Modify and Affirni and Opinion Filed February 19, 2013




                                                                   In The
                                                court of tpptat
                                      ji iftb ttrftt of ttxa at Oatta

                                                        No, 05-11-01496-CR

                                   ANTONIO FLORES GONZALEZ, Appellant

                                                                       V.

                                            THE STATE OF TEXAS, Appellee

                                On Appeal from the 283rd judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F10-33775-T

                                           MEMORANDUM OPINION

                                   Before Justices Lang-Miers, Myers, and Richter’
                                           Opinion by Justice Lang-Miers

          Appellant Antonio Flores Gonzalez waived his right to a jury trial and pleaded not guilty

before the court to indecency with a child. The trial court found appellant guilty and sentenced

him to two years’ imprisonment. In three issues, appellant challenges the State’s closing

argument. In a fourth issue, appellant challenges the trial court’s assessment of attorney’s fees.

We reform the trial court’s judgment to delete the assessment of attorney’s fees and otherwise

affirm the judgment. We issue this memorandum opinion pursuant to Texas Rule of Appellate

Procedure 47.4 because the law to be applied in the case is well settled.


The Honorable Martin E. Richter, Retired Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.

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       The State charged appellant with unlawfully engaging in sexual contact with a minor, his

niece, by contacting the complainant’s breast with his hand with the intent to arouse and gratify

his sexual desire, On the day of trial, appellant decided to waive a jury in exchange for the

State’s agreement to recommend the minimum sentence of two years’ imprisonment. Defense

counsel cautioned appellant against waiving a jury and the trial court admonished appellant

about his rights. Appellant persisted in waiving a jury, and the court accepted appellant’s jury

trial waiver. Following the presentation of evidence and in closing argument, defense counsel

argued, in part:

                Judge you were here a long time. I’ve been here a pretty good while.
        You’ve been here a lot longer than I have. When someone’s in jail on a charge
        like this, looking at two to 20 years, and they get and sex offense registration,
                                                             —




        mind you, here legally in the United States, and they get offered, in jail because of
        the immigration hold now, and they get offered a two year deferred adjudication
        on a reduced charge with no sex offender registration, two year deferred, almost
        everybody jumps at that. There’s only one type of person that won’t take that
        deal, Judge, if they’re not guilty.

                 Not only did he not take that deal and elected to remain in jail, he stayed
        in jail. The State wasn’t ready on this case many times. I finally petitioned the
        Court because we had witnesses coming in from Monterrey, Mexico, 18 hour one-
        way trips on a bus, I had them here four or five times and never went to trial. The
        Judge granted a PR Bond to a man with an immigration hold. The Judge signed it
        because he had to leave, he signed it for me. I had a PR Bond signed. I just
        needed Mr. Gonzalez’ signature. He turned it down, Judge, because he didn’t
        want to be deported before he could answer to this charge and show that he was
        not guilty. That’s why he’s cooperated with every step, every step. That’s what an
        innocent man does, Judge. That’s what a man does who’s not guilty.

The State responded to appellant’s closing argument as follows:

               As far as the Defendant being offered two years deferred adjudication and
        him not taking it, well, Your Honor, that doesn’t mean that he’s innocent. It
        simply means that he has a family and he’s told his family, look, I didn’t do this,
        and so that’s why he had— I [sic] assuming that’s why he turned down the deal,
        because he doesn’t want his siblings and his daughter and his wife to think that he
        touched his niece’s —




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       Defense counsel objected stating that the argument was “commenting on the Defendant’s

right to not testify, putting statements in” The trial court overruled the objection.

       In issues one, two, and three, appellant argues that the State impermissibly commented on

his failure to testify in violation of the federal and state constitutions and state statute and the

trial court erred by overruling his objection. We disagree.

       It is constitutional error for the trial court or the prosecution to comment on a defendant’s

failure to testify. Cruz v. State, 225 S,W.3d 546, 548 (Tex, Crim. App. 2007); Bustamante v.

State, 48 S.W.3d 761, 764 (Tex, Crim. App. 2001). The test for determining whether an

argument commented on a defendant’s failure to testify “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.” Cruz, 225 S.W.3d at 548. In making this

determination, we must consider the context in which the statement was made. Id. If the

argument is improper, we must reverse unless we conclude beyond a reasonable doubt that the

error did not contribute to the conviction. TEx. R. APP. P. 44.2(a).

       Appellant argues that his “defense strategy was centered around the fact that Appellant

did everything an innocent man would do—deny the allegations, cooperate with police, refuse a

PR bond, and not plead guilty simply to get out of jail more quickly.” He contends that the

State’s argument “only served to emphasize the fact that Appellant had elected not to testify.”

Assuming that counsel’s objection preserved these issues for our review, we conclude that the

State’s argument was a direct response to appellant’s closing argument. See Davis v. State, 329

S.W.3d 798, 821 (Tex. Crim. App. 2010) (proper jury argument includes answer to argument of

opposing counsel); Netherv v. State, 692 S.W.2d 686, 703 (Tex. Crim. App. 1985) (same). The

State did not comment about appellant’s failure to testify at trial. Instead, it answered appellant’s



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argument by urging that there were other reasons why appellant         might   have decided to reject a

plea bargain and refuse to sign   a   PR bond—one of which could be that appellant did not want to

admit to family members that he was guilty.

       Even if the argument was improper, however, appellant has not shown how the error

harmed him, This trial was nonjury. The trial court had just instructed appellant that he had “an

absolute right to remain silent” and if he chose to exercise that right the court would “attach no

significance to it. I will not say to myself well, he must be guilty, otherwise he would have

testified. I’ll just not consider it for any purpose.” It is clear from the record that the trial court

was well aware that it could not infer appellant’s guilt from his failure to testify. Having

reviewed the record, we conclude beyond a reasonable doubt that the comment did not contribute

to the conviction. We resolve issues one, two, and three against appellant.

        In issue four, appellant argues that the judgment should be reformed to delete the portion

of court costs that includes attorney’s fees. The State concedes that appellant was indigent when

trial began, that the evidence is insufficient to show that his status changed, and that there is no

support in the record for the trial court’s assessment of attorney’s fees against appellant. See

TEx. CODE CRIM. PROC. ANN, art.        26.04(p),   26.05 (West Supp. 2012). The State agrees that the

judgment assessed attorney’s fees in the amount of $250 as part of the court costs against

appellant. We sustain appellant’s fourth issue and reform the judgment to delete court costs in

the amount of $840 and to assess court costs in the amount of $590.




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      As reformed, we affirm the trial courts judgment.


                                                                              N


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                                                  ELIZiU3EyH LANGM1ERS   I,


                                                  JUSTICE
Do Not Publish
TExR,AppP47

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                                           JUDGMENT

ANTONIO FLORES GONZALEZ,                               On Appeal from the 283rd Judicial District
Appellant                                              Court, Dallas County, Texas
                                                       Trial Court Cause No. FI0-33775T.
No, O51 L0I496CR             V.                        Opinion delivered by Justice LangMiers,
                                                       Justices Myers and Richter participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MOI)IFIED
as follows:

       Court costs in the amount of $840 is deleted and court costs in the amount of $590
       is inserted.

As REFORMED, the judgment is AFFIRMED.


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Judgment entered this        day of February, 201 3.
