                          NUMBER 13-17-00157-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


STEVEN ALPACINO CERVANTES
A/K/A STEVEN ALPACHINO SANCHEZ
CERVANTES,                                                                 Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 139th District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Appellant Steven Alpacino Cervantes a/k/a Steven Alpachino Sanchez Cervantes

appeals his convictions for three counts of failing to stop and render aid, each a third-

degree felony. See TEX. TRANSP. CODE ANN. § 550.021(c)(1)(B) (West, Westlaw through
2017 1st C.S.). A jury found appellant guilty, and the trial court sentenced appellant to

concurrent five-year prison terms on each count. By nine issues, which we treat as six,

appellant argues that: (1) prosecutorial misconduct rendered his trial “constitutionally

unfair,” and the trial court erred in denying his motions for mistrial on that basis; (2) the

trial court abused its discretion in overruling appellant’s objection to the testimony of an

undisclosed witness; (3) the trial court abused its discretion in overruling appellant’s

objections to photographic evidence; (4) appellant’s Fifth Amendment protection against

self-incrimination was violated when he was compelled to display his tattoo at trial; (5) the

trial court erred in denying appellant’s motion for new trial; and (6) cumulative error

warrants reversal of appellant’s convictions. We affirm.

                                   I.     BACKGROUND

       The charges against appellant stem from a motor vehicle collision between a white

Lexus and a vehicle operated by Miguel Matamoras and occupied by his girlfriend, Maria

Penaloza, and Penaloza’s two children. Penaloza testified that they were driving to a

nail salon in McAllen, Texas when a white Lexus collided with the side of their vehicle at

a high rate of speed. Penaloza described the driver of the other vehicle as a husky male

with tattoos and a beard. She stated that the driver smelled of alcohol. The driver talked

briefly to Matamoras before fleeing the scene on foot.            Paramedics arrived and

transported Penaloza and her children to the emergency room. Penaloza’s left arm was

broken in the accident, and the injury resulted in permanent disfigurement.

       Matamoras testified that the collision left him feeling dizzy. He exited his vehicle

and attempted to orient himself. The driver of the Lexus then approached Matamoras


                                             2
and asked if everyone was okay. Matamoras recalled that the driver smelled of alcohol

and that he had a mustache and a wavy tattoo on his chest. Moments later, a bystander

told Matamoras that the driver was running away.          Matamoras ran in the indicated

direction in pursuit, but he did not locate the driver.

       Serena Cervantes, appellant’s daughter, testified that she was driving home with

her mother when she saw the aftermath of a vehicular accident. She recalled thinking

that one of the vehicles involved in the accident looked like appellant’s vehicle.

       McAllen police officers Jose Razo, Antonio Garcia, Michael Gutierrez, Mike Garcia,

and Irineo Ramos each testified concerning their role in investigating the accident. The

officers searched the area but were unable to locate the driver of the Lexus. Officer Razo

concluded that the driver disregarded a stop sign, thereby causing the collision. Officers

discovered marijuana seeds, synthetic marijuana, a cell phone, and a credit card issued

to Dyana Lucas in the abandoned vehicle. The vehicle was registered to Lucas, who

officers learned was appellant’s girlfriend. Serena spoke to an officer at the scene and

told him that the Lexus looked like her father’s vehicle.         The officers dusted for

fingerprints, but the latent prints were unsuitable for comparison. Officers removed the

airbag and submitted it for DNA testing; however, no discernible DNA profile could be

retrieved.

       After obtaining a search warrant, Officer Ramos reviewed the contents of the

recovered cell phone, which included photographs of appellant and text messages

indicating that the phone’s owner referred to himself as “Chino.” Officer Ramos also




                                               3
visited a store owned by Lucas, which sold synthetic marijuana similar to what was found

in the Lexus.

       The trial court admitted State’s Exhibit 1, a photograph of appellant in which a

tattoo on his chest is partially visible. Penaloza testified that the driver of the Lexus had

the same tattoo.     Appellant later displayed his tattoo in court, and Penaloza again

recognized it. Both Penaloza and Matamoras positively identified appellant in court as

the driver of the Lexus.

       John Vasquez, a Hidalgo County Sheriff’s deputy, testified that he responded to a

reported burglary at appellant’s residence. Appellant told Deputy Vasquez that someone

stole several items from the home, including his vehicle, which appellant described as a

white Lexus. Deputy Vasquez inspected the house, but he did not find any signs of

forced entry.

       The jury returned guilty verdicts on three counts of failing to stop and render aid.

Appellant filed a motion for new trial, which the trial court denied following a hearing.

This appeal followed.

                            II.    PROSECUTORIAL MISCONDUCT

       By his first issue, appellant argues that “[t]he prosecution engaged in prosecutorial

misconduct rendering [a]ppellant’s trial constitutionally unfair.” Appellant complains of

the following conduct by the State: (1) placing an unadmitted exhibit on the counsel table

within the view of the jury; (2) showing a witness an exhibit, which the trial court ruled was

inadmissible; (3) commenting on matters outside of the record in response to an

objection; and (4) laughing at a remark made by a witness. Appellant also argues that


                                              4
the trial court erred in overruling his motions for mistrial concerning the State’s reference

to the aforementioned exhibit, its comments on matters outside the record, and its closing

argument which appellant alleges “shifted the burden of proof.”

A.     Standard of Review and Applicable Law

       We review the denial of a motion for mistrial under an abuse-of-discretion

standard. Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007). Under

this standard, we uphold the trial court’s ruling if it is within the zone of reasonable

disagreement. Id. “A mistrial is a device used to halt trial proceedings when error is so

prejudicial that expenditure of further time and expense would be wasteful and futile.”

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3

S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a narrow class of

highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004). When the prejudice is curable, an instruction by the court to

disregard eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex.

Crim. App. 2004). The law generally presumes that a jury will follow the trial court’s

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

       We resolve allegations of prosecutorial misconduct on a case-by-case basis and

determine whether the prosecutor’s conduct requires reversal based on the probable

effect on the minds of the jurors. Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App.

1988); Bautista v. State, 363 S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.).

Prosecutorial misconduct exists where (1) the prosecutor deliberately violated an express

court order; (2) the misconduct was so blatant as to border on being insubordinate; or (3)


                                             5
a prosecutor’s action was so clearly calculated to inflame the minds of the jury that an

instruction to disregard cannot cure the harm. See Stahl, 749 S.W.2d at 831; Perkins v.

State, 902 S.W.2d 88, 96 (Tex. App.—El Paso 1995, pet. ref’d).

       Prosecutorial misconduct is an independent basis for an objection that must be

specifically urged to preserve error. Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim.

App. 2012); Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004,

pet. ref’d).   The proper method is to (1) object on specific grounds, (2) request an

instruction that the jury disregard the matter improperly placed before the jury, and (3)

move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Cook

v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).

B.     Analysis

       1.      Exhibits in View of Jury

       The trial court admitted State’s Exhibit 1, a photograph of appellant, over

appellant’s objection that it was a mugshot that constituted evidence of an extraneous

offense.    The trial court granted appellant’s identical objection to State’s Exhibit 2.

During the State’s examination of Matamoros, the following exchange took place:

       Defense Counsel:     Judge, the only objection I have before he proceeds,
                            the State has all the pictures where the jury can see
                            them. They haven’t been admitted. I ask that those
                            pictures—

       Trial Court:         All right. Cover up the photos.

       Defense Counsel:     They were denied, Your Honor.

       Prosecutor:          The photos are already—



                                            6
       Defense Counsel:     I understand, Judge.

       Prosecutor:          —where the jury can’t see them.

       Defense Counsel:     The jury is right there, Judge?

       Trial Court:         All right. Duly noted. Cover them up and move on.

              ....

       Prosecutor:          They are covered up, Judge.

At another point in the proceedings, the following exchange occurred:

       Defense Counsel:     Judge, I will object again to the State having pictures
                            where the jury can see them. Judge, I mean—

       Trial Court:         All right. I already told [you] all once in the morning.
                            You know better than that.

       Defense Counsel:     I will ask for a mistrial again, Judge.

       Trial Court:         That will be denied.

       Appellant did not specifically object on the basis of prosecutorial misconduct, nor

did he request an instruction to disregard. Therefore, appellant has not preserved his

allegation of prosecutorial misconduct in this instance for appellate review.          See

Penry, 903 S.W.2d at 764. Even if appellant had properly preserved his complaint, the

record does not support his contention that the prosecution acted deliberately in violation

of the court’s directive or that any juror saw the exhibit. See Havard v. State, 800 S.W.2d

195, 203–04 (Tex. Crim. App. 1989) (finding no merit in the appellant’s allegation of

prosecutorial misconduct based in part on the fact that the jury did not see a photograph

that the trial court had ordered should not be shown to the jury); Delgadillo v. State, 508

S.W.2d 383, 384 (Tex. Crim. App. 1974) (concluding there was no prosecutorial


                                             7
misconduct in relation to an unadmitted exhibit being visible to the jury where the record

reflected no bad faith on the part of the prosecutor); see also Daniels v. State, No. 01-01-

01030-CR, 2002 WL 31521221, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 14, 2002,

pet. ref’d) (op., not designated for publication) (concluding that the prosecutor’s

placement on counsel table of a file marked with defendant’s prior convictions did not

constitute misconduct, where there was no evidence that jurors looked at the file or

considered what, if anything, they saw).         We conclude that the record does not

demonstrate prosecutorial misconduct. See Stahl, 749 S.W.2d at 831. Therefore, the

trial court did not abuse its discretion in denying appellant’s motion for mistrial. See

Archie, 221 S.W.3d at 699–700.

       2.     Exhibit Displayed to Witness

       Appellant also argues that the following actions of the State constituted

prosecutorial misconduct:

       Prosecutor:          Does the tattoo look like this?

       Matamoras:           Yeah.

       Prosecutor:          Okay. Does it fairly and accurately reflect the same
                            tattoo you saw on April 10th, 2014?

       Defense Counsel:     Judge, the—

       Matamoras:           Yeah, it had this—

       Defense Counsel:     —same objection we had—we had this—

       Matamoras:           Yeah.

       Defense Counsel:     At this time I move for a mistrial, Judge, as to—



                                             8
      Matamoras:            Yeah, it was like—

      Trial Court:          Nothing has been introduced.

      Matamoras:            —it was shaped like a name.

      Trial Court:          Your objection is overruled.       What do you have,
                            Counsel?

      Prosecutor:           Judge, it’s State’s Exhibit No.—

      Trial Court:          The Court has already ruled on that.

      Prosecutor:           It’s not for—it’s for identifying purposes, Judge.

             ....

      Trial Court:          All right. You showed it to him, now what? You’re not
                            going to offer it into evidence because it’s denied and
                            put that photo down.

      Appellant contends that the State was displaying State’s Exhibit 2 to the witness,

which the trial court previously ruled was inadmissible. The State does not take issue

with this contention, and it appears to be supported by the context of the witness

examination. Nevertheless, appellant failed to specifically urge an objection based on

prosecutorial misconduct. Therefore, appellant did not preserve his complaint. See

Penry, 903 S.W.2d at 764.        Further, the record does not establish prosecutorial

misconduct because the State complied with the trial court’s order to discontinue referring

to the exhibit.      See Havard, 800 S.W.2d at 204 (concluding that there was no

prosecutorial misconduct warranting a mistrial by the prosecutor’s questioning of a

witness regarding photographs that were ruled inadmissible, where the prosecutor

ceased doing so upon the trial court’s order). We conclude the trial court did not abuse



                                             9
its discretion in denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699–

700.

       3.     Comments on Matters Outside the Record

       Next, appellant complains of the following colloquy during the State’s examination

of Officer Razzo:

       Prosecutor:         As a crash specialist, do you believe that the marijuana
                           was important as evidence?

       Defense Counsel:    Judge, again, I’m going to object to relevance at this
                           point. I don’t know where [the State] is going with it.

       Prosecutor:         Your Honor, there is testimony—if I may, there is
                           testimony and its already been made a point that there
                           was—there were drugs in the vehicle that were
                           recovered during the inventory, synthetic and regular
                           marijuana, and there is testimony that this driver was
                           impaired in some way either by drinking or was high
                           and had involvement in some sort of drugs and that
                           being the reason for him fleeing the accident.

       Defense Counsel:    Judge, but as we go into the indictment it’s not one of
                           the—

       Trial Court:        Where are you going with this questioning? . . . There
                           is no testimony . . . of any marijuana use or anything.
                           It was just found in there.

       Prosecutor:         Your Honor, in the—if I may, in the vehicle inventory
                           when it was done there was synthetic and regular
                           marijuana found and that’s relevant because of the
                           place of employment of this Defendant and what they
                           sold at that place.

       Defense Counsel:    Judge, again—Your Honor, at this time I move for a
                           mistrial. There is no testimony before this Court as
                           to—

       Trial Court:        Your mistrial is denied.


                                           10
      Defense Counsel:     Judge, she is bringing facts into the witness—into the
                           jury right now without—

      Trial Court:         I already ruled, Counsel. And his objection is good.
                           Move on to something else. . . . The jury will disregard
                           that last statement made by the prosecuting counsel.

      Appellant maintains that the State improperly commented on matters outside of

the record. “Improper references to facts that are neither in evidence nor inferable from

the evidence are generally designed to arouse the passion and prejudice of the jury and,

as such, are inappropriate.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App.

2011). However, we note that the State’s comments are generally supported by the

evidence adduced at trial. There were multiple witnesses who testified concerning the

vehicle inventory. It would be reasonable to infer from this evidence that the presence

of illicit substances motivated appellant to flee the accident. There was also evidence

that appellant’s girlfriend owned a store which sold synthetic marijuana.

      Furthermore, the record fails to establish that the prosecution’s comments were

incurably prejudicial. The trial court sustained appellant’s objection and sua sponte

instructed the jury to disregard the comments.          “An instruction to disregard is

presumptively inadequate only in the most blatant cases; only offensive or flagrantly

improper conduct warrants reversal when there has been an instruction to disregard.”

Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.—Waco 2007, pet. ref’d) (citing Wilkerson

v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994)). We find nothing in the record to

suggest that the jury disregarded the trial court’s instruction, so we must presume the

instruction was followed. See Gamboa, 296 S.W.3d at 580 (relying on the presumption


                                           11
that the jury followed the judge’s instructions).         We further conclude that the

prosecution’s comments were not of such a nature that the trial court’s curative instruction

was inadequate. See Pierce, 234 S.W.3d at 268. Therefore, the trial court did not

abuse its discretion in denying appellant’s motion for mistrial. See Archie, 221 S.W.3d

at 699–700.

       4.     Laughing in Front of Jury

       Appellant argues that the State engaged in prosecutorial misconduct by laughing

during appellant’s questioning of Officer Ramos:

       Defense Counsel:     Well, no text message at 9:11, no text message at ten
                            o’clock—

       Officer Ramos:       The phone was left behind. How was he going to text?

       Defense Counsel:     I understand but there is [sic] no calls—there is nothing
                            there at that point, correct?

       Officer Ramos:       No, sir.

       Defense Counsel:     Now, they may think it’s funny, but I don’t think it’s
                            funny.

       Prosecutor:          Objection, sidebar.

       Defense Counsel:     Judge, they’re laughing in front of the jury.

       Trial Court:         Both of you cease and desist. Let’s go.

       Appellant neither requested an instruction to disregard, nor did he request a

mistrial. Therefore, he has not preserved his complaint. See Penry, 903 S.W.2d at 764.

Even if one had been requested, we do not believe a mistrial on this record would have

been warranted. While laughter or snickering by counsel is inappropriate under most



                                            12
circumstances, the isolated instance cited here does not arise to reversible prosecutorial

misconduct. See McFarland v. State, 834 S.W.2d 481, 488 (Tex. App.—Corpus Christi

1992, no pet.) (prosecutor’s “snickering” at comments made by defense counsel during

final jury argument was not so inflammatory that it could not have been cured by trial

court’s instruction to disregard).

       5.     Shifting the Burden of Proof

       Next, appellant argues that a mistrial was warranted when the State “shifted the

burden of proof during closing arguments.” Appellant contends that the State’s comment

concerning appellant’s power to secure evidence via subpoena was improper.

       The Fifth Amendment of the United States Constitution protects the right of an

accused from being compelled to be a witness against himself. U.S. CONST. amend. V.

In addition, the burden of proof in a criminal case is placed on the State to prove each

element of the charged offense beyond a reasonable doubt, and attempts to shift that

burden to the defendant may constitute a violation of the due process clause of the

Fourteenth Amendment. See TEX. PENAL CODE ANN. § 2.01 (West, Westlaw through

2017 1st C.S.); Lowry v. State, 692 S.W.2d 86, 87 (Tex. Crim. App. 1985) (en banc) (citing

Mullaney v. Wilbur, 421 U.S. 684, 702 (1975)).        The State may comment on the

defendant’s failure to produce witnesses or evidence, but only if it does so in a manner

that does not amount to a comment on the defendant’s decision not to testify. See, e.g.,

Pope v. State, 207 S.W.3d 352, 365 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d

664, 674 (Tex. Crim. App. 2000); Hinojosa v. State, 433 S.W.3d 742, 762 (Tex. App.—

San Antonio 2014, pet. ref’d). Jury argument pointing out that the defendant has failed


                                           13
to present evidence in his favor does not shift the burden of proof but instead summarizes

the state of the evidence and is a reasonable deduction from the evidence.            See

Jackson, 17 S.W.3d at 674.

       During closing argument, appellant’s counsel commented that “there was a video

around there that didn’t show anything that we wished we would have gotten.” The State

responded by arguing that appellant had the power to subpoena evidence such as the

video. The State’s comment was clearly in response to appellant’s closing argument and

not a reference to appellant’s failure to testify. See id. We conclude that the trial court

did not abuse its discretion in denying appellant’s motion for mistrial. See Archie, 221

S.W.3d at 699–700.

       6.     Continuing Misconduct

       Lastly, appellant maintains that he is entitled to a new trial due to on-going

prosecutorial misconduct throughout the proceedings. A new trial may be warranted in

the absence of a specific objection, where serious and continuing prosecutorial

misconduct undermines the reliability of the factfinding process and deprives the

defendant of fundamental fairness and due process of law. Bautista, 363 S.W.3d at 263;

Jimenez v. State, 298 S.W.3d 203, 214 (Tex. App.—San Antonio 2009, pet. ref’d). For

the reasons discussed above, we conclude that the record does not demonstrate serious

and continuing prosecutorial misconduct. We overrule appellant’s first issue.

                            III.   DISCLOSURE OF WITNESSES

       By his second issue, appellant argues that the trial court erred in permitting the

testimony of Deputy Vasquez. Appellant objected to his testimony because the State


                                            14
did not identify Deputy Vasquez on its witness list.

A.     Standard of Review and Applicable Law

       Generally, notice of the State’s witnesses must be given upon request by the

defense. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Hamann v. State,

428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Depena v. State,

148 S.W.3d 461, 465 (Tex. App.—Corpus Christi 2004, no pet.). If the trial court allows

a witness who was not on the State’s list to testify, we review that decision for an abuse

of discretion. See Martinez, 857 S.W.2d at 39; Hamann, 428 S.W.3d at 227. In our

review, we consider two factors: (1) whether the State’s actions in calling a previously

undisclosed witness constituted bad faith, and (2) whether the defendant could have

reasonably anticipated that the witness would testify. Wood v. State, 18 S.W.3d 642,

649 (Tex. Crim. App. 2000) (citing Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim.

App. 1992)); Hamann, 428 S.W.3d at 228.

B.     Analysis

       Appellant filed a motion for discovery, requesting the names of any expert witness

the State intended to call.      However, appellant did not request any information

concerning lay witnesses.      Furthermore, there is no discovery order in the record

requiring the State to provide such information. Therefore, the State was under no

obligation to disclose that it intended to call Deputy Vasquez. See Martinez, 867 S.W.2d

at 39; Hamann, 428 S.W.3d at 227; Depena, 148 S.W.3d at 465. In addition, the record

demonstrates that appellant could have reasonably anticipated that Deputy Vasquez

would testify. Appellant filed a notice of its intention to rely on the State’s subpoenas for


                                             15
witnesses. Due to numerous trial settings, the State filed over twenty applications for

subpoenas identifying Deputy Vasquez. We conclude that on this record the trial court

did not abuse its discretion in overruling appellant’s objection to Deputy Vasquez’s

testimony. See Martinez, 857 S.W.2d at 39.

        We also observe that appellant did not move for a continuance in order to prepare

for Deputy Vasquez’s testimony. Therefore, even if there was error in the admission of

the testimony, we are precluded from holding that the error was harmful. See Lindley v.

State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982) (“The failure to request a

postponement or seek a continuance waives any error urged in an appeal on the basis of

surprise.”); see also McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005)

(considering defendant’s failure to request continuance as a factor weighing against

finding of harm when State failed to give timely rule 404(b) notice); Martin v. State, 176

S.W.3d 887, 900 (Tex. App.—Fort Worth 2005, no pet.) (explaining that the defendant

waived any complaint that he was surprised by the State’s untimely notice by failing to

request a continuance). We overrule appellant’s second issue.

                                     IV.     EVIDENTIARY RULING

        By his third issue, appellant argues that the trial court erred by admitting State’s

Exhibit 1 because the State failed to notify appellant of its “intent to use other-crimes

evidence” and because the exhibit was overly prejudicial. 1                    Particularly, appellant

complains that the exhibit was a mugshot from a prior offense.


        1  Appellant argues that the trial court erred by admitting State’s Exhibits 1 and 2. However, the
trial court sustained appellant’s objection to State’s Exhibit 2. Therefore, we will only address the trial
court’s ruling concerning State’s Exhibit 1.

                                                   16
A.    Standard of Review and Applicable Law

      We review a trial court’s ruling on the admission or exclusion of evidence for an

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We

will uphold the trial court’s ruling unless it falls outside the zone of reasonable

disagreement. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016). If the

trial court’s evidentiary ruling is reasonably supported by the record and correct on any

theory of applicable law, we will uphold the decision. See State v. Story, 445 S.W.3d

729, 732 (Tex. Crim. App. 2014).

      The typical concern in admitting a defendant’s mugshot is whether it provides

prejudicial evidence of an extraneous offense. Hollis v. State, 219 S.W.3d 446, 466

(Tex. App.—Austin 2007, no pet.); see Alexander v. State, 88 S.W.3d 772, 780–81 (Tex.

App.—Corpus Christi 2002, pet. ref’d) (determining that a mugshot from a prior offense

was inadmissible because it “had a substantial and injurious effect on the jury’s verdict”

by painting appellant “as someone who had been arrested at least twice before”). When

the photograph itself establishes that it was taken by law enforcement in the context of

an unrelated arrest, it is improper evidence of an extraneous offense. Araiza v. State,

929 S.W.2d 552, 555 (Tex. App.—San Antonio 1996, pet. ref’d); see Richardson v. State,

536 S.W.2d 221, 223 (Tex. Crim. App. 1976) (concluding that the introduction of a

mugshot that showed front and side view of defendant and depicting a sign that read

“SAN ANTONIO PD P7302316 10–22 73 7–15 AM” was reversible error). However,

when there are no indications that the picture was taken by law enforcement, it does not




                                           17
constitute inadmissible extraneous offense evidence. Araiza, 929 S.W.2d at 555 (citing

Huerta v. State, 390 S.W.2d 770, 772 (Tex. Crim. App. 1965)).

B.      Analysis

        Our review of the record reveals no circumstances that would indicate that the

photograph was a mugshot or that it was taken following an arrest for an extraneous

offense. The photograph contains no markings. Appellant is directly facing the camera,

and his chest, shoulders, and head are visible. He is wearing a collared shirt, and the

background is nondescript. The testimony concerning the photograph was limited to a

witness stating that he recognized the partial tattoo visible in the picture. Because the

exhibit does not constitute evidence of a prior offense, we conclude that the trial court did

not abuse its discretion in overruling appellant’s objection on that basis. 2 See Hollis, 219

S.W.3d at 466 (concluding that trial court did not err in overruling objection to mugshot

where there was nothing about the picture indicating an extraneous offense).                            We

overrule appellant’s third issue.

                          V.      PRIVILEGE AGAINST SELF-INCRIMINATION

        By his fourth issue, appellant argues that the trial court’s ruling requiring him to

display his tattoo in court violated his Fifth Amendment right against self-incrimination.

        Requiring a defendant to display an identifying characteristic to the jury does not

violate the Fifth Amendment. See Taylor v. State, 474 S.W.2d 207, 210 (Tex. Crim. App.

1971) (“[I]t has been held proper during a trial to require the defendant to stand, put on a



        2 Aside from appellant’s characterization of the exhibit as a mugshot from a prior offense, appellant
presents no additional argument as to why the exhibit was “overly prejudicial.”

                                                    18
hat, remove glasses, or make a footprint for the purposes of identification.”); Whitlock v.

State, 338 S.W.2d 721, 723 (Tex. Crim. App. 1960) (concluding trial court did not err in

failing to declare a mistrial where the defendant complied with request to display his left

hand which was missing a portion of the thumb).            Accordingly, Texas courts have

repeatedly held that the display of a defendant’s tattoos to the jury is not a violation of the

right against self-incrimination. Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App.

2007); Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim. App. 2003); Sauceda v. State,

309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. ref’d); Garcia v. State, 239 S.W.3d

862, 868 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); DeLeon v. State, 758 S.W.2d

621, 625 (Tex. App.—Houston [14th Dist.] 1988, no pet.); see also McDonald v. State,

No. 13-98-072-CR, 1999 WL 33757925, at *2 (Tex. App.—Corpus Christi Feb. 25, 1999,

no pet.) (op., not designated for publication). We overrule appellant’s fourth issue.

                               VI.    MOTION FOR NEW TRIAL

       By his fifth issue, appellant argues that the trial court erred in denying his motion

for new trial, which asserted claims of prosecutorial misconduct. Appellant’s motion for

new trial urged the same grounds as his motions for mistrial and trial objections.

Appellant does not present any new issues that we have not already addressed in this

memorandum opinion. For the reasons discussed above, we conclude that appellant

was not entitled to a new trial based on prosecutorial misconduct.               We overrule

appellant’s fifth issue.




                                              19
                                  VII.       CUMULATIVE ERROR

       By his sixth issue, appellant argues that his conviction “should be reversed through

the cumulative error doctrine.”

       Multiple errors may be found to be harmful in their cumulative effect, even if each

error considered separately, would be harmless. Chamberlain v. State, 998 S.W.2d 230,

238 (Tex. Crim. App. 1999). The mere existence of multiple errors, however, does not

warrant reversal unless they operated in concert to undermine the fundamental fairness

of the proceedings. Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

Moreover, if an individual’s claims of error lack merit, then there is no possibility of

cumulative error. Gamboa, 296 S.W.3d at 585. Appellant has not demonstrated any

trial court error from which we could consider cumulative harm. We overrule appellant’s

sixth issue.

                                         VIII.   CONCLUSION

       We affirm the trial court’s judgment.

                                                                LETICIA HINOJOSA
                                                                Justice

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

Delivered and filed the
20th day of November, 2018.




                                                  20
