Gregorio Garcia, Jr. v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
GREGORIO GARCIA, JR., No. 08-16-00242-CR
§
Appellant, Appeal from
§
v. 409th District Court
§
THE STATE OF TEXAS, of El Paso County, Texas
§
Appellee. (TC # 20150D02898)
§

OPINION

The sole issue in this appeal is whether the trial court erred in failing to grant a mistrial

based on the prosecutor’s closing argument. In particular, Appellant Gregorio Garcia contends

that in closing argument the prosecutor (1) attacked defense counsel, (2) referenced evidence never

admitted at trial, (3) asked the jury to consider the range of punishment in the guilt/innocence

phase of trial, (4) lowered the burden of proof to convict, and (5) improperly used character

evidence. While we disapprove of some of the prosecutor’s arguments, we are convinced that for

the complaints preserved for review, the trial court’s instructions ameliorated any potential harm,

or the complained of comments do not merit reversal. We affirm the conviction below.
 BACKGROUND

A jury convicted Appellant of aggravated sexual assault of child. The indictment alleged

that on or about July 1, 2010, Appellant intentionally and knowingly caused the penetration of his

penis into the mouth of N.M., who at the time was younger than fourteen.1 As with many cases of

this type, the jury was confronted with the child victim’s claim of the assault, and the defendant’s

denial that anything ever happened. The outcry was made some four years after the event.

Consequently, there was no physical evidence of the assault. There were no other eyewitnesses.

The record does show that Appellant began dating N.M.’s mother in 2008, and soon moved

into her house. Appellant was age 54 at the time and the mother was 28. At the time, the mother

had two children, N.M. who was eight years old, and a younger daughter, age three. Mother

became pregnant with Appellant’s son in the spring of 2009. N.M. testified that one day she and

her younger sister were playing with Barbie dolls. Her mother, pregnant at the time, was in the

shower. Appellant was in an adjacent bedroom watching TV. Appellant called N.M. to come into

the bedroom. When she did, he had her lock the door. Appellant was dressed in a t-shirt and boxer

shorts. He pulled down his boxer shorts while he was lying down on the bed and he told N.M. to

lick his penis. According to N.M., Appellant “put his hand on the back of my head and he pushed

it down.” N.M.’s younger sister was knocking on the door while the incident occurred. When it

became apparent that the mother finished her shower, Appellant told N.M. to leave.

The mother gave birth to Appellant’s son in December 2009. A year and month following

the birth, Appellant and mother had a falling out, and she had him leave the house. In 2014, some

four years after the event, N.M. confided in her mother what had happened back in 2009. Mother

claims that she reported the matter to the police within days of the outcry. N.M. described the

1
We use only the child’s initials, and intentionally do not identify family members by name to protect the child’s
identity.

2
event in a videotaped interview taken at the Child Advocacy Center. The video was admitted at

trial by Appellant, who emphasized some claimed discrepancies between the account given in the

2014 interview and N.M.’s trial testimony in 2016.

Appellant testified on his own behalf, and denied the incident ever occurred. He claimed

the house had no locks on the interior doors, and that he did not own a pair of boxer shorts as N.M.

described. One of Appellant’s adult daughters from a prior marriage had been sexually assaulted

while at college, and he contended that experience would cause him never to consider doing the

things he is accused of here. His counsel also pursued an additional defense. As alleged in the

indictment, the aggravated sexual assault required proof that Appellant’s sexual organ penetrated

the mouth of the child. Based on claimed inconsistencies in the outcry and initial reports,

Appellant’s counsel argued there was no actual penetration, and that the State had overcharged an

indecency by contact case as an aggravated sexual assault.

Nonetheless, the jury convicted Appellant of aggravated sexual assault of a child, and

assessed a seventeen-year prison term and the maximum possible fine.

DISCUSSION

In a single issue, Appellant argues that the prosecutor engaged in improper argument

during closing arguments, for which the trial judge should have granted a mistrial.

Standard of Review and Applicable Law

The primary purpose of closing argument is to facilitate the jury’s analysis of the evidence

so they reach a just and reasonable verdict based only on the evidence admitted at trial. Campbell

v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980). Proper jury argument includes

four areas: (1) summation of the evidence presented at trial, (2) reasonable deductions drawn from

that evidence, (3) answers to the opposing counsel’s argument, or (4) a plea for law enforcement.

3
Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000), citing McFarland v. State, 845

S.W.2d 824, 844 (Tex.Crim.App. 1992). In determining whether a prosecutor’s statements were

improper, we consider the remarks in the context in which they appear, examining the “entire

argument, not merely isolated sentences.” Robbins v. State, 145 S.W.3d 306, 314-15 (Tex.App.--

El Paso 2004, pet. ref’d), citing Rodriguez v. State, 90 S.W.3d 340, 364 (Tex.App.--El Paso 2001,

pet. ref’d); see also Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).

The right to insist on proper jury argument is a forfeitable right. Hernandez v. State, 538

S.W.3d 619, 622 (Tex.Crim.App. 2018), citing Cockrell v. State, 933 S.W.2d 73, 89

(Tex.Crim.App. 1996). To preserve error for appeal, a defendant must object and pursue that

objection to an adverse ruling. Hernandez, 538 S.W.3d at 622-23 (“Erroneous jury argument must

be preserved by objection pursued to an adverse ruling; otherwise, any error from it is waived.”).

The traditional three steps of error preservation include (1) an objection, (2) a request for an

instruction to disregard, and (3) a motion for mistrial. Young v. State, 137 S.W.3d 65, 69

(Tex.Crim.App. 2004).

Appellant’s precise complaint is that the trial court erred in failing to grant a mistrial. A

mistrial is the trial court's remedy for improper conduct that is “so prejudicial that expenditure of

further time and expense would be wasteful and futile.” Hawkins v. State, 135 S.W.3d 72, 77

(Tex.Crim.App. 2004), quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). We

review the failure to grant a mistrial based on an improper jury argument for an abuse of discretion.

Hawkins, 135 S.W.3d at 76-77. A mistrial is only appropriate for “highly prejudicial and incurable

errors.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), quoting Wood v. State, 18

S.W.3d 642, 648 (Tex.Crim.App. 2000). “In reviewing a trial court’s ruling on a motion for

4
mistrial, an appellate court must uphold the trial court’s ruling if it was within the zone of

reasonable disagreement.” Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007).

In determining whether the trial court abused its discretion by denying a motion for mistrial

based on an improper jury argument, we apply the so-called “Mosley” test, and balance the

following three factors: (1) the severity of the misconduct (the prejudicial effect of the

prosecutor’s remarks); (2) the efficacy of any cautionary instruction by the judge; and (3) the

certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259

(Tex.Crim.App. 1998); see also Archie, 221 S.W.3d at 700 (noting that whether a mistrial should

have been granted involves most, if not all, of the same considerations that attend a harm analysis,

but is not itself a harm analysis under TEX.R.APP.P. 44.2); Hawkins, 135 S.W.3d at 77.2

Appellant contends that the prosecutor in closing argument improperly (1) attacked defense

counsel, (2) relied on evidence outside the record, (3) asked the jury to consider the range of

punishment in guilt/innocence, (4) lowered the burden of proof to convict, and (5) improperly used

character evidence. With the above standards in mind, we examine each of the complained of

comments.

Attacks on Defense Counsel

A prosecutor may not strike at a defendant by attacking the character of defense counsel.

See Mosley, 983 S.W.2d at 258-59. The more egregious examples of such attacks include claims

that defense counsel has manufactured evidence, suborned perjury, or has a lesser ethical

2
No claim is made here that the prosecutor’s comments denied Appellant his constitutional right to due process or a
fair trial. And indeed, a prosecutor’s improper comments are generally considered non-constitutional errors. Brown
v. State, 270 S.W.3d 564, 572 (Tex.Crim.App. 2008)(“Mosley' s holding suggests that most comments that fall outside
the areas of permissible argument will be considered to be error of the nonconstitutional variety.”); Martinez v. State,
17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000)(comment striking at counsel viewed as non-constitutional error). Even
viewed through the prism of TEX.R.APP.P. 44.2(b), a non-constitutional error requires reversal only when it affects a
substantial right, meaning that the error must have “a substantial and injurious effect or influence in determining the
jury’s verdict.” Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App. 2005).

5
obligation than the prosecution. See Wilson v. State, 938 S.W.2d 57, 58 (Tex.Crim.App. 1996);

Mosley, 983 S.W.2d at 258. A prosecutor also flirts with improper argument by claiming defense

counsel is subverting the truth. Mosley, 983 S.W.2d at 259 (“[A] prosecutor runs a risk of

improperly striking at a defendant over the shoulder of counsel when the argument is made in

terms of defense counsel personally and when the argument explicitly impugns defense counsel’s

character.”).

Appellant contends that this portion of the State’s closing argument improperly attacked

defense counsel:

[N.M.] got on the stand and told her story. [N.M.] was the one that told her mom
what happened. [N.M.] was the one that told her sister what happened. [Defense
Counsel] towards the end of his closing got up here and said that outcry was made
in May and not reported to the officers or to the police until October. Completely
untrue. [Defense Counsel] has been trying to confuse you the entire time.
Appellant’s counsel objected, but the objection complained that the prosecutor misstated the

evidence and that the argument was made in “bad faith.” On appeal, however, Appellant

complains that this statement is a personal attack on his counsel. We reject that claim as a matter

of error preservation. A complaint raised on appeal is not preserved if the legal basis of the

argument varies from the objection made at trial. Lovill v. State, 319 S.W.3d 687, 691-92

(Tex.Crim.App. 2009). In other words, the complaint raised on appeal must comport with the

objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012). While

Appellant’s reply brief claims the trial court would have understood the objections as an attack on

counsel, we simply disagree. Misstating the evidence and an attack on counsel are two different

objections. An objection that an argument is made in bad faith is so general as to have no meaning.

Moreover, the objection that was actually made (“That is a total misstatement of the

evidence”) would have been properly overruled. The prosecutor accurately represented one

version of the facts developed at trial. Appellant argued that N.M.’s mother had made an allegation

6
of the sexual assault in a domestic relations hearing held in May of 2014. The outcry and report

to the police occurred in October 2014. A five-month delay in going to the police would have cast

a further shadow over the report, particularly given that the N.M.’s mother was ultimately

unsuccessful in her domestic relations case, which terminated in August 2014. Appellant advanced

this argument in his own closing.

The mother, however presented a different version of events. She claimed that the issue

came up in the domestic relations suit when N.M.’s aunt refused to testify on behalf of a “child

molester.” The aunt reached that conclusion based on the N.M.’s younger sister telling the aunt

that Appellant had kissed N.M. on the lips and patted her bottom. The aunt was not relating the

specific incident of aggravated sexual assault made the basis of the indictment. The prosecutor

argued from that testimony that there was no delay between the outcry of the aggravated sexual

assault and the report to the police. He was also responding to Appellant’s closing, which is

another of the permissible parameters for closing. See Mosley, 983 S.W.2d at 256; Davis v. State,

268 S.W.3d 683, 713 (Tex.App.--Fort Worth 2008, pet. ref’d).

Appellant bolsters the “attack on counsel” argument with additional comments made by

the prosecutor:

[Defense Counsel] has been trying to confuse you the entire time -- to confuse you
all the entire time by two different outcries. Well, when did she outcry? When did
it happen? Kissing, sexual penetration, not penetration. What is going on here?
He would ask Mr. Zimmerly the same thing. ‘How long were you on the police
force for?’ ‘25 years.’ ‘And you are unbiased?’ And he is like, ‘Well, am I
unbiased as a police officer or as a forensic interviewer?’
[Defense Counsel] has not been clarifying any of those questions to any of those
witnesses because it is not to his client's favor. Now, although what we say is not
evidence, don't think we are not trying to persuade you. That is our job right now.
If I didn't believe in this case we wouldn't be here in trial today. Ultimately, we
have discretion as an assistant district attorney to go forward with the case or to not
go forward with the case. After looking at the case and after pre-trialing with
[N.M.], [the younger sister] and her mother and some other family members, we

7
 went forward with the case. [Defense Counsel] is right. There was enough to go
forward with the case in terms of what we had.
Even if these arguments exceeded the bounds of proper argument, no objection was lodged

at trial, and we cannot consider any error on appeal. Threadgill v. State, 146 S.W.3d 654, 667

(Tex.Crim.App. 2004)(defendant forfeited any complaint that the prosecutor during closing

argument struck at the defendant over the shoulders of his counsel by failing to object); Wead v.

State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004)(holding court of appeals erred by considering

defendant's complaint of improper comment regarding his failure to testify when defendant did not

raise such complaint in the trial court).

Evidence Outside the Record

A prosecutor cannot use closing argument to argue facts that are outside the record. Everett

v. State, 707 S.W.2d 638, 641 (Tex.Crim.App. 1986). Appellant calls our attention to this

statement in the State’s closing as the prosecutor tried to explain why N.M.’s younger sister was

not called to testify:

Detective Alvarado knew he had an uphill battle. Four-year outcry. You have got
a mother that maybe isn’t liked because of her profession. You have another
daughter that was there for one of the kissing incidents that happened, but she may
be too young to speak with or to actually get a credible answer from. That’s why
you didn’t hear from [the younger sister]. I could have put [the younger sister] on
that stand. We had the discussion beforehand. That is why you didn’t hear from
[the younger sister]. But she said, ‘You know what, I was, like, three. I think I saw
something, but --’
Appellant’s trial counsel promptly objected, and the trial court sustained the objection. But neither

a motion to disregard or motion for mistrial was urged. The State first responds that the failure to

move for an instruction or mistrial, forfeits the error. We agree. See Hernandez, 538 S.W.3d at

623 (“Erroneous jury argument must be preserved by objection pursued to an adverse ruling;

otherwise, any error from it is waived.”).

8
 Appellant also points another portion of the prosecutor’s argument where he paraphrased

and overstated N.M.’s testimony. In his closing, the prosecutor claimed that N.M, testified that “I

coughed and I gagged. I don't remember the taste. I don't know what it tastes like. I don't

remember what it looked like. This is not something I want to talk about.’" N.M. did testify that

she coughed. In her videotaped interview, N.M. stated that she did not recall what Appellant’s

penis looked like. She did not testify, or say anything in her statement about taste, and she

explicitly denied that Appellant ejaculated. Appellant’s counsel objected that the statement was

outside the record. The trial court overruled the objection,3 but admonished the jury that they

would collectively recall the testimony better than the court.

The State concedes N.M. never testified about taste in describing the event. Rather, it

claims the statement is only a “slight” deviation from the record; Appellant contends the

embellishment is a “gross misstatement of the facts.” Applying the Mosely framework, we agree

the embellishment was improper, but at most it refers to one of three senses (taste), when the actual

testimony refers to only two sensations--sight and touch. While the overstatement is perhaps more

than “slight,” we conclude the trial court’s instruction ameliorated any harm. The trial court

reminded the jury to use their collective recollection of the actual testimony. That instruction is

generally considered effective in remedying counsel’s overstatement of the evidence. See Long v.

State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991)(although court overruled objection, its sua

sponte instruction that jurors “recall the evidence as you heard it . . . what the lawyers say is not

evidence” was sufficient to cure any error from prosecutor's comment); Jackson v. State, 50

S.W.3d 579, 590 (Tex.App.--Fort Worth 2001, pet. ref'd)(court's instruction to “recall the

evidence” was tantamount to instruction to disregard that cured improper jury argument). The jury

3
The State claims that Appellant forfeited the error by not obtaining a ruling. Our record, however, shows the trial
judge clearly stated “overruled.” The State’s waiver argument is not well-taken.

9
in fact asked for specific read-backs of testimony regarding the “coughing” and we have no reason

to conclude they relied on the prosecutor’s single, but improper, reference to taste. And while the

factual disputes in this trial were sharp, and the State’s case well contested at trial, we cannot

conclude that the single reference to taste merits a mistrial. “Only in extreme circumstances, where

the prejudice is incurable, will a mistrial be required.” Hawkins, 135 S.W.3d at 77. That standard

is not meet here.

Range of Punishment

It is generally improper for the State to comment on punishment during the guilt-innocence

stage of trial. See McClure v. State, 544 S.W.2d 390 (Tex.Crim.App. 1976); Cherry v. State, 507

S.W.2d 549 (Tex.Crim.App. 1974). That kind of comment is more troublesome in a case where

the jury must decide between a greater and lesser included offense, and the range of punishment

might steer them to one crime or the other. See McClure, 544 S.W.2d at 393 (explaining that the

harm was not that the jury was informed of the punishment ranges, but that the jury was urged to

consider the amount of punishment in deciding between murder and manslaughter); Browne v.

State, 483 S.W.3d 183, 201 (Tex.App.--Austin 2015, no pet.)(noting the same and collecting

cases). Conversely, isolated references to the punishment range would rarely call for reversal. See

Cifuentes v. State, 983 S.W.2d 891, 893 (Tex.App.--Houston [1st Dist.] 1999, pet. ref'd).

Appellant focuses on this portion of the prosecutor’s argument as improperly injecting the

range of punishment into the guilt innocence phase of the trial:

What else did he say? ‘You like young women, right?’ ‘Yeah, so does Mick Jagger
and Donald Trump.’ You’re joking right now. You are kidding. You are kidding
me. If you find him guilty, he is going into custody as soon as that verdict comes
back and then we are going to punishment and then the minimum he is facing is
five years, the maximum 99 or life and up to a $10,000 fine if you want to put that
in there.

10
The trial court sustained Appellant’s objection and sua sponte instructed the jury to disregard this

argument. The trial court then denied a motion for mistrial.

We find no abuse of discretion for several reasons. First, Appellant’s counsel brought the

issue up first in his own closing, referencing Appellant same testimony. And in arguing that the

State intentionally chose to pursue the case as an aggravated sexual assault charge, rather than an

indecency with a child by contact or indecent exposure, his counsel had explicitly told the jury that

the punishment range was five years to life.

Additionally, the reason the State referenced the punishment range was not to steer the jury

between charges, as there was no lesser included offense at issue here. Instead, it used the

punishment range to emphasize the flippancy of one of Appellant’s testimonial answers in the face

of a serious charge. Cf. Good v. State, 723 S.W.2d 734, 736 (Tex.Crim.App. 1986)(a prosecutor

may allude to the demeanor of a testifying witness during closing argument, so long as the jury

had the same opportunity to observe the demeanor during the witness’s testimony); see also

Hinojosa v. State, 433 S.W.3d 742, 763 (Tex.App.--San Antonio 2014, pet. ref’d)(proper jury

arguments may include argument as to the truthfulness of a witness’s testimony so long as the

argument is based on the evidence presented and reasonable deductions from such evidence,

including the complainant’s demeanor while testifying). And even if viewed as error, the single

reference to the punishment range would not require a new trial. Compare Bruton v. State, 921

S.W.2d 531, 536 (Tex.App.--Fort Worth 1996, pet. ref’d)(holding that a single reference to the

punishment range “was not of such a damning character that it would be impossible to remove the

harmful impression from the minds of the jurors”), with McClure, 544 S.W.2d at 393(holding

prosecutor’s reference to the punishment range improper where the prosecutor repeatedly argued

the difference in punishment ranges between the greater and the lesser-included offense). Finally,

11
the trial judge instructed the jury to disregard the comment, which in most instances will cure any

claim of harm. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996).

Lowering the Burden of Proof

The jury was properly charged that it could only find Appellant guilty if the State proved

each element of the crime beyond a reasonable doubt. Appellant contends, however, that the

prosecutor asked the jury to apply a different standard when he made this argument:

So when you go back there and after you deliberate and after you talk about it, if
you go back there and you say, ‘You know what, I think it happened.’ If you say,
‘I think it happened,’ that means you believe it happened. At that point, stop.
A jury of course could believe that “it happened” by a preponderance of the evidence, or

even by clear and convincing evidence, but still not be obligated to “stop” and render a guilty

verdict. See Abbott v. State, 196 S.W.3d 334, 344 (Tex.App.--Waco 2006, pet ref’d)(finding

similar closing argument was improper, but noting it did not merit reversal). Only if the State

proved each element beyond a reasonable doubt should the jury “stop” and fill out the verdict form.

Nonetheless, we conclude any error in the argument does not merit reversal. Appellant

properly objected that a juror’s “I think” belief is not the same as “I believe beyond a reasonable

doubt.” While the trial judge overruled the objection, the judge immediately reminded the jury

that “the burden of proof in all criminal cases in the State of Texas is beyond a reasonable doubt.

You, individually and collectively, will make the definition of beyond a reasonable doubt and

nobody else.” When the prosecutor resumed his argument, he acknowledged that the State needed

to prove its case beyond a reasonable doubt, and the State could not tell the jurors what that meant.

Applying the Mosely factors, we find the violation mild, the curative instruction, which was

acknowledged by the State, as effective, and even considering a closely contested case, any error

as not worthy of a new trial.

12
 Improper Used of Character Evidence

Under Rule 404(b) “[e]vidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character.” TEX.R.EVID. 404(b)(1). Appellant claims that the prosecutor did just that, by

pointing the jury to testimony about how Appellant French-kissed N.M. and patted her on the

bottom. The prosecutor made this argument regarding that evidence:

‘Did she tell you that she was kissed by the defendant?’ And that is where [Mother]
said yes. ‘Did she tell you that she was touched by the defendant?’ ‘Yes.’ Those
were like bonus points for you all to consider. He asked if there was corroborating
evidence from Detective Alvarado. And he wasn't allowed to talk. That is your
corroborating evidence. Other offenses that happened. We don't need to prove --

Appellant objected, and the trial court sent the jury out. The trial judge then asked the

prosecutor if he was “seriously trying to tell this jury that because somebody does A or B that is

not a crime -- or has not been charged with a crime means he is guilty of what you have indicted

him for?” The trial judge then warned that if the prosecutor “finished that argument in front of the

jury” the State would see what the trial court’s ruling was going to be. When the jury returned,

the trial court denied Appellant’s motion for mistrial, but it immediately instructed the jury that

the only offense they should be concerned about was the one in the charge and that they were

required to find that the State had proven each element of that offense beyond a reasonable doubt.

Under Rule 404(b) extraneous offense evidence might be admitted for a limited purpose,

such as proving motive, opportunity, intent, or several other specified purposes. TEX.R.EVID.

404(b). A defendant is entitled to seek an instruction defining that limited purpose. Delgado v.

State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007)(“[A] defendant is entitled to limiting

instructions on the use of extraneous offenses during the guilt phase only if he timely requests

those instructions when the evidence is first introduced.”). And the kind of conduct at issue here

13
(French-kissing and patting on the bottom) might have fit into one of those categories. See Brown

v. State, 6 S.W.3d 571, 578-79 (Tex.App.--Tyler 1999, pet. ref’d)(extraneous bad act of defendant

placing his hand on the child victim’s buttocks when he picked her up was probative of the

defendant’s state of mind); Poole v. State, 974 S.W.2d 892, 898 (Tex.App.--Austin 1998, pet.

ref’d)(evidence of extraneous sexual conduct explains how “a person in a position of authority,

custody, or care of a young child has developed an unnatural attitude and relationship toward that

child . . .”). The extraneous event evidence in this case came in without a limiting instruction. It

was first elicited by Appellant in cross-examination of the mother, and then admitted again by

Appellant when he introduced a videotape of N.M.’s forensic interview.

If evidence is admitted without a limiting instruction, it can be considered by the jury for

all purposes. Delgado, 235 S.W.3d at 251 (“Once evidence has been admitted without a limiting

instruction, it is part of the general evidence and may be used for all purposes.”); Hammock v.

State, 46 S.W.3d 889, 894 (Tex.Crim.App. 2001)(same); Irielle v. State, 441 S.W.3d 868, 880

(Tex.App.--Houston [14th Dist.] 2014, no pet.)(“[W]e hold that there was no error in the jury

charge because the ‘other wrongs or acts’ evidence was admissible for all purposes--including

character conformity--when appellant failed to request a limiting instruction at the time the ‘other

wrongs or acts’ evidence was admitted.”). Because the French-kissing and bottom-patting

evidence was admitted for all purposes, we cannot fault the prosecutor for arguing one of those

possible purposes.

But in any event, if the comment was improper, it does not merit reversal under the Mosley

factors. The comment was minimally prejudicial, because as the trial court noted, the prosecutor

never finishing the argument. The reference to “bonus points” is at best ambiguous, and can just

as easily be understood as corroborating N.M.’s credibility which had been attacked during the

14
trial. The trial judge promptly gave an instruction that would limit the jury to considering only the

offense outlined in the court’s charge (the indicted offense). We presume that the jury follows

curative instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998)(holding

that the jury is presumed to follow the court’s instructions); Martin v. State, 176 S.W.3d 887, 898

(Tex.App.--Fort Worth 2005, no pet.)(holding that jury is presumed to follow the instructions set

forth in the trial court’s charge). Any error in the argument does not require a mistrial.4

Appellant’s reply brief urges that the harm from the several arguments cannot be

considered piecemeal, but rather we must collectively consider how they prejudiced Appellant’s

case. But even collectively, those comments that were properly preserved do not meet the

relatively high threshold for demonstrating an abuse of discretion in denying Appellant’s motion

for mistrial. We overrule his single issue on appeal and affirm the conviction below.

August 31, 2018
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

4
Appellant’s brief also contends this last argument by the State was improper:

Ultimately, if you go back there and you find the defendant not guilty, you would have told [N.M.],
‘We don't believe you.’

[Defense Counsel]: Your Honor, that is beyond improper. To tell a jury that they are telling -- I will
withdraw it. I will withdraw it, Judge.

Appellant’s brief asserts that the Prosecutor withdrew his remark, and State makes that same statement in its brief.
That is not how the official transcript reads. But in any event, the objection was too general to form the basis of an
issue on appeal. Nor did the trial judge rule on the objection, and the issue was not pursued to an adverse ruling.
Hernandez, 538 S.W.3d at 622-23 (“Erroneous jury argument must be preserved by objection pursued to an adverse
ruling; otherwise, any error from it waived.”).

15