                                                                                 ACCEPTED
                                                                             13-14-00171-CR
                                                             THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                       4/20/2015 11:07:06 AM
                                                                           DORIAN RAMIREZ
                                                                                      CLERK

                    CAUSE NO. 13-14-00171-CR
                              13-14-00172-CR
                              13-14-00301-CR        FILED IN
                                            13th COURT OF APPEALS
                                         CORPUS CHRISTI/EDINBURG, TEXAS
                                            4/20/2015 11:07:06 AM
                   IN THE COURT OF    APPEALSDORIAN E. RAMIREZ
                                                     Clerk

           THIRTEENTH JUDICIAL DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG, TEXAS


               MICHAEL DAVID RAMIREZ, Appellant

                                 v.

                   STATE OF TEXAS, Appellee.


          On appeal from the 445th Judicial District Court
                    of Cameron County, Texas
           Trial Court Cause Numbers 2013-DCR-02246,
                  10-CR-2650-I, and 09-CR-2098-I


                   STATE’S APPELLATE BRIEF


                               Luis V. Saenz
                               Cameron County District Attorney
Oral Argument Requested
                               René B. González
                               Assistant District Attorney
                               964 East Harrison Street, 4th Floor
                               Brownsville, Texas 78520
                               Phone: (956) 544-0849
                               Fax: (956) 544-0869

                               Attorneys for the State of Texas
                                      TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        State’s Response to Appellant’s First Issue.. . . . . . . . . . . . . . . . . . . 3

        State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . 6

        State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . 7

        State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . 11

        State’s Response to Appellant’s Fifth Issue.. . . . . . . . . . . . . . . . . . 11

        State’s Response to Appellant’s Sixth Issue. . . . . . . . . . . . . . . . . . 12

        State’s Response to Appellant’s Seventh Issue.. . . . . . . . . . . . . . . 15

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22




                                                      -i-
                            INDEX OF AUTHORITIES

Cases

Allaben v. State,
      418 S.W.2d 517 (Tex. Crim. App. 1967). . . . . . . . . . . . . . . . . . . . . 17

Almanza v. State,
     686 S.W.2d 157 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . 8

Arevalo v. State,
     943 S.W.2d 887 (Tex. Crim. App.1997). . . . . . . . . . . . . . . . . . . . . . . 6

Arrevalo v. State,
     489 S.W.2d 569 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . 4, 17, 18

Avila v. State,
      954 S.W.2d 830 (Tex. App.--El Paso 1997, pet. ref’d). . . . . . . . . . . . 6

Ayala v. State,
     267 S.W.3d 428 (Tex. App.--Houston [14th Dist.] 2008, . . . . . . . . . 13

Barrios v. State,
      283 S.W.3d 348 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . 8

Benavides v. State,
    763 S.W.2d 587 (Tex. App.--Corpus Christi 1988, pet. ref’d).. 8, 9, 10

Brandley v. State,
     691 S.W.2d 699 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . 14

Brown v. State,
     505 S.W.2d 850 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . . . . 17, 18

Cockrell v. State,
     933 S.W.2d 73 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . 12



                                          -ii-
Denison v. State,
     651 S.W.2d 754 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . 13

Garza v. State,
     974 S.W.2d 251 (Tex. App.--San Antonio 1998, pet. ref’d). . . . . . 4, 5

Grey v. State,
     298 S.W.3d 644 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . 6, 7

Johnson v. State,
     233 S.W.3d 109 (Tex. App.--Houston [14th Dist.] 2007, no pet.). . . 12

Kihega v. State,
     392 S.W.3d 828 (Tex. App.--Texarkana 2013, no pet.). . . . . . . . 8, 10

Linder v. State,
     828 S.W.2d 290 (Tex. App.--Houston [1st Dist.] 1992, pet. ref’d). . 15

Love v. State,
     909 S.W.2d 930 (Tex. App.--El Paso 1995, pet. ref'd). . . . . . . . . . . . 5

Loving v. State,
     947 S.W.2d 615 (Tex. App.--Austin 1997, no pet.). . . . . . . . . . . . . . 5

Lowenfield v. Phelps,
    484 U.S. 231 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nacol v. State,
     590 S.W.2d 481 (Tex. Crim. App. 1979). . . . . . . . . . . . . . . . . . 17, 19

Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Resendiz v. State,
    112 S.W.3d 541 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . 14

Richardson v. State,
     108 Tex. Crim. 318, 239 S.W. 218 (1922). . . . . . . . . . . . . . . . . . . . . 9

                                               -iii-
Rodriguez v. State,
     625 S.W.2d 101 (Tex. App.--San Antonio 1981, pet. ref’d). . . . . . . 19

Russeau v. State,
     171 S.W.3d 871 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 11

Shannon v. State,
    942 S.W.2d 591 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . 13

Shelby v. State,
     724 S.W.2d 138 (Tex. App.--Dallas 1987) (op. on reh’g),
     vacated on other grounds, 761 S.W.2d 5
     (Tex. Crim. App. 1988) (per curiam). . . . . . . . . . . . . . . . . . . . . . 9, 10

Torres v. State,
     92 S.W.3d 911 (Tex. App.--Houston
     [14th Dist.] 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Wesbrook v. State,
    29 S.W.3d 103 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 13

Statutes

Tex. Code Crim. Proc. art. 36.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rules

Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                 -iv-
                       CAUSE NO. 13-14-00171-CR
                                  13-14-00172-CR
                                  13-14-00301-CR
                 ____________________________________

                      IN THE COURT OF APPEALS

                THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG, TEXAS
                 ____________________________________

                   MICHAEL DAVID RAMIREZ, Appellant

                                     v.

                       STATE OF TEXAS, Appellee
                 ____________________________________

                       STATE’S APPELLATE BRIEF
                 ____________________________________

TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Appellee, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and,

pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, files this,

its Appellate Brief in the above-styled and -numbered cause of action, and

in support thereof, would show this Honorable Court as follows:




State’s Brief                                                         Page 1
                        SUMMARY OF ARGUMENT

       Appellant raises seven issues on appeal. (1) In his first issue,

Appellant argues that the trial court included an erroneous instruction in the

charge at the guilt phase of trial. The State responds by asserting that the

instruction was not erroneous. (2) In his second issue, Appellant argues

that the trial court erred in submitting a charge to the jury on the lesser

included offense of theft. The State responds by asserting that the trial

court did not err in submitting the lesser included charge because the State

properly requested same. (3) In his third issue, Appellant argues the trial

court erred by failing to provide the jury with a “benefit of the doubt”

instruction. The State responds by asserting the trial court did not commit

error by instructing the jury regarding its consideration of the greater

offense before the lesser included offense. (4) In his fourth issue,

Appellant complains of the State’s closing argument concerning

“community expectations”; however, Appellant completely fails to present

any argument in support of this issue. (5) In his fifth issue, Appellant

complains that the Prosecutor asked the jurors to put themselves in the

place of the victim. The State responds by noting that this issue has not

been preserved for appellate review. (6) In his sixth issue, Appellant


State’s Brief                                                              Page 2
argues that the State’s closing argument was outside the record, and

harmful. The State responds by asserting that the argument was not

improper. (7) In his seventh issue, Appellant argues that the trial court

erred in not complying with article 36.27 in providing a supplemental

instruction to the jury. The State responds by asserting that the trial court

did not violate article 36.27.



                         ARGUMENT & AUTHORITIES

State’s Response to Appellant’s First Issue

       In his first issue, Appellant argues that the trial court included an

erroneous instruction in the charge at the guilt phase of trial. The State

responds by asserting that the instruction was not erroneous.

       The court instructed the jury as follows:

             In order to return a verdict, each juror must agree thereto,
       but jurors have a duty to consult with one another and to
       deliberate with a view to reaching an agreement, if it can be
       done without violence to individual judgment.
             Each juror must decide the case for himself, but only after
       an impartial consideration of the evidence with his fellow
       Jurors. (C.R. p. 36).1

       Appellant is not clear as to why this language should not have been

       1
         Unless otherwise stated, all cites to the Clerk’s Record and Reporter’s Record
herein refer to the record filed in appellate cause number 13-14-00171-CR.

State’s Brief                                                                    Page 3
included in the charge; however, the State surmises that Appellant is

arguing that the instruction overemphasizes the importance of reaching a

verdict and is coercive. Appellant implies that the trial court failed to

instruct the jury that their verdict must be unanimous; however, such

implication is clearly erroneous as the trial court did properly instruct the

jury that their verdict must be unanimous. (C.R. pp. 37-38).

       This exact language was also challenged in Garza v. State, 974

S.W.2d 251, 255-56 (Tex. App.--San Antonio 1998, pet. ref’d). The Garza

court noted that both the United States Supreme Court and the Texas

Court of Criminal Appeals have approved charges containing similar

language when a jury has indicated that it is deadlocked. See Lowenfield

v. Phelps, 484 U.S. 231, 235 (1988) (approving charge that stated, in part,

“it is your duty to consult with one another to consider each other’s views

and to discuss the evidence with the objective of reaching a just verdict if

you can do so without violence to that individual judgment”); Arrevalo v.

State, 489 S.W.2d 569, 571–72 (Tex. Crim. App. 1973) (approving charge

that stated, in part, “you are instructed to continue deliberations in an effort

to arrive at a verdict which is acceptable to all members of the jury”).

       Appellant does not complain that the instruction was particularly


State’s Brief                                                               Page 4
coercive in this case because it was given in the initial charge instead of

after the jury was deadlocked, and there is no reason to conclude that the

instruction would be more coercive in this situation. Indeed, some courts

have determined that this type of instruction is less coercive if included in

the initial jury charge. See Loving v. State, 947 S.W.2d 615, 619 (Tex.

App.--Austin 1997, no pet.) (citing cases); but see Love v. State, 909

S.W.2d 930, 937 (Tex. App.--El Paso 1995, pet. ref'd) (finding that the

inclusion of similar language is not erroneous, but discouraging the

inclusion in the initial jury charge of an instruction informing the jury of the

consequences of a mistrial).

       Assuming that the language could have a coercive effect standing

alone, the remainder of the jury charge, including the admonishment that

“no juror should surrender his honest conviction as to the weight or effect

of the evidence solely because of the opinion of his fellow jurors, or for the

mere purpose of returning a verdict” (C.R. p. 36), eliminated any potential

for coercion. Garza, 974 S.W.2d at 256. Accordingly, this Court should

conclude that the trial court did not err in giving the instruction and

Appellant’s first issue should be overruled.




State’s Brief                                                              Page 5
State’s Response to Appellant’s Second Issue

       In his second issue, Appellant argues that the trial court erred in

submitting a charge to the jury on the lesser included offense of theft. The

State responds by asserting that the trial court did not err in submitting the

lesser included charge because the State properly requested same.

       Prior to the Court of Criminal Appeals decision in Grey v. State, 298

S.W.3d 644 (Tex. Crim. App. 2009), in a case such as this one, a trial

court’s decision to included a lesser-included offense instruction in the jury

charge at the State’s request, was subject to a two part inquiry: (1) is the

lesser-included offense included within the proof necessary to establish the

offense charged; and (2) is there some evidence in the record that would

permit a jury to rationally determine that if the defendant is guilty, he is

guilty only of the lesser offense. Avila v. State, 954 S.W.2d 830, 842 (Tex.

App.--El Paso 1997, pet. ref’d); see also Arevalo v. State, 943 S.W.2d 887,

889-90 (Tex. Crim. App.1997) (applying the second prong of the

Rousseau-Aguilar-Royster test to State’s request for a lesser-included

offense instruction), overruled by Grey, 298 S.W .3d at 651.

       Appellant’s argument focuses exclusively on the second prong of the

pre-Grey analysis. He contends that there was no evidence upon which


State’s Brief                                                             Page 6
the jury could have found him guilty only of the lesser offense. The Court

of Criminal Appeals’ decision in Grey abrogated the common law rule

requiring the State to meet the second prong of the Rousseau test. Grey,

298 S.W.3d at 651. Therefore, under Grey, the State is entitled to have a

lesser-included offense instruction included in the jury charge solely on the

basis that proof of the lesser offense is included within the proof necessary

to establish the offense charged. See Grey, 298 S.W.3d at 645. As there

is no dispute between the parties that theft is a lesser-included offense of

robbery, the trial court did not err by granting the State’s request to

included the lesser-included offense instruction in the jury charge.

       Therefore, Appellant’s second issue should be overruled.



State’s Response to Appellant’s Third Issue

       In his third issue, Appellant argues the trial court erred by failing to

provide the jury with a “benefit of the doubt” instruction. The State

responds by asserting the trial court did not commit error by instructing the

jury regarding its consideration of the greater offense before the lesser

included offense.

       Appellant did not object to the omission of a “benefit-of-the-doubt”


State’s Brief                                                              Page 7
instruction in the jury charge, nor did he request such an instruction. A

claim of error in the jury charge is reviewed using the procedure set out in

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); see also

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). The first

step is to determine whether there is error in the charge. Barrios, 283

S.W.3d at 350; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

If there was properly objected to error, reversal is required if the error is

“calculated to injure the rights of the defendant,” which the court of criminal

appeals has defined to mean “some harm.” Barrios, 283 S.W.3d at 350

(quoting Almanza, 686 S.W.2d at 171). If the error was not objected to, it

must be fundamental and will require reversal only if it was so egregious

and created such harm that the defendant did not have a fair and impartial

trial. Id.; Almanza, 686 S.W.2d at 171.

       As a general rule, where greater and lesser grades or degrees of an

offense are charged, the court must give the jury a “benefit of the doubt”

instruction if requested by the defendant. See Kihega v. State, 392

S.W.3d 828, 835 (Tex. App.--Texarkana 2013, no pet.); Benavides v.

State, 763 S.W.2d 587, 589 (Tex. App.--Corpus Christi 1988, pet. ref’d).

The instruction is given to assist the jury if it has no reasonable doubt as to


State’s Brief                                                             Page 8
the defendant’s guilt, but is uncertain about the grade or degree of the

offense. Benavides, 763 S.W.2d at 589 (citing Richardson v. State, 108

Tex. Crim. 318, 328, 239 S.W. 218, 224 (1922) (op. on reh’g)). Failure to

include a “benefit of the doubt” instruction is not harmful to the defendant,

however, if the charge as a whole leaves no uncertainty as to how to

resolve any doubt. Shelby v. State, 724 S.W.2d 138, 140 (Tex. App.--

Dallas 1987) (op. on reh’g), vacated on other grounds, 761 S.W.2d 5 (Tex.

Crim. App. 1988) (per curiam); Benavides, 763 S.W.2d at 589.

                The jury charge included the following instructions:

             Now if you find from the evidence beyond a reasonable
       doubt that on or about the 12th day of June. 2013, in Cameron
       County. Texas. the defendant. MICHAEL DAVID RAMIREZ, did
       then and there, while in the course of committing theft of
       property and with intent to obtain or maintain control of said
       property, intentionally or knowingly threaten or place BILLY
       BRUCE GAUBATZ in fear of imminent bodily injury or death,
       then you will find the defendant “guilty” of the offease of
       Robbery, as alleged in the indictment.
             Unless you so find from the evidence beyond a
       reasonable doubt, or if you have a reasonable doubt thereof,
       you will say by your verdict “Not Guilty" (as to the charged
       offense of Robbery), and you will next consider whether or not
       the defendant is guilty of the lesser included offense of Theft,
       immediately below.
             Now, if you find from the evidence beyond a reasonable
       doubt that on or about the 12th day of June, 2013, in Cameron
       County, Texas, the defendant, MICHAEL DAVID RAMIREZ, did
       then and there unlawfully appropriate, by acquiring or otherwise
       exercising control over property, to-wit: a weed eater, of the

State’s Brief                                                           Page 9
       value of $50 or more but less than $500, from BILLY BRUCE
       GAUBATZ, the owner thereof, without the effective consent of
       the owner, and with intent to deprive the owner of the property,
       then you will fmd the defendant “Guilty” of the lesser-included
       offense of Theft.
             Unless you so find from the evidence beyond a
       reasonable doubt, or if you have a reasonable doubt thereof,
       you will acquit the defendant and say by your verdict “Not
       Guilty.”

(C.R. pp. 34-35).

       Appellant argues he was egregiously harmed by the omission of the

“benefit-of-the-doubt” instruction from the charge because the entire focus

of his defense was to show the complaining witness did not feel threatened

and therefore Appellant was, at most, guilty of a class B theft. However, as

in Shelby and in Benavides, the charge in this case leaves no uncertainty

as to how to resolve any doubt regarding what verdict to return if the jury

believed Appellant was guilty but had reasonable doubt as to whether he

was guilty of robbery. No further “benefit of the doubt” instruction was

necessary. See Shelby, 724 S.W.2d at 140; Kihega, 392 S.W.3d at

837–38; Benavides, 763 S.W.2d at 589. Accordingly, Appellant was not

egregiously harmed by the trial court’s failure to sua sponte include the

“benefit of the doubt” instruction in the charge to the jury.

       Appellant’s third issue should be overruled.


State’s Brief                                                         Page 10
State’s Response to Appellant’s Fourth Issue

       In his fourth issue, Appellant complains of the State’s closing

argument concerning “community expectations”; however, Appellant

completely fails to present any argument in support of this issue. The

State responds by asserting that this Court should overrule Appellant’s

fourth issue for the reason that he has failed to adequately brief this issue.

       The Rules of Appellate Procedure require the parties’ briefs to

contain clear and concise arguments with appropriate citations to

authorities. See Tex. R. App. P. 38.1(i). When a party provides no

argument or legal authority to support his appellate position, the issue is

inadequately briefed. See Russeau v. State, 171 S.W.3d 871, 881 (Tex.

Crim. App. 2005). Appellant completely fails to provide any argument in

support of his fourth issue. Therefore, Appellant’s fourth issue should be

overruled.



State’s Response to Appellant’s Fifth Issue

       In his fifth issue, Appellant complains that the Prosecutor asked the

jurors to put themselves in the place of the victim. The State responds by

noting that this issue has not been preserved for appellate review.


State’s Brief                                                            Page 11
       In order for an appellant to complain on appeal about erroneous jury

argument, including erroneous jury argument so prejudicial that an

instruction to disregard could not cure it, the appellant must show that he

lodged an objection during trial and pressed that objection to an adverse

ruling. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)

(holding that no error was preserved when appellant did not object to the

prosecution’s alleged comment during closing argument on the defendant’s

failure to testify); Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.--

Houston [14th Dist.] 2007, no pet.). In the present case, Appellant

complains that the State’s argument asked the jurors to put themselves in

the victim’s shoes; however, Appellant did not object to the State’s jury

argument (R.R. Vol. 7, p. 48), thus he has not preserved that issue for

appellate review.

       Accordingly, Appellant’s fifth issue should be overruled.



State’s Response to Appellant’s Sixth Issue

       In his sixth issue, Appellant argues that the State’s closing argument

was outside the record, and harmful. The State responds by asserting that

the argument was not improper.


State’s Brief                                                         Page 12
       Proper jury argument falls within one of four categories: (1)

summation of the evidence; (2) reasonable deduction from the evidence;

(3) in response to argument of opposing counsel; and (4) plea for law

enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.

App. 2000). However, even when an argument exceeds the permissible

bounds of these approved areas, an error will not constitute reversible

error unless, in light of the record as a whole, the argument is extreme or

manifestly improper, violative of a mandatory statute, or injects new facts

harmful to the accused into the trial proceeding. Id. Counsel’s remarks

during final argument must be considered in the context in which they

appear. See Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim. App.

1983) (en banc). Attorneys may draw all reasonable, fair, and legitimate

inferences from the facts in evidence. See Shannon v. State, 942 S.W.2d

591, 597 (Tex. Crim. App. 1996); Ayala v. State, 267 S.W.3d 428, 433-34

(Tex. App.--Houston [14th Dist.] 2008, no pet.).

       Appellant complains of the following argument by the prosecutor:

       He said that he got out of there and at that point the victim was
       close enough to the Defendant and he stopped. He stopped in
       his tracks. As soon as he saw that -- he wanted his property,
       but he stopped. As soon as he saw that, he stopped. Thank
       God that he did stop because who knows what could have
       happened if he hadn’t have stopped. Let’s say he wanted to go

State’s Brief                                                          Page 13
       ahead and aside from just that confrontation --

       MR. PADILLA: I’m going to object, Your Honor, that argument,
       it goes outside of the evidence, Your Honor. It’s improper
       argument.

       MR. MARTINEZ: It’s closing arguments, Your Honor.

       THE COURT: The objection is overruled. I'll give you some
       leeway.

(R.R. Vol. 7, pp. 51-52).

       Appellant asserts the argument does not fall into one of the four

categories of proper jury argument, but instead, is a request for the jury to

place themselves in the shoes of the victim.2 Appellant is incorrect.

       Granted, a plea for abandonment of objectivity does not fit within the

four categories of proper jury argument. See Brandley v. State, 691

S.W.2d 699, 712 (Tex. Crim. App. 1985). However, there is a distinction

between asking the jury to fully appreciate the victim’s situation, including

the fear he experienced, which is proper, and asking how the victim would

want the defendant punished, which is improper. See Torres v. State, 92

S.W.3d 911, 922 (Tex. App.--Houston [14th Dist.] 2002, no pet.); see also



       2
          The State would first note that Appellant’s objection at trial does not comport
with his complaint on appeal; and therefore, Appellant has not properly preserved this
issue for appellate review. Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App.
2003).

State’s Brief                                                                     Page 14
Linder v. State, 828 S.W.2d 290, 303 (Tex. App.--Houston [1st Dist.] 1992,

pet. ref’d). In the first instance, the prosecutor is merely summarizing the

evidence, making a reasonable deduction from the evidence, or making a

legitimate plea for law enforcement. Torres, 92 S.W.3d at 922. In the

second instance, the prosecutor is asking the jury to reach a verdict not on

an impartial, objective notion of justice, but on personal passions

“accelerated by the outrage every human being naturally feels toward one

who has wrongfully caused him pain, embarrassment, grief, or loss.” Id.

Here, the prosecutor’s argument is a summation of the evidence.

       Because the argument made by the prosecutor was a summation of

the evidence, and thus within one of the four categories of proper jury

argument, the trial court did not err by overruling Appellant’s objection.

       Accordingly, this Court should overrule Appellant’s sixth issue.



State’s Response to Appellant’s Seventh Issue

       In his seventh issue, Appellant argues that the trial court erred in not

complying with article 36.27 in providing a supplemental instruction to the

jury. The State responds by asserting that the trial court did not violate

article 36.27.


State’s Brief                                                             Page 15
       Appellant argues that the trial court erred in communicating with the

jury without complying with the provisions of article 36.27, in that the court

gave an oral answer to the jury’s communication which was not in writing.

See Tex. Code Crim. Proc. art. 36.27.

       Article 36.27 states:

              When the jury wishes to communicate with the court, it
       shall so notify the sheriff, who shall inform the court thereof.
       Any communication relative to the cause must be written,
       prepared by the foreman and shall be submitted to the court
       through the bailiff. The court shall answer any such
       communication in writing, and before giving such answer to the
       jury shall use reasonable diligence to secure the presence of
       the defendant and his counsel, and shall first submit the
       question and also submit the answer to the same to the
       defendant or his counsel or objections and exceptions, in the
       same manner as any other written instructions are submitted to
       such counsel, before the court gives such answer to the jury,
       but if he is unable to secure the presence of the defendant and
       his counsel, then he shall proceed to answer the same as he
       deems proper. The written instruction or answer to the
       communication shall be read in open court unless expressly
       waived by the defendant.
              All such proceedings in felony cases shall be a part of the
       record and recorded by the court reporter.

Id.

       The record reflects that the following message was sent from the jury

foreman to the trial judge:

             Need copy of police report to read. Need copy of victim
       affidavit to read.

State’s Brief                                                          Page 16
       /s/ Marina Alegria,
       Presiding Juror

(C.R. p. 41).

       After discussing the proposed answer with the attorneys, the trial

judge responded by bringing the jury into the courtroom and orally

informing them as follows:

       Welcome back, ladies and gentlemen of the jury. Obviously,
       the Court has received your written request. Ladies and
       gentlemen of the jury, once again this is in many ways one of
       the most frustrating answers that the Court must provide in all
       cases, but the response to this is by law the Court is not
       allowed to answer your question nor is it allowed to provide to
       you the documents requested. You may only review the
       documents that have been admitted into evidence.
             With that, I send you back to your deliberations and
       please proceed. Thank you.

(R.R. Vol. 7, pp. 55-56).

       The Court of Criminal Appeals has uniformly held that a

communication between the court and the jury, although not made in

compliance with provisions of article 36.27, which does not amount to an

additional instruction by the court upon the law or some phase of the case

does not constitute reversible error. Nacol v. State, 590 S.W.2d 481, 486

(Tex. Crim. App. 1979); Brown v. State, 505 S.W.2d 850, 857 (Tex. Crim.

App. 1974); Arrevalo v. State, 489 S.W.2d at 572; Allaben v. State, 418


State’s Brief                                                            Page 17
S.W.2d 517, 520 (Tex. Crim. App. 1967).

       In Brown, the trial court gave instructions to the jury outside the

presence of the defendant and not in open court. The court held that,

“while the trial court should not have given such instructions to the jury

while not in open court and outside the presence of the appellant, such

instructions amounted to no more than a restatement and reminder of the

earlier instructions given the entire jury panel. As such, the trial court

committed no reversible error.” Brown, 505 S.W.2d at 857.

       In Arrevalo, in response to a question posed by the jury foreman, the

trial court answered in part, “At this time I do not feel that you have

deliberated a sufficient length of time to fully eliminate the possibility of you

being able to arrive at a verdict, so I will ask you to continue to deliberate.

You may go with the bailiff.” The court stated, “It has been uniformly held

by this court that a communication between the court and the jury,

although not in compliance with the statutes, which does not amount to

additional instructions by the court, does not constitute reversible error.”

Arrevalo, 489 S.W.2d at 572.

       In Nacol v. State, the trial court communicated with the jury while the

defendant was not present in open court. The jury wrote, “We want to


State’s Brief                                                             Page 18
know how many days you get at T. D. of Corrections for the days served.”

and “We want to know how much time would be assessed for probation

after he (if) gets out of prison on a two year sentence.” The judge wrote

back, “You are only to consider what is contained in the charge.” The court

concluded that no error had been shown and held “that a communication

between the judge and the jury, although not in compliance with article

36.27, is not reversible error unless it amounts to an additional instruction

by the court upon the law or some phase of the case.” Nacol, 590 S.W.2d

at 486.

       Finally, in Rodriguez, the San Antonio Court dealt with a fact situation

very similar to the present case, where the jury asked to be provided with

additional documents which were never submitted into evidence. The trial

court responded by informing the jury: “The exhibits that you have at hand

are the only exhibits admitted into evidence. The exhibits requested by

you are not in evidence.” Rodriguez v. State, 625 S.W.2d 101, 102 (Tex.

App.--San Antonio 1981, pet. ref’d). The San Antonio Court found that

although the trial judge failed to follow the procedure set forth in article

36.27, no statutory violation occurred because “no additional instructions

were given as to the law in regard to the offense or the facts.” Id. At 103.


State’s Brief                                                            Page 19
       Likewise in the present case, the jury was asking for documents that

were not received in evidence. The trial court answered the jury’s request

with an answer essentially the same as the trial court did in Rodriguez.

Thus, the case law is clear that the answer provided by the trial judge in

the present case was not an additional instruction in regard to the law or

the facts of the case. Therefore, no violation of article 36.27 is presented

for review.

       Accordingly, Appellant’s seventh issue should be overruled.




State’s Brief                                                         Page 20
                                    PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that this Court will overrule Appellant’s issues on appeal, and affirm both

the judgment of conviction and the sentence herein.

                                     Respectfully Submitted,

                                     LUIS V. SAENZ
                                     Cameron County District Attorney
                                     964 East Harrison Street, 4th Floor
                                     Brownsville, Texas 78520
                                     Phone: (956) 544-0849
                                     Fax: (956) 544-0869



                              By:    /s/ René B. González
                                     René B. González
                                     Assistant District Attorney
                                     State Bar No. 08131380
                                     rgonzalez1@co.cameron.tx.us

                                     Attorneys for the State of Texas




State’s Brief                                                         Page 21
                      CERTIFICATE OF COMPLIANCE

       I certify that this document contains 4,385 words (excluding the

cover, table of contents and table of authorities). The body text is in 14

point font, and the footnote text is in 12 point font.



                                     /s/ René B. González
                                     René B. González


                         CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s Appellate Brief was e-

mailed to Mr. Larry Warner, Attorney at Law, 3109 Banyan Drive,

Harlingen, Texas 78550, at Office@larrywarner.com on the 20th day of

April, 2015.



                                     /s/ René B. González
                                     René B. González




State’s Brief                                                           Page 22
