Affirmed and Memorandum Opinion filed September 2, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00805-CR
JESSIE MARTIN PENA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR52099
MEMORANDUM OPINION
Appellant Jessie Martin Pena appeals his felony conviction for the offense of
aggravated assault against two public servants. Appellant challenges the
sufficiency of evidence to support his conviction, complains that the trial court
erred in failing to grant his motion for mistrial, and disputes the trial court’s ruling
on his objections to statements made by the prosecutor during closing argument.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2018, officers for the Midland Police Department were
dispatched to a residence at 509 Ruby Street in response to a 9-1-1 call. The caller
had locked himself in the bedroom of the residence and reported a threat of another
man whom he said was carrying a gun. In response the call, Officers Callie Ives
and Hailee Pepper with the Midland Police Department drove to the residence.
Immediately after they exited their patrol car and started toward the residence, they
saw appellant step on the porch. Officer Ives asked appellant to come toward the
officers. As he began in the opposite direction, she told him to stop and notified
him that they were police officers. Appellant then darted through a gate leading to
the backyard of the residence and ran toward the back fence. Ives and Pepper
chased him into the backyard where he began climbing up the back fence.
Shots were fired; no one was struck.
Two of the shots were fired from Callie Ives’s service weapon toward
appellant, so in accordance with its usual practice, the Midland Police Department
engaged the Texas Rangers to independently lead the investigation. Among other
evidence, the investigation yielded a .380 Bersa automatic handgun on the opposite
side of the fence appellant had been climbing and one shell casing in the backyard
in the area near the fence where appellant abandoned flight and surrendered.
Appellant was arrested and ultimately charged by indictment on two counts
of aggravated assault against a public servant based on allegations that appellant
was carrying a gun that he pointed and fired at Ives and Pepper as he came down
from the fence.
Appellant’s trial commenced and he pleaded “not guilty”. The State
presented the two complainants/responding officers, as well as the other officers
2
who responded to the call, investigated the scene, and performed forensic analysis
of the firearms and casings.
Ives and Pepper both described the events occurring as they perceived them
leading up to appellant’s arrest. Each of the officers also sponsored their body-
cam videos as exhibits which were played to the jury.
Officer Pepper testified that as she saw appellant begin to climb the fence,
she could see a firearm in appellants left hand, and that he was pointing it back
toward the officers. According to Officer Pepper, appellant fired his weapon first
and Officer Ives returned fire twice. She testified that as soon as Officer Ives fired,
appellant “completely [let] go and [fell] on his back from the fence.”
Officer Ives also testified that she saw appellant had a gun, and that she
could see appellant making a motion toward her and Officer Pepper, but did not
hear appellant fire his gun before firing her gun. Officer Pepper asked appellant
where the firearm was, and he stated it was over the fence. Appellant, who was not
injured, was secured in handcuffs and taken to the patrol car by Officer Pepper.
The physical exhibits included the weapons fired and shell casings found,
and photographic exhibits showed the scene investigation, including photos of the
backyard showing where the physical evidence was discovered.
Appellant presented his mother and two officers not presented by the State.
Appellant’s mother testified that appellant was right-handed and not ambidextrous.
Officer Stephen Truex with the Midland Police Department testified about the
collection of the shell casing, noting that the .380 shell casing was found “in
between some cracks like the shingles and the wood”. Texas Ranger Jeffery
Strain testified that he had instructed Ives and Pepper not to draft a written
statement. Strain confirmed that no projectiles were found, no trajectory analysis
3
was done, and no three-dimensional imaging or sound analysis was completed.
During Officer Pepper’s testimony and during the course of discussing the
events depicted on her body-cam, appellant’s counsel objected several times to
questions seeking to elicit testimony and testimony about Pepper’s perception of
the first shot and its source as “calling for speculation”. The court sustained
appellant’s objection and instructed the jury to disregard Pepper’s answer but
refused to grant appellant’s request for a mistrial.
The State’s final closing arguments drew various objections from appellant’s
counsel, including his objections: (1) that one of the prosecutor’s comments about
“Mr. Frost’s” disposition toward a round-trip to the moon amounted to “striking at
appellant over his lawyer’s shoulders”; (2) that in posing the rhetorical question—
"What reason do [Ives and Pepper] have to lie?”, the prosecutor impermissibly
vouched for their credibility as witnesses; (3) that the prosecutor’s statement “That
is guilt beyond a reasonable doubt” made in reference to his summary description
of evidence constituted impermissibly vouching for the strength of his own case.
The trial court overruled each of these objections.
After deliberating, the jury found appellant guilty of both counts and the
court assessed punishment. The Court entered a judgment in accordance with the
verdict and a sentence of 35 years Institutional Division of the Texas Department
of Criminal Justice on both counts. Appellant contemporaneously moved for new
trial and filed this appeal.
II. ISSUES AND ANALYSIS
Appellant raises five “points of error” on appeal: a challenge to sufficiency
of evidence to support his conviction; a due process violation; a challenge to the
court’s failure to grant a mistrial during Pepper’s testimony; a challenge to the
4
court’s overruling of one objection asserted during the State’s closing argument; a
challenge to the court’s overruling of two other objections asserted during the
State’s closing Argument. In substance, to the extent the first and second points of
error are distinguishable, they are best treated together as a single issue—(“A.
Sufficiency of the Evidence”). Appellant’s third “point of error” stands as a single
issue—(“B. Denial of Motion for Mistrial”). Appellant’s fourth and fifth points of
error involve the court’s ruling on three objections during closing arguments;
appellant’s fifth point of error challenges two discrete court rulings which each
demand unique analysis, but those two rulings as well as the ruling challenged in
appellant’s fourth point of error are governed by the same legal standard pertaining
to permissible closing arguments. So we address those last three issues under a
single subheading, (C. Alleged Improper Statements of Counsel during Closing
Arguments).
A. Sufficiency of Evidence
In his first point of error, appellant challenges the sufficiency of evidence to
support his conviction for aggravated assault of a public servant. In evaluating
this complaint, we view the evidence in the light most favorable to the verdict.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on
appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d
5
611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we
presume the jury resolved conflicts in favor of the prevailing party. Turro v. State,
867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt,
we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
The indictment alleged in two counts, that appellant “intentionally and
knowingly threatened [Hailee Pepper and Callie Ives] with imminent bodily
injury” and that during the commission of the assault “use[d] and exhibit[ed] a
deadly weapon”, that Hailee Pepper and Callie Ives were public servants and that
he knew that they were public servants. One commits the offense aggravated
assault on a public servant by intentionally or knowingly threatening a public
servant with imminent bodily injury while using or exhibiting a deadly weapon
during the commission of the offense. See Tex. Penal Code Ann. § 22.01(a)(2); §
22.02(a)(2), (b)(2)(B). The trial court’s jury-charge instructions tracked the
indictment (using disjunctives), and the instructions were consistent with the
language for aggravated assault of a public servant under the Penal Code.
Intent may be inferred from circumstantial evidence, including acts, words,
and conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004);
Jones v. State, 500 S.W.3d 106, 113 (Tex. App.—Houston [1st Dist.] 2016, no
pet.). It is well settled that a threat may be communicated by action, conduct, or
words. See McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). The
Texas Penal Code defines “bodily injury” to mean “physical pain, illness, or any
impairment of physical condition.” Tex. Penal Code § 1.07(a)(8). A firearm is
considered a deadly weapon. Tex. Penal Code § 1.07(a)(17)(A). The act of
pointing a loaded gun at someone, by itself, is threatening conduct that supports a
conviction for aggravated assault. Mitchell v. State, 546 S.W.3d 780, 786 (Tex.
6
App.—Houston [1st Dist.] 2018, no pet.) Fagan v. State, 362 S.W.3d 796, 799
(Tex. App.—Texarkana 2012, pet. ref’d).
Appellant does not dispute his possession of the Bersa .380. Rather, the
focal point of appellant’s sufficiency challenge concerns proof of his use or
exhibition of the gun to threaten the officers; specifically, he contends that the
officers presented “completely differing versions of testimony concerning whether
defendant/appellant actually pointed a gun at anyone”. An appellate court must
give deference to a jury’s decision regarding what weight to give contradictory
testimonial evidence because the decision is most likely based on an evaluation of
credibility and demeanor, which the jury is in the better position to judge. See
Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008). Even accepting
that there may be conflicting evidence regarding appellant’s firing of the weapon,
such evidence does not operate to eviscerate the evidence supporting the jury
verdict, proving that appellant did point and/or fire the weapon in Ives and
Pepper’s direction. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App.
2017); see also Jones v. State, 500 S.W.3d at 113.
The jury heard evidence from both Pepper and Ives that would allow the jury
to conclude that appellant intentionally threatened each of the officers of imminent
bodily injury. Pepper testified that she heard appellant shoot the first shot, and that
seeing his gun caused her to fear for her safety. Ives testified about appellant’s
conduct that caused her to draw her weapon and fire back. She testified that as
appellant began running she observed what she believed was a gun in his hand and
that this caused her to reach for her gun. She testified that as appellant began to go
over the fence he started making a motion with his gun in his hand coming back
toward her and Officer Pepper. She testified that this prompted her to unholster her
gun and fire at appellant. In support of Pepper’s contention that appellant fired the
7
gun, the state presented evidence of the gun nearby and the existence of a shell
casing that was fired from the nearby gun where appellant was described to have
pointed and fired gun.
Under the applicable standard of review, a rational trier of fact could have
found beyond a reasonable doubt that appellant intentionally or knowingly
threatened two public servants with imminent bodily injury by using or exhibiting
a deadly weapon during the commission of the offense. Mitchell v. State, 546
S.W.3d 780, 786 (Tex. App.—Houston [1st Dist.] 2018, no pet.)
We overrule appellant’s first and second points of error.
B. Denial of Motion for Mistrial
In his third point of error, appellant asserts that the trial court erred in
denying a motion for mistrial during Pepper’s testimony. We review a trial court’s
denial of a motion for mistrial under the abuse-of-discretion standard. See Ocon v.
State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Under this standard, we view
the evidence in the light most favorable to the trial court’s ruling and uphold the
ruling if it falls within the zone of reasonable disagreement. Id. A mistrial is a
remedy intended for extreme circumstances, when prejudice is incurable and less
drastic alternatives have been explored. See id. In determining whether a
prejudicial event was so harmful as to warrant reversal on appeal, we consider the
prejudicial effect, any curative measures taken, and the certainty of conviction
absent the prejudicial event. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.
App. 2004).
When, as here, a trial court sustains an objection to evidence and instructs
the jury to disregard, but denies a defendant’s motion for mistrial, the issue is
whether the trial court abused its discretion in denying the motion
8
for mistrial because that was the only adverse ruling. See Hawkins v. State, 135
S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Generally, a trial court’s prompt
instruction to disregard will cure any error associated with testimony referring to
extraneous offenses, unless it appears the evidence was so clearly calculated to
inflame the minds of the jury or is of such a damning character as to suggest it
would be impossible to remove the harmful impression from the jurors’
minds. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see
also Crayton v. State, 463 S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (citing Logan v. State, 698 S.W.2d 680, 683-84 (Tex. Crim. App.
1985)). A court should review the particular facts of the case in determining
whether a given error requires a mistrial. See Ladd v. State, 3 S.W.3d 547, 567
(Tex. Crim. App. 1999).
In this case, leading up to appellant’s motion for new trial, Pepper had
already testified that she had not seen where the first gunshot came and yet that in
using her ears, she knew it came from appellant.
Q I mean, when the first pop happened, was that her pulling the
trigger?
A No, no. The first pop was him, and then the next two you hear is
her.
Q How do you know --
MR. FROST: Your Honor, objection. Again, she already said she
didn’t see that. We’re asking the jury to disregard, and object to
speculation again, and we’ll ask for a mistrial again.
THE COURT: I’m going to sustain that. I’m going to deny your
request for a mistrial. Mr. McCardle --
MR. FROST: Your Honor, ask the Court to instruct the jury to
disregard that part of her testimony as well.
THE COURT: To the extent that she has testified about where she
saw the shot come from, I’m going to, again, disregard the jury to --
9
I’m going to instruct the jury to please disregard her answer to Mr.
McCardle’s redirect.
Let’s not have this again.
MR. McCARDLE: I understand, Your Honor.
Although Pepper’s testimony as to her field of vision was called into
question, she testified she heard where the shot came from and there was no
dispute she was in the vicinity at the time shots were fired.
Even if we presume that the trial court properly sustained appellant’s
objection, the evidence in question—officer Pepper’s testimony describing a
gunshot she heard before Officer Ives fired her gun which she attributed to
appellant—was testimony reasonably based on Pepper’s sensory perception. Tex.
R. Evid. 601. Although the court instructed the jury to disregard Pepper’s answer,
no curative measure was necessary. To the extent her vision had been limited, the
jury was made aware of those limitations through Pepper’s testimony and her body
cam video played to the jury. Our record reveals no indication that Pepper’s
hearing ability was impaired or that she was unable to perceive the location of
noises and sounds through hearing. Appellant has not shown, nor is it clear from
the record how this evidence has a particularly damning character or how it was
calculated to inflame the jury. We cannot conclude that the trial court abused its
discretion in denying the motion for mistrial.
We therefore overrule appellant’s third point of error.
C. Alleged Improper Statements of Counsel during Closing Arguments
Appellant’s fourth and fifth points of error involve three objections asserted
and overruled by the trial court during the prosecution’s closing arguments.
Permissible jury argument falls into one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) an answer to the
10
argument of opposing counsel; or (4) a plea for law enforcement. Gallo v. State,
239 S.W.3d 757, 767 (Tex. Crim. App. 2007); Cannady v. State, 11 S.W.3d 205,
213 (Tex. Crim. App. 2000). Even when an argument lies outside these approved
areas, it will not result in reversal unless, in light of the record as a whole, it
is “extreme or manifestly improper, violative of a mandatory statute, or injects new
facts harmful to the accused into the trial proceeding.” Wesbrook v. State, 29
S.W.3d 103, 115 (Tex. Crim. App. 2000).
1. Was the prosecutor’s rhetorical question, “What reason do [the Officers]
have to lie?” impermissible jury argument?
Under his two-issue fifth point of error, appellant first complains that the
trial court reversibly erred when it sustained appellant’s objection to the prosecutor
posing the rhetorical question “What reason do [Ives and Pepper] have to lie?”.
In its full context, the prosecutor made the following argument:
You also heard during that cross, it was a long cross yesterday
afternoon, I ask y’all to remember that, about the hammer position,
about how if the gun was fired the hammer would be back. I brought
you this morning his body cam and a photo from it. That hammer is
back, the gun has been fired. It’s not what Mr. Frost is alluding to he
ran up and realized he was going to get caught and threw a gun over
the fence. That gun got shot. And you hear from Officer Ives and
Officer Pepper, really what reason do they have to lie?
Appellant contends this argument fell outside the bounds of permissible jury
argument and constituted improper “bolstering”. We disagree. A prosecuting
attorney may make arguments as to the truthfulness of a witness’s testimony that
are based on the evidence presented and reasonable deductions from that
evidence. Ramos v. State, 419 S.W.2d 359, 368 (Tex. Crim. App. 1967); Hinojosa
v. State, 433 S.W.3d 742, 763 (Tex. App.—San Antonio 2014, pet. ref’d). In this
case, we cannot find that the trial court abused its discretion in permitting the
prosecutor to ask the jurors to consider evidence relating to the witnesses’ bias,
11
incentives or other motivations and make reasonable deductions from that
evidence.
2. Did the prosecutor go beyond permissible jury argument by punctuating
his summary of the evidence with the statement: “That is guilt beyond a
reasonable doubt”?
The other issue under his fifth point of error pertains to a statement the
prosecutor made at the conclusion of his summary description of evidence. The
context of the objected-to statement—“That is guilt beyond a reasonable doubt”—
reveals it was made in reference to the prosecutor’s summary description of
evidence. The prosecutor stated:
We hear a first gunshot on Officer Pepper’s body cam from the
direction of the defendant points to one thing. Defendant saying
there’s a gun on the other side of the fence, that points to one thing.
Him saying it’s only him, that points to one thing. The Bersa firearm
being found where the defendant said it would be points to one thing.
The spent shell casing being found near him points to one thing. The
spent shell cartridge found near where he was when he would have
fired that weapon points to one thing. And that one thing is guilt. That
is guilt beyond a reasonable doubt.
As with the previous issue, appellant contends that the prosecutor was
“vouching for the strength of his own case” or “bolstering” beyond the limits of
permissible jury argument. Viewed in its context, we cannot conclude that the trial
court erred in overruling appellant’s objection to the statement, as the statement
was sufficiently woven into his summary of evidence. Sennett v. State, 406
S.W.3d 661, 669 (Tex. App.—Eastland 2013, no pet.) (finding that prosecutor’s
remark that none of the elements the State had to prove were in question and the
State proved its case beyond a reasonable doubt when reviewed in context,
following the prosecutor’s summary of evidence was a proper summation of
evidence); Yuhl v. State, 784 S.W.2d 714, 721 (Tex. App.—Houston [14th Dist.]
12
1990, pet. ref’d) (observing that a prosecutor can state that he believes a defendant
is guilty, if that belief is tied to the evidence).
Finding no merit in either issue complained of under appellant’s fifth point
of error, we overrule his fifth point of error.
3. Did the prosecutor’s comment about appellant’s attorney rise to the level of
impermissible jury argument, “striking at appellant over his lawyer’s
shoulders”?
Appellant’s fourth point of error involves the so called “striking-over-the-
shoulders” prohibition. Argument that strikes at a defendant over the shoulders of
defense counsel is improper. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim.
App. 2007). A prosecutor risks improperly striking at a defendant “over the
shoulder” of counsel when his or her argument refers to defense counsel personally
and when the argument explicitly impugns defense counsel’s character. Gilbert v.
State, 494 S.W.3d 758, 770 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). In
his fourth issue, appellant argues that the court reversibly erred by overruling of his
objection to such an argument. In closing, the prosecutor stated:
Mr. Frost wants all this evidence and everything, I’m sure I could
have brought you to the moon and back and he would still not be
satisfied with the amount of evidence you’ve been brought. But it’s
not up to satisfy him.
We are reluctant to speculate about the meaning of the prosecutor’s lunar-jury-
view remark in the context of a trial for aggravated assault of a peace officer. The
trial judge was in a better position to decipher the prosecutor’s metaphor and the
nature of its impact on the jury. On this record, we cannot conclude the court’s
ruling erroneous.
But even assuming the remark was inappropriate, courts have observed that
not every isolated inappropriate remark made in closing statement requires
13
reversal. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997); Sennett v.
State, 406 S.W.3d at 670. This remark does not carry the exceptional qualities as
one that requires reversal.
Accordingly, we overrule appellant’s fourth point of error.
III. CONCLUSION
Appellant’s five points of error provide no basis for appellate relief.
Accordingly, we overrule appellant’s points of error and affirm the trial court’s
judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Bourliot, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
14
Jessie Martin Pena v. the State of Texas
Combined Opinion