                                                                             PD-0205-15
                       PD-0205-15                           COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 2/20/2015 9:03:12 AM
                                                           Accepted 2/25/2015 10:35:39 AM
                                                                              ABEL ACOSTA
                        NO._________________
                                                                                      CLERK

                               IN THE

                    COURT OF CRIMINAL APPEALS

                              OF TEXAS



                       GUILLERMO GAMEZ
                            Petitioner

                                  v.

                       THE STATE OF TEXAS
                            Respondent



              Petition is in Cause No. 1289672D from the
        371st Criminal District Court of Tarrant County, Texas,
                and Cause No. 08-13-000133-CR in the
           Court of Appeals for the Eighth District of Texas



            PETITION FOR DISCRETIONARY REVIEW



                                       Kimberley Campbell
                                       TBN: 03712020
                                       Factor, Campbell & Collins
                                       Attorneys at Law
                                       5719 Airport Freeway
                                       Phone: (817) 222-3333
                                       Fax: (817) 222-3330
February 25, 2015                      Email: lawfactor@yahoo.com
                                       Attorney for Petitioner
                                       Guillermo Gamez
                     IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the trial court’s final judgment,
as well as the names and addresses of all trial and appellate counsel.

Petitioner:                       Guillermo Gamez

Petitioner’s Trial Counsel:       Hon. J. Steven Bush
                                  TBN: 03496200
                                  Attorney at Law
                                  314 Main Street, St. 200
                                  Fort Worth, Texas 76196

Petitioner’s Counsel              Hon. David Richards
on Appeal:                        TBN: 16845500
                                  Attorney at Law
                                  3001 West 5th St., Ste. 800
                                  Fort Worth, TX 76107

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Hon. Athur Clayton
                                  TBN: 24007007
                                  District Attorney’s Office
                                  401 W. Belknap
                                  Fort Worth, Texas 76196

Appellee’s Counsel                Hon. Charles Mallin
on Appeal:                        TBN: 12867400
                                  Hon. Sharon Johnson
                                  TBN: 10791400
                                  District Attorney’s Office
                                  401 W. Belknap Street
                                  Fort Worth, Texas 76196




                                            ii
                                              TABLE OF CONTENTS
                                                                                                                                 page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.       The Court of Appeals erred when it held the prosecutor’s improper jury
         argument was harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         C.        Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

         D.        Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                                                                 iii
                                          INDEX OF AUTHORITIES

Cases                                                                                                                    page

Burd v. State,
      404 S.W.3d 64 (Tex. App.–Houston [1st Dist.] 2013, no pet.). . . . . . . . . . . . . .6

Freeman v. State,
      340 S.W.3d 717 (Tex. Crim. App. 2011),
             cert. denied, 132 S.Ct. 1099 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

Gamez v. State,
     No. 08-13-00133-CR, 2015 WL 268999 (Tex. App.–
             El Paso, January 25, 2015, no. pet. h.)
                   (mem. op., not designated for publication). . . . . . . . . . . . . .1, 4, 6

Martinez v. State,
      17 S.W.3d 677 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

Statutes

T EX. P ENAL C ODE A NN. § 9.31(a) (West 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

T EX. P ENAL C ODE A NN. § 9.31(b)(5)(A) (West 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Court Rules

T EX. R. A PP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                               iv
               STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will materially assist

the Court in its evaluation of matters raised by this pleading, Petitioner respectfully

waives oral argument.

                           STATEMENT OF THE CASE

      Petitioner, Guillermo Gamez (“Petitioner” or “Mr. Gamez”), was indicted on

one count of aggravated assault on August 16, 2012. (C.R. 5). Mr. Gamez was

convicted of the charged offense by the jury on March 1, 2013, and sentenced to 14

years incarceration in the Texas Department of Criminal Justice. (C.R. 67). The Court

certified Mr. Gamez’ right to appeal. (C.R. 72). Petitioner filed a timely notice of

appeal on March 28, 2013. (C.R. 73).

                  STATEMENT OF PROCEDURAL HISTORY

      The opinion by the Eighth Court of Appeals affirming Mr. Gamez’ conviction

was handed down on January 21, 2015. See Gamez v. State, No. 08-13-00133-CR, 2015

WL 268999 (Tex. App.–El Paso, January 25, 2015, no. pet. h.) (mem. op., not

designated for publication). This timely Petition for Discretionary review ensued.




                                           1
                            GROUNDS FOR REVIEW

                           GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it held the prosecutor’s improper jury
      argument was harmless.

                             REASONS FOR REVIEW

1.    The decision by the Eighth Court of Appeals has decided an important

question of state law in a way that conflicts with the applicable decisions of the

Court of Criminal Appeals.

2.    The Eighth Court of Appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure by a lower

court, as to call for an exercise of the Court of Criminal Appeals’ power of

supervision.

                                  ARGUMENT

                       GROUND FOR REVIEW ONE (Restated)

I.    The Court of Appeals erred when it held the prosecutor’s improper jury
      argument was harmless.

      Because this petition is predicated upon error by the Eighth Court of Appeals

in its review of Mr. Gamez’ complaint on appeal, a review of the evidence presented

and events which transpired below is in order.

      A.       Facts

      Gloria Martinez is the mother of two children fathered by Mr. Gamez, but was

                                         2
in a relationship with the complainant, Oscar Alvarez. (IV R.R. 9). Alvarez suffered

stab wounds from an incident that occurred at his apartment on the night of July 14,

2012. (IV R.R. 11). The State’s theory of the case was that, motivated by jealousy over

the fact that Ms. Martinez was visiting Alvarez, in what seemed to be a romantic

encounter. (IV R.R. 13). Toward that end, the State introduced evidence that Mr.

Gamez attacked Alvarez with a knife, causing his injuries. Various witnesses placed

Mr. Gamez at the scene. (III R.R. 18; IV R.R. 9). The defensive theory, ultimately

rejected by the jury, was that Mr. Alvarez suffered wounds inflicted by Mr. Gamez,

who was only acting in self-defense. (V R.R. 17).

In closing argument, the state addressed Mr. Gamez’ claim of self-defense, stating:

      First of all is self-defense. You have to ask yourself when and to the degree
      the Defendant reasonably believes force is immediately necessary. . . .

      He could not reasonably believe that force was immediately necessary,
      because he went into that apartment with his knife out with the blade
      exposed just like Gloria told you. She told the police that in her statement that
      night, that he came in with a knife. That’s not something that was brought up and
      made up to come in here to court to tell you good people.

      Mr. Bush: No, Your Honor, but I think it is outside the evidence because the
      officer never received what she said.

      Mr. Clayton: Your Honor, that came up in cross-examination by defense
      counsel.

      The Court: Overruled, if that was an objection. [Emphasis added].

(V R.R. 17).


                                           3
      B.     Opinion Below

      In its Opinion, the Eighth Court of Appeals acknowledged that the trial court

erred in overruling Mr. Gamez’ objection, as Gloria had never testified that she had

informed the police that Mr. Gamez had displayed a knife upon entering the

apartment. See Gamez, 2015 WL 268999 at *4. The Court also correctly recognized

that there was no such evidence in the record from any other source. Id. However,

the Court then went on to find the error harmless. Id.

      C.     Harm Analysis

      A prosecutor may not present evidence that is outside the record during

closing argument. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011), cert.

denied, 132 S.Ct. 1099 (2012). Reference 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, is inappropriate. Id. Error arising from improperly

interjecting evidence outside the record during closing argument is generally

non-constitutional in nature. Id. When non-constitutional error does not affect

substantial rights of the defendant, we must disregard it. T EX. R. A PP. P. 44.2(b);

Freeman, 340 S.W.3d at 728; Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App.

2000). In determining whether an appellant’s substantial rights were affected, courts

must balance the severityof the misconduct (i.e., the prejudicial effect), any curative

measures taken, and the certainty of conviction absent the misconduct. Freeman, 340

                                           4
S.W.3d at 728; Martinez, 17 S.W.3d at 692–93.

       D.     Discussion

       Here, the argument presented by the prosecutor served to bolster the

testimony of Gloria while at the same time devastating Mr. Gamez’ testimony that

the injuries to the complainant took place as a result of self-defense. The court of

appeals completely failed to address in any way the impact of Gloria’s now-

bolstered testimony on Mr. Gamez’ self-defensive theory. In fact, the same

prosecutor emphasized that impact on the self-defense argument when he argued

to the jury that “He [Mr. Gamez] could not reasonably believe that force was

immediately necessary, because he went into that apartment with his knife out with

the blade exposed just like Gloria told you. She told the police that in her statement

that night, that he came in with a knife.” (V R.R. 22).

       Self-defense was a critical theory of this case. The charge itself contained a

self-defense instruction. (C.R. 49-53). Texas law provides that a person is justified in

using force against another “when and to the degree the actor reasonably believes

the force is immediately necessary to protect the actor against the other's use or

attempted use of unlawful force.” T EX. P ENAL C ODE A NN. § 9.31(a) (West 2011).

However, the Texas Penal Code qualifies this defense. It states that the use of force

against another is not justified “if the actor sought an explanation from or discussion

with the other person concerning the actor’s differences with the other person while

                                             5
the actor was carrying a weapon in violation of Section 46.02.” T EX. P ENAL C ODE

A NN. § 9.31(b)(5)(A) (West 2011). Gamez never denied that he was carrying a knife

or that he caused the injuries to complainant. See Gamez, 2015 WL 268999 at *4.

Rather, his entire defensive theory revolved around self-defense, which is rendered

almost unbelievable in the minds of the jury were it believed that he appeared at the

apartment with the knife already drawn. An argument that unfairly bolstered

Gloria’s testimony by explicitly stating that she had told the police such a fact on the

night of the stabbing reduced Mr. Gamez’ theory of self-defense to smoldering ash.

Thus, is it far from certain that the jury would have rejected Mr. Gamez’ self-defense

argument without the improper and unfairly prejudicial argument. See Freeman, 340

S.W.3d at 728; see also Burd v. State, 404 S.W.3d 64, 74–75 (Tex. App.–Houston [1st

Dist.] 2013, no pet.). Because Mr. Gamez’ substantial rights were affected by the

illegal argument by the state, the court of appeals should have reversed the trial

court’s verdict. See Martinez, 17 S.W.3d at 692–93.

                               PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that this

Court grant discretionary review and allow each party to fully brief and argue the

issues before the Court of Criminal Appeals, and that upon reviewing the judgment

entered below, that this Court reverse the opinion of the Eighth Court of Appeals

and remand to the trial court for new trial.

                                           6
                                      Respectfully submitted,

                                      /s/Kimberley Campbell
                                      Kimberly Campbell
                                      TBN: 03712020
                                      Factor, Campbell & Collins
                                      Attorneys at Law
                                      5719 Airport Freeway
                                      Fort Worth, Texas 76117
                                      Phone: (817) 222-3333
                                      Fax: (817) 222-3330
                                      Email: lawfactor@yahoo.com
                                      Attorney for Petitioner
                                      Guillermo Gamez

                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count for the portion of this filing covered by
Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 1,876.

                                       /s/Kimberley Campbell
                                            Kimberly Campbell

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has
been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant
County District Attorney by a manner compliant with the Texas Rules of Appellate
Procedure, on this 6th day of March , 2015.

                                             /s/Kimberley Campbell
                                             Kimberly Campbell




                                         7
                                  APPENDIX

1. Opinion of the Eighth Court of Appeals




                                       8
                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

    GUILLERMO GAMEZ,                                     §
                                                                            No. 08-13-00133-CR
                                   Appellant,            §
                                                                               Appeal from the
    v.                                                   §
                                                                             371st District Court
    THE STATE OF TEXAS,                                  §
                                                                          of Tarrant County, Texas
                                   Appellee.             §
                                                                               (TC# 1289672D)
                                                          §

                                                 OPINION

         Appellant Guillermo Gamez was found guilty of the aggravated assault of Oscar Alvarez

with a knife and sentenced to 14 years’ confinement.1 On appeal, Appellant contends the trial

court abused its discretion in denying his motion for mistrial arising from the admission of hearsay

testimony (Issue One) and in denying his objection to the State’s improper jury argument (Issue

Two). We conclude the trial court’s instruction to disregard cured any potential harm arising

from the witness’s hearsay testimony, and that the improper jury argument was de minimis and did

not affect Appellant’s substantial rights. We therefore affirm.

                                               BACKGROUND

         At one time, Appellant lived with Gloria Martinez, and they had two daughters. But, in

1
  This case was transferred from our sister court in Fort Worth, and we decide it in accordance with the precedent of
that court. TEX. R. APP. P. 41.3.
October 2011, Appellant and Gloria separated. Within six months, Gloria began dating Oscar

Alvarez. The evening of July 13, 2012, Appellant, who had recently returned to town, ended up

sleeping outside on the porch to Gloria’s apartment in an attempt to see his two daughters. In the

early morning hours of July 14, 2012, Gloria slipped away and went to Oscar’s apartment. Later,

while Oscar was sleeping in his bedroom and Gloria was in the bathroom, Appellant knocked

down the door and burst into Oscar’s apartment. Appellant ran into the bathroom, and Gloria saw

that he was holding a knife with the blade exposed. Gloria attempted to block Appellant from

entering the bedroom where Oscar was sleeping. In the commotion, Oscar woke up and hid in the

bedroom closet.     Appellant, however, discovered Oscar hiding in the closet.             Avoiding

Appellant’s grasp, Oscar escaped from the closet and ran out of the apartment. Appellant

pursued, and once outside, caught Oscar and stabbed him multiple times.

                                          DISCUSSION

                         Hearsay Objection and Motion for Mistrial

       In the guilt-innocence phase of trial, the State examined Oscar about the severity of his stab

wounds. During that exchange, Oscar testified, without prompting, that everybody had told him

he was lucky to be alive. Appellant lodged a hearsay objection, requested an instruction to

disregard, and moved for mistrial:

               Q: Did Guillermo Gamez stab you several times?
               A: Yes.

               Q: Do you believe you could have died that night from what he did
               to you:
               A: Yes.

               Q: Do you feel lucky to have lived?
               A: Yes. Everybody has told me so.


                                                 2
                         Mr. Bush: Objection, hearsay, Your Honor.
                         The Court: Sustained.
                         Mr. Bush: Ask the jury to be instructed to disregard the
                         answer.
                         The Court: The jury will disregard the last part of the
                         answer of the witness.
                         Mr. Bush: Move for a mistrial.
                         The Court: Denied.

          In Issue One, Appellant contends a mistrial was required because the trial court’s

instruction to disregard was insufficient to attenuate the harm of the testimony. Appellant

characterizes the testimony as so “extreme” it could have led the jurors to conclude that Oscar’s

injuries were life threatening and thus “used the severity of the injuries as a circumstance against

[him].”

                                          Standard of Review

          A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of

highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.

2009). We review the denial of a mistrial for an abuse of discretion. Id. We must uphold the

ruling if it was within the zone of reasonable disagreement. Id. In determining whether a trial

court abused its discretion by denying a mistrial, we balance three factors: (1) the severity of the

misconduct (the magnitude of the prejudicial effect); (2) the effectiveness of the curative measures

taken; and (3) the certainty of conviction or the punishment assessed absent the misconduct.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Mosley v. State, 983 S.W.2d 249, 259

(Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070 (1999).

                                               Analysis

          The trial court is required to grant a motion for a mistrial only when the improper question

is “clearly prejudicial to the defendant and is of such character as to suggest the impossibility of
                                                   3
withdrawing the impression produced on the minds of the jurors.” Simpson v. State, 119 S.W.3d

262, 272 (Tex.Crim.App. 2003), cert. denied, 542 U.S. 905 (2004) (quoting Wood v. State, 18

S.W.3d 642, 648 (Tex.Crim.App. 2000)). The Court of Criminal Appeals has instructed that

“[o]rdinarily, a prompt instruction to disregard will cure error associated with an improper

question and answer[.]” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). Further, on

appeal, we generally presume the jury follows the trial court’s instructions in the manner

presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005).

       Having reviewed the evidence in the light most favorable to the trial court’s ruling, we

conclude the trial court did not abuse its discretion in denying Appellant’s motion for mistrial.

Oscar’s hearsay testimony was unsolicited and minimal, and was not so extreme or manifestly

improper that an instruction to disregard could not cure any possible prejudicial effect. Without

objection, the State asked Oscar whether he believed he could have died from the stab wounds and

whether he felt lucky to be alive. To each of these questions, Oscar answered “Yes,” without

objection. Further, the State’s question to Oscar whether he felt lucky to have lived, did not seek

a hearsay answer, and Oscar’s answer added little if anything to the other ample evidence before

the jury regarding the severity of his injuries. The evidence admitted for the jury’s consideration

included photographs of Oscar and his injuries. Witnesses described Oscar’s stab wounds as

emitting blood “like a water hose [had] burst” and in “jets,” and described his intestines as

protruding from his abdominal wound. Oscar testified that the stab wounds to his arm and

abdomen were deep, that two surgeries were required to repair his wounds, and that he continued

to experience weakness in one arm and the loss of movement of several fingers. Oscar displayed




                                                4
to the jury the scars resulting from the wounds Appellant inflicted upon his stomach, back, and

arm.

       Moreover, the evidence of Appellant’s guilt was strong. Oscar testified that he had been

dating Gloria Martinez. On the night of July 14, 2012, Gloria was with Oscar at his apartment.

Oscar stated that he awoke to a loud noise and ran to hide in the closet, and when he exited, he saw

Gloria blocking Appellant at the bedroom door. Appellant threw Gloria down, and Oscar ran

from the apartment. Once outside, Appellant pursued Oscar and attacked him. Oscar showed

the jury how he tried to cover himself and attempted to block Appellant’s blows, and then noticed

blood coming from multiple areas of his body. It was then that Oscar realized Appellant had not

struck him with his fists but with a knife. Oscar did not have a weapon to protect himself during

the assault. Oscar retreated to his apartment to get his car keys in order to escape and grabbed a

sword from the wall to protect himself. He then unsuccessfully attempted to drive himself to the

hospital. Detective R.G. Westbrook testified the stab wounds Oscar suffered were sufficiently

severe to constitute serious bodily injury.

       Appellant testified as well. He admitted that he arrived at Oscar’s apartment at 5 a.m. and

when no one answered the door, he “exploded” and broke down the apartment door. He admitted

that he had a knife and testified that “when [he] pushed the door[,] the same impulse took [him] in”

and at that moment he “went in running trying to hurt somebody or trying to do something to

[Oscar].” Appellant saw Oscar escaping out of the closet, admitted that Oscar did not have a

weapon as they fought, and testified that he believed he had used the knife to cut Oscar, but only

out of fear because he heard Oscar yelling for someone to pull out a gun. In later testimony,

Appellant denied that he had stabbed Oscar but stated: “I’m not saying that I didn’t stab him.


                                                 5
What I’m saying is that I didn’t grab the knife and [go] over [to] him and stab him, because if I

would have done that, he would have [ended] up with many wounds all over his stomach and his

chest.”

          We conclude the severity of the misconduct and any prejudicial effect was minimal at best,

and that the instruction to disregard was effective in dissipating any prejudicial effect. The State

did not solicit the hearsay testimony, the testimony was slight, and there was ample other evidence

supporting the severity of Oscar’s wounds. Also, there is no doubt of the certainty of Appellant’s

conviction event absent the minimal hearsay testimony. The facts of the aggressive attack on

Oscar are essentially uncontroverted, and Appellant’s confusing and inconsistent testimony

supporting his claim of self-defense was weak and lacking credibility. Having viewed the

evidence in the light most favorable to the trial court’s ruling, and having balanced the factors to

determine whether the trial court abused its discretion, we conclude the trial court’s denial of

Appellant’s motion for mistrial was within the zone of reasonable disagreement and did not

constitute an abuse of discretion. Issue One is overruled.

                                     Improper Jury Argument

          In Issue Two, Appellant contends the trial court erred by overruling his objection to one

assertion in the State’s closing argument in the guilt-innocence phase of trial. In addressing

Appellant’s claim of self-defense, the State argued:

                 First of all is self-defense. You have to ask yourself when and to
                 the degree the Defendant reasonably believes force is immediately
                 necessary. …

                 He could not reasonably believe that force was immediately
                 necessary, because he went into that apartment with his knife out
                 with the blade exposed just like Gloria told you. She told the police
                 that in her statement that night, that he came in with a knife. That’s

                                                   6
                 not something that was brought up and made up to come in here to
                 court to tell you good people.

                        Mr. Bush: No, Your Honor, but I think it is outside the
                 evidence because the officer never received what she said.
                        Mr. Clayton:         Your Honor, that came up in
                 cross-examination by defense counsel.
                        The Court:       Overruled, if that was an objection.
                 [Emphasis added].

                                         Standard of Review

          A prosecutor may not present evidence that is outside the record during closing argument.

Freeman v. State, 340 S.W.3d 717, 728 (Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 1099

(2012).     Reference 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, is inappropriate.

Id.   Error arising from improperly interjecting evidence outside the record during closing

argument is generally non-constitutional in nature. Id. When non-constitutional error does not

affect substantial rights of the defendant, we must disregard it. TEX. R. APP. P. 44.2(b); Freeman,

340 S.W.3d at 728; Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.Crim.App. 2000). In

determining whether an appellant’s substantial rights were affected, we utilize the same factors we

balanced in Appellant’s first issue: the severity of the misconduct (i.e., the prejudicial effect), any

curative measures taken, and the certainty of conviction absent the misconduct. Freeman, 340

S.W.3d at 728; Martinez, 17 S.W.3d at 692–93.

                                               Analysis

          Appellant does not contend the State improperly asserted that he “went into that apartment

with his knife out with the blade exposed just like Gloria told you.” Indeed, Gloria testified that

when Appellant ran into the bathroom, she saw that he was holding a knife with the blade exposed.


                                                  7
Instead, Appellant complains only about the State’s argument that Gloria “told the police that in

her statement that night, that he came in with a knife.” The State concedes the trial court erred

when it overruled Appellant’s objection because Gloria did not testify that she had informed the

police that Appellant had displayed a knife upon entering Oscar’s apartment. And, we find no

such evidence in the record. However, the State, although it concedes error, contends the

improper argument was harmless because it did not affect Appellant’s substantial rights. We

agree the error was harmless.

       Although the trial court overruled Appellant’s objection and therefore gave no curative

instruction, the record shows that the State’s comments were but a small portion of the State’s

entire closing argument, and that the State did not repeat or emphasize its comments. Further,

there was no real dispute that Appellant possessed a knife when he broke into Oscar’s apartment.

Gloria testified that Appellant was holding a knife with an exposed blade when he encountered her

at the bathroom. We recognize it can be argued that the State’s argument improperly emphasized

Gloria’s credibility. But her credibility on this issue was not crucial to the conviction because

Appellant admitted that he had a knife when he forced his way into Oscar’s apartment, and the

record is clear that he used that knife to attack Oscar. In light of this evidence, the prejudicial

effect of the State’s improper argument is minimal at best. Given the brevity of the prosecutor’s

comments, the lack of prejudice, and the certainty of Appellant’s conviction, as we examined in

Issue One, we conclude that any error associated with the State’s improper argument did not affect

Appellant’s substantial rights and must be disregarded. Issue Two is overruled.

                                        CONCLUSION

       The trial court’s judgment is affirmed.

                                                 8
                                           STEVEN L. HUGHES, Justice

January 21, 2015

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

(Do Not Publish)




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