Full Opinion (html_with_citations)

Opinion issued December 21, 2023




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-22-00070-CR
                             ———————————
                             DAVID CRUZ, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Case No. 1641590


                           MEMORANDUM OPINION

      Appellant David Cruz was convicted of murder, pleaded true to an

enhancement, and was sentenced to 40 years’ confinement. Cruz raises eight issues

on appeal: (1) a directed verdict should have been granted because of insufficient

evidence; (2) there is insufficient evidence to support the verdict; (3) an instruction
on the lesser-included offense of manslaughter should have been submitted to the

jury; (4) testimony was improperly excluded; (5) evidence of the complainant’s

criminal history should have been admitted; (6) a mistrial should have been granted

because the State commented on Cruz’s failure to testify; (7) a mistrial should have

been granted because the State shifted the burden of proof to him in its closing

argument; and (8) the State made improper closing argument based on personal

opinion. Because there is sufficient evidence, a lesser-included instruction was not

required, evidence was properly excluded, a mistrial was not required, and any

improper arguments were harmless, we affirm.

                                     Background

      Cruz, Christian Tristian, L. Hernandez, and D. Pate were drinking at Tristian’s

home. Cruz, who was carrying a firearm, began acting aggressively. Sometime after

Hernandez and Pate left, police were called to a shooting at Tristian’s home. Tristian

was found deceased with a gunshot wound to his head. Police spoke to Cruz’s father,

M. Cruz, and sister, Cynthia, who were on the sidewalk nearby. They told police that

Cruz was at his uncle’s home.

      Police found Cruz at his uncle’s home a few miles away. While in custody,

Cruz told officers, “I did it, man, I did it. I should have stayed.” He stated he fled the

scene and threw the firearm out of his car, but police failed to locate the weapon. An

autopsy revealed that a firearm was fired in direct contact with Tristian’s head.


                                            2
      At trial, the jury heard from multiple witnesses, including Hernandez and

Pate, Tristian’s friends who were drinking with Cruz and Tristian before Tristian’s

death; J. Perez, Tristian’s wife; Lieutenant M. Nava of the Houston Police

Department, who investigated Tristian’s death; A. Reyes, a crime scene investigator

who responded to Tristian’s death; Dr. D. Wolf, the deputy chief medical examiner

at the Harris County Institute of Forensic Sciences who reviewed and cosigned

Tristian’s autopsy report; and Cynthia Cruz, Cruz’s sister.

      The jury found Cruz guilty of murder, and the trial court sentenced Cruz to 40

years’ confinement.

                           Sufficiency of the Evidence

      Cruz contends the trial court should have granted a directed verdict and that

there is insufficient evidence to support his conviction. Because Cruz’s first two

issues overlap, we address them together. See Lewis v. State,
193 S.W.3d 137
, 139–

40 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (appeal from denial of directed

verdict motion is treated as challenge to legal sufficiency of evidence supporting

conviction).

A.    Standard of Review

      The Fourteenth Amendment’s due process guarantee prohibits a criminal

defendant from being convicted of an offense and denied their liberty unless there is

sufficient evidence for a rational factfinder to find them guilty beyond a reasonable


                                         3
doubt. Swearingen v. State,
101 S.W.3d 89, 95
 (Tex. Crim. App. 2003). When

reviewing the sufficiency of the evidence, we view the evidence in the light most

favorable to the jury’s verdict to determine whether any rational factfinder could

have found the elements of the offense beyond a reasonable doubt. Jackson v.

Virginia,
443 U.S. 307
, 318–19 (1979); see Adames v. State,
353 S.W.3d 854, 859

(Tex. Crim. App. 2011) (holding that Jackson applies when determining sufficiency

of evidence).

B.    Analysis

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual, or if he intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an individual.

TEX. PENAL CODE § 19.02(b)(1), (2). The State must prove beyond a reasonable

doubt that the defendant committed the offense charged. See Johnson v. State,
673 S.W.2d 190, 196
 (Tex. Crim. App. 1984).

      The parties do not dispute that Tristian died from a gunshot wound. Cruz only

argues that the State did not show that Cruz caused Tristian’s death. Cruz points to

a lack of motive or animosity toward Tristian, narcotics found next to Tristian’s body

that were likely either methamphetamine or cocaine, and testimony that it was

unclear whether Tristian’s death was a suicide, an accident, or intentional.




                                          4
      Direct and circumstantial evidence are treated equally in establishing guilt,

and circumstantial evidence alone may suffice. Sorrells v. State,
343 S.W.3d 152, 155
 (Tex. Crim. App. 2011). Each fact need not point directly and independently to

the defendant’s guilt. Hooper v. State,
214 S.W.3d 9, 13
 (Tex. Crim. App. 2007).

The combined force of the incriminating circumstances can be enough to support the

conviction.
Id.
 But if considering all the evidence, a rational factfinder would have

a reasonable doubt as to the defendant’s guilt, then due process requires a reversal

and an acquittal. Swearingen,
101 S.W.3d at 95
. While Cruz seeks to parse the

State’s evidence, each fact need not point directly and independently to his guilt if

the cumulative force of all the incriminating evidence supports his conviction. See

Hooper,
214 S.W.3d at 13
.

      The evidence showed that Cruz, Tristian, and friends were at Tristian’s home.

Hernandez and Pate testified that Cruz had a firearm and was acting aggressively.

Photographs show Cruz and Tristian handling a firearm matching the description

Hernandez provided. At some point, the friends left, and Cruz and Tristian were

alone. Later, police responded to a call about a shooting. Upon arriving at Tristian’s

home, police found Tristian’s body on the floor with a gunshot wound to his head.

Police located Cruz soon after. He told law enforcement he “did it” but he was scared

so he fled. The jury also heard that Cruz disposed of the firearm after the shooting.

A. Reyes, crime scene investigator for the Houston Forensic Science Center, stated


                                          5
that she could not determine whether Tristian’s death was caused intentionally,

negligently, or recklessly. Lieutenant Nava of the Houston Police Department

testified that he could not determine whether Tristian’s death was a suicide, an

accident, or a murder. An autopsy revealed Tristian had a muzzle imprint on his

head, and there was no stippling outside the gunshot wound. Dr. D. Wolf, deputy

chief medical examiner at the Harris County Institute of Forensic Sciences, testified

that the autopsy showed the firearm was discharged with direct contact with

Tristian’s head, but he could not say whether the shooting was intentional, negligent,

reckless, or self-inflicted. Dr. Wolf added that the toxicology report showed that

Tristian had a blood alcohol concentration level of .089 and that methamphetamine

and amphetamine were present in Tristian’s system at his death.

      “A jury may infer intent from any facts which tend to prove its existence,

including the acts, words, and conduct of the accused, and the method of committing

the crime and from the nature of wounds inflicted on the victims.” See Hart v. State,
89 S.W.3d 61, 64
 (Tex. Crim. App. 2002) (quoting Manrique v. State,
994 S.W.2d 640, 649
 (Tex. Crim. App. 1999) (Meyers, J., concurring)). A firearm is also a deadly

weapon per se. TEX. PENAL CODE § 1.07(a)(17) (West 2019); Sholars v. State,
312 S.W.3d 694, 703
 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). The intent to kill

someone may be inferred from the use of a deadly weapon in a deadly manner.

Adanandus v. State,
866 S.W.2d 210, 215
 (Tex. Crim. App. 1993). “When a deadly


                                          6
weapon is fired at close range, and death results, the law presumes an intent to kill.”

Sholars,
312 S.W.3d at 703
.

      Viewing all the evidence in the light most favorable to the verdict, the

evidence shows that Cruz had a firearm at Tristian’s home, Tristian was found

deceased with a gunshot wound to the head, and Tristian’s wound was consistent

with a gunshot fired at close range. Cruz admitted that he “did it” and should not

have left, and Cruz disposed of the firearm after leaving Tristian’s home. Although

some evidence is circumstantial, its cumulative force provided more than a scintilla

of evidence to support a reasonable conclusion that Cruz intentionally shot and killed

Tristian. See Jackson,
443 U.S. at 320
 (setting forth standard for legal insufficiency);

Galvan-Cerna v. State,
509 S.W.3d 398, 404
 (Tex. App.—Houston [1st Dist.] 2014,

no pet.) (jury can use common sense to infer intent from conduct). Even if there were

evidence suggesting otherwise—such as Cruz’s friendship with Tristian, Tristian’s

narcotics use, and testimony about the unknown intent of the shooter—the jury had

the exclusive role as factfinder to weigh the evidence and the witnesses’ credibility,

and we defer to its determinations. See Lancon v. State,
253 S.W.3d 699, 705
 (Tex.

Crim. App. 2008); Bartlett v. State,
270 S.W.3d 147, 150
 (Tex. Crim. App.

2008) (jury is exclusive judge of facts proved and weight to be given to testimony);

Curry v. State,
30 S.W.3d 394, 406
 (Tex. Crim. App. 2000) (we resolve any

inconsistencies in testimony in favor of jury’s verdict).


                                           7
      Accordingly, we overrule Cruz’s first two issues.

                                 Jury Instruction

      Cruz contends the trial court should have instructed the jury on the

lesser-included offense of manslaughter because there was evidence that the

shooting was unintentional.

A.    Standard of Review

      We review a trial court’s denial of a lesser-included offense instruction in the

jury charge for an abuse of discretion. See Threadgill v. State,
146 S.W.3d 654, 666

(Tex. Crim. App. 2004); Steele v. State,
490 S.W.3d 117, 126
 (Tex. App.—Houston

[1st Dist.] 2016, no pet.).

B.    Analysis

      A defendant is entitled to a charge on a lesser-included offense if (1) the

lesser-included offense is included within the proof necessary to establish the

offense charged, and (2) some evidence exists in the record that would permit a jury

rationally to find that the defendant is guilty only of the lesser offense. Cavazos v.

State,
382 S.W.3d 377
, 382–83 (Tex. Crim. App. 2012); Mathis v. State,
67 S.W.3d 918, 925
 (Tex. Crim. App. 2002). An offense may be a lesser-included offense if it

differs from the charged offense only in the respect that a less culpable mental state

is enough to establish its commission. See TEX. CODE CRIM. PROC. art. 37.09(3).




                                          8
      Manslaughter is a lesser-included offense of murder. Moore v. State,
969 S.W.2d 4, 9
 (Tex. Crim. App. 1998). A person commits the offense of manslaughter

if he recklessly causes the death of an individual. See TEX. PENAL CODE § 19.04. A

person acts recklessly, or is reckless, with respect to the result of his conduct when

he is aware of but consciously disregards a substantial and unjustifiable risk that the

result will occur. Id. § 6.03(c). “Manslaughter is a result-oriented offense: the mental

state [of recklessness] must relate to the results of the defendant’s actions.” Britain

v. State,
412 S.W.3d 518, 520
 (Tex. Crim. App. 2013).

      In determining whether there is evidence to support a charge on recklessness,

a statement that the defendant did not intend to kill the victim “cannot be plucked

out of the record and examined in a vacuum.” Gahagan v. State,
242 S.W.3d 80, 86

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (quoting Godsey v. State,
719 S.W.2d 578, 584
 (Tex. Crim. App. 1986)). At the same time, the credibility of the

evidence and whether it conflicts with other evidence or is controverted may not be

considered in determining whether an instruction on a lesser-included offense should

be given. Banda v. State,
890 S.W.2d 42, 60
 (Tex. Crim. App. 1994). Regardless of

its strength or weakness, if any evidence raises the issue that the defendant was guilty

only of the lesser offense, then the charge must be given. Saunders v. State,
840 S.W.2d 390, 391
 (Tex. Crim. App. 1992); Cavazos,
382 S.W.3d at 383
.




                                           9
      Cruz argues that there was testimony that he shot Tristian by accident and that

he would never harm Tristian. Cruz also points to evidence that he and Tristian were

friends and that there was no animosity observed between them that day.

Photographs of Cruz and Tristian together pointing a firearm at the camera were

submitted to the jury as well. Cruz also highlighted that they had drank and used

drugs that day and that there was testimony about how people who do so become

impaired and can get reckless. Lastly, Cruz notes that none of the State’s witnesses

could say whether the shooting was intentional.

      The State compares Cruz’s statement to the Cavazos defendant’s denial of

intent, which the Texas Court of Criminal Appeals held insufficient for a

manslaughter instruction. See Cavazos,
382 S.W.3d at 385
. Cavazos turned on the

specific facts of that case: “Pulling out a gun, pointing it at someone, pulling the

trigger twice, fleeing the scene (and the country), and later telling a friend ‘I didn’t

mean to shoot anyone’ does not rationally support an inference that [the appellant]

acted recklessly at the moment he fired the shots.”
Id.
 Without additional evidence

supporting a recklessness finding, defendant’s testimony alone did not require an

instruction on the lesser-included offense of manslaughter.
Id.
 at 385–86.

Manslaughter is a result-of-conduct type offense, so evidence of recklessness must

go to the conduct causing Tristian’s death, i.e., the shooting. Gilbert v. State,
196 S.W.3d 163, 166
 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Here, Cruz only


                                          10
offers that he told an officer that he accidentally shot Tristian. The only context

provided is that Tristian and Cruz were friends, there were narcotics in Tristian’s

system when he died, Cruz had been aggressively handling the weapon when

Hernandez and Pate were there, and no one else was around when the shooting

occurred. But none of these facts show that Cruz was reckless in discharging the

firearm. See
id.
 (shooting near complainant to scare him is an example where

manslaughter would be raised); O’Brien v. State,
89 S.W.3d 753, 756
 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (relying on testimony “that the gun accidentally

went off after [the defendant] was hit” by a wooden board causing him to clench

while holding firearm); Hayes v. State,
728 S.W.2d 804
, 809–10 (Tex. Crim. App.

1987) (noting some evidence that “actual discharge of the gun was accidental,

occurring during a struggle between appellant and the complainant”); Johnson v.

State,
828 S.W.2d 511
, 513–14, 516 (Tex. App.—Waco 1992, pet. ref’d) (shooting

twice while wrestling with complainant was evidence of recklessness).

      Courts have typically found that a manslaughter instruction is required when

there is some evidence that the gun was accidentally discharged or that the defendant

only intended to frighten the complainant. See, e.g., Trujillo v. State,
227 S.W.3d 164
 (Tex. App.—Houston [1st Dist.], 2006, pet. ref’d). A defendant’s denial that he

intended to kill the victim does not, on its own, raise the issue of manslaughter. See

Arnold v. State,
234 S.W.3d 664, 672
 (Tex. App.—Houston [14th Dist.] 2007, no


                                         11
pet.). Given the state of the entire record, Cruz’s statement that the shooting was an

accident is not evidence allowing a jury to find that Cruz’s actions were reckless.

See Mathis,
67 S.W.3d at 926
 (apart from defendant’s own testimony that he did not

intend to kill anyone, there was no other evidence to support his theory); Gahagan,
242 S.W.3d at 86
 (statement that defendant did not intend to kill complainant

“cannot be plucked out of the record and examined in a vacuum.”).

      Accordingly, the trial court did not abuse its discretion in denying the request

for a manslaughter instruction. We overrule Cruz’s third issue.

                           Excluded Evidence: Testimony

      Cruz contends that the trial court erred by denying his bill of exception by not

allowing the introduction of evidence that he told police “I would never harm him,”

referring to Tristian.

A.    Standard of Review

      A trial court’s decision on the admissibility of evidence is reviewed for an

abuse of discretion. Henley v. State,
493 S.W.3d 77
, 82–83 (Tex. Crim. App. 2016).

A trial court abuses its discretion when its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.”
Id. at 83
. A

reviewing court must uphold a trial court’s evidentiary ruling if it is correct on any

theory of law applicable to that ruling. De La Paz v. State,
279 S.W.3d 336, 344

(Tex. Crim. App. 2009). If there is error, it is reversible only when it has a substantial


                                           12
and injurious effect or influence in determining the jury’s verdict. TEX. R. APP. P.

44.2(b); King v. State,
953 S.W.2d 266, 271
 (Tex. Crim. App. 1997). We will not

overturn the conviction if, after examining the record, we determine that the error

did not influence the jury, or only had a slight effect. Taylor v. State,
268 S.W.3d 571, 579
 (Tex. Crim. App. 2008).

B.    Analysis

      Cruz complains that he was not allowed to introduce testimony from

Lieutenant Nava. The relevant portion of the record reads:

      [Defense Counsel]: Right. And that was a recording that hasn’t been
      played, right? See if this refreshes your recollection. You said this is a
      difficult situation. He says to you, you’ll never understand, right?

      [Lt. Nava]: Yes.

      [Defense Counsel]: Then he says to you, I will never harm him, right?

      [Lt. Nava]: I don’t remember exactly the words that he said, but he got
      agitated. And I remember hearing the first part that you just said and
      the rest was difficult to hear from where I was standing.

      [Defense Counsel]: He told you, I would never harm him, didn’t he?

      [Lt. Nava]: I think so. It’s on the video I’m sure. I don’t have a reason
      to think he didn’t say that.

Later in the trial, defense counsel complained that he was unable to admit testimony

from Lieutenant Nava that Cruz had said, “I would never harm him.”

      [Defense Counsel]: Here’s what I anticipate the evidence will show.
      When Lieutenant Nava testified earlier, he said that there was an
      Officer Velasco who was part of a team that was out at the Velasco

                                         13
      address. . . . I’ve isolated a portion of the body worn camera
      that . . . would lead into the part that I would want to introduce and
      question Officer Nava about. It is David Cruz’[s] father talking to
      David about where’s the gun. During the course of that conversation
      Lieutenant Nava comes up, is visible in the screen, and Lieutenant Nava
      starts talking to . . . . David and he says, he, Nava says, I understand.
      David Cruz in affect says, no, you don’t understand, no, you don’t.
      Yeah, I do, man. You don’t understand. And then David Cruz says, you
      don't understand, I would never harm him. Yesterday when I had
      Lieutenant Nava on the stand, he said he didn’t remember seeing that.
      I’ve had the opportunity to play that portion for him and he’s here. And
      he recognizes that David Cruz did say that. I’m offering it for two
      reasons; one, it would be to either refresh his recollection or to impeach
      him with the prior inconsistent statement that David Cruz didn’t say
      that or he didn’t remember it. So that’s number one; I’d offer it for that.
      Number two, that portion of it, because they’re talking about the guns,
      is admissible under Rule 106 and 107 as under the Rule of Optional
      Completeness to give full effect to the conversation about where the
      gun is.

      ...

      [Trial Court]: So, yeah, again your request is denied.

      Assuming, without deciding, that the trial court erred by limiting Cruz’s

cross-examination, any error was harmless. A violation of the Texas Rules of

Evidence is reviewed under the standard for non-constitutional error contained in

Rule 44.2(b). Casey v. State,
215 S.W.3d 870, 885
 (Tex. Crim. App. 2007); Smith v.

State,
355 S.W.3d 138, 152
 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Error

in the exclusion of evidence is rendered harmless where the same evidence is

admitted elsewhere without objection. See, e.g., Preston v. State,
481 S.W.2d 408, 409
 (Tex. Crim. App. 1972) (“This Court has consistently held reversal is not


                                          14
required by exclusion of evidence where same testimony was later admitted without

objection.”); Montgomery v. State,
383 S.W.3d 722, 727
 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (error in exclusion of evidence is harmless when same evidence

is admitted elsewhere at trial). Any error the trial court made in sustaining the State’s

objections was rendered harmless beyond a reasonable doubt by the fact that the

same evidence was admitted elsewhere in the proceedings without objection.

      We overrule Cruz’s fourth issue.

                       Excluded Evidence: Criminal History

      Cruz contends Tristian’s prior criminal history should have been admitted

once the State’s witness testified about Tristian’s good character.

A.    Standard of Review

      We review a trial court’s decision to exclude evidence of a decedent’s

character for an abuse of discretion. Beham v. State,
559 S.W.3d 474, 478
 (Tex.

Crim. App. 2018). A trial court abuses its discretion if its ruling is so clearly wrong

that it lies outside the zone within which reasonable people might disagree.
Id.

B.    Analysis

      Character evidence may be admissible when a witness in a murder case “opens

the door” to rebuttal character evidence by placing the decedent’s character at issue.

Allen v. State,
473 S.W.3d 426, 454
 (Tex. App.—Houston [14th Dist.] 2015, pet.

dism’d); see Daggett v. State,
187 S.W.3d 444
, 453 n.24 (Tex. Crim. App.


                                           15
2005) (“When a witness makes a broad statement of good conduct or character on a

collateral issue, the opposing party may cross-examine the witness with specific

instances rebutting that false impression, but generally may not offer extrinsic

evidence to prove the impeachment acts.”). Generally, prior offenses are

inadmissible for impeachment purposes unless the offense resulted in a final

conviction for either a felony or a crime involving moral turpitude and the conviction

is not too remote in time. See Ochoa v. State,
481 S.W.2d 847, 850
 (Tex. Crim. App.

1972); see also TEX. R. EVID. 608, 609. But an exception arises when a witness

testifies and leaves a false impression as to the extent of prior arrests, convictions,

charges, or “trouble” with the police generally. See Prescott v. State,
744 S.W.2d 128, 131
 (Tex. Crim. App. 1988).

      During the State’s direct examination of J. Perez, Tristian’s wife, she testified

her husband was making personal progress:

      [State]: Ms. Perez, without getting into specific statements or things
      that [Tristian] told you, do you know why – why there was a change?

      [Perez]: Yes.

      [State]: Okay. And can you tell us why, based on what you know, can
      you tell us why there was a change?

      [Perez]: Because David didn’t know how to act. He was aggressive.

      [State]: Okay. But based on your observation — well–excuse me. You
      may answer the question.



                                          16
      [Perez]: [Tristian] was going another route. He was going – being a
      family man, trying to progress in his job. He got a promotion. And he
      was trying to go to the right while he knew David wasn’t trying –

      [Defense Counsel]: I’m going to object. Excuse me, excuse me. That’s
      an objection and that’s hearsay. Objection, Your Honor.

      [Trial Court]: Sustained. Can you rephrase your question?

      [Defense Counsel]: And I’d ask the Court to instruct the jury to
      disregard the last answer.

      [Trial Court]: Disregard.

      [Defense Counsel]: And move for a mistrial, respectfully, Judge.

      [Trial Court]: Denied.

      Before cross-examining Perez, defense counsel advised the trial court

that he wanted to bring up Tristian’s prior convictions. Defense counsel said

these were admissible because Perez had “created the false impression of

[Tristian] and his character.” The trial court sustained the State’s objection to

this evidence.

      Inadmissible evidence may become admissible if it corrects a false

impression created by an opposing party. See Tovar v. State,
221 S.W.3d 185, 191
 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (when defense

questioning created false impression that video contained exculpatory

statement by complainant, State could introduce video); Redmond v. State,
629 S.W.3d 534
, 546 (Tex. App.—Fort Worth 2021, pet. ref’d) (when


                                          17
defendant described robbing bank as a “crazy decision” and created

impression it was out of character for him, State could introduce evidence of

other bank robberies). Perez’s testimony that Tristian was changing his life

did not create a false impression that he had never been in trouble with the

law, or that his record was clear of any prior arrests. See West v. State,
169 S.W.3d 275, 281
 (Tex. App.—Fort Worth 2005, pet. ref’d) (testimony about

“shock” over being arrested did not create false impression about prior

criminal history). Moreover, instructions to disregard “are generally

considered sufficient to cure improprieties that occur during trial.” Gamboa

v. State,
296 S.W.3d 574, 580
 (Tex. Crim. App. 2009).

      Accordingly, overrule Cruz’s fifth issue.

                                       Mistrial

      In his sixth issue, Cruz contends the State improperly commented on his right

to remain silent and not produce evidence at trial. In his seventh issue, Cruz contends

the State impermissibly shifted the burden to the defense. Because these issues

overlap, we address them together.

A.    Standard of Review

      When the trial court sustains an objection and instructs the jury to disregard

but denies a defendant’s motion for mistrial, the issue is whether the trial court

abused its discretion by denying the mistrial. Archie v. State,
340 S.W.3d 734
, 738–


                                          18
39 (Tex. Crim. App. 2011) (citing Hawkins v. State,
135 S.W.3d 72, 77
 (Tex. Crim.

App. 2004)); Webb v. State,
232 S.W.3d 109, 112
 (Tex. Crim. App. 2007). We view

the evidence in the light most favorable to the trial court’s ruling, considering only

the arguments before the trial court at the time of its ruling. Ocon v. State,
284 S.W.3d 880, 884
 (Tex. Crim. App. 2009) (citing Wead v. State,
129 S.W.3d 126, 129
 (Tex. Crim. App. 2004)). The ruling must be upheld if it was within the zone of

reasonable disagreement.
Id.
 A mistrial is required only when the prejudice is

incurable. Hawkins,
135 S.W.3d at 77
; Ocon, 284 S.W.3d at 884–85 (mistrial should

be granted when less drastic alternatives fail to cure prejudice).

B.    Analysis

      During closing, the State discussed the testimony of the Cruz’s sister, Cynthia,

who said Cruz called her after the shooting and claimed the shooting was an accident.

The State pointed out that Cruz had produced no evidence about how it was an

accident, “[n]ot a single piece of evidence regarding a misfire, a slip of the finger.”

      Cruz objected that the State was “attempting to shift the burden” from the

State to the defense. The trial court sustained the objection and, at Cruz’s request,

instructed the jury to disregard the State’s comment. Cruz moved for a mistrial,

which the trial court denied.

      On appeal, Cruz argues that the State’s argument was a comment on his failure

to testify and an attempt to shift the burden. The State may not comment on the


                                          19
accused’s failure to testify. U.S. CONST. amend. V; TEX. CONST. art. 1, § 10. Such a

violation occurs when “the language used was manifestly intended or was of such a

character that the jury would necessarily and naturally take it as a comment on the

defendant's failure to testify.” Cruz v. State,
225 S.W.3d 546, 548
 (Tex. Crim. App.

2007). A defendant’s failure to testify in his own behalf in a criminal trial may not

be taken as a circumstance against him, and neither counsel may allude to or

comment on such a refusal. See TEX. CODE CRIM. PROC. art. 38.08. To constitute

error, however, the argument, when viewed from the jury’s standpoint, must

manifestly be of such a character that the jury would necessarily and naturally take

it as a comment on the defendant’s failure to testify. See Swallow v. State,
829 S.W.2d 223, 225
 (Tex. Crim. App. 1992). That the challenged language might be

construed as an implied or indirect allusion to the defendant’s failure to testify does

not establish a violation. Staley v. State,
887 S.W.2d 885, 895
 (Tex. Crim. App.

1994). Language that can reasonably be construed as a failure to present evidence

other than the defendant’s testimony is not a comment on his failure to testify. See

Wolfe v. State,
917 S.W.2d 270, 279
 (Tex. Crim. App. 1996); Welch v. State, No.

01-18-00223-CR,
2019 WL 1940640
, at *6 (Tex. App.—Houston [1st Dist.] May 2,

2019, no pet.) (mem. op., not designated for publication) (if State’s language can be

reasonably construed as referring to defendant’s failure to produce testimony or

evidence from sources other than himself, reversal is not required). Additionally, the


                                          20
State may comment on the defendant’s failure to present evidence in his favor. See

Thomas v. State,
638 S.W.2d 481, 482
 (Tex. Crim. App. 1982).

      The State argues that Cruz did not preserve his complaint about the State

commenting on his failure to testify for our review. Because the only other person

who could have testified about the details of what occurred at the time of the shooting

would be Cruz, we think the jury would have construed this as an invitation to

consider Cruz’s failure to testify. See Archie,
340 S.W.3d at 740
. In this context,

Cruz’s objection to the State’s attempt to shift the burden of proof preserved the

issue of commenting on his decision not to testify.

      We now consider whether denial of a mistrial on these two issues was an abuse

of discretion. To evaluate whether the trial court abused its discretion in denying a

mistrial for improper jury argument, we apply the three factors from Mosley v. State,

which balance: (1) the severity of the misconduct, (2) the measures adopted to cure

the misconduct, and (3) the strength of the evidence supporting the conviction.
983 S.W.2d 249, 259
 (Tex. Crim. App. 1998).

      The first Mosley factor considers the severity of the misconduct. As to both

issues, because the improper argument was embedded within other remarks that

invited the jury to draw a legitimate inference about the credibility of Cynthia’s

testimony, we conclude the magnitude of the prejudice was diminished. The




                                          21
prejudice was not so great here as to render a firm and timely curative instruction

ineffective.

      Under the second Mosley factor, the reviewing court considers the character

of the measures adopted to cure the misconduct. The trial court sustained the

objection to the State’s argument and immediately instructed the jury to disregard

the State’s comments. Specifically on the argument about a failure to testify, the trial

court also instructed the jurors on Cruz’s right to remain silent and their duty not to

comment on or allude to Cruz’s failure to testify. Separately, on the argument about

shifting the burden, the State discussed that it had the burden here, and the trial court

instructed the jurors that all persons are presumed to be innocent, that “the law does

not require a defendant to prove his innocence or produce any evidence at all,” and

that the State “has the burden of proving the defendant guilty.” The law generally

presumes that the jury will follow instructions to disregard and other cautionary

instructions. Archie,
340 S.W.3d at 741
; Buentello v. State,
512 S.W.3d 508, 516

(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (citing Dinkins v. State,
894 S.W.2d 330, 357
 (Tex. Crim. App. 1995)).

      Lastly, we look to the certainty of conviction without the misconduct. Again

as to both issues, the evidence showed that Cruz, Tristian, and friends were at

Tristian’s home; that Cruz had a firearm and was acting aggressively with it; that

Cruz and Tristian were alone at the home; that Tristian’s body was found on the floor


                                           22
with a gunshot wound to his head; that Cruz told police he “did it” but he was scared

so he fled; that Cruz disposed of the firearm after the shooting; and that the firearm

was discharged while it was in direct contact with Tristian’s head.

      Under these circumstances, we hold that it was within the trial court’s

discretion to deny Cruz’s motion for mistrial.

      We overrule Cruz’s sixth and seventh issues.

                            Improper Jury Argument

      In his final issue, Cruz contends the trial court erred by overruling his

objection to the State’s closing argument based on personal opinion.

A.    Standard of Review

      We review a trial court’s ruling on an objection to improper jury argument for

abuse of discretion. See Garcia v. State,
126 S.W.3d 921, 924
 (Tex. Crim. App.

2004).

B.    Analysis

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

by the State. Long v. State,
823 S.W.2d 259, 267
 (Tex. Crim. App. 1991). There are

four permissible areas of jury argument: (1) summation of the evidence,

(2) reasonable deductions from the evidence, (3) answers to the argument of

opposing counsel, and (4) pleas for law enforcement. Davis v. State,
329 S.W.3d 23 798, 821
 (Tex. Crim. App. 2010); Cifuentes v. State,
983 S.W.2d 891, 895
 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d).

      During closing, the State pointed out that even if Cynthia were close to

Tristian, she had an incentive to testify in Cruz’s favor. “[S]he can’t bring Christian

Tristian back from six feet under . . . . But what she can do is keep [Cruz] from

getting in trouble.” The State argued that Cynthia’s testimony about her reaction to

a phone call from Cruz after the shooting did not make sense. The State summarized

her testimony as having received a call from Cruz that he accidentally shot Tristian

but that she did not believe him and went to work. The State continued, “[i]f my

brother called me on the phone before I was going to work and told me he shot

[Tristian] . . . .” Defense counsel objected, and the trial court overruled counsel’s

objection.

      Even if the trial court erred by overruling Cruz’s objection to the State’s

closing argument, any error was harmless. We review improper jury argument under

a non-constitutional harm analysis. TEX. R. APP. P. 44.2(b); Threadgill v. State,
146 S.W.3d 654, 666
 (Tex. Crim. App. 2004). Under Rule 44.2(b), the reviewing court

disregards the error if it does not affect the defendant’s substantial rights. TEX. R.

APP. P. 44.2(b); see Martinez v. State,
17 S.W.3d 677, 692
 (Tex. Crim. App. 2000).

Courts weigh three factors in determining whether an improper jury argument is

harmful under Rule 44.2(b): (1) the severity of the misconduct, (2) any curative


                                          24
measures adopted, and (3) the strength of the evidence supporting the conviction.

Martinez, 17 S.W.3d at 692–93; Mosley,
983 S.W.2d at 259
.

      First, any prejudicial effect was minimal. The challenged statement was only

a short portion of the State’s overall closing argument, which emphasized evidence

of Cruz being armed and aggressive before Tristian’s death, Cruz’s admission that

he shot Tristian, and that Tristian was shot in the head at “point blank” range.

Considering the State’s entire closing argument, the statement challenged on appeal

lacked the severity to infringe Cruz’s substantial rights.

      As to the second factor, because the trial court overruled Cruz’s objection, no

curative action was taken.

      Lastly, the certainty of conviction was high. The evidence shows that Cruz

had a firearm and was acting aggressively with it while at Tristian’s home,

photographs show Cruz and Tristian handling a firearm matching Hernandez’s

description of Cruz’s firearm, Tristian was found with a close-range gunshot wound

to the head, Cruz admitted that he “did it” and should not have left, and Cruz

disposed of the firearm after leaving Tristian’s home.

      Because the foundation of the State’s closing argument consisted of

recounting the evidence and asking the jury to rely on it in determining guilt, the

challenged statement did not have a substantial and injurious effect on the jury’s

verdict. See King,
953 S.W.2d at 271
.


                                          25
      We overrule Cruz’s final issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                                Sarah Beth Landau
                                                Justice

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

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




                                           26