 695

(Tex. Crim. App. 1988) (en banc) (emphasis omitted).

B. Applicable Law

To prove unlawful possession of a controlled substance, the State must

prove beyond a reasonable doubt that the defendant exercised control,

management, or care over the substance and that he knew the matter possessed was

contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

Regardless of whether the evidence is direct or circumstantial, it must establish that

a defendant’s connection to the contraband was more than fortuitous. Id. at 405–

06. This “affirmative links rule is designed to protect the innocent bystander from

conviction based solely upon his fortuitous proximity to someone else’s drugs.”

Id. at 406 (internal quotations omitted). Thus, “[w]hen the accused is not in

14
exclusive possession of the place where the substance is found, it cannot be

concluded that the accused had knowledge of and control over the contraband

unless there are additional independent facts and circumstances which

affirmatively link the accused to the contraband.” Deshong v. State, 625 S.W.2d

327, 329 (Tex. Crim. App. [Panel Op.] 1981) (citing Wiersing v. State, 571 S.W.2d

188, 190 (Tex. Crim. App. 1978)).

Though not an exhaustive list, the Court of Criminal Appeals has recognized

the following affirmative links:

(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether
the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place
where the drugs were found; (12) whether the place where the drugs
were found was enclosed; (13) whether the defendant was found with
a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Gilbert

v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). It

is not the number of links that is dispositive, but rather, the logical force of all the

evidence, both direct and circumstantial. Evans, 202 S.W.3d at 162. Therefore,

each case must be examined according to its own facts on a case-by-case basis.

15
Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). A factor that contributes to sufficiency in one situation may be of little

value under a different set of facts. Id.

C. Analysis

Amilpas contends that there is legally insufficient evidence to support his

conviction because the police officers did not see that the item he threw over the

counter was cocaine, there was evidence that the item he threw was a knife, and

there is no evidence of several affirmative links.

We conclude sufficient evidence connects Amilpas with the cocaine. First,

Amilpas was present at the scene when police arrived. See Evans, 202 S.W.3d at

162, n. 12 (presence when search conducted is affirmative link). Second, Officer

Vigil and Sergeant Vega both testified that Amilpas would not obey their

commands until after he removed an object from his clothing and threw it over the

store counter. See id. (furtive gestures and conduct evidencing consciousness of

guilt are affirmative links). Third, both officers testified that they saw Amilpas

throw an object behind the counter, and Officer Yanez testified that he found seven

small plastic bags containing cocaine inside a larger plastic bag in the location in

which Sergeant Vega told Officer Yanez the object landed. The cocaine was in

plain view, on the floor of the store, and was located near where Amilpas had been

standing when he threw the object. See id. (whether contraband was in plain view,

16
as well as proximity and accessibility of contraband to appellant are affirmative

links). Fourth, Amilpas had approximately $3,070 in cash on his person. See id.

(large amount of cash on defendant’s person is affirmative link). Finally, the

cocaine weighed approximately 64.7 grams and had a value between $2,200 and

$3,000. See Roberson, 80 S.W.3d at 740 (“The amount of contraband found is a

factor we can consider in determining if an affirmative link exists.”).

Amilpas contends that the judgment must be reversed because evidence of

many of the affirmative links is absent in this case. In support of his argument,

Amilpas cites to Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.),

because the Allen court held there was insufficient evidence to support Allen’s

conviction where many links were absent. In Allen, the evidence showed that

Allen did not live at the apartment where the cocaine was found, no cocaine was

found on his person, Allen did not attempt to flee or hide any items when officers

entered, Allen cooperated with the police and made no furitive gestures, and most

of the cocaine was hidden in a different room. Id. at 694, 702. Although several of

the same links are absent in this case, unlike in Allen, here, there is evidence that

(1) Amilpas was carrying a significant amount of cash and (2) attempted to rid

himself of the cocaine that he carried on his person when the officers entered the

store. Accordingly, Allen does not support Amilpas’s argument. See id.; Lair v.

State, 265 S.W.3d 580, 588 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)

17
(evidence was sufficient to support conviction where nine links were not present

because “possible links that do not exist . . . do not negate the links that are

present”); see also Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (“The absence of various links does not constitute

evidence of innocence to be weighed against the links present.”).

Amilpas also contends that evidence that he threw an object over the counter

is insufficient evidence to link him to the cocaine because (1) Sergeant Vega

testified that the object appeared to be a knife and (2) other people who may have

possessed the cocaine were present in the store. While there was some evidence

from which a rational juror could infer that the object Amilpas threw was a knife,

the jury rejected that conclusion. We presume the jury resolved conflicting

evidence in favor of the verdict and defer to that determination. Merritt v. State,

368 S.W.3d 516, 526 (Tex. Crim. App. 2012); see also Henson v. State, 388

S.W.3d 762, 773 (Tex. App.—Houston [1st Dist.] 2012) (“verdict of guilty is an

implicit finding rejecting the defendant’s [defensive] theory”), aff’d, 407 S.W.3d

764 (Tex. Crim. App. 2013).

Considering all of the evidence in the light most favorable to the verdict, we

conclude that sufficient affirmative links connect Amilpas to the cocaine and that a

rational trier of fact could have found beyond a reasonable doubt that Amilpas

exercised care, custody, or control over the cocaine knowing that it was

18
contraband. See Evans, 202 S.W.3d at 166 (“amply sufficient evidence connecting

appellant to the actual care, custody, control or management of the cocaine” when

viewing circumstantial evidence “in combination and its sum total”); Noah v. State,

495 S.W.2d 260, 263 (Tex. Crim. App. 1973) (sufficient evidence to support

possession of heroin conviction where officer saw defendant throw package, he

returned to place where package had been thrown to recover it three to five

minutes after defendant had thrown it, and package contained heroin); Sneed v.

State, 875 S.W.2d 792, 795 (Tex. App.—Fort Worth 1994, no pet.) (although

defendant did not have exclusive control over place where cocaine was found,

evidence of possession sufficient where officer saw defendant take cocaine out of

pocket and throw it on floor).

We overrule Amilpas’s third issue.

Permissible Jury Argument

In his fourth issue, Amilpas contends that the prosecutor made an improper

closing argument because he referred to Amilpas’s subpoena power, which was an

attempt to shift the burden of proof.

A. Applicable Law

“The law provides for, and presumes, a fair trial free from improper

argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (citing Long v. State, 823 S.W.2d 259, 267

19
(Tex. Crim. App. 1991) (en banc)). The approved areas of jury argument are

(1) summation of the evidence, (2) reasonable deduction from the evidence,

(3) answer to the argument of opposing counsel, and (4) plea for law enforcement.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Andrade

v. State, 246 S.W.3d 217, 229–30 (Tex. App.—Houston [14th Dist.] 2007, 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).

Courts have held that, during jury argument, the State may comment on a

defendant’s failure to present evidence in his favor. See Jackson v. State, 17

S.W.3d 664, 674 (Tex. Crim. App. 2000) (“We have held that the prosecutor may

comment on the defendant’s failure to produce witnesses and evidence so long as

the remark does not fault the defendant for exercising his right not to testify.”);

Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) ( “[I]f 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.”). Jury argument

pointing out that the defendant has failed to present evidence in his favor does not

shift the burden of proof but instead summarizes the state of the evidence and is a

reasonable deduction from the evidence. See Caron v. State, 162 S.W.3d 614, 618

(Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that prosecutor’s

20
statement that “[i]f there is something out there that is going to exonerate you, you

want to make it known” was permissible jury argument).

B. Analysis

Amilpas complains that the prosecutor’s closing argument was improper

because he referred to Amilpas’s subpoena power and the fact that no witness had

testified that the cocaine found in the store belonged to her. Before the prosecutor

made the argument, Amilpas’s counsel argued that Amilpas’s girlfriend was also

present at the store and that the cocaine could have been hers.

The prosecutor responded:

[T]he girl who was next to the defendant in that store was between 5
and 8 feet away dealing with a clerk as they entered. More
importantly, the only person who threw anything behind the counter,
the only person who possessed the cocaine those officers found wasn’t
some mysterious girl. It was the defendant.

Ladies and gentlemen, keep in mind the burden is with the State and
the State has the burden alone. [Amilpas] has rights, including the
right of subpoena power. Did you see any girl standing here today
saying: Yeah, it was my cocaine?

Amilpas objected that the State was “shifting the burden of proof,” and the trial

court overruled his objection.

Having considered the allegedly improper argument in context, we conclude

that the prosecutor’s statement was a permissible response to Amilpas’s counsel’s

argument because it was a remark on Amilpas’s failure to produce evidence from

other sources. See Wesbrook, 29 S.W.3d at 115 (answer to argument of opposing

21
counsel is an approved area of jury argument); Harris v. State, 122 S.W.3d 871,

884 (Tex. App.—Fort Worth 2003, pet. ref’d) (prosecutor’s comment “about the

subpoena power of a defendant is proper if it refers to the defendant’s failure to

produce evidence from other sources”). Accordingly, the prosecutor’s statement

did not shift the burden of proof to Amilpas. See Baines v. State, 401 S.W.3d 104,

109 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (prosecutor’s statement that

defendant “has the same subpoena power” and could have called witnesses to

testify in his defense was “a permissible remark about appellant’s failure to

produce evidence in his favor on his defense and did not shift the burden of proof

to appellant”). We hold that the trial court did not err in overruling Amilpas’s

objection to improper jury argument.

We overrule Amilpas’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle
Justice

Panel consists of Justices Jennings, Higley, and Huddle.

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

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