      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00172-CR



                                    Bruno Trevino, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
        NO. D-1-DC-10-300963, HONORABLE KAREN SAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Bruno Trevino of the offense of indecency with a child by

contact. See Tex. Penal Code § 21.11(a)(1). Punishment was assessed at 12.5 years’ imprisonment.

In two points of error on appeal, Trevino asserts that the district court abused its discretion during

the punishment phase of trial by excluding certain evidence and by failing to instruct the jury to

disregard an argument made by the State during closing. We will affirm the judgment of conviction.


                                         BACKGROUND

               The jury heard evidence that on or about March 21, 2010, Trevino touched the sexual

organ of Z.Q., the eleven-year-old stepdaughter of Trevino’s brother, while she was sleeping. The

evidence included the testimony of the victim, the officer who investigated the incident, and relatives

of the victim, each of whom testified to various aspects of the nature and surrounding circumstances

of the offense. The jury found Trevino guilty of the charged offense of indecency with a child
by contact, and the case proceeded to punishment. The evidence considered by the jury during

punishment, which we discuss in more detail below as it relates to Trevino’s points of error, included

the testimony of D.T. and M.T., Trevino’s biological nieces, each of whom provided testimony

relating to separate incidents in which Trevino had allegedly touched them in a sexual manner while

they were sleeping. At the conclusion of the punishment hearing, the jury assessed punishment

as noted above, and the district court sentenced Trevino in accordance with the jury’s verdict. This

appeal followed.


                                            ANALYSIS

Exclusion of evidence

               In his first point of error, Trevino asserts that, during the punishment phase of trial,

the district court abused its discretion in excluding evidence related to D.T.’s testimony. According

to Trevino, D.T. had made a statement to her grandmother prior to testifying that was inconsistent

with D.T.’s trial testimony, and Trevino wanted to impeach D.T.’s credibility with this statement.

However, the district court did not allow the evidence to be admitted.

               We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The test for abuse of

discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

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

zone within which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576

(Tex. Crim. App. 2005).


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               Rule 613(a) permits a party to impeach a witness with a prior inconsistent statement.

Tex. R. Evid. 613(a). However, “[i]n order to qualify for admission under Rule 613(a), the court

must be persuaded that the statements are indeed inconsistent.” Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002); Baldree v. State, 248 S.W.3d 224, 233 (Tex. Crim. App. 2007); see also

United States v. Hale, 422 U.S. 171, 176 (1975).

               In this case, Trevino elicited the following testimony from D.T. regarding the alleged

incident with Trevino:


       Q.      Did you—have you told anybody that this wasn’t true?

       A.      No, I didn’t.

       Q.      Isn’t it true that you told your grandmother, Mary Trevino, that it wasn’t true?

       A.      No, I didn’t.

       Q.      And that you had made a big mistake?

       A.      She did. She—

       Q.      What?

       A.      Did she make a big mistake?

       Q.      That you had made a big mistake—

       A.      No, I didn’t.

       Q.      —that it didn’t—didn’t occur. Did you tell anybody else that?

       A.      I didn’t tell anybody it didn’t happen because I knew it was true. She [D.T.’s
               grandmother] put words in everybody else’s mouth.




                                                  3
Subsequently, Trevino sought to introduce what he claimed was a prior inconsistent statement that

D.T. had made to her grandmother. In a hearing outside the presence of the jury, the district court

questioned the grandmother regarding what D.T. had allegedly told her:


       Q.      Okay. So you are the—[D.T.], the witness’s, grandmother—

       A.      Yes, ma’am.

       Q.      —is that correct? And I’ve been told that the Defense wishes to offer
               evidence to rebut the witness’s statement that she never said this never
               happened, and so you would—if you were called to the witness stand, you
               would testify to what, that she said at your house she told you what?

       A.      That she made a mistake.

       Q.      What were her words exactly?

       A.      She said, Grandma, I made a mistake. And I ask, about what, Mija? Because
               this was like six months later. You know, it’s not—it wasn’t right after it had
               happened. This was like six months later. And then—then she told me and
               I said, well, you need to—

       Q.      She told you what?

       A.      She told me, Grandma, I made a mistake.

       Q.      Yes. And you said, about what?

       A.      Yes, and she said—

       Q.      And she said?

       A.      —about what I had said about Bruno. And I told her, well, you need to tell
               your mom and your dad.


The district court then excused the witness and had the following discussion with the parties:




                                                 4
[Prosecutor]:        . . . . That’s not a recantation. That—we don’t know what the
                     mistake was.

[The Court]:         I made a—

[Prosecutor]:        I made a mistake, maybe I didn’t want to get my uncle in
                     trouble, maybe whatever, I feel bad about what I said, not it
                     wasn’t true.

[The Court]:         I think that’s absolutely right. I mean, what—she was asked
                     and answered if she told her grandma it wasn’t true. The
                     issue is whether or not it was true.

[Prosecutor]:        Correct.

[The Court]:         Grandma is not saying that.

[Prosecutor]:        Right.

[The Court]:         She’s saying she made a mistake and there are numerous
                     reasons where the—that telling may have been a mistake. I
                     told and nothing happened, I told and the family is in disarray,
                     I told and, you know . . . . So the statement as the witness
                     would testify does not rebut the statement—is not a
                     recantation, does not say that she told me that it never
                     happened, which I believe is what she was asked and
                     answered on direct examination. So I will not allow that
                     testimony.

[Defense counsel]:   And, Your Honor, if we may, still—I guess we would argue
                     that given the context of that conversation, that a reasonable
                     person can deduce that that was actually—that statement, I
                     made a mistake, actually means that she made a mistake as to
                     what she believes happened or the prior statement in general
                     or the prior statement, period, that she made a mistake and it’s
                     not true and a reasonable person can deduce that.

[Prosecutor]:        It’s a hearsay statement, Judge, and a hearsay statement—in
                     order to impeach somebody with a hearsay statement, which
                     is the extrinsic evidence they’re offering, has to be specific.
                     First of all, the denial has to be offered. Second, it has to be
                     specific as to why this statement—this hearsay statement by


                                        5
                               this grandmother is, in fact, rebutting what the child said, and
                               it’s not. It’s just a general, I made a mistake and it could—

       [The Court]:            I think you could believe both witnesses 100 percent. I think
                               you could believe that both witnesses are testifying absolutely
                               truthfully and I don’t believe the statements are inconsistent.


               On this record, we cannot conclude that the district court abused its discretion in

finding that D.T.’s statement to her grandmother was not inconsistent with D.T.’s trial testimony.

The questions that D.T. was asked on cross-examination, the district court could have reasonably

found, concerned whether she had ever recanted the accusation that she had made against her uncle.

In contrast, as the district court observed, the statement that she had made to her grandmother could

have concerned any number of things—that D.T. regretted what she had said, that her accusation had

negative consequences for her family, that she did not want to testify in court against her uncle, etc.

Therefore, the district court’s conclusion that the jury “could believe both witnesses 100 percent”

was within the zone of reasonable disagreement. It was not unreasonable for the district court to

conclude that making a “mistake” could have meant one thing to D.T. when defense counsel used

that word while cross-examining her, but it could have meant an entirely different thing to D.T. when

she was speaking with her grandmother. Because the statement was not necessarily inconsistent with

D.T.’s trial testimony, we cannot conclude that the district court abused its discretion in excluding

the evidence. See Lopez, 86 S.W.3d at 230-31; see also Gonzalez v. State, No. 12-11-00205-CR,

2012 Tex. App. LEXIS 8246, at *24-25 (Tex. App.—Tyler Sept. 28, 2012, pet. ref’d) (mem. op.,

not designated for publication) (considering context of prior statement in determining whether it was

inconsistent with trial testimony).



                                                  6
               Moreover, even if the district court had abused its discretion in excluding

the evidence, we could not conclude on this record that Trevino was harmed by the error. As a

general rule, the exclusion of evidence offered by the defense is non-constitutional error. See

Walters v. State, 247 S.W.3d 204, 221 (Tex. Crim. App. 2007); Potier v. State, 68 S.W.3d 657, 663-

65 (Tex. Crim. App. 2001). Non-constitutional error that does not affect a defendant’s substantial

rights must be disregarded. Tex. R. App. 44.2(b). A substantial right is affected when the error

had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Here, the extent of the proferred testimony from the

grandmother would have been that D.T. had told her that she had made a “mistake.” As we have

already explained, that could mean any number of things other than a recantation, and we could not

conclude that the exclusion of such limited testimony, even if improper, would have had a substantial

and injurious effect or influence in determining the jury’s verdict. Additionally, D.T. was not the

only child who testified during punishment that she was touched inappropriately by Trevino. The

jury also heard testimony from M.T., who was seven or eight years old at the time Trevino allegedly

touched her, and the grandmother’s proferred testimony did not have a tendency to affect the jury’s

determination of that victim’s credibility. Considering all of the evidence in the record, we cannot

conclude that the absence of the excluded evidence had a substantial and injurious effect or influence

in determining the jury’s verdict on punishment. We overrule Trevino’s first point of error.


Improper jury argument

               In his second point of error, Trevino asserts that the district court abused its discretion

in failing to instruct the jury to disregard an allegedly improper comment made by the prosecutor


                                                   7
during the State’s closing argument at the punishment hearing. Specifically, Trevino claims that the

prosecutor “struck at the defendant over the shoulders of defense counsel” with the following

argument:


       Ladies and gentlemen, the State believed that we were missing an element, that
       element of sexual gratification with the intent to gratify his sexual desire, we believed
       that we would not be able to prove that in front of a jury. The State did not rush to
       judgment. If only, if only we knew then what we know now. So for the Defense to
       stand up and say that we are on this full speed ahead on this train moving to convict,
       not so. Defendant got away with it and he knew it. So for the Defense to stand up
       and then say that there’s a low probability that he’ll do it again, huh-uh.


Immediately thereafter, the following occurred:


       [Defense counsel]:      Your Honor, I object to this. She’s striking at the defendant
                               over counsel’s shoulders.

       [The Court]:            Sustained.

       [Defense counsel]:      I ask the jury be instructed to disregard it.

       [The Court]:            Your objection is sustained, [defense counsel].

       [Defense counsel]:      Ask for a mistrial.

       [The Court]:            Denied.


The prosecutor then continued with her argument.

               It is well established that it is improper for the State to “strike at a defendant over the

shoulders of counsel” during argument. See, e.g., Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim.

App. 2010); Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007); Wilson v. State, 7 S.W.3d

136, 147 (Tex. Crim. App. 1999); Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998);


                                                   8
Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995); Orona v. State, 791 S.W.2d 125, 128

(Tex. Crim. App. 1990). “Although it is impossible to articulate a precise rule regarding these

kinds of argument, it is fair to say that a prosecutor runs a risk of improperly striking at a defendant

over the shoulder of counsel when the argument is made in terms of defense counsel personally and

when the argument explicitly impugns defense counsel’s character.” Mosley, 983 S.W.2d at 259.

                Assuming without deciding that the above argument was improper (as the

district court presumably found it to be when it sustained the objection), and further assuming that

the district court should have instructed the jury to disregard it upon request,1 we cannot conclude

on this record that any error in allowing the jury to consider the argument harmed Trevino.

“Although a special concern, improper comments on defense counsel’s honesty have never been

held to amount to a constitutional violation.” Id. Instead, they constitute “other errors” that must be

disregarded unless they affect a defendant’s substantial rights. Id. (citing Tex. R. App. P. 44.2(b)).

In determining whether the defendant was harmed by improper jury argument, courts are to balance

the following three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect

of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any

cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the

strength of the evidence supporting the conviction). Id. In cases in which the improper argument

was made during the punishment phase of trial, we are to analyze the third factor with regard to

the certainty of the punishment assessed, i.e., the likelihood of the same punishment being



       1
           Error may occur when a trial court sustains an objection but fails to give a requested
instruction to disregard. See Moreno v. State, 821 S.W.2d 344, 354 (Tex. App.—Waco 1991,
pet. ref’d).

                                                   9
assessed absent the misconduct. See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007);

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Martinez v. State, 17 S.W.3d 677, 692

(Tex. Crim. App. 2000).

               Regarding the first factor, we do not find the prosecutor’s misconduct to be severe.

Severely improper comments are those which inject new facts into the case, or directly accuse

defense counsel of lying or manufacturing evidence. See, e.g., Orona, 791 S.W.2d at 127-28;

Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985); Fuentes v. State, 664 S.W.2d 333

(Tex. Crim. App. 1984); Lopez v. State, 500 S.W.2d 844, 846 (Tex. Crim. App. 1973); Bray v. State,

478 S.W.2d 89, 90 (Tex. Crim. App. 1972). The comments in this case do not rise to such a level.

Instead, they appear to be, at most, a “mildly inappropriate” response to defense counsel’s

characterization of the evidence presented. See, e.g., Mosley, 983 S.W.2d at 260; Gorman v. State,

480 S.W.2d 188, 190 (Tex. Crim. App. 1972). This factor weighs in the State’s favor.

               Regarding the second factor, no curative instruction was given, nor was the

prosecutor admonished for her argument. This factor weighs in Trevino’s favor. See Mosley,

983 S.W.2d at 260.

               Regarding the third factor, we observe that the evidence in this case included

testimony from the stepdaughter of Trevino’s brother and two of Trevino’s biological nieces, each

of whom testified that Trevino had touched them in a sexual manner. Considering the strength of

this evidence—which tended to show that Trevino had committed other offenses similar to the one

for which he had been found guilty, and which further tended to show that Trevino had committed

those offenses against children who were his relatives, while the children slept—we find it likely that

the same punishment would have been assessed even if the jury had been instructed to disregard the

                                                  10
prosecutor’s argument. See Hawkins, 135 S.W.3d at 85 (concluding that evidence of extraneous

offenses and aggravating circumstance of charged offense were “a much more likely reason” for

punishment assessed than improper argument). This factor weighs in the State’s favor.

               Balancing the three factors for assessing harm in this case, we find that they weigh

in the State’s favor. Although there was no curative instruction given, the alleged misconduct was

not severe, and, based on the strength of the State’s case, we have fair assurance that the misconduct

did not have a substantial or injurious effect or influence in determining the jury’s verdict on

punishment. Accordingly, we cannot conclude that Trevino was harmed by the alleged error. See

Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 260. We overrule Trevino’s second point of error.


                                          CONCLUSION

               We affirm the judgment of the district court.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 9, 2013

Do Not Publish




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