                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00540-CR

                                             Ruben ARCE,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 111th Judicial District Court, Webb County, Texas
                               Trial Court No. 2012CRM000033-D2
                            Honorable Mark R. Luitjen, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: April 30, 2014

AFFIRMED

           Appellant Ruben Arce was indicted and found guilty by a jury on the charge of aggravated

assault with a deadly weapon and assessed punishment at fifty-five years confinement in the

Institutional Division of the Texas Department of Criminal Justice and a fine in the amount of

$10,000.00. Finding no merit in any of the alleged complaints, we affirm the trial court’s

judgment.
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                           FACTUAL AND PROCEDURAL BACKGROUND

A.     Jury Selection

       On June 25, 2012, a jury was selected in the aggravated assault with a deadly weapon

charge against Appellant Ruben Arce. The jury was sworn, Arce entered a plea of not guilty to

the aggravated assault, and after instructions were provided, the jury was released until the

following morning.

       On June 26, 2012, the trial court called the matter for trial and Arce was not present. His

attorney announced that he did not know Arce’s whereabouts. The State requested a capias. The

trial court questioned Arce’s mother who testified that she had seen him getting ready for court

that morning, but that he left the house and she did not see him again. Arce’s attorney confirmed

that he spoke with Arce the evening before and Arce had assured him that he would be in court.

The trial court issued the capias, denied bond, and recessed for two hours in an attempt to have

Arce’s family locate him. After Arce still did not appear, the trial court determined that Arce

voluntarily absented himself after pleading to the indictment and the trial proceeded in his absence

in accordance with article 33.03 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.

PROC. ANN. § 33.03 (West 2006) (“[W]hen the defendant voluntarily absents himself after

pleading to the indictment or information, or after the jury has been selected when trial is before a

jury, the trial may proceed to its conclusion.”). The trial resumed and the jury was instructed

accordingly.

B.     Presentation of Evidence

       The State’s first witness was the victim Jesus “Chuy” Guerrero. Guerrero testified that, on

October 23, 2010, he was at a party in El Cenizo, Texas where he consumed several beers and

used cocaine.    Guerrero left the residence with a friend, Benigno Ayala, and walked to a

convenience store. He and Ayala were talking outside the store when Arce rode up on a bicycle.
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Guerrero and Arce had known each other for over fifteen years and Guerrero considered him “a

nephew.”

       Arce circled around Guerrero and Ayala twice. Guerrero and Ayala left the area and began

walking down the street when gunshots erupted, approximately five or six shots. Guerrero was

struck in the back and the arm. Guerrero turned and saw Arce as the shots continued. Guerrero

ran for cover and a third bullet struck him in the leg. Guerrero testified that Arce was the individual

who fired the weapon. Ayala was unhurt and fled the scene. He later testified that when he heard

shots, he ran for cover, and did not see the shooter.

       Webb County Sheriff’s Deputy Oscar Silva responded to the call at approximately 11:46

p.m. While waiting for the ambulance, Guerrero repeatedly told Deputy Silva that Arce was the

shooter. Officers at the scene retrieved seven bullet casings consistent with a .45 caliber weapon,

a beer can, and Guerrero’s boot—both of which had been pierced by bullets.

       Deputy Jose Mar and Corporal Felix Nunez proceeded to Arce’s residence where his

mother, Diana Arce, gave consent to search the residence. Deputy Mar testified that he knew the

Arce family and knew the Arce family owned a .45 caliber semiautomatic handgun. Deputy Mar

further testified that he inspected the weapons cabinet but was unable to locate the .45 caliber

handgun. While at the residence, Diana Arce confirmed to the officers that Arce had access to the

residence and there was a bicycle at the house. Sergeant Sylvia Morales proceeded to the hospital,

but Guerrero was unconscious and could not provide any additional information. Three days later,

however, Guerrero again identified Arce as the shooter.

       Arce points to the testimony of El Cenizo Fire Chief Juan Gonzalez. Chief Gonzalez

testified to overhearing Guerrero tell the deputies that he did not know who shot him, but that a

small, gray, four-door vehicle drove near him and he was shot by one of the occupants. However,



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when Deputy Silva was asked about the gray vehicle, he did not remember any discussion of a

gray vehicle and was adamant Guerrero identified Arce as the shooter.

       Attempts by the officers to locate Arce were unsuccessful until approximately six weeks

later. When the officers attempted to arrest Arce, he absconded from the police vehicle. He was

ultimately charged with escape, evading arrest, and the aggravated assault with a deadly weapon

charge. Before trial, Arce entered a plea of guilty to escape and evading arrest.

       After two days of trial, the jury found Arce guilty of aggravated assault with a deadly

weapon and sentenced him to fifty-five years confinement in the Institutional Division of the Texas

Department of Criminal Justice and assessed a fine in the amount of $10,000.00.

       In his appeal, Arce raises five issues: (1) the prosecutor’s comments during closing

argument were calculated to inflame the jurors’ conscience, (2) the prosecutor improperly

informed the jury of Arce’s invocation of his right to remain silent, (3) the prosecutor’s comments

during opening argument were prejudicial and denied Arce his right to a fair trial, (4) the venire

panel was tainted by the comments of a prospective juror, and (5) the prosecutor’s improper

remarks permeated the entire trial thereby denying Arce a fair trial by an impartial jury. For

purposes of this appeal, we address the issues chronologically as they arose and at trial.

                             COMMENT BY MEMBER OF THE VENIRE

       Arce contends the trial court erred in failing to grant his request for a mistrial in response

to comments made by a prospective juror. Specifically, Arce points to the prospective juror

opining in open court that Arce appeared to be on serious drugs and the prospective juror’s

affirmation that she had special qualifications to make such diagnosis.

       The Fourteenth Amendment incorporates the essence of the Sixth Amendment right to trial

by impartial, indifferent jurors whose verdict is based upon the evidence developed at trial. See

Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996), overruled on other grounds, Easley
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v. State, NO. PD-1509-12, 2014 WL 941451, *3 (Tex. Crim. App. Mar. 12, 2014) (citing Holbrook

v. Flynn, 475 U.S. 560, 567 (1986) and Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

A.      Standard of Review on Motion for Mistrial

        “The conduct of the voir dire examination [lies] within the sound discretion of the trial

court.” Mendoza v. State, 552 S.W.2d 444, 447 (Tex. Crim. App. 1977). We, therefore, review a

trial court’s denial of a motion for mistrial for an abuse of discretion. See Hawkins v. State, 135

S.W.3d 72, 76–77 (Tex. Crim. App. 2004). Only for highly prejudicial and incurable errors is a

mistrial appropriate. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); see also

Hawkins, 135 S.W.3d at 77 (“Only in extreme circumstances, where the prejudice is incurable,

will a mistrial be required.”).

        To show harm based on the trial court’s denial of a motion for mistrial, a defendant must

prove the following: (1) other venire members heard the remarks, (2) the venire members who

heard the remarks were influenced by them to the prejudice of the defendant, and (3) the juror in

question or another juror with a similar opinion was forced upon the defendant. Callins v. State,

780 S.W.2d 176, 188 (Tex. Crim. App. 1986) (citing Johnson v. State, 205 S.W.2d 773, 774–75

(Tex. Crim. App. 1947)). In the absence of such a showing, no harm to the defendant is shown.

Id. In most instances, an instruction to disregard will cure the prejudicial effect. Wesbrook v.

State, 29 S.W.3d 103, 115–16 (Tex. Crim. App. 2000).

B.      Exchange with the Prospective Juror

        As Arce points out, the exchange with the prospective juror was quite long and included

questions posed before the entire panel.

        Venire #10:     I think either you’re extremely sleepy or you’re on some serious
                        drugs. My opinion.
        State:          Who?
        Venire #10:     This guy right here (indicating).
        State:          Oh, okay.
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Venire #10: So off the bat --
State:         Well, we—yeah.
Defense:       May we approach, Your Honor?
(At Bench, sotto voce)

State:        We’ve never had that happen before. She pointed to the defendant
              and stated that he’s extremely sleepy or he’s on drugs.
Court:        She said?
State:        Uh-huh.
Defense:      I move for a mistrial based on that information that Juror Number
              10 provided to the rest of the jury panel.
State:        I don’t believe that’s grounds for a mistrial.
Court:        She’s not an expert in any fashion. She works at a customer support.
Defense:      It prejudices the rest of the —
Court:        Huh?
Defense:      Our problem with that is that she may have prejudiced the rest of the
              venire panel based on that fact alone. Because there’s going to be
              something with regards to both parties being under the influence of
              drugs, possibly.
State:        She made an observation of the defendant, Your Honor, and nothing
              more. That was her personal observation.
Defense:      And, Your Honor, she is the one sitting right next to Mr. Arce.
Court:        She what?
Defense:      She’s the one sitting closest to Mr. Arce.
Court:        Oh. Okay. I know that. I don’t see how that . . .
(End of Bench conference)

Court:         All right. Ms. Martinez.
Venire #10:    Yes, sir.
Court:         You don't have any special training in any fashion to determine what
               you just said, do you?
Venire #10:    I worked with SCAN, Inc.—
Court:         Huh?
Venire #10:    —and Family Guidance Services.
Court:         What?
Venire #10:    I worked with SCAN, Inc. and Family Guidance Services, which
               dealt with drugs, alcohol and so forth, so . . .
Court:         But there’s no way—you know better than to think that you can just
               look at someone and decide whether or not they’re under the
               influence of drugs.
Venire #10:    Well, I worked—
Court:         You know better than that, right?
Venire #10:    I worked with Family Guidance—
Court:         Answer my question, ma’am. You know better than to think that
               you can tell that someone is under the influence of alcohol or drugs
               simply by looking at them, right?
Venire #10:    Since I dealt with them—
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       Court:         But the answer is yes or no. You know you cannot do that—
       Venire #10:    Yes, sir.
       Court:         —simply by looking at them, correct?
       Venire #10:    Yes, sir.
       Court:         All right. Any other opinions you might have that are based on
                      nonscientific or unprofessional observation, please keep to yourself.
                      Let’s proceed.
       State:         Thank you.
       Defense:       Your Honor—
       Court:         That’s denied.

       The record reflects that Arce did not request an instruction to disregard either before or

after moving to quash the venire. See Sanchez v. State, 769 S.W.2d 348, 353 (Tex. App.—San

Antonio 1989, no pet.) (citing Mendoza, 552 S.W.2d at 446–47). The trial court did, however,

instruct the juror, in front of the entire venire, that the remark was improper and the trial court

proceeded to have the juror confirm that her comments were not supported by simply looking at

the defendant.

C.     Analysis

       The comment appears to have been heard by the entire panel. See Pledger v. State, No.

04–08–00682–CR, 2009 WL 3789607, at *2 (Tex. App.—San Antonio Nov. 11, 2009, no pet.)

(mem op., not designated for publication) (noting that appellate court could “infer from the record

that other members of the venire heard the [comment] because it was made in open court and was

sufficiently audible for the court reporter to record it”); McGee v. State, 923 S.W.2d 605, 607–08

(Tex. App.—Houston [1st Dist.] 1995, no pet.) (inferring from the record that other members of

the venire heard the remark). Arce, however, has not identified any other juror who had a similar

opinion about his guilt, and nothing in the record indicates any other prospective jurors were

influenced by the comments. See McGee, 923 S.W.2d at 607–08; Sanchez, 769 S.W.2d at 352.

Arce, therefore, failed to demonstrate that he suffered any harm.




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       When a defendant fails to show harm, the trial court’s ruling will not be disturbed on

appeal. Berkley v. State, 298 S.W.3d 712, 713 (Tex. App.—San Antonio 2009, pet. ref’d). There

is simply no evidence in the record (1) that any members of the venire who heard the comment

were influenced by it or (2) that Arce was forced to accept a juror who was prejudicially influenced.

See id.; see also Callins, 780 S.W.2d at 188; McGee, 923 S.W.2d at 608. We, therefore, overrule

this issue on appeal.

                              IMPROPER COMMENTS BY THE STATE

       Arce next argues the prosecutor’s comments during both opening and closing arguments

were improper.

       “A timely and specific objection is required to preserve error for appeal.” Luna v. State,

268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a) (requiring

contemporaneous objection and adverse ruling); Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim.

App. [Panel Op.] 1982) (requiring objecting party to (1) make an objection, (2) request an

instruction to disregard be given to the jury, and (3) move for a mistrial). When the defendant fails

to object to a jury argument or pursue an objection to a jury argument to an adverse ruling, he

“forfeits his right to complain about the [jury] argument on appeal.” Cockrell v. State, 933 S.W.2d

73, 89 (Tex. Crim. App. 1996).

       The record reflects that defense counsel neither lodged an objection during either comment

nor requested an instruction to disregard. “[A]ny impropriety in the State’s argument is waived

by a defendant’s failure to make a proper and timely objection.” Aguirre v. State, 683 S.W.2d 502,

508 (Tex. App.—San Antonio 1984, pet. ref’d); see also Griffin v. State, 181 S.W.3d 818, 822

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

       Even if the errors were such that they could not be cured by an instruction, Arce was

required to object and request a mistrial. Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App.
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2002) (declining to overrule Cockrell v. State even in light of prosecutor calling appellant a

“despicable piece of human trash”). We, therefore, overrule both of Arce’s complaints with regard

to the State’s comments during opening and closing arguments.

               PROSECUTOR’S COMMENT ON ARCE’S RIGHT TO REMAIN SILENT

       Arce next argues that the prosecutor improperly informed the jury of Arce’s invocation of

his Fifth Amendment right and the trial court gave no instruction to disregard. Arce’s brief

improperly suggests the exchange in question was between the State and Webb County Sheriff

Deputy Sylvia Morales. However, as the State points out, the exchange was in fact between

defense counsel and Deputy Morales during cross-examination. Because the complained of action

was, in fact, questions posed by defense counsel, we overrule this issue on appeal.

               IMPROPER COMMENTS BY PROSECUTOR TAINTED ENTIRE TRIAL

       Finally, Arce argues that based on cumulative error, the prosecutor’s actions were

extremely prejudicial and permeated the entire trial. Specifically, Arce points to (1) the potential

juror’s prejudicial statement, (2) the statement during opening argument insinuating a witness was

being threatened, (3) the cross-examination of Deputy Morales, and (4) the alleged error during

closing argument when jurors were asked to deliver a verdict that the community expected and to

deliver justice to the complaining witness.

       Arce argues the cumulative effect of all of the above alleged errors denied him due process

and due course of law. Arce argues that, even if none of the errors alone rose to the magnitude of

constitutional breach, the cumulative effect of these constitutional and statutory infringements

violates the state and federal constitutions. Having found no such violations, we hold that these

claims are without merit. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)

(concluding non-errors cannot cumulatively cause error). Accordingly, this issue is overruled.



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                                             CONCLUSION

        Because Arce failed to show any harm by the allegedly erroneous statements made by the

prospective juror, the trial court did not err in failing to grant a mistrial during the voir dire of the

case. Berkley v. State, 298 S.W.3d 712, 713 (Tex. App.—San Antonio 2009, pet. ref’d).

        Even if we assume the complained of statements made by the prosecutor were in error, the

record reflects that Arce failed to object or request a mistrial and, thus, waived any complaint on

appeal. Mathis, 67 S.W.3d at 926–27.

        Finally, having found none of the alleged errors alone rose to the magnitude of

constitutional breach, Arce’s claim of a cumulative effect is of no effect. See Chamberlain, 998

S.W.2d at 238.

        Accordingly, we affirm the trial court’s judgment.


                                                     Patricia O. Alvarez, Justice

DO NOT PUBLISH




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