                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 STEPHEN ANTHONY WALKER,                         §
                                                                 No. 08-13-00239-CR
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                             213th Judicial District Court
 THE STATE OF TEXAS,                             §
                                                               of Tarrant County, Texas
                              Appellee.          §
                                                                   (TC# 1216371D)
                                                 §

                                           OPINION

       Stephen Anthony Walker appeals his conviction for aggravated assault with a deadly

weapon. In three issues, Walker complains of the trial court’s rulings on his objections to remarks

made by the prosecutor during closing arguments. We affirm.

                         FACTUAL AND PROCEDURAL BACKGROUND

       Walker was indicted for assaulting his girlfriend’s son, Steven Bryce, with a knife

following a physical altercation with Bryce’s mother. At trial, Bryce testified that, when he called

911 to report Walker had choked his mother, Walker: (1) told him he was not going back to jail;

(2) smashed the phone against the wall; (3) slashed him across the neck with a knife; and (4) fled

the scene. Walker conceded he injured Bryce but disputed the notion he did so intentionally.

During opening arguments, defense counsel told the jurors the incident was an accident:
               But it was at that time that Mr. Walker decided he wanted away from the
       situation. And as he was trying to leave, Mr. Bryce was got -- tried to stop him
       from leaving or was blocking his path and he accidentally cut him. Now, Mr.
       Walker, he didn’t intend cut him. In fact, he was so devastated that the fact this
       accident had happened, and he was so upset by this, he left and tried to commit
       suicide in the woods.

To counter Walker’s theory and bolster its case, the State called the responding and investigating

officers as witnesses and introduced into evidence audio recordings of the 911 calls and

photographs of the injuries sustained by Bryce and his mother. Walker did not testify, nor did he

introduce any evidence.

       The issues in this appeal arise from three exchanges that occurred during closing

arguments. The first arose when the parties were arguing the merits of the State’s case. In

contending the evidence proved Walker intended to cut Bryce, the prosecutor drew the jury’s

attention to the 911 calls, the photographs, and Walker’s suicide attempt. Counsel countered that

the evidence actually told a different story:

               Look at the evidence. It’s visual evidence. Okay. And the problem here
       is Steve Walker is, in fact, responsible for Steve Bryce’s injuries. In a civil court
       there wouldn’t be any question. Okay. Because he was careless, because he
       instigated the physical action that happened. Now, did he have any intent -- did he
       have any intent to cause him injury? No. Did he have any knowledge that he was
       causing him injury? No. Because when he realized it he panicked and flew into a
       suicidal whatever you want to call it.
               The -- you have gotten partial pictures in this case. The State -- the State
       dwells on the fact that he, quote, ran away. He ran a couple hundred feet and
       immobilized himself with a knife. His -- his shock and horror over it was enough
       that he turned the knife on himself. Okay. [Emphasis added].

Apparently misconstruing the italicized language above as an accusation that the State had failed

to turn over all evidence in its possession, the prosecutor responded:

       Really? Really? Let me tell you this. The State of Texas has an open file
       policy. And the Defense has everything the State of Texas has. So if he wants to
       tell you what you received is partial pictures, he could have introduced any other

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       pictures he wanted to if they exist.

Counsel immediately objected on the basis that the prosecutor’s remark impermissible shifted the

burden of proof and commented on Walker’s failure to testify. The trial court overruled the

objection, and the prosecutor—continuing to labor under the misimpression that defense counsel’s

“partial pictures” comment was literal—told the jury that she had “no idea what he [was] talking

about” “[b]ecause he [had] a copy of every picture taken in this case.”

       The second exchange transpired minutes later when the prosecutor was reminding the jury

that Walker, not Bryce, was on trial. The prosecutor’s comments regarding Walker’s state of

mind on the day in question, including that he may have been inebriated, led to this colloquy:

       [PROSECUTOR]: Who was agitated?              Who was angry?        Who was drunk?
       Stephen Walker.

       [DEFENSE COUNSEL]: I object, outside the record.

       [TRIAL COURT]: Sustained.

       [DEFENSE COUNSEL]: Can we have the jury instructed to disregard?

       [TRIAL COURT]: Disregard the last comment of the prosecutor about drunk.

       [DEFENSE COUNSEL]: Move for mistrial.

       [TRIAL COURT]: Denied.

       [PROSECUTOR]: There was testimony from the officers that Stephen Walker
       smelled of alcohol.

       [DEFENSE COUNSEL]: I object. That’s outside the record. There was none.

       [TRIAL COURT]: Sustained.

       [DEFENSE COUNSEL]: Can we have the jury instructed to disregard?

       [TRIAL COURT]: And the jury shall disregard that comment.


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       [DEFENSE COUNSEL]: Move for mistrial.

       [TRIAL COURT]: Denied.

The prosecutor moved on to summarize the events surrounding the incident.

       The third exchange occurred when the prosecutor implored the jury to reject the theory that

Walker attempted suicide because he was upset. In asserting that Walker tried to kill himself

primarily to avoid jail, the prosecutor remarked that Walker did not regret his actions:

       Remember the situation we talked about in voir dire, when you are mad and you
       walk in the room and slam the door and a picture falls. You have broken the
       picture. Well, you regret it after it happened. But it doesn’t make the fact that
       you did the action any different. Maybe -- maybe he regretted what he did after it
       happened. I submit to you he didn’t. All he cared about was himself.

Counsel immediately objected on the following grounds:

       That’s a comment on the Defendant’s failure to testify. It’s a question that only
       the Defendant can answer. It’s a comment on lack of remorse . . . .

The trial court sustained the objection and instructed the jury to “disregard the argument

concerning the accused’s failure to testify” but denied the request for a mistrial.

       The jury found Walker guilty of the charged offense and assessed punishment at 15 years’

confinement. The trial court rendered judgment on the jury’s verdict.

                           COMMENT ON FAILURE TO TESTIFY

       Walker’s first and third issues concern his constitutional right against compelled

self-incrimination. In his first issue, Walker asserts the trial court should have sustained his

objection to the prosecutor’s “pictures” remark because it was improper jury argument. In his

third issue, Walker claims the trial court erred in denying his motion for a mistrial when the

prosecutor remarked that he lacked remorse for his actions. According to Walker, “the improper

comments “were targeted to degrade . . . [his] . . . character . . . [and] made it much less likely for

                                                  4
the jury to accept the Defense’s theory that this could have been an accident.” Although Walker

contends he was harmed by the cumulative effect of the prosecutor’s remarks, his complaints are

legally distinct. Because of that distinction, we will analyze them separately.

                                    1. “Pictures” Remark

       In his first issue, Walker contends the prosecution’s remark that “he could have introduced

any other pictures he wanted to” amounted to an improper comment on his failure to testify. We

disagree.

                                       Standard of Review

       We review a trial court’s ruling on an objection based on an improper jury argument for an

abuse of discretion. Davis v. State, 329 S.W.3d 798, 825 (Tex.Crim.App. 2010).

                                         Applicable Law

       Proper jury argument generally falls within one of four categories: (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) responses to argument of opposing

counsel; and (4) pleas for law enforcement. Id. at 821. Argument that the defendant failed to

testify does not fall into any of these categories and violates a defendant’s constitutional and

statutory rights against compelled self-incrimination. Randolph v. State, 353 S.W.3d 887, 891

n.8 (Tex.Crim.App. 2011)(citing U.S. CONST. amend. V; TEX.CONST. art. I, § 10; TEX.CODE

CRIM.PROC. art. 38.08).

       To determine whether prosecutorial argument rises to that level, we view the argument

from the jury’s standpoint and in the context in which it was made, and we resolve any ambiguities

in its language in favor of it being a permissible argument. Randolph, 353 S.W.3d at 891. If the

language used by the prosecution was so clear and unequivocal that the jury could reach no


                                                5
conclusion other than the State intended to comment on the defendant’s failure to testify, the

argument is improper. Randolph, 353 S.W.3d at 891. But “[i]f the language might reasonably

be construed as merely an implied or indirect allusion, there is no violation.” Id. Nor is there

any violation “if the language can reasonably be construed to refer to appellant’s failure to produce

evidence other than his own testimony[.]” Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.

1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). Indeed, “a party

may always comment on the fact that the opponent failed to call an available witness and then

argue ‘Don't you know, if Mr. X had anything favorable to say, my opponent would have called

him.’” Pope v. State, 207 S.W.3d 352, 365 & n.51 (Tex.Crim.App. 2006).

                                             Discussion

          Viewed in context and from the jury’s perspective, the remark in issue was not a direct

comment on Walker’s failure to testify, nor did it otherwise draw the jury’s attention to the

absence of statements from him or refer to a particular aspect of the case that only his testimony

could refute. Nothing in the language used by the prosecutor suggests that Walker should have

testified or that the jury necessarily and naturally construed it as referring to his choice to remain

silent.    Rather, the prosecutor’s remark can be reasonable construed as a comment on, or

summation of, the evidence presented at trial or as a comment on Walker’s failure to produce any

evidence at trial. To be considered improper, the remark would have to necessarily and naturally

steer the jury to conclude that the prosecutor was implying that the absence of controverting

evidence was due to Walker’s failure to testify. That is neither a clear nor a necessary implication

from the prosecutor’s remark.

          Walker asserts the remark was improper for two reasons, but his reasoning is not


                                                  6
persuasive. First, he claims the remark constituted a direct comment on his failure to present an

overall case and, thus, impermissibly shifted the burden of proof to him. But jury argument

pointing out that the defendant has failed 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 Patrick, 906 S.W.2d at 491; Caron v. State, 162 S.W.3d 614, 618

(Tex.App.--Houston [14th Dist.] 2005, no pet.)(holding that prosecutor’s statement that “[i]f there

is something out there that is going to exonerate you, you want to make it known” was permissible

jury argument); Baines v. State, 401 S.W.3d 104, 109 (Tex.App.--Houston [14th Dist.] 2011, no

pet.)(holding that prosecutor’s statement that defendant “has the same subpoena power” and could

have called witnesses to testify in his defense was “a permissible remark about appellant’s failure

to produce evidence in his favor on his defense and did not shift the burden of proof to appellant”).

Walker contends the remark shifted the burden of proof to him in this case because “[t]he State

was not defending a particular piece of evidence or testimony, but the entirety of its case.” In

support of the proposition that a prosecutor cannot comment on a defendant’s failure to present

evidence unless rebutting the defense’s challenge to “a particular piece of the State’s case or a

certain witness or a certain item of evidence[,”] Walker cites Jackson v. State, 17 S.W.3d 664

(Tex.Crim.App. 2000). Walker’s reliance on Jackson is misplaced.

       In Jackson, the appellant argued the prosecution had impermissibly shifted the burden of

proof to him when telling the jury during closing argument that the defense “would have called its

expert to the stand if it had seriously disputed the State’s evidence.” 17 S.W.3d at 674. The

court disagreed, holding that the prosecutor’s reference to the defendant’s failure to produce expert

testimony in support of his assertions that the State’s DNA evidence was lacking was proper jury


                                                 7
argument because it was merely a response to the defense’s assertion. Jackson, 17 S.W.3d at 674.

In so holding, the court recognized that it is permissible argument for the prosecutor to answer the

arguments of opposing counsel. Id. The court also held the prosecutor’s argument did not

amount to a prohibited reference to the appellant’s failure to testify. Id. Contrary to Walker’s

assertion, the court did not hold that the prosecution is forbidden to comment on a defendant’s

failure to produce evidence in any circumstance other than in response to the defense’s argument

attacking a specific piece of the State’s evidence. Indeed, the court has observed that it is

permissible for the prosecution to comment on the defendant’s failure to testify if the comment is a

“fair response” to the defendant’s claim that he is not responsible because the result was an

accident. See Randolph, 353 S.W.3d at 892-93.

          Second, Walker alleges the prosecutor’s remark exacerbated the harm he suffered because

it “incorrectly imparted to the jury that [he] had an unfettered right to introduce whatever he

wanted regardless of the rules of evidence.” But Walker cites no authority for his assertion, nor

does he pause to explain how that inference unfairly shifted the burden of proof to him or

constituted a direct comment on his failure to testify.

          We conclude the trial court did not abuse its discretion by overruling Walker’s objection to

the prosecutor’s remark that “he could have introduced any other pictures he wanted to if they

exist.”

          Walker’s first issue is overruled.

                                       2. “Remorse” Remark

          In his third issue, Walker argues the prosecution’s argument that he lacked remorse for his

actions constituted an improper commented on his failure to testify because only his testimony


                                                   8
could refute that notion. We disagree.

                                       Standard of Review

       We review the trial court’s denial of a motion for mistrial for an abuse of discretion.

Coble v. State, 330 S.W.3d 253, 292 (Tex.Crim.App. 2010), cert. denied, ––– U.S. –––, 131 S.Ct.

3030, 180 L.Ed.2d 846 (2011). If the trial court’s ruling is within the zone of reasonable

disagreement, it must be upheld. Id.

                                         Applicable Law

       A mistrial is required only in extreme circumstances where the prejudice is incurable.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). Prejudice is incurable when the

objectionable material is clearly calculated to inflame the minds of the jury or was of such a

damaging character as to suggest it would be impossible to remove the harmful impression from

the jurors’ minds. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Rojas v. State,

986 S.W.2d 241, 250 (Tex.Crim.App. 1998).

       To determine whether prejudice is incurable, we apply a three-factor balancing test.

Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119

S.Ct. 1466, 143 L.Ed.2d 550 (1999). We look at: (1) the severity of the misconduct (the

magnitude of the prejudicial effect of the remark); (2) the curative measures taken (the efficacy of

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

misconduct (the strength of the evidence supporting the conviction). Id. In evaluating the

severity of the misconduct, we assess “whether [the] jury argument is extreme or manifestly

improper [by] look[ing] at the entire record of final arguments to determine if there was a willful

and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.”


                                                 9
Brown v. State, 270 S.W.3d 564, 573 (Tex.Crim.App. 2008). [Internal quotation omitted].

                                                     Discussion

         Assuming the prosecutor’s “remorse” remark was improper, 1 Walker has failed to

establish it warranted a mistrial.            The remark, when analyzed under the three-factor test

articulated in Mosley, is not so prejudicial as to be incurable.

         The magnitude of the prejudicial effect of the remark was minimal. The prosecutor was

not inviting the jury to observe Walker’s lack of remorse in the courtroom. Rather, she was

arguing to them that the evidence indicated Walker lacked remorse following the incident, which

she could fairly do in rebutting Walker’s claim that Bryce’s injuries were the result of an accident.

The evidence adduced at trial supported the prosecutor’s argument. No witness testified that

Walker inquired about Bryce’s welfare, and Walker does not argue to the contrary. Viewed in its

proper context, the prosecutor’s remark was limited to Walker’s behavior following the incident,

and the concept of remorse was not mentioned again. There is simply no connection between

Walker’s behavior at the time of the incident and his failure to testify at trial more than two years

later.

         There is nothing in the record suggesting the trial court’s instructions to disregard did not

cure the prosecutor’s remark. Following the prosecutor’s remark, the trial court immediately

applied the curative measure requested by Walker—an instruction to disregard. A prompt

instruction to disregard ordinarily cures any harm from improper argument. Wesbrook v. State,


1
  The State contends the trial court erred in sustaining Walker’s objection to the prosecutor’s remark because it “was a
proper response to the argument of defense counsel, and referred to the facts of the offense itself, not to [Walker]’s
present-sense lack of remorse at the time of trial.” As the State correctly points out, a prosecutor may comment about
an appellant’s lack of remorse at the time of the offense, if the comment is supported by the evidence, but may not
comment about an appellant’s lack of present-sense remorse. See Snowden v. State, 353 S.W.3d 815, 823-25
(Tex.Crim.App. 2011). But the prosecution never asked the trial court to reconsider its ruling on this, or any other,
basis. Because the State did not raise its complaint at trial, we will not address it on appeal. See TEX.R.APP.P. 33.1.
                                                          10
29 S.W.3d 103, 115-16 (Tex.Crim.App. 2000). Moreover, we generally presume the jury will

obey a trial court’s instruction to disregard. Id. at 116. Walker asserts we cannot rely on this

presumption because the prosecutor’s “[r]epeated comments on [his] failure to testify and

improper comments of evidence outside of the record … shows that the attempts of the trial court

to cure the prejudice were in vain.” But beyond making this assertion, Walker does not explain

how the instruction was ineffective. Nor does he direct our attention to any other portion of the

record suggesting it was impossible to remove the harmful impression from the jurors’ minds.

Contrary to Walker’s assertion, the remarks here were not so blatant as to render the presumption

inapplicable. Therefore, we must presume the trial court’s admonishments were effective. See

Coble, 330 S.W.3d at 292; see also Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004)(grant

of mistrial motion should be reserved for those cases in which an objection could not have

prevented, and an instruction to disregard could not have cured, the prejudice stemming from an

event at trial); Caldwell v. State, 818 S.W.2d 790, 799-800 (Tex.Crim.App. 1991), overruled on

other grounds by Castillo v. State, 913 S.W.2d 529, 532-35 (Tex.Crim.App. 1995)(any improper

jury argument by State alluding to defendant’s lack of remorse was cured by trial court’s

instruction to disregard).

       The certainty of Walker’s conviction is high absent the misconduct. As mentioned above,

Walker never disputed he cut Bryce’s throat.          Instead, he claimed to have injured Bryce

accidently while fleeing. But, as the trier of fact, the jury was free to reject Walker’s theory, and

a rational jury could have found that Walker intended to cut Bryce based on how Walker used the

knife, which was similar to a box cutter in that it had a blunt edge and a sharp edge, and how he

behaved after cutting Bryce. Bryce testified that, before Walker attacked him, Walker mimicked


                                                 11
slicing his own throat with the knife’s dull edge.      When asked to relate what occurred

immediately thereafter, Bryce provided the following harrowing account:

       [BRYCE]: All I remember is him pulling his arm back and slicing my throat from
       back and forth. And then –

       [PROSECUTOR]: Where were you standing in relation to him?

       [BRYCE]: I was still standing straight in front of him.

       [PROSECUTOR]: Could he see you?

       [BRYCE]: Yes.

       [PROSECUTOR]: Were you trying -- was he trying to leave or anything like that?

       [BRYCE]: No. Because I was -- he had open stairwell behind him. He had
       access to leave and I wouldn’t have.

                                .              .                 .

       [PROSECUTOR]: What kind of motion did he do when he struck you with the
       knife?

       [BRYCE]: Like a swing motion backwards to forwards.

       [PROSECUTOR]: So it started in the back?

       [BRYCE]: Yes.

       [PROSECUTOR]: Were you standing directly in front of him?

       [BRYCE]: Yes. I was standing directly in front of him.

       [PROSECUTOR]: As soon as he cut you what did you do?

       [BRYCE]: He vanished. He disappeared.

       [PROSECUTOR]: Did he offer you any assistance?

       [BRYCE]: No.

       [PROSECUTOR]: Is there any way he would not have known that he had cut

                                              12
        you?

        [BRYCE]: No, ma’am.

        [PROSECUTOR]: Why not?

        [BRYCE]: Because you knew -- how he disappeared and how he vanished, you
        knew he knew what he did.

The State adduced additional evidence undermining Walker’s theory. One of the responding

officers testified that, that based on his investigation, he did not think the incident was an accident.

The evidence was more than sufficient to sustain Walker’s conviction.

        We conclude the trial court did not abuse its discretion in denying Walker’s motion for

mistrial.

        Walker’s third issue is overruled.

                   JURY ARGUMENT NOT SUPPORTED BY EVIDENCE

        In his second issue, Walker argues the prosecutor’s remarks about his alleged inebriation

on the day of the incident were calculated to inflame the jury by “paint[ing] a picture of a ‘typical’

abusive boyfriend . . . who would hurt anyone that stood in his way.” Because there was no

evidence Walker was inebriated on the day he attacked Bryce, we agree the prosecutor’s remarks

were manifestly improper.2 See Borjan v. State, 787 S.W.2d 53, 57 (Tex.Crim.App. 1990)(“[A]

prosecutor may not use closing argument to get evidence before the jury which is outside the

record and prejudicial to the accused.”). But we disagree with Walker’s assertion that the trial

court erred by denying his motion for mistrial.

                                               Discussion

        The prosecutor’s remarks, when analyzed under the three-factor test articulated in Mosley,

2
  On appeal, the State agrees the prosecutor’s remarks were improper because they were not supported by the
evidence.
                                                    13
are not so prejudicial as to be incurable.

       The magnitude of the prejudicial effect of the remarks was minimal. Although there was

no evidence Walker was inebriated on the day he attacked Bryce, there was evidence Walker drank

alcohol and became aggressive when drinking. Bryce testified that Walker’s aggressive behavior

while drinking was the source of past conflicts between them. Bryce also testified that he

believed his mother was not safe in Walker’s presence. In addition, there was evidence of

Walker’s past aggressive behavior. One of the responding officers testified that, when he spoke

to Walker on the phone, Walker disclosed a previous assault conviction. Moreover, the trial court

immediately instructed the jury to disregard the prosecutor’s remarks, and the prosecutor did not

mention Walker’s alleged inebriation during the remainder of her argument. When viewed in the

entirety of the prosecution’s closing argument, we cannot conclude that there was a willful and

calculated effort to deprive Walker of a fair and impartial trial.

       There is nothing in the record suggesting the trial court’s instructions to disregard did not

cure the prosecutor’s prejudicial remarks. Following the prosecutor’s remarks, the trial court

immediately applied the curative measures requested by Walker—instructions to disregard. As

noted above, a prompt instruction to disregard ordinarily cures any harm from improper argument.

Walker counters that the trial courts’ repeated instructions to disregard prove its attempts to cure

were disregarded.     But beyond making this assertion, Walker does not explain how the

instructions were ineffective. Nor does he direct our attention to any other portion of the record

suggesting it was impossible to remove the harmful impression from the jurors’ minds. Absent

evidence to the contrary, we must presume the trial court’s admonishments were effective.

       The certainty of Walker’s conviction is high absent the prosecutor’s remarks. For the


                                                  14
reasons articulated above in our discussion of the prosecutor’s “remorse” remark, we are confident

a reasonable jury hearing the evidence in this case would have found Walker guilty irrespective of

the prosecutor’s remarks.

        We conclude that the trial court did not abuse its discretion in denying Walker’s motion for

mistrial.

        Walker’s second issue is overruled.

                                         CONCLUSION

        The trial court’s judgment is affirmed.



March 25, 2015
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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