Opinion filed April 23, 2015




                                       In The

        Eleventh Court of Appeals
                                     __________

                               No. 11-14-00215-CR
                                     __________

                  ERNEST VILLA MARQUEZ, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 142nd District Court
                               Midland County, Texas
                          Trial Court Cause No. CR42478


                      MEMORANDUM OPINION
       After an open plea of guilty, the trial court found Ernest Villa Marquez
guilty of burglary of a building, found the enhancement paragraphs to be “true,”
and sentenced Appellant to confinement for ten years and no fine. Appellant
argues, in his sole issue, that the trial court erred when it did not declare a mistrial
after the State’s prosecutor, during closing argument, referred to Appellant’s prior
criminal history of burglaries and twice referred to Appellant as someone who
continued to “rob.” We affirm.
                                       I. Evidence at Trial
       Because Appellant does not advance a sufficiency challenge, we recite only
the facts necessary to review his appeal. The grand jury indicted Appellant for
burglary of a building and alleged he had intentionally and knowingly entered a
building without the owner’s consent and had attempted to commit and committed
theft in the building, a “7–Eleven” convenience store.1 Appellant waived his right
to a jury trial and freely and voluntarily pleaded guilty to the indictment, and the
trial court found him guilty of the offense of burglary of a building. Appellant also
pleaded “true” to two enhancement paragraphs2 that alleged he had committed two
felony offenses of burglary of a building.3 After hearing evidence from the State
and Appellant, the trial court found two enhancement paragraphs to be “true” and
later sentenced Appellant to confinement for a period of ten years.
                                            II. Analysis
       Appellant argues, in his sole issue, that the trial court erred when it did not
declare a mistrial after the State’s prosecutor, during closing argument, referred to
him as someone who continued to “rob”; Appellant claims this was harmful
closing argument.
       The prosecutor emphasized Appellant’s lengthy criminal history that
included nine convictions for burglary and other convictions for unauthorized use
of a motor vehicle, theft, and other offenses. The record reflected that Appellant
had prior convictions for burglary but no convictions for robbery. The prosecutor
outlined this lengthy criminal history to argue for a longer sentence than Appellant
had received for previous convictions.                The prosecutor sought the maximum

       1
        See TEX. PENAL CODE ANN. § 30.02(c)(1) (West 2011).
       2
        See id. § 12.425(b) (West Supp. 2014).
       3
        During Appellant’s sentencing hearing, the State also adduced evidence of multiple convictions
by Appellant for DWI and other offenses, but these convictions were not the basis for the enhancement
paragraphs.

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sentence available: confinement for twenty years.4 During his closing arguments
before the court, the prosecutor made two references to “rob” in close succession,
but immediately after the second instance, he recognized his error and corrected
himself. He stated that “rob” was “the wrong term” and that he meant to say
“burglar[iz]ing their businesses.”
       During this part of the closing argument, defense counsel did not object. To
preserve error, Appellant must object or the error is waived. TEX. R.
APP. P. 33.1(a); see Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010);
Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Threadgill v. State,
146 S.W.3d 654, 670 (Tex. Crim. App. 2004). Courts have applied this rule to
bench trials. Dorsey v. State, No. 01-13-01022-CR, 2014 WL 6602517, at *2
(Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. ref’d) (mem. op., not
designated for publication); Parker v. State, No. 02-11-00032-CR, 2011 WL
5984539, at *2–3 (Tex. App.—Fort Worth Dec. 1, 2011, no pet.) (mem. op., not
designated for publication) (failure to object to prosecutor’s closing arguments,
during bench trial, forfeited any potential error for appellate review).
       But even if defense counsel had objected, and we assumed error, it would be
reviewed under TEX. R. APP. P. 44.2(b) and disregarded unless Appellant’s
substantial rights were affected. See Martinez v. State, 17 S.W.3d 677, 692–93
(Tex. Crim. App. 2000). Given that Appellant pleaded guilty to burglary, that he
admitted having been previously convicted of burglaries, and that he had a lengthy
criminal history, which included no robbery convictions, any error in the
prosecutor’s closing argument did not affect Appellant’s substantial rights and had
no impact on the trial court. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim.
App. 1996) (citing Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990)).
       4
        The punishment range for a state jail felony with two prior felony enhancements is not more than
twenty years of imprisonment but not less than two years of imprisonment. See PENAL §§ 12.33,
12.425(b).

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In reviewing the entire record and the prosecutor’s entire closing argument, we
hold the two isolated references did not cause Appellant harm.     We overrule
Appellant’s sole issue.
                              III. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                         MIKE WILLSON
                                                         JUSTICE


April 23, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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