                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00776-CR

                                     Bernardo IBARRA-LOPEZ,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR2497
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: September 9, 2015

AFFIRMED

           Bernardo Ibarra-Lopez was convicted of two counts of aggravated sexual assault of a child

and four counts of indecency with a child by contact. On appeal, Ibarra-Lopez argues the trial

court erred in overruling his objection to the State’s jury argument. We affirm the trial court’s

judgment.

                                            BACKGROUND

           Ibarra-Lopez was charged with two counts of aggravated sexual assault of a child and four

counts of indecency with a child by contact. Specifically, the State alleged Ibarra-Lopez sexually
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molested his step-daughter, D.M., when she was approximately eight or nine years old until she

was approximately eighteen years old. During trial, D.M. testified that when she told her older

sister Ibarra-Lopez was molesting her, her sister contacted the police. Thereafter, Child Protective

Services (“CPS”) started an investigation. D.M. testified that during the course of the CPS

investigation, she stayed at her sister’s house for “quite a while.” However, she eventually went

back home after telling CPS she felt safe to return even though Ibarra-Lopez was at the house.

D.M. then testified Ibarra-Lopez continued to sexually abuse her until she was eighteen years old

“whenever they [the police] came and picked him up again.”

       Ibarra-Lopez testified D.M.’s sexual abuse allegations were false. When asked about the

CPS investigation, Ibarra-Lopez testified he stayed with his sister. According to Ibarra-Lopez,

after approximately seven months, a CPS caseworker told him he could return home “because

nothing had happened.” During cross examination, Ibarra-Lopez also testified that CPS “just said

everything was fine.” Neither the State nor Ibarra-Lopez called anyone on behalf of CPS to testify

regarding the investigation.

       During closing argument, the State pointed out that Ibarra-Lopez did not call anyone from

CPS to testify because no one from CPS could verify his statement that “nothing had happened.”

Ibarra-Lopez objected to the State’s comment; however, the trial court overruled the objection.

The jury found Ibarra-Lopez guilty of the charged offense, and the jury assessed punishment at

forty years’ confinement for the aggravated sexual assault offenses and eleven years’ confinement

for the indecency with a child by contact offenses. The trial court ordered the sentences to run

concurrently. Ibarra-Lopez then perfected this appeal.




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                                            ANALYSIS

       In his sole issue on appeal, Ibarra-Lopez asserts the trial court erroneously overruled his

objection to the State’s jury argument. According to Ibarra-Lopez, the State made an improper

jury argument because the State shifted the burden of proof to him.

                                       Standard of Review

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

presented at trial in order to arrive at a just and reasonable conclusion based solely on the

evidence.” Zambrano v. State, 431 S.W.3d 162, 171 (Tex. App.—San Antonio 2014, no pet.)

(quoting Harris v. State, 122 S.W.3d 871, 883 (Tex. App.—Fort Worth 2003, pet. ref’d)). Proper

jury argument falls within one of four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law

enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Zambrano, 431

S.W.3d at 171. When determining whether jury argument is improper, we assess the argument as

a whole and the comment in the context in which it appears. See Cruz v. State, 225 S.W.3d 546,

548 (Tex. Crim. App. 2007); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). We

also grant counsel wide latitude in drawing inferences from the evidence. Gaddis, 753 S.W.2d at

398. When jury argument falls outside the approved areas, “it will not constitute reversible error

unless the argument is extreme or manifestly improper, violative of a mandatory statute, or injects

new facts harmful to the accused into the trial proceeding.” Temple v. State, 342 S.W.3d 572,

602–03 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013);

see also TEX. R. APP. P. 44.2(b); Brown, 270 S.W.3d at 570; Gaddis, 753 S.W.2d at 398;

Zambrano, 431 S.W.3d at 171.




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                                            Application

       Here, Ibarra-Lopez specifically complains of the following two comments made by the

prosecutor during his closing argument:

       If CPS had ruled out the abuse and that’s why he was allowed in the house, or if
       there was something that would absolutely absolve his client, you better believe they
       would have had that CPS worker up there. That CPS worker wasn’t up there because
       what he was trying to make you think is it didn’t happen. It isn’t true. If there was
       any witness that could have come up and called [D.M.] a liar, talk about how she
       has a reputation –
                                               …

       My favorite, “CPS let him back in the home. Oh, CPS would never drop the ball.”
       I’m sorry, has no one else watched the news in the past 10 to 20 years? I’m sorry to
       talk about another state agency, but CPS drops the ball all the time. Kids die under
       their care because they dropped the ball. CPS letting a perpetrator back in why?
       Because [D.M.’s] mom pressured her into saying everything was okay.

According to Ibarra-Lopez, the comments improperly shifted the burden of proof to him by

suggesting to the jury he was required to call a CPS caseworker to corroborate his testimony.

Ibarra-Lopez points out the burden was on the State to call a CPS caseworker to rebut his

testimony. We disagree with Ibarra-Lopez’s characterization of the State’s comments.

       “The State may comment on the failure of a defendant to call competent and material

witnesses and may also argue that the reason for such failure is that any such testimony would be

unfavorable to his defense” Torres v. State, 552 S.W.2d 821, 826 (Tex. Crim. App. 1977) so long

as the comment does not place fault on the defendant for exercising his right not to testify. Jackson

v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); see also Hinojosa v. State, 433 S.W.3d 742,

762 (Tex. App.—San Antonio 2014, pet. ref’d) (“A prosecutor may properly comment on a

defendant’s failure to introduce evidence, as long as the remarks do not fault the defendant for

failing to testify.”). A failure to produce available evidence permits an inference that such

evidence would be unfavorable to the defendant. Albiar v. State, 739 S.W.2d 360, 362-63 (Tex.

Crim. App. 1987) (en banc); Torres, 552 S.W.2d at 826.
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       Here, when reviewing the argument as a whole and the comment in the context in which it

was made, we conclude the State was pointing out that the reason Ibarra-Lopez did not call a CPS

caseworker to testify was because it would have been unfavorable to him. See Cruz, 225 S.W.3d

at 548; Gaddis, 753 S.W.2d at 398; Albiar, 739 S.W.2d at 363; Torres, 552 S.W.2d at 826. At the

beginning of its closing argument, the State summarized the evidence presented during the trial,

and just before making the complained-of comments, the State specifically stated the defense does

not bear the burden of proof. See Jackson, 17 S.W.3d at 674 (highlighting prosecutor’s comments

were not improper when prosecutor reminded jury that defense was not required to present

evidence). The State then proceeded to comment as to Ibarra-Lopez’s failure to call a CPS

caseworker. Here, the State was not impermissibly shifting the burden of proof to Ibarra-Lopez.

Rather, the comment was made in response to Ibarra-Lopez’s testimony that CPS allowed him to

return to the house because there was no evidence he did anything to D.M. In other words, the

State was pointing out that if Ibarra-Lopez’s statement regarding CPS were true, he would have

called a CPS caseworker as a witness. See id. (holding that prosecutor’s response that defense

would have called its expert to the stand if it had seriously disputed State’s evidence was proper

jury argument).

       Accordingly, when viewing the argument as a whole and the comment in context, we

conclude the State’s comments fit within one of the four permissible areas of proper jury argument

and did not impermissibly shift the burden of proof to Ibarra-Lopez. See Cruz, 225 S.W.3d at 548;

Jackson, 17 S.W.3d at 674; Gaddis, 753 S.W.2d at 398. As a result, we hold the trial court did not

err in overruling Ibarra-Lopez’s objecting to the State’s jury argument. Ibarra-Lopez’s issue is

overruled.




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                                         CONCLUSION

       Based on the foregoing, we overrule Ibarra- Lopez’s sole issue on appeal and affirm the

trial court’s judgment.

                                               Karen Angelini, Justice

Do Not Publish




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