Affirmed and Memorandum Opinion filed March 26, 2020.




                                        In The

                Fourteenth Court of Appeals
                                NO. 14-18-00660-CR

                      JESUS DANIEL GUERRA, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 185th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1541672


                     MEMORANDUM OPINION

      Appellant Jesus Guerra appeals his conviction for murder. A jury found
appellant guilty and assessed his punishment at 15 years in prison and a $10,000
fine. In two issues, appellant contends the trial court erred in refusing to (1) grant a
mistrial after the prosecutor commented on appellant’s exercise of his right to
remain silent and (2) dismiss the indictment in light of alleged prosecutorial
misconduct. We affirm.
                                    Background

      Appellant was charged with the murder of Demarcus Tucker. According to
appellant’s video-recorded statement to police, in the early morning hours of July
20, 2016, he was driving around in his truck looking to trade Xanax pills for crack
cocaine. A man in a white t-shirt offered to help, and appellant drove the man to a
couple of places to inquire about an exchange. At the second location, appellant
dropped the man off at an intersection. After the man disappeared around a corner
with appellant’s Xanax, Tucker, whom appellant knew but not by name,
approached appellant, who was still in his truck.

      According to appellant, he and Tucker shook hands and spoke briefly before
Tucker stuck his hands inside the truck, reaching for the pistol appellant kept on
the seat under his leg. Appellant said that he always had the pistol in that position
when driving around the neighborhood and Tucker knew this. Tucker reportedly
told appellant he would shoot appellant in the head. Appellant said that he got his
own hand on the gun first and the two struggled momentarily over the weapon
before appellant managed to get his finger on the trigger and fire the pistol. Tucker
fell to the ground. Appellant repeatedly referred to the incident as an attempted
carjacking and claimed he acted in self-defense.

      In his video-recorded statement, appellant initially told officers that he drove
straight home after the incident, then picked up a friend and had a drink before
being pulled over by a police officer. He later added that he and his friend drove
back through the area where the shooting occurred, looking for the man in the
white t-shirt who still had appellant’s Xanax pills. After police told appellant there
were inconsistencies in his statements and they knew he was omitting information,
appellant called the officers back into the interview room and told them that
immediately after the shooting, rather than heading straight home, he had sped off

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looking for the man in the white t-shirt. He said that he also went into the corner
store after the shooting asking after the man, later saw someone in a white t-shirt,
and fired two shots at him. Appellant explained that he was in shock from the
events and that the additional memories had just come back to him.

      Area resident Johnnie Basey testified that on the morning in question, he
saw a truck stop at the intersection and let a man out who then went toward the
corner store. Another man then came from the store, walked over to the truck, and
started talking with the man in the truck. Basey said that the two men were
speaking audibly but were not yelling and did not appear to be arguing. The man
outside the truck had gotten fairly close to the vehicle, so when the truck moved
slightly forward, the man stepped back. Basey said that he turned away at that
point but heard a shot fired just a moment later. The man who had been outside the
truck then fell to the street. Basey did not observe the man outside the truck reach
into the truck, and he did not see any struggle between the two men. The truck
drove down the street, turned around, and came back through the intersection.
Basey then called 911.

      Dwayne Wolf, the deputy medical examiner for Harris County, performed
an autopsy on Tucker. In doing so, he did not observe any soot, stippling, or other
firearm residue on Tucker’s hands that would have been consistent with Tucker
having his hands on the pistol when it discharged.

      Appellant’s issues primarily concern statements the prosecutor made during
closing arguments. During her opening statement, the prosecutor stated appellant
had provided three different versions of events, and defense counsel acknowledged
in her opening remarks that indeed appellant had remembered “more and more” as
he was coming out of the shock of the events. In closing, defense counsel stated:

      He admits that he shot out his back window. I mean, he admits to that.
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      He wasn’t confronted with it. As he sat there and he thought about it,
      he knocked on the door and said, I wasn’t truthful with you. I shot—I
      shot someone. I shot out my back window, rather. And you know
      what? That was true.

      In her closing argument, the prosecutor responded by saying:

      Defense got up here and told you that the defendant’s words to the
      detectives were, I’m sorry for not being truthful to you. I’m sorry for
      not being truthful to you. That’s what [defense counsel] said. And if
      you watch that statement, you will know that those words never
      escaped his mouth. He never apologized for not being truthful but in
      the converse, as soon as he made the third iteration of his story, he
      said, I don’t want it to seem like I’m being deceitful. I’m being honest
      with you. He never apologized for not being truthful. He never
      apologized for lying to them. He wanted to continue the idea and the
      appearance that he was telling the truth. He never apologized for it
      and he has not apologized for it even now.

(Emphasis added.)

      Defense counsel objected to this argument as a comment on appellant’s
failure to testify. The trial court agreed, sustained the objection, and instructed the
jury to disregard “the last statement” as defense counsel requested. Defense
counsel then moved for a mistrial, which the trial court denied. This ruling is the
subject of appellant’s first issue.

      At another point in her closing argument, defense counsel referenced two
people whom police officers had mentioned as people they had interviewed in their
investigation but had not been called to testify:

      The prosecutors have the burden of proof and the burden to disprove
      [self-defense]. So where’s Herman? Where’s Herman Celestine?
      Where’s Ricky Jenkins? Where are all the other witnesses that these
      detectives interviewed? Why didn’t they bring them to you? What
      would they have told you? You have a right to wonder why they
      weren’t here and that should make you doubt right there.


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Celestine was purportedly the man in the white t-shirt who left with appellant’s
Xanax. Appellant purportedly spoke to Jenkins in a confrontational manner in the
corner store after the shooting.

      In response, the prosecutor said in her closing argument:

      I want you to focus on the real story. Now, defense commented on
      why we don’t have Ricky Jenkins here or why we don’t have Herman
      Celestine here. And I want to ask you, if a man shot at you while you
      were running away, would you be scared? If a man came in the store
      and threatened you, would you be scared? Absolutely. And what we
      know about Third Ward is that it’s a scary place to be. So make no
      mistake. There is nothing by the way of anyone that will change this
      defendant’s story and make it true.

      Appellant did not object to these statements when made, but after the jury
retired to deliberate, appellant moved to dismiss the indictment against him,
arguing that the statements amounted to prosecutorial misconduct, particularly
because Jenkins was at that time in jail on a bench warrant issued in this case.
Defense counsel further asserted that the prosecutor had not informed the defense
of Jenkins’s status and a different prosecutor told defense counsel that Jenkins was
not being called because he had been arrested for robbery during the pendency of
appellant’s case. The trial court denied the motion. This ruling is the subject of
appellant’s second issue.

                                   Motion for Mistrial

      Standards of review. In his first issue, appellant contends that the trial court
erred in denying his motion for mistrial after the prosecutor referenced his failure
to testify in closing argument. A mistrial is appropriate only in “extreme
circumstances” for a narrow class of prejudicial and incurable errors. Ocon v.
State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We review a trial court’s
denial of a mistrial for an abuse of discretion. Id. We view the evidence in the light

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most favorable to the trial court’s ruling, considering only those arguments before
the court at the time of the ruling. Id. We must uphold the ruling if it was within
the zone of reasonable disagreement. Id.

      Specifically, in regard to jury argument, mistrial is the proper remedy only
when improper argument is so inflammatory that curative instructions are not
likely to prevent the jury from being unfairly prejudiced against the defendant. See
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We generally
presume on appeal that the jury followed the trial court’s instructions. Thrift v.
State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). This presumption is refutable,
but the appellant must rebut the presumption by pointing to evidence in the record
indicating that the jury failed to follow the trial court’s instructions. Id.

      Permissible jury argument is limited to four areas: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) responses to opposing
counsel’s argument; and (4) pleas for law enforcement. Dinkins v. State, 894
S.W.2d 330, 357 (Tex. Crim. App. 1995). Generally, when an argument falls
outside these areas, error occurs. Id. However, an instruction to disregard the
argument generally cures the error. Id. Only offensive or flagrant error will
mandate reversal after a trial court’s instruction to disregard improper jury
argument. Pena v. State, 554 S.W.3d 242, 252 (Tex. App.—Houston [14th Dist.]
2018, pet. ref’d). In determining whether a prejudicial event was so harmful as to
warrant reversal on appeal, we consider (1) the severity of the misconduct (i.e., the
magnitude of the prejudicial effect), (2) the measures adopted to cure the
misconduct (i.e., the efficacy of any cautionary instruction), and (3) the certainty of
conviction absent the misconduct (i.e., the strength of the evidence supporting the
verdict). Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Pena, 554
S.W.3d at 252.

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      Analysis. As set forth above, the motion for mistrial in this case concerned
the prosecutor’s assertion in closing argument that appellant had not apologized
“even now” to police officers for misleading them. Appellant maintains that this
assertion improperly commented on appellant’s exercise of his Fifth Amendment
Right to remain silent. See U.S. Const. amend. V. We agree with this contention as,
apparently, did the trial judge as she instructed the jury to disregard the statement.
We conclude, however, that the prosecutor’s statement was not so harmful as to
necessitate reversal.

      We begin by noting that the statement likely did not have a great prejudicial
impact. See Mosley, 983 S.W.2d at 259. The State was entitled to point out that
appellant had changed the version of events he provided to police, and the video
recording of appellant’s statement did not show him apologize to officers for the
misleading statements. The prosecutor, however, went too far in pointing out that
appellant did not apologize at trial. The brief reference was not repeated or
otherwise emphasized. See Archie, 221 S.W.3d at 700 (noting brevity of
prosecutor’s reference to defendant’s right to remain silent in concluding no harm
resulted in denying mistrial); Dukes v. State, 239 S.W.3d 444, 450 (Tex. App.—
Dallas 2007, pet. ref’d) (same).

      We next recognize that the trial court promptly instructed the jury to
disregard the mention of appellant’s failure to testify. See Archie, 221 S.W.3d at
700; Dukes, 239 S.W.3d at 450. We presume absent evidence to the contrary that
the jury was able to follow that instruction. See Thrift, 176 S.W.3d at 224.

      Lastly, we consider the strength of the evidence of appellant’s guilt.
Appellant admitted to shooting Tucker but claimed Tucker was attempting to grab
appellant’s gun at the time as part of a carjacking effort. Appellant’s credibility,
however, was cast into doubt by his having provided inconsistent statements to

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police about certain matters, particularly regarding his activities immediately after
the shooting. Additionally, an eyewitness refuted key aspects of appellant’s version
of events, suggesting that Tucker had backed away from appellant’s truck just
before the gunshot and there was no struggle between the men. The evidence
regarding appellant’s behavior after the shooting was also noteworthy. Instead of
going home or calling the police, appellant sped around looking for the man who
had taken his Xanax pills and even shooting at someone he apparently thought
might be that man. And the medical examiner testified that Tucker’s hands did not
show signs that they were on a gun when it fired as appellant stated. Although not
overwhelming, the evidence of appellant’s guilt was strong.

      In light of the factors set forth in Mosley, we conclude that the trial court’s
instruction was sufficient to ameliorate any harm from the prosecutor’s comment.
983 S.W.2d at 259. Accordingly, the trial court did not abuse its discretion in
denying appellant’s request for a mistrial, and we overrule appellant’s first issue.

                           Motion to Dismiss Indictment

      Governing Law. In his second issue, appellant contends that the trial court
erred in denying his motion to dismiss the indictment due to alleged prosecutorial
misconduct during trial, primarily about statements the prosecutor made in closing
argument suggesting certain witnesses were too scared of appellant to testify.
Generally, to complain about trial error on appeal, a criminal defendant must
preserve that error by making a timely and sufficiently specific objection, request,
or motion in the trial court. See Tex. R. App. P. 33.1(a). This is specifically true for
allegations of prosecutorial misconduct. See Penry v. State, 903 S.W.2d 715, 764
(Tex. Crim. App. 1995). “The proper method of preserving error in cases of
prosecutorial misconduct is to (1) object on specific grounds, (2) request an
instruction that the jury disregard the comment, and (3) move for a mistrial.” Id.

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      Appellant concedes in this case that his counsel did not make a timely
objection, did not request the jury be instructed to disregard the prosecutor’s
statements, and did not request a mistrial. Instead, counsel waited until the jury
retired for deliberations and moved to dismiss the indictment. On appeal, appellant
relies on cases proposing that “serious and continuing prosecutorial misconduct
that undermines the reliability of the factfinding process” and results in
“deprivation of fundamental fairness and due process of law” may entitle a
defendant to a new trial even if “few objections have been perfected.” E.g., Rogers
v. State, 725 S.W.2d 350, 359-60 (Tex. App.—Houston [1st Dist.] 1987, no pet.)
(citing Berger v. United States, 295 U.S. 78, 84, 88 (1935); Ruth v. State, 522
S.W.2d 517 (Tex. Crim. App. 1975); and Kerns v. State, 550 S.W.2d 91 (Tex.
Crim. App. 1977)); see also Artz v. State, No. 14-17-00973-CR, 2019 WL
1442069, at *7 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.) (citing
Rogers but declining to conclude prosecutorial misconduct occurred where
defendant failed to preserve error at trial); Jiminez v. State, 298 S.W.3d 203, 214
(Tex. App.—San Antonio 2009, pet. ref’d) (same).

      Appellant, of course, is not requesting a new trial but dismissal of the
indictment. Courts do not possess general authority to dismiss a charging
instrument without the prosecutor’s consent but may do so in specific
circumstances. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003).
“While a trial court may dismiss a charging instrument to remedy a constitutional
violation, the dismissal of an indictment is ‘a drastic measure only to be used in the
most extraordinary circumstances.’” Id. at 817 (quoting State v. Frye, 897 S.W.2d
324, 330 (Tex. Crim. App. 1995)). In other words, a court may dismiss an
indictment without the State’s consent only when “necessary to neutralize the taint
of the unconstitutional action.” Id; see also Frye, 897 S.W.2d at 330 (affirming


                                          9
dismissal of indictment where prosecutor contacted defendant directly—even
though defendant was represented by counsel—and obtained information regarding
defense strategy and evidence to defendant’s detriment).

      Analysis. In support of his allegation of prosecutorial misconduct, appellant
primarily points to the prosecutor’s closing remarks in which she suggested that
two people whom police interviewed had declined to testify at trial because they
were afraid of appellant. He maintains that, in reality, at least one of the witnesses
in question (Jenkins) was in jail at the time of trial and was simply not called to
testify, perhaps because the State was concerned he could be impeached with a
recent robbery conviction. Appellant contends that in making these remarks, the
prosecutor intentionally misled the jury.

      While the prosecutor’s actions are troubling, appellant’s contention is not
fully supported by the record. Although Jenkins was apparently in jail under a
bench warrant, there is no indication in the record that Jenkins and Celestine were
not afraid to testify. As the prosecutor indicated in her remarks to the jury, there
was evidence appellant shot at or intended to shoot at Celestine for taking his
Xanax and had a confrontation with Jenkins in the corner store after shooting
Tucker. Moreover, during the discussion after the jury retired to deliberate, the
prosecutor told the judge that Tucker’s family had informed her that Jenkins did
not want to testify because he was scared.

      As mentioned, appellant posits that the real reason Jenkins was not called to
testify was that he could then be impeached with a robbery conviction that
occurred during the pendency of appellant’s case. Appellant’s trial counsel, in fact,
told the judge that a previous prosecutor had represented that she was not going to
call Jenkins for that very reason. However, that a previous prosecutor made this
remark does not establish that the prosecutor who actually tried the case felt this

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way or that Jenkins was not afraid to testify.

       Appellant additionally complains that the defense was never told that
Jenkins was in jail. Appellant does not explain, however, how this equated to
prosecutorial misconduct. The prosecutor informed the trial court that this
information was readily available by viewing the files for appellant’s case on the
clerk’s e-filing system.

       None of this is to say that the prosecutor’s remarks were proper; it is just to
point out that the evidence does not establish that the prosecutor intentionally
misled the jury. Moreover, even if we were to conclude that this single brief
comment constituted prosecutorial misconduct, the authority appellant relies upon
contemplates “pronounced and persistent” unobjected-to misconduct “with a
probable cumulative effect on the jury.” Rogers, 725 S.W.2d at 360-61; see also
Penry, 903 S.W.2d at 764 (holding that defendant’s failure to timely object to
alleged instance of prosecutorial misconduct waived issue).

       As support for his contention that prosecutorial misconduct was a persistent
problem throughout the proceedings, appellant mentions several occurrences,
including: other statements in closing argument that the jury was instructed to
disregard, including the statement discussed above under appellant’s first issue; a
couple of comments and questions to witnesses that objections were sustained
against; and concerns relating to a prior trial setting. Each of the occurrences
appellant raises, however, was dealt with by the trial court or otherwise rendered
moot in some manner, i.e., objections sustained, the jury instructed, a mistrial
granted.1 Moreover, the cited occurrences did not demonstrate such “serious and

       1
         For example, in regard to the previous trial setting, appellant asserts that a prior
prosecutor attempted to confuse defense counsel regarding the trial date, failed to tender
evidence timely, and made improper remarks to the venire panel during voir dire, which the
panel was instructed to disregard. A mistrial was subsequently declared, however, and the panel
                                              11
continuing prosecutorial misconduct” that they resulted in “deprivation of
fundamental fairness and due process of law” necessitating reversal. Jiminez, 298
S.W.3d at 214; Rogers, 725 S.W.2d at 359-60. Accordingly, we overrule
appellant’s second issue.

       We affirm the trial court’s judgment.




                                              /s/     Frances Bourliot
                                                      Justice



Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).




was dismissed. Appellant fails to explain how any conduct by the prior prosecutor in regard to
the previous trial date prevented him from receiving a fair trial in the proceedings that resulted in
his conviction.

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