In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00034-CR
___________________________
STEVEN LARRASQUITU, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court No. 1660860D
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
I. INTRODUCTION
A jury found appellant Steven Larrasquitu guilty of two counts of indecency
with a child by contact and assessed his punishment at twenty years’ imprisonment for
each offense. The trial court sentenced Larrasquitu accordingly and ordered the
sentences to run consecutively.
On appeal, Larrasquitu raises two points:
(1) Did the trial court err by denying his motion for mistrial after the
prosecutor argued outside the record that before trial she had instructed the
complainant to refer to Larrasquitu as the “Defendant”?
(2) Did the trial court err by overruling his objection after the prosecutor
argued outside the record that Larrasquitu had obtained a second cell phone
after the complainant’s charges surfaced?
We hold that the trial court did not abuse its discretion by denying Larrasquitu’s
motion for mistrial because it admonished the jury to remember the evidence and
instructed the jurors to disregard the prosecutor’s comment. We further hold that the
prosecutor’s argument—that Larrasquitu had obtained a second phone after the
complainant’s outcry—was a reasonable deduction from the evidence and that the
trial court thus did not abuse its discretion by overruling Larrasquitu’s objection.
Accordingly, we overrule both of Larrasquitu’s points and affirm the trial court’s
judgments of conviction.
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II. LARRASQUITU’S POINTS
Larrasquitu’s two points complain about improper prosecutorial arguments
made during closing arguments. His two points are, however, in different procedural
postures. In Larrasquitu’s first point, the trial court sustained his objection, instructed
the jury to disregard the prosecutor’s comment, but denied his motion for mistrial.
And in his second point, the trial court overruled his objection to the prosecutor’s
argument.
A. APPLICABLE LAW
1. Law Common to Both Points
During closing argument, the State may (1) summarize the evidence, (2) make
reasonable deductions from the evidence, (3) answer opposing counsel’s arguments,
or (4) plead for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim.
App. 2011).
2. Denial of Motion for Mistrial
When a trial court sustains an objection and instructs the jury to disregard
improper argument but denies a defendant’s motion for mistrial, the issue is whether
the trial court abused its discretion by denying the mistrial. Hawkins v. State,
135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme
circumstances, such as when the improper argument causes incurable prejudice, that
is, the argument is “so prejudicial that expenditure of further time and expense would
be wasteful and futile.” Id. at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
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App. 1999)). In determining whether a trial court abused its discretion by denying a
mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial
effect); (2) the curative measures; and (3) the certainty of conviction absent the
misconduct. Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh’g).
Generally, an instruction to disregard improper jury argument suffices to cure
error. Davis v. State, 894 S.W.2d 471, 474 (Tex. App.—Fort Worth 1995, no pet.).
This general rule has, however, an exception: an instruction to disregard will not cure
the error when the jury argument is manifestly improper or extreme. Id. at 474–75. If
the prosecutor argues outside the record and injects personal opinion, an instruction
to disregard will cure the error unless the argument is clearly calculated to inflame the
jury and withdrawing the impression is impossible. Id. at 475.
3. Overruling an Objection
We review a trial court’s overruling an objection to improper jury argument for
an abuse of discretion. Winchester v. State, No. 02-19-00293-CR, 2020 WL 7258058, at
*3 (Tex. App.—Fort Worth Dec. 10, 2020, pet. ref’d) (mem. op., not designated for
publication). Provided the trial court’s decision falls within the zone of reasonable
disagreement, it does not abuse its discretion. Id.
When the trial court errs by overruling a defense objection that the
prosecutor’s argument exceeded the permissible bounds, we will not reverse the
judgment unless the error affected the defendant’s substantial rights. Tex. R. App. P.
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44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000). In
determining whether substantial rights were affected, we consider (1) the severity of
the misconduct (that is, the prejudicial effect of the prosecutor’s remarks), (2) the
presence or absence of any curative measures, and (3) the certainty of conviction
absent the misconduct. Freeman, 340 S.W.3d at 728.
B. FIRST POINT
In Larrasquitu’s first point, he argues that the trial court abused its discretion by
denying his motion for mistrial after the prosecutor argued outside the record that she
had instructed the complainant before trial to refer to him as the “Defendant.” We
hold that the trial court’s admonition to remember the evidence and instruction to
disregard the prosecutor’s comment cured any prejudice.
1. Background
For context, we begin with defense counsel’s observation during argument that
the complainant had consistently referred to Larrasquitu as the “Defendant” and not
as “Steve” or “Steven.” From this, defense counsel argued that someone had coached
the complainant, who was ten years old at the time of trial, to refer to Larrasquitu as
the “Defendant.”
During the State’s rebuttal, the prosecutor responded that the week before trial
while the complainant was sitting in the prosecutor’s office, the complainant balked at
calling Larrasquitu by his name, so the prosecutor and the complainant agreed to refer
to him as the “Defendant.” When defense counsel objected that the prosecutor was
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testifying, the trial court initially overruled defense counsel’s objection and instructed
the jury to remember the evidence. But when defense counsel persisted in his
objection, the trial court sustained the objection and instructed the jury to disregard
the prosecutor’s comment. The trial court, however, denied defense counsel’s motion
for mistrial.
2. Discussion
The State concedes that the prosecutor’s argument went outside the record, but
it argues that the trial court’s admonition to remember the evidence and instruction to
disregard the prosecutor’s comment cured any prejudice. See Davis, 894 S.W.2d at
474–75. We agree.
a. The use of the two terms
By our count, the complainant referred to Larrasquitu four times as the
“Defendant” and once as “Steve.” The record shows why she switched from one
name to the other.
b. Direct examination
While the complainant was on the stand, the prosecutor initially referred to
Larrasquitu as “Steven.” After the complainant identified Larrasquitu in court, the
prosecutor transitioned to calling Larrasquitu the “Defendant” fairly quickly. The trial
court referred to him as the “Defendant,” as well. Larrasquitu had been referred to as
the “Defendant” twenty times by the prosecutor, and one time by the trial court, by
the time the following exchange occurred,
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[Prosecutor:] Q. You mean, no one else besides you and -- who else was
in the room?
[The complainant:] A. Do I say his name?
Q. You can say his name if you want to, or we can call him the
Defendant like we’ve been calling him.
A. The Defendant.
Q. Okay. So you and the Defendant -- was there anybody else in
the room?
A. Nobody else. Just me and the Defendant.
Consequently, the reason that the complainant referred to Larrasquitu as the
“Defendant” shows itself from the testimony on the record and before the jury.
After this exchange, the prosecutor continued to refer to Larrasquitu as the
“Defendant.” On one occasion, the complainant referred to him as the “Defendant,”
as well. Thus, throughout the prosecutor’s direct examination, after the complainant
identified Larrasquitu in court, the prosecutor consistently referred to Larrasquitu as
the “Defendant,” as did the complainant.
c. Cross-examination
During cross-examination, defense counsel referred to Larrasquitu twice as
“Steve,” and the complainant also referred to him as “Steve.” Comparing this to the
direct examination, we see that the complainant—by referring to Larrasquitu as
“Steve”—followed the lead of the person questioning her.
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Thereafter, defense counsel continued to refer to Larrasquitu as “Steve” or
“Steven.” But on two occasions, even defense counsel referred to him as the
“Defendant.” One of the two times that defense counsel referred to Larrasquitu as
the “Defendant” was when she underscored that the complainant, when questioned
by the prosecutor, had referred to Larrasquitu as the “Defendant.”
d. Redirect examination
On redirect, the prosecutor continued to refer to Larrasquitu as the
“Defendant.” And the complainant mimicked the prosecutor by identifying him as
the “Defendant.”
e. Recross-examination
On recross-examination, defense counsel referred to Larrasquitu as the
“Defendant” once.
f. Analysis
The record shows that the prosecutor, the trial court, and even defense counsel
referred to Larrasquitu as the “Defendant” and that the complainant did so only after
asking the prosecutor how she was supposed to refer to him. Even then, when
defense counsel referred to Larrasquitu as “Steve,” the complainant followed her
example. Thus, the trial court’s admonishment to remember the evidence would have
reminded the jury of record evidence that explained why the complainant had referred
to Larrasquitu as the “Defendant” and that showed that she did not refer to him
exclusively as the “Defendant.”
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In light of this record, the prosecutor’s argument was not so manifestly
improper or extreme as to render the trial court’s instruction incapable of effectuating
its curative purpose. See id. at 474. Accordingly, we hold that the trial court did not
abuse its discretion when it denied Larrasquitu’s motion for mistrial, and we overrule
his first point.
C. SECOND POINT
In Larrasquitu’s second point, he contends that the trial court abused its
discretion by overruling his objection, after the prosecutor argued outside the record,
that Larrasquitu had obtained a second cell phone after the complainant’s charges
surfaced.
1. Background
During final arguments, the prosecutor summarized the complainant’s
testimony that Larrasquitu had taken pictures of her with his phone while she had
performed the “evil pose” and then argued that after the complainant had made her
allegations, Larrasquitu had obtained a new phone. Defense counsel objected that the
prosecutor was arguing outside the record and was testifying. The trial court
overruled defense counsel’s objection.
2. Discussion
Larrasquitu testified that when he had left the home in which he had lived with
the complainant and her mother, he had taken his “phone”—not his “phones”—and
he also testified that when he had appeared for his interview with a detective, he had a
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different phone. The complainant made her initial allegations on August 17, 2020,
and the detective interviewed Larrasquitu about six weeks later on October 8, 2020.
Although Larrasquitu argues that the State failed to ask whether he had multiple
phones or whether he had purchased a new phone, we conclude that the argument
that Larrasquitu had obtained a new phone after the complainant’s allegations arose is
a reasonable deduction from the evidence. See Freeman, 340 S.W.3d at 727. Thus, we
hold that the trial court did not abuse its discretion by overruling Larrasquitu’s
objection. We overrule Larrasquitu’s second point.
III. CONCLUSION
Having overruled Larrasquitu’s two points, we affirm the trial court’s
judgments of conviction.
/s/ Brian Walker
Brian Walker
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 19, 2023
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Steven Larrasquitu v. the State of Texas
Combined Opinion