                                   NO. 07-08-0500-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                   JULY 9, 2009
                         ______________________________

                                  MARTIN BARRERA,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-408,579; HON. BRAD UNDERWOOD, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Martin Barrera was convicted upon his guilty plea of aggravated sexual assault of

a child and sentenced by a jury to 50 years confinement. In three issues, he seeks

reversal by contending 1) the trial court erred in denying him the opportunity to pose a

question to the jury during voir dire, 2) the trial court erred in denying him a curative

instruction after improper jury argument, and 3) court-appointed attorney’s fees should not
have been assessed without evidence that he was able to pay them. As reformed, the

judgment is affirmed.

        Issue 1 - Jury Question During Voir Dire

        Appellant sexually assaulted his biological daughter from the time she was three

years old until the age of seven.             He pled guilty without a recommendation as to

punishment. During voir dire, the jury was informed that appellant had pled guilty to

aggravated sexual assault. One of the jurors noted that the fact appellant had pled guilty

meant “something” and that it would be “a little hard for me to imagine probation for

something like that.” Appellant then asked: “Does anybody else feel the way [the juror]

does?” The State objected on the basis that the question “is specific to this defendant and

this case.” The trial court sustained the objection. Appellant claims the trial court erred in

not permitting him to pose his question and that he was harmed by that ruling.

        At no time did appellant inform the trial court that it was improperly restricting his

right to pose this question to the jury. See Frankenfield v. State, No. 03-05-0715-CR, 2008

Tex. App. LEXIS 7920 at *9-10 (Tex. App.–Austin October 16, 2008, no pet.) (not

designated for publication) (stating that error was waived when the defendant did not

inform the trial court it was improperly restricting his rights and why that was so). In

contrast, appellant did make a bill of exception with respect to a question he posed to the

jury as to whether it could consider probation for aggravated sexual assault of a child.

Accordingly, we find the complaint as to this particular question waived.1




        1
         Appellant does not challenge on appeal the propriety of the trial court’s ruling with respect to the
question whether the panel could consider probation for aggravated sexual assault of a child.

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       Furthermore, even if the issue was preserved and the question appropriate, we

would find, beyond reasonable doubt, that the trial court’s decision to bar it did not

contribute to the punishment levied. First and foremost, the punishment eventually

assessed was 50 years imprisonment, a number far in excess of the ten-year ceiling which

allows for probation. That tends to negate any suggestion that probation was ever likely.

Further, the sexual assaults committed by appellant on his daughter occurred over a span

of four years and began when the child was three years old. Furthermore, the jury heard

not only the details of the assaults but also appellant’s efforts to characterize the child as

the instigator. Next, by the time that defense counsel uttered the question at issue, he had

already asked a number of questions regarding the venire members’ ability to consider the

full range of punishment (which included probation); indeed, he was about to leave the

subject when the additional inquiry was posed and the State objected.               So, upon

considering these circumstances and the record as a whole, we cannot say that appellant

was harmed by the purported error.

       Issue 2 - Jury Argument

       In his second issue, appellant complains of the trial court’s failure to give a curative

instruction when the State, during its closing argument, allegedly mischaracterized the

testimony of his expert witness. We overrule the issue.

       Appellant’s expert witness testified that appellant fell within the low category for re-

offending meaning that of the men in that risk group, “ninety out of one hundred are not

charged with a new sexual offense over a 15-year window of time.” He also testified that

twenty years ago the industry had only a 50 percent chance of determining if a person



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would be charged with a new offense but currently that percentage rate was 70.

Thereafter, the State argued during its closing:

       Their expert wants to tell you that he has little likelihood of re-offending. Low
       means one in ten. Is one in ten worth that risk? And he also said there is a
       70 percent - - 70 percent success in predictability. That means 30 percent
       wrong. So 30 percent out of those other nine out of that ten, it is another
       three, according to their statistics, still offend. That is 40 percent.

Appellant objected to this particular argument as mischaracterizing the evidence, and the

trial court sustained the objection. However, no request was made for an instruction to

disregard the argument. The State then continued by saying that: “It is higher than a coin

flip, and that is all the statistics give you.” Upon that being said, appellant uttered no

objection but rather asked for an instruction to disregard. However, the court denied the

request “as to that statement” and also denied the ensuing motion for mistrial.

       As can be seen, appellant did not immediately request an instruction to disregard

when the trial court sustained his objection. Rather, he waited until another statement was

made. And, it is clear from the record that the trial court believed that the request for the

curative instruction applied only to the reference to the coin flip. Thus, appellant did not

preserve his complaint with respect to the initial statement. Archie v. State, 221 S.W.3d

695, 699 (Tex. Crim. App. 2007) (stating that to preserve error an objection must be

pursued to an adverse ruling).

       As to the second statement, appellant did not make an objection but did request an

instruction to disregard which was denied. Permissible areas of jury argument include 1)

summation of the evidence, 2) reasonable deduction from the evidence, 3) answer to

argument of opposing counsel, and 4) a plea for law enforcement. Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied, __U.S. __, 129 S.Ct. 2075, 173

                                              4
L.Ed.2d 1139 (2009). The State contends that the challenged argument was a reasonable

deduction from the evidence. It is not clear whether the State’s use of the word “it” refers

to appellant’s propensity to re-offend or to the test used to place appellant in the low risk

group. However, the trial court could have interpreted the reference to be to the test which

has a predictability rate of 70 percent in which case the statement is an accurate summary

of the evidence. Accordingly, we cannot say the trial court abused its discretion in refusing

an instruction to disregard. See Cole v. State, 194 S.W.3d 538, 546 (Tex. App.–Houston

[1st Dist.] 2006, pet. ref’d) (stating that abuse of discretion is the standard of review for

rulings on jury argument).

       Issue 3 - Attorney’s Fees

       In his last issue, appellant claims error on the part of the trial court in ordering that

he pay $4,691.78 in attorney’s fees when there is no showing in the record that he has the

ability to pay. We agree.

       There must be some factual basis in the record illustrating that an accused is

capable of paying a legal fee levied under art. 26.05(g) of the Code of Criminal Procedure.

Perez v. State, No. 07-08-0327-CR, 2009 Tex. App. LEXIS 1659 at *4 (Tex. App.–Amarillo

March 11, 2009, no pet.); Mayer v. State, 274 S.W.3d 898, 901 (Tex. App.–Amarillo 2008,

pet. granted). Appellant was appointed counsel at trial and filed an affidavit of indigence

with respect to his appeal. Nothing in the record shows that appellant had the financial

ability to pay any fees. Moreover, the State concedes that the proper remedy is to reform

the judgment to delete the requirement that appellant pay attorney’s fees.




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      Accordingly, the judgment is so reformed and is in all other respects affirmed.



                                              Per Curiam



Publish.




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