                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00563-CR


COLETTE REYES                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

        FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1181465D

                                    ----------

                                   OPINION

                                    ----------

      A jury found Appellant Colette Reyes guilty of murder and assessed her

punishment at forty-five years’ imprisonment in the penitentiary. She brings four

points in her appeal. First, she asserts the jury verdict against her affirmative

defense of insanity was against the great weight and preponderance of the

evidence.   Second, she contends the evidence is insufficient to support her

conviction because the State failed to prove mens rea. Third, she argues that
the trial court abused its discretion by admitting an audiotape of the offense

because its probative value was substantially outweighed by the danger of unfair

prejudice. Finally, she maintains the trial court erred by denying her motion for

mistrial after the prosecutor made a direct comment on her right not to testify

during final arguments. We affirm.

                                  Background

      Appellant’s husband moved out of their home on October 17, 2009, and

she was aware he wanted a divorce. Appellant was very agitated about the

divorce, worried about her financial survival, and was even concerned that she

might become homeless. She was the beneficiary of her husband’s $250,000 life

insurance policy.

      On November 22, 2009, her husband came by their home to collect some

personal items. He planned to file a divorce petition the next day. While at the

house, he telephoned their daughter to come and help him. When their daughter

arrived at the house, she found her father on the garage floor with a pool of blood

around his head, so she called 911. When the police arrived, they determined

Appellant’s husband had a gunshot wound. Appellant’s husband died from a

gunshot wound to the head. Appellant told one of the responding police officers

that she had shot her husband and had placed the gun beside him. Thereafter,

on December 30, 2009, Appellant tried to collect on her husband’s $250,000 life

insurance policy.




                                        2
      In the indictment, the State alleged that Appellant intentionally or knowingly

caused the death of her husband by shooting him with a firearm, and in a second

paragraph, it alleged that with the intent to cause serious bodily injury to her

husband, Appellant shot him with a firearm, thereby committing an act clearly

dangerous to human life and causing his death. The State alleged alternate

means of committing the offense of murder.               Tex. Penal Code Ann.

§ 19.02(b)(1)–(2) (West 2011). The trial court charged the jury on both

paragraphs. The trial court also charged the jury on the affirmative defense of

insanity, that is, that Appellant, as a result of a severe mental disease or defect,

did not know that her conduct was wrong. The jury found her guilty as charged in

the indictment and later assessed her punishment at forty-five years’

confinement.

       Sufficiency of the Evidence to Support the Affirmative Defense

      In Appellant’s first point, she argues the verdict was improper because she

did not know her conduct was wrong. Appellant maintains that she met her

burden of proof to show that she was insane at the time of the offense.

      It is an affirmative defense to prosecution that, at the time of the charged

conduct, the defendant did not know that her conduct was wrong as a result of a

severe mental disease or defect. Tex. Penal Code Ann. § 8.01(a) (West 2011).

The defendant has the burden to prove her affirmative defense by a

preponderance of the evidence. Tex. Penal Code Ann. § 2.04(d) (West 2011).




                                         3
      The Jackson v. Virginia constitutional standard of review that applies to the

elements of an offense that the State must prove beyond a reasonable doubt

does not apply to the elements of an affirmative defense that a defendant must

prove by a preponderance of the evidence. Matlock v. State, 392 S.W.3d 662,

667 (Tex. Crim. App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781 (1979)). Appellate courts apply, instead, the traditional civil standards of

review. Id. Criminal defendants may raise a factual sufficiency challenge to a

jury’s adverse finding on an affirmative defense. Id. at 670. However, Appellant

does not specify whether she is attacking the legal or factual sufficiency of the

evidence. Affirmative defenses may be challenged for both legal and factual

sufficiency.   Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015).

Evidence that is factually sufficient is necessarily legally sufficient. See Citizens

Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 485 (Tex. App.—Fort Worth

2004, no pet.).     Accordingly, we will address the factual sufficiency of the

evidence first. If Appellant loses on that ground, she necessarily would lose on

legal sufficiency as well.1

      When asserting a factual sufficiency challenge, a defendant is arguing that

considering the entire body of evidence, the jury’s adverse finding on her

affirmative defense was so against the great weight and preponderance of the

      1
        A legal sufficiency challenge requires the defendant to show on appeal
that the evidence conclusively proves her affirmative defense and that no
reasonable finder of fact was free to think otherwise. See Butcher, 454 S.W.3d
at 20 (citing Matlock, 392 S.W.3d at 670).


                                         4
evidence as to be manifestly unjust. Matlock, 392 S.W.3d at 671. The argument

is that the defendant has offered so much evidence in support of her affirmative

defense claim and that the State has offered so little evidence rebutting her

defense that the jury’s rejection of her affirmative defense is against the great

weight and preponderance of the evidence. Id. at 670 n.29. Put another way,

the defendant’s evidence is more than sufficient to support her affirmative

defense while the State’s evidence is insufficient to rebut it.          Id.   When

conducting a factual sufficiency review of a rejected affirmative defense, an

appellate court must view the entirety of the evidence in a neutral light without

usurping the jury’s function to assess the weight and credibility of the witnesses’

testimony by substituting its own judgment.       Id. at 671.    Where the parties

present conflicting evidence on the issue of insanity, determinations regarding

the weight and credibility of that evidence should be resolved by the finder of

fact, and the reviewing court should defer to those decisions because the finder

of fact had the benefit of observing the witnesses’ actions and demeanor. Lantrip

v. State, 336 S.W.3d 343, 348 (Tex. App.—Texarkana 2011, no pet.).                An

appellate court may sustain an appellant’s factual insufficiency claim only if, after

setting out the relevant evidence and explaining precisely how the contrary

evidence greatly outweighs the evidence supporting the verdict, the court clearly

states why the verdict is so much against the great weight of the evidence as to

be manifestly unjust, conscience-shocking, or clearly biased.         Matlock, 392

S.W.3d at 671.


                                         5
      A criminal defendant is presumed to be sane and to intend the natural

consequences of her acts absent proof by a preponderance of the evidence that

she is insane. Ruffin v. State, 270 S.W.3d 586, 591–92 (Tex. Crim. App. 2008).

The test for determining insanity is whether the defendant, at the time she

committed the offense, did not know that her conduct was wrong or illegal due to

a severe mental disease or defect. Id. at 592.

      There was evidence suggesting Appellant had mental health issues. M.C.,

Appellant’s sister, testified that Appellant had mental health issues and that

Appellant’s husband wanted her institutionalized. Appellant’s daughter testified

that Appellant would act oddly in conflict situations. She explained:

      Whenever we would get into any kind of verbal conflict, she would
      begin singing, as you saw, or heard. She’d begin singing in Creole,
      you know, praise Jesus, and then adding her own lyrics about how
      God would curse me and God would curse [my father] and my sister
      for what they’ve done to her. And she would use Praise Jesus,
      curse them.

Appellant was diagnosed as far back as 1994 with paranoid schizophrenia,

schizoaffective disorder, and depression and anxiety with psychotic features. Dr.

Emily Fallis, a clinical psychologist, testified that Appellant suffered from a

schizoaffective disorder and said she would not describe Appellant’s actions of

killing her husband while being recorded on an audiotape as normal. Dr. Fallis,

however, was not able to say that Appellant did not know her conduct was

wrong, and she admitted that nothing on the audiotape showed that Appellant did

not know her conduct was wrong. After the police arrested Appellant and took



                                         6
her to jail, she engaged in bizarre behavior, such as stripping off her clothing

repeatedly.2

      There was much evidence showing that Appellant was sane. On October

17, 2009, when Appellant’s husband and daughter moved out, Appellant had

hidden her husband’s handguns and would not turn them over to her daughter

notwithstanding being asked several times. Even before Appellant’s husband

and daughter had moved out, Appellant’s husband had looked for his guns but

could not find them. Appellant’s daughter said she asked for the guns again on

the Friday (November 20) before the murder, but Appellant simply told her that

she did not need them right then and that she could get them on another day.

Appellant admitted shooting her husband to her sister and to a police officer.

When the police arrived at the scene of the offense, Appellant responded to

questions and complied with the officers’ instructions, albeit slowly at first. After


      2
      However, when asked if it was normal behavior for someone in good
mental health to strip in front of strangers, Dr. Fallis said:

      It is not typical in my experience working both in mental health
      hospitals, looking at records, and also having worked in prison
      settings, including a federal jail and a county jail after somebody is
      arrested. I see that sometimes where people will disrobe, take their
      clothes off and remain unclothed when they have more primitive
      forms of psychosis. That’s what I associate that with, is people who
      are oblivious to other people, what other people may think of them,
      what other people may see. They are just not within our realm of
      reality.

In other words, Appellant’s conduct in jail was atypical for both those persons
who were mentally healthy and those who were mentally ill.


                                         7
Appellant’s husband’s death, she contacted his life insurance company to seek a

payout on his policy. D.W., a neighbor who saw Appellant frequently because

their daughters were friends, testified that she thought Appellant did not have any

kind of mental defect. Appellant’s daughter testified that Appellant knew right

from wrong on the day Appellant shot and killed her father. Appellant’s daughter

thought it was premeditated because Appellant hid the guns.

      Dr.   Jack   Randall   (Randy)    Price,   a   forensic   psychologist   and

neuropsychologist, evaluated the police records, the audiotape, Appellant’s

medical and personnel records, the competency report, and Dr. Fallis’s files and

notes; he concluded that Appellant did not suffer from a severe mental disease or

defect “at the time of the conduct for which she is charged.” Dr. Price also

evaluated the notes from Appellant’s four counseling sessions right before the

shooting, and he testified that Appellant’s “presentation to them was not one of a

person with psychotic symptoms,” but was, instead, one of a person angry and

depressed about her marriage and her husband’s affair and anxious about her

future, especially her financial future. Dr. Price described some of Appellant’s

self-reporting as “fantastical” and, in his opinion, false. He added, “Individuals

with a borderline personality disorder can be very deceitful and manipulative, and

those were factors that I considered.” Dr. Price testified that in the time period

between 2005 and the offense, there were no mental health professionals that

made notes about a severe mental health disease or disorder such as




                                        8
schizophrenia, schizoaffective disorder, bipolar disorder, or any other kind of

psychotic symptoms. Regarding the offense itself, Dr. Price said,

      There wasn’t any, at any time, in the records that I know of or to
      anybody, has she given a version of the offense that would indicate
      that she didn’t know it was wrong, like the kind of things that some of
      us hear in these cases: I heard a voice. It was God. God told me to
      kill him because he was the devil or because if I didn’t, the world
      would end, or some delusionally-based auditory hallucination,
      something abnormal. At any time in the records or that I know of in
      this case, there has not been an explanation or a version that she
      didn’t know it was wrong.

Regarding the audiotape, Dr. Price said it did not indicate that Appellant was

psychotic when she shot and killed her husband. He said,

             On the day of the offense, of course, she told her sister, “I just
      killed him. I just killed him.” That would indicate to me that she
      knew it was wrong. There wasn’t any other explanation on the
      audiotape. When the police first arrived and asked who did it, she
      said, “I did it.” And she also told them that her name was [A.B.],
      which is the name of the female with whom the victim was involved.
      I didn’t see that as being a psychotic out of touch with reality or
      thinking that she was [A.B.] I thought it was a—you know, it was at
      least a spiteful, if not an attempt to be misleading to the police.[3]



      3
        On the audiotape, after Appellant told her sister that she had just killed her
husband, and after her sister asked Appellant, “What do you mean you just killed
him[?]” Appellant answered several times, “He had a gun.” When Appellant’s
sister then asked where the gun was, Appellant responded, “Here’s the gun[.]
[H]ere’s the gun[.] [H]e had a gun[.] I killed him[.]” Nothing else in the audiotape
suggested Appellant’s husband had a gun, and the testimony at trial showed that
Appellant’s husband could not find his guns because Appellant had taken them
and refused to return them. Although Appellant’s initial statements appear to be
efforts to set up the defense of self-defense, all the other evidence refuted that
scenario. Dr. Price had addressed this portion of the audio earlier in his
testimony and had discounted it because there was no evidence of a second
gun.


                                          9
Dr. Price concluded that Appellant knew her conduct was wrong when she shot

and killed her husband. Because Appellant did not cooperate during his face-to-

face evaluation with her, Dr. Price said he arrived at his opinion regarding her

sanity based upon the records he analyzed.

      Based upon the above evidence, while recognizing that it was the jury’s

duty to evaluate the weight and credibility of the conflicting evidence, we hold

that the jury’s determination that Appellant failed to prove insanity by a

preponderance of the evidence is not so against the great weight and

preponderance of the evidence as to be manifestly unjust. See Lantrip, 336

S.W.3d at 348; Moranza v. State, 913 S.W.2d 718, 725–26 (Tex. App.—Waco

1995, pet. ref’d) (upholding jury’s rejection of insanity defense as not manifestly

unjust despite defendant’s diagnosis of paranoid schizophrenia and despite

expert testimony that defendant was legally insane).      The presence of some

evidence supporting a defendant’s affirmative defense does not render the jury’s

rejection of that defense manifestly unjust or factually insufficient. See Butcher,

454 S.W.3d at 20.      Because we find the evidence factually sufficient, we

necessarily find the evidence legally sufficient. See Citizens Nat’l Bank, 142

S.W.3d at 485. We overrule Appellant’s first point.

            Sufficiency of the Evidence to Support the Conviction

      In Appellant’s second point, she contends the evidence is insufficient to

support her conviction because it fails to establish that she possessed the mental




                                        10
capacity to commit the offense. Appellant argues that she lacked the mens rea

to commit the offense.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences




                                         11
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      Physical and mental diseases or defects may affect a person’s perceptions

just as much as they may affect a person’s rational understanding of her conduct

or her capacity to make moral judgments. See Ruffin, 270 S.W.3d at 593. With

that in mind, a defendant may offer evidence of a mental disease or defect to

rebut or disprove her culpable mens rea. Id. at 594; see id. at 590–97 (holding

that independent of any insanity defense, evidence of mental disease or defect

may be offered on issue of mens rea).

      A person commits murder if she intentionally or knowingly causes the

death of an individual or when she, with the intent to cause serious bodily injury,

commits an act clearly dangerous to human life and thereby causes death. Tex.

Penal Code Ann. § 19.02(b)(1)–(2). A person acts intentionally when it is her

conscious objective or desire to engage in the conduct or cause the result. Tex.

Penal Code Ann. § 6.03(a) (West 2011). A person acts knowingly when she is

aware that her conduct is reasonably certain to cause the result. Tex. Penal

Code Ann. § 6.03(b) (West 2011).

      Direct evidence of intent is not required. Hart v. State, 89 S.W.3d 61, 64

(Tex. Crim. App. 2002). A jury may infer the intent to kill from any evidence that

it believes proves the existence of that intent, including the accused’s use of a

deadly weapon. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003),

cert. denied, 541 U.S. 938 (2004). A jury may also infer intent or knowledge from


                                        12
circumstantial evidence such as acts, words, and the conduct of the defendant.

Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) (“Because ‘[o]ne’s

acts are generally reliable circumstantial evidence of one’s intent,’ the jury could

reasonably infer that [the defendant] intended to do exactly what he did—to inflict

bodily injury on [the complainant].” (quoting Rodriguez v. State, 646 S.W.2d 524,

527 (Tex. App.—Houston [1st Dist.] 1982, no pet.))).

      Appellant was aware her husband wanted a divorce and was afraid about

her financial survival. She was the beneficiary of her husband’s $250,000 life

insurance policy.    When asked, Appellant refused to turn her husband’s

handguns over to their daughter. Appellant shot her husband in the head at an

intermediate range and killed him.       Appellant then tried to collect on her

husband’s $250,000 life insurance policy. There was testimony that Appellant

did not suffer from a severe mental disease or defect and that she knew her

conduct was wrong when she shot and killed her husband. This was more than

enough evidence from which the jury could have concluded Appellant murdered

her husband for the life insurance policy rather than allowing the divorce to

proceed and facing an uncertain financial future. Although there was evidence of

mental illness, the jury was free to disbelieve any testimony that she lacked

sufficient mental capacity to have had the requisite mens rea. See Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (“The jury may choose to believe

some testimony and disbelieve other testimony.”).        We overrule Appellant’s

second point.


                                        13
                     The Admission of the Tape Recording

      In Appellant’s third point, she complains about the admission of State’s

Exhibit 45B—the audiotape recording of Appellant shooting and killing her

husband. She argues that the State failed to establish the chain of custody and

that the trial court did not conduct a balancing test as required by rule 403 of the

Texas Rules of Evidence. She also maintains that the trial court’s ruling on the

balancing test must be measured against the relevant criteria to determine

whether it was arbitrary and capricious.

      To the extent Appellant complains about the chain of custody, that was not

Appellant’s objection at trial. An error presented on appeal must be the same as

the objection raised at trial or nothing is preserved for appellate review. See Tex.

R. App. P. 33.1(a); Allridge v. State, 762 S.W.2d 146, 157 (Tex. Crim. App.

1988), cert. denied, 489 U.S. 1040 (1989).          We overrule that portion of

Appellant’s third point.

      There is no requirement that the trial court place on the record that it has

conducted and completed the balancing test in its own mind. Nolen v. State, 872

S.W.2d 807, 812 (Tex. App.—Fort Worth 1994), pet. ref’d, 897 S.W.2d 789 (Tex.

Crim. App. 1995). The fact that the judge made a proper balancing test can be

implied from the record. Id. Although the record does not contain a discussion

by the court before it overruled Appellant’s objection, we presume it performed

the mandatory test. Id. We overrule that portion of Appellant’s third point.




                                           14
      A trial court may exclude relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid.

403. “Unfair prejudice” refers to evidence that has an undue tendency to suggest

a decision on an improper basis, such as an emotional one. Torres v. State, 794

S.W.2d 596, 600 (Tex. App.—Austin 1990, no pet.). Rule 403 authorizes a trial

court to exclude relevant evidence when there is a clear disparity between the

degree of prejudice of the offered evidence and its probative value. See Mozon

v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

      A trial court’s ruling on a rule 403 objection is reviewed under an abuse of

discretion standard. See State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim.

App. 2005). The test for whether there was an abuse of discretion is whether the

action was arbitrary or unreasonable. Id. An appellate court should not reverse

the trial court’s ruling as long as it is within the “zone of reasonable

disagreement.” Id. at 440 (citing Montgomery v. State, 810 S.W.2d 372, 380

(Tex. Crim. App. 1991)).

      The audiotape provided the jury an aural account of the shooting. It had

tremendous probative value showing the manner and means of the

complainant’s death. See Long v. State, 823 S.W.2d 259, 271 n.18 (Tex. Crim.

App. 1991), cert. denied, 505 U.S. 1224 (1992). Additionally, both doctors who

assessed whether Appellant was legally sane when she shot and killed her

husband relied on the audiotape. Because Appellant raised the insanity defense,

the audiotape was a key piece of evidence regarding her mental state at the time


                                       15
of the offense. See Ruffin, 270 S.W.3d at 587–88. Conversely, Appellant does

not articulate how the audiotape was unfairly prejudicial.           By comparison,

gruesome crime scene photographs, because they depict nothing more than the

reality of the crime committed, have survived rule 403 objections. See Sonnier v.

State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). The audiotape would not

impress the jury in some sort of irrational but nevertheless indelible way; just the

contrary, it was highly relevant on what precisely happened and on Appellant’s

mental state when it happened. See Mozon, 991 S.W.2d at 847. Appellant does

not complain about any undue delay, and the audiotape, far from distracting the

jury from consideration of the indicted offense, would force the jury to focus on it.

See id. A recording of the offense, even just an audio recording, would not

confuse the issues, mislead the jury, or constitute needless cumulative evidence.

Tex. R. Evid. 403. The recording served to clarify the events leading up to the

shooting and allowed the jury to put the other testimony into the context of the

recording. We hold the trial court did not err by admitting the audiotape over

Appellant’s rule 403 objection and overrule her third point.

                            Comment on Failure to Testify

       In Appellant’s fourth point, she maintains that the trial court erred by

overruling her motion for mistrial when the prosecutor made a direct comment on

her right not to testify.

       During the State’s final arguments, the following occurred:




                                         16
             [THE PROSECUTOR]: You’ve listened to the tape. You just
      have to wade through it. You know, eventually people are gonna
      realize what’s going on, and they’ll realize that you’re a fraud and a
      liar and a backslider, and you’re not a nice person. And that you
      really—4

            THE DEFENDANT: You were in orgies. That’s why I got that
      tape. You were in—

            THE COURT: Ms. Reyes.

            THE DEFENDANT: —in orgies with these women and men.

            [THE PROSECUTOR]: And I would suggest—

            THE DEFENDANT: You wanted it.

            [THE PROSECUTOR]: And I would suggest to you—

            THE DEFENDANT: I’m a Christian woman.

             [THE PROSECUTOR]: You notice how she pipes up when
      something is said that she doesn’t like? She knows exactly what
      she’s doing, and she knew exactly what she was doing that night,
      ladies and gentlemen.

             And it goes on, and that you’re really—and then that part is
      unintelligible. And all you’ve got to have is you and your siblings and
      your mom, and as he gets ready to continue talking, she shoots him
      in the head.

      4
      The prosecutor is quoting from a transcription of the audio. Appellant’s
husband’s last words before Appellant shot him were:

      Just have to wade through it[.] [Y]ou know[,] eventually people are
      gonna . . . realize what’s going on . . . and uh . . . they’ll realize that
      you’re a fraud and a liar . . . and a back slider . . . and you’re not a
      nice person . . . and that you really. . . and that (unintelligible) . . .
      and all you’re gonna have is you . . . and your siblings . . . and your
      mom . . . .




                                          17
            THE DEFENDANT: Hallelu[j]ah (unintelligible language)—

            [THE PROSECUTOR]: She knows what’s going on.

            THE DEFENDANT: Jesus. Hallelu[j]ah.

            [THE PROSECUTOR]: And you will notice when I said that
      she shot him in the head, that’s when she screamed “hallelujah.”

             [DEFENSE COUNSEL]: Most respectfully, I have to make an
      objection to that. I can’t control my client’s outburst. That’s a direct
      strike over the shoulder of my client regarding her right not to testify.
      That’s improper argument, and he knows that.

            THE DEFENDANT: (Unintelligible language).

            THE COURT: Sustained.

            [DEFENSE COUNSEL]: He knows that.

            Judge, therefore, based on that comment of the prosecutor, I
      have to, as a matter of law, ask for a mistrial.

            THE COURT: That’s denied.

      We disagree with Appellant’s premise that the prosecutor commented on

her failure to testify. Appellant made outbursts during trial, and the prosecutor

commented on those. The court of criminal appeals has written that it saw no

reason to treat trial outbursts by a defendant any differently than other evidence

offered at trial. See Johnson v. State, 583 S.W.2d 399, 409 (Tex. Crim. App.

[Panel Op.] 1979). The court held that a prosecutor “may properly, within reason,

comment on that evidence.” Id. We hold that the prosecutor’s comments were

reasonable responses to Appellant’s outbursts; therefore, the trial court did not

err by denying her motion for mistrial. We overrule Appellant’s fourth point.


                                         18
                                 Conclusion

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.

                                               /s/ Anne Gardner
                                               ANNE GARDNER
                                               JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

PUBLISH

DELIVERED: November 12, 2015




                                        19
