In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-17-00192-CR
________________________
LATHER LEWIS, APPELLANT
V.
STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2017-411,783; Honorable William R. Eichman II, Presiding
August 22, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Lather Lewis, appeals his conviction for the offense of aggravated
assault.1 By two issues, he maintains (1) the State failed to prove beyond a reasonable
doubt that he committed the offense and (2) the trial court erred when it denied his motion
1 TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). As indicted, the offense is a second degree
felony punishable by confinement of not more than twenty years or less than two years and by a fine not to
exceed $10,000. § 12.33(a).
for a mistrial following the State’s alleged improper comment on his right to not testify.
We affirm the judgment of the trial court.
BACKGROUND
On April 24, 2015, Richard Segura and Antonio Gonzales were assaulted when
they left a Lubbock night club known as the Hitching Post. Prior to the assault, both men
had been drinking heavily and it was shown that Gonzales’s blood alcohol content was
over four times the legal limit. As Segura and Gonzales proceeded to Segura’s vehicle,
an altercation broke out between them and a group of men standing in the parking lot.
Both men were able to enter Segura’s vehicle and shut the doors before they realized
that Segura had dropped his key during the altercation. When Segura exited his vehicle
to retrieve his key, he was assaulted by a slim black male wearing a white t-shirt and
identified at trial as Appellant. Gonzales also exited the vehicle and he too was assaulted.
When Segura was able to get to the other side of his vehicle he found Gonzales lying on
the ground unresponsive. During the assault, Segura suffered a broken cheekbone and
Gonzales sustained a severe head injury. Gonzales was taken to the hospital where he
died approximately a week later.
At trial, Stevie Manahan, the owner of the Hitching Post, identified Glen Hooper
and Appellant as being the persons involved in the melee with Segura and Gonzales.
Although no one could say for certain who it was that assaulted Gonzales, Manahan
testified that he overheard Appellant saying “outlaw, one hitter quitter,” which he
interpreted as “bragging” about knocking Gonzales out. As to the reference “outlaw,”
Manahan identified Appellant as being a member of a horse riding group calling itself the
“outlaws.” Another witness testified that, after the altercation, Appellant came back into
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the bar and was bragging, “I just got me one outside . . . a Spanish guy, old Spanish guy,”
while still another witness attributed Appellant as bragging, “this is how we knock them
out.”
Appellant, a slim black male, was later apprehended wearing a blood-spattered t-
shirt and tennis shoes. DNA testing identified the blood on Appellant’s t-shirt as matching
Segura’s DNA profile. In a statement given to the police, Appellant admitted to being at
the Hitching Post during the altercation, but he denied any involvement in the altercation,
explaining that he was only trying to help the two Hispanic males find their keys.
Photographs of Appellant’s hands taken by the police showed no signs of his having been
involved in a fight.
Appellant did not testify; however, he did offer the testimony of two witnesses. One
witness testified that Manahan had once told her that Hooper killed a man at the Hitching
Post and that an innocent man was in jail. Later cross-examination, however, indicated
that the witness believed Manahan was talking about a shooting incident at the club and
not the altercation that occurred on April 24, 2015. The other witness merely testified that
she was at the Hitching Post the night of the altercation, that Appellant was there, and
that she did not see the fight.
In his closing arguments, Appellant’s counsel argued that he did not have the
requisite intent to cause serious bodily injury to Gonzales and he further contended that
the result—Gonzales’s death—should not be considered as conclusive evidence of his
intent. In response, the State argued that “[Appellant] wishes Mr. Gonzales hadn’t died .
. . .” Appellant’s counsel immediately objected to the prosecutor’s statement as a
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comment on Appellant’s failure to testify. The trial court sustained the objection and
instructed the jury to disregard the prosecutor’s comments. Appellant’s subsequent
request for a mistrial was denied.
The Court’s Charge to the jury included a “law of parties” instruction. Following its
deliberations, the jury returned a verdict of “guilty.” Appellant elected to have the court
assess his punishment and, during the punishment phase, he plead “Not True” to the
State’s enhancement allegation. The trial court found the enhancement allegation to be
true and assessed his punishment at fifty years confinement in the Institutional Division
of the Texas Department of Criminal Justice. Appellant gave timely notice of appeal.
AGGRAVATED ASSAULT
A person commits the offense of aggravated assault “if the person commits assault
as defined in Section 22.01 [of the Texas Penal Code] and the person . . . causes serious
bodily injury to another.” TEXAS PENAL CODE ANN. § 22.01(a)(1) (West 2011). An “assault”
is committed “if the person . . . intentionally, knowingly, or recklessly causes bodily injury
to another.” Id. Serious bodily injury is defined as “bodily injury that creates a substantial
risk of death or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” § 1.07(a)(46).
LAW OF PARTIES
Under the law of parties, “[a] person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both.” § 7.01(a) (West 2011); Adames v. State,
353 S.W.3d 854, 862 (Tex. Crim. App. 2011). A person is criminally responsible for an
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offense committed by the conduct of another if “acting with the intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense.” § 7.02(a)(2) (West 2011); Adames, 353 S.W.3d
at 862. Mere presence alone will not constitute one a party to an offense and it is
insufficient to support a conviction as a party to the offense. Gross v. State, 380 S.W.3d
181, 186 (Tex. Crim. App. 2012).
STANDARD OF REVIEW
The only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is required
to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to
support a conviction, a reviewing court considers all the evidence in the light most
favorable to the verdict and determines whether, based on that evidence and reasonable
inferences to be drawn therefrom, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616,
622 (Tex. Crim. App. 2017).
Here, as to guilt or innocence, the jury was the sole judge of the credibility of the
witnesses and the weight to be given to their testimonies, and as a reviewing court, we
must defer to those determinations and not usurp its role by substituting our judgment for
that of the jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.
2012)). The duty of a reviewing court is simply to ensure that the evidence presented
supports the fact finder’s verdict and that the State has presented a legally sufficient case
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of the offense charged. Id. When a reviewing court is faced with a record supporting
contradicting conclusions, the court must presume the fact finder resolved any such
conflicts in favor of the verdict, even when not explicitly stated in the record. Id. “Under
this standard, evidence may be legally insufficient when the record contains no evidence
of an essential element, merely a modicum of evidence of one element, or if it conclusively
establishes a reasonable doubt.” Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex.
Crim. App. 2013)).
The sufficiency standard set forth in Jackson is measured against a hypothetically
correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
Such a charge is one that accurately sets forth the law, is authorized by the indictment,
does not unnecessarily increase the State's burden of proof or unnecessarily restrict the
State's theories of liability, and adequately describes the particular offense for which the
defendant was tried. Id.
ISSUE ONE
To establish Appellant’s guilt, the State was required to prove beyond a reasonable
doubt that (1) Appellant, (2) intentionally, knowingly, or recklessly, (3) caused serious
bodily injury, (4) to Antonio Gonzales. Furthermore, under the law of parties, the evidence
would be sufficient if the State were able to prove, again beyond a reasonable doubt, that,
acting with the intent to promote or assist Glen Hooper in the commission of the offense
of aggravated assault, he solicited, encouraged, aided, or attempted to aid Hooper in the
commission of that offense. We will first analyze whether the evidence was sufficient to
establish Appellant’s guilt under the law of parties. If the evidence is sufficient to establish
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Appellant’s guilt under that theory, it becomes unnecessary for us to analyze whether he
would also be guilty as the primary actor.
As to the four elements listed above, the only element Appellant challenges is the
question of whether he, or a person for whom he was criminally responsible, was the
person responsible for Gonzales’s injuries. In that regard, the testimony established that
he was present at the scene of the assault and he was sufficiently close to the action to
have Segura’s blood on his clothing. Evidence also established that he was either aiding
or being aided by Glen Hooper in the commission of that assault and the statements
attributed to Appellant, “outlaw, one hitter quitter,” and “I just got me one outside . . . a
Spanish guy, old Spanish guy,” can be considered as circumstantial evidence of his
personal involvement in the blows that felled Gonzales. Considering this evidence in the
light most favorable to the verdict and based on that evidence and reasonable inferences
to be drawn therefrom, we find a rational trier of fact could have found the essential
elements of the offense of aggravated assault beyond a reasonable doubt. Issue one is
overruled.
ISSUE TWO
By his second issue, Appellant contends the trial court erred when it denied his
motion for a mistrial following the State’s alleged improper comment on his right to not
testify. Reflecting on Gonzales’s death as an unfortunate result of a bar fight—defense
counsel argued that Appellant did not have the requisite intent to cause serious bodily
injury. In response, the State postulated, “[Appellant] wishes Mr. Gonzales hadn’t died .
. . .” (Emphasis added.) Appellant’s counsel immediately objected to the prosecutor’s
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statement as a comment on Appellant’s failure to testify. The trial court sustained the
objection and instructed the jury to disregard the prosecutor’s comments. It also denied
Appellant’s subsequent request for a mistrial.
A mistrial is an extreme remedy that is reserved for a very narrow classification of
circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004)). A mistrial is used to halt proceedings when the error involved
makes the expenditure of further time and expense wasteful and futile. Id. (citing Ladd
v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). The decision to grant a mistrial is
governed by the particular facts of the case. Id. We review a trial court’s decision to deny
a motion for mistrial for an abuse of discretion. Id. The denial of the motion for mistrial
must be upheld if, when viewing the evidence in the light most favorable to the denial, it
was within the zone of reasonable disagreement. See id.
Ordinarily, a prompt instruction to disregard will cure any prejudice arising from an
inadvertent statement. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000);
Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). In determining whether an
offending statement is “highly prejudicial and incurable,” reviewing courts have applied
the three-factor balancing test articulated in Mosley v. State, 983 S.W.2d 249, 259 (Tex.
1998). In their analysis, courts have looked at: (1) the severity of the misconduct (i.e., the
magnitude of the prejudicial effect of the prosecutor’s remark); (2) the curative measures
taken (the efficacy of any cautionary instruction by the trial judge); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the conviction).
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Here, the prosecutor’s brief statement was not uninvited, as defense counsel had
already made argument regarding Appellant’s intent with respect to the nature of the
injuries sustained. Furthermore, because someone’s state of mind subsequent to an
offense is irrelevant to his subjective intent at the time the offense was committed, it
cannot be said with any degree of certainty that the prosecutor’s misstatement even
prejudiced him. Also, the trial court took immediate action in admonishing the jury to
disregard the prosecutor’s statement. That instruction was clear and specific and we can
presume the jury followed that instruction. Finally, the ultimate fact contained in the
statement (Gonzales’s death) was not fact determinative of the offense. The evidence
clearly and sufficiently established that the victim had sustained a serious bodily injury.
Under these facts, we cannot say that the prosecutor’s statement was highly prejudicial
and incurable. Accordingly, the trial court did not err in denying Appellant’s motion for
mistrial. Issue two is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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