      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-13-00852-CR



                                      Gregory Lopez, Appellant

                                                  v.

                                     The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. CR2012-396, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury convicted appellant Gregory Lopez of continuous sexual abuse of a young

child and assessed punishment at 50 years’ imprisonment. See Tex. Penal Code § 21.02. In two

points of error, Lopez argues that the trial court abused its discretion when it denied his motion for

mistrial. We will affirm the trial court’s judgment of conviction.


                                             BACKGROUND

                The indictment alleged that Lopez had sexually abused A.M., whose mother he

was dating. Before his arrest, Lopez had voluntarily spoken with a police detective, and the video

recording of their interview was played for the jury at trial. The State characterized the video of

the interview as containing admissions by Lopez that he had committed the alleged abuse. A.M.

testified at trial; Lopez did not testify.

                During the State’s closing argument, the following exchange occurred:
[Prosecutor:] And that brings you down to the case. I told you in the beginning
there’s usually two people present when this occurs that can testify about it. One of
them has a right not to. You can’t hold it against him. But you get to hear both
sides—

[Defense Counsel:] Your Honor, I’m going to object to that. May we approach,
Your Honor?

***

[At the Bench, on the record.]

[Defense Counsel:] Your Honor, he’s commenting on my client’s failure to testify.
And I object.

[Prosecutor:] It’s in the charge. I said they couldn’t hold it against him.

[Defense Counsel:] That may be, Your Honor. But he’s commenting in his argument
on the failure to testify and that violates my client’s Fifth Amendment rights, it
violates his Texas Constitution due course of law provision, the Fourteenth
Amendment, Your Honor.

        His—his comment that he didn’t testify, Your Honor, is a clear violation of
the Fifth Amendment. He has a right not to testify. It’s in the Court’s charge. They
can consider it, but he sure can’t argue about it.

[Prosecutor:] I can talk about anything that’s in the charge. That’s—

[The Court:] Well, what’s your motion?

[Defense Counsel:] Your Honor, I’m—Your Honor, I’m—first of all, I’m objecting
and I’m asking you to instruct the jury to disregard that last comment.

[The Court:] Okay. Sustained.

[Defense Counsel:] Your Honor, I’m going to ask for a mistrial.

[The Court:] That’s denied.

[Defense Counsel:] Thank you.

[End of Bench discussion.]

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       [The Court:] Ladies and gentlemen, I’m going to ask you to disregard anything that
       may violate the following paragraph.

               “Our law provides that a defendant may testify in his own behalf if he elects
       to do so. This, however, is a privilege accorded a defendant. And in the event he
       elects not to testify, that fact cannot be taken as a circumstance against him.

               “In this case the defendant, Gregory Lopez, has elected not to testify and you
       are instructed that you cannot and must not refer or allude to that fact throughout
       your deliberations or take it into consideration for any purpose whatsoever as a
       circumstance against the defendant.”

               I will instruct the State not to refer to the defendant’s right to remain silent
       for any purpose.

               You may proceed.

       [Prosecutor:] All right.

               You still get to hear from the defendant because he talked to the police. It’s
       in evidence. Counsel wants to talk about that videotape. I went through it. I won’t
       read all of it to you again in closing, but in opening statement everything I told you
       is on that tape.


               After the jury found Lopez guilty but before the punishment phase of the trial began,

Lopez renewed his motion for mistrial. The trial court again denied the motion. The jury assessed

punishment, and the trial court rendered judgment on the jury’s verdict. This appeal followed.


                                   STANDARD OF REVIEW

               Lopez argues that the trial court erred in denying his motion for mistrial because the

prosecutor improperly commented on his failure to testify. “[P]roper jury argument generally falls

within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the




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evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.” Brown

v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

               A comment on a defendant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.

App. 2011); Brewer v. State, No. 03-10-00076-CR, 2014 WL 709549, at *4 (Tex. App.—Austin

Feb. 21, 2014, no pet.) (mem. op.); see U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code

Crim. Proc. art. 38.08. However, the implication that the State’s comment referred to the defendant’s

failure to testify must be “a clear and necessary one.” Randolph, 353 S.W.3d at 891. If the language

might reasonably be construed as merely an implied or indirect allusion, there is no violation. Id.;

see also Patrick v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995) (“A mere indirect or

implied allusion to the accused’s failure to testify does not violate appellant’s rights,” and “if the

language can reasonably be construed to refer to appellant’s failure to produce evidence other than

his own testimony, the comment is not improper.”). The test is whether the language used was

manifestly intended or was of such a character that the jury would necessarily and naturally take it

as a comment on the defendant’s failure to testify. Randolph, 353 S.W.3d at 891; Cruz v. State,

225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (quoting Bustamante v. State, 48 S.W.3d 761, 765

(Tex. Crim. App. 2001)).

               In applying this standard, the context in which the comment was made must be

analyzed to determine whether the language used was of such character. Randolph, 353 S.W.3d

at 891. Courts are not to find that the prosecutor manifestly intended to comment on the defendant’s

failure to testify if some other explanation for the remark is equally plausible. Id. In assessing



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whether the defendant’s rights have been violated, courts must view the State’s argument from the

jury’s standpoint and resolve any ambiguities in the language in favor of its being a permissible

argument. Id.

                Because the trial court in this case sustained Lopez’s objection to the prosecutor’s

jury argument and gave a curative instruction to the jury, the only ruling at issue in this appeal is the

trial court’s denial of Lopez’s motion for mistrial. We review a trial court’s ruling on a motion for

mistrial for an abuse of discretion. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.

2007). We will uphold the trial court’s ruling if it is within the zone of reasonable disagreement. Id.

A mistrial is appropriate for “a narrow class of highly prejudicial and incurable errors” and is used

to terminate a trial proceeding when the 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).

                When a defendant moves for a mistrial on the basis of allegedly improper jury

argument, “whether a mistrial should have been granted involves most, if not all, of the same

considerations that attend a harm analysis.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004). Therefore, we apply the three-factor test articulated in Mosley v. State, 983 S.W.2d 249

(Tex. Crim. App. 1998). See Archie, 221 S.W.3d at 700 (applying Mosley test to determine whether

trial court abused its discretion in denying defendant’s motion for mistrial when prosecutor’s

statement was allegedly a comment on defendant’s failure to testify). Under the Mosley test, we

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

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




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instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of

the evidence supporting the conviction).” Mosley, 983 S.W.2d at 259.


                                           DISCUSSION

                Lopez contends that the prosecutor’s comments were improper because they referred

to his failure to testify. He further contends that the trial court abused its discretion by denying his

motion for mistrial and that each of the three Mosley factors weighs in favor of reversal.

                The State responds by arguing that the prosecutor’s jury argument was not an

improper comment on Lopez’s failure to testify but was instead a reference back to the following

remarks that the prosecutor made during voir dire:


                How many of you heard somebody say there’s two sides to every story? All
        of you because all of you have mothers. Every mother tells their kid that at some
        point I’m pretty sure. My mother used to tell me that mostly when she wanted to
        hear my little sister’s side of the story I found.

                How many of you think, to be fair, you should hear both sides? A lot of
        people do. What I will tell you in criminal cases is that that’s not necessarily the
        right thing. And the reason for that is there is a right not to testify. It’s called the
        Fifth Amendment. You have a right not to incriminate yourself. You have a right
        not to testify in a case.


The State also contends that the prosecutor’s argument was merely reminding the jury of the fact that

they could hear from Lopez through the video recording of his interview with the detective. In

addition, the State argues that, even if the prosecutor’s jury argument was improper, application of

the Mosley factors demonstrates that the trial court did not abuse its discretion in denying Lopez’s

motion for mistrial.



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                We are not convinced that the prosecutor’s jury argument improperly commented

on Lopez’s failure to testify. When read in context, the prosecutor’s statements appear to hearken

back to his comments made during voir dire and to lay the groundwork for his argument that the jury

was able to hear from Lopez, even though he did not testify, by viewing the video of his interview.

Indeed, after the trial court sustained Lopez’s objection and instructed the jury, the prosecutor

proceeded with his argument that the jury heard from Lopez through his police interview, and Lopez

did not object to that statement. We also note that the prosecutor explicitly reminded the jury that

it could not hold Lopez’s failure to testify against him. See Fuentes v. State, 991 S.W.2d 267, 275

(Tex. Crim. App. 1999) (“The complained of comment was a recognition that appellant possessed

a right not to testify and the State respected that right; this is distinguishable from cases in which the

State comments negatively on the defendant’s failure to testify.”); Bouchillon v. State, 540 S.W.2d

319, 322 (Tex. Crim. App. 1976) (“Although here the prosecutor did specifically refer to the

appellant’s failure to testify . . . [h]e did not ask the jury to consider the appellant’s failure to testify

against [him], but rather cautioned the jury not to do so.”).

                Nevertheless, we will assume without deciding that the prosecutor’s jury argument

was improper and will analyze the trial court’s denial of Lopez’s motion for mistrial under the

Mosley factors. The first factor is the severity of the misconduct (that is, the prejudicial effect of the

prosecutor’s improper argument). Here, the prejudicial effect of the prosecutor’s remarks was

minimal if any. The prosecutor himself asked the jury not to hold Lopez’s failure to testify against

him. We conclude that the first factor weighs in the State’s favor.




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               Under the second factor, we consider curative measures adopted by the trial court.

In this case, the court not only sustained Lopez’s objection, but also reread to the jury the entire

portion of the charge explaining Lopez’s right not to testify. We generally presume that a jury will

follow the trial court’s instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).

Because the trial court took such decisive action to remedy any harm caused by the prosecutor’s

comments, we conclude that the second factor also weighs in favor of the State.

               The third factor requires us to analyze the certainty of Lopez’s conviction absent the

prosecutor’s improper argument. Here, the jury heard testimony from the alleged victim that on one

occasion Lopez touched her private part, “was trying to put his finger into [her] butt,” pulled her

hand “towards his private part,” and that this scared her. A.M. also testified that on another occasion

Lopez put his finger inside her private part. In addition to this testimony, the State produced the

video of Lopez’s interview with the detective. Although the parties debate the extent to which

Lopez’s remarks in this video constitute an unequivocal confession of guilt, we conclude that the

video does at least contain incriminating remarks. For example, Lopez admitted to rubbing A.M.’s

leg and “belly” and stated that he would sometimes sleep in the bed with A.M. Lopez also said that

he may have touched A.M.’s private part, although he claimed that this was accidental. Therefore,

we conclude that the third factor weighs in favor of the State.

               Having determined that all three Mosley factors weigh in the State’s favor, we

conclude that the trial court did not abuse its discretion by denying Lopez’s motion for mistrial.

Accordingly, we overrule Lopez’s points of error.




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                                        CONCLUSION

              Having overruled both of Lopez’s points of error, we affirm the trial court’s judgment.



                                             __________________________________________

                                             Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: October 1, 2015

Do Not Publish




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