Affirmed and Opinion filed October 17, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00502-CR

                       EDWARD JOE TORRES, Appellant

                                           V.
                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 184th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1534637

                                      OPINION

      In this appeal from a conviction for robbery, appellant raises three issues
concerning (1) the trial court’s denial of his motion for mistrial, (2) the trial court’s
comments regarding his punishment, and (3) the trial court’s admission of certain
opinion testimony. For reasons explained more fully below, we overrule all of these
issues and affirm the trial court’s judgment.
                                 BACKGROUND

      The complainant in this case was robbed in a coordinated attack as she was
driving down a residential street. The attack began around midnight when a car
passed the complainant and came to a stop directly in front of her. A second vehicle
then pulled up from the rear, boxing the complainant in. A man quickly exited the
driver’s door of the front car, walked towards the complainant, and swung open her
door. The man then pressed a gun to the complainant’s face and demanded that she
give him her purse and her cellphone. After the complainant complied with these
demands, the man departed, along with the other vehicle, leaving the complainant
physically unharmed.

      The complainant raced to a neighbor’s house, where she called police. A
sheriff’s deputy came to her door at roughly 12:30 that morning and questioned her
about what was taken and who was responsible. In her description of the robber, the
complainant said that the man was short and Hispanic. She also said that she noticed
tattoos on his face, even though a part of his face had been concealed with a bandana.

      At around 3:30 that same morning, after having previously spoken with the
complainant, the deputy was dispatched to a motor vehicle accident in the vicinity
of the robbery. Appellant was one of the drivers involved in that accident, and
because he matched the physical description of the complainant’s robber, the deputy
came to suspect that appellant had been involved in that earlier offense. The deputy
patted down appellant and found a cellphone in his pocket that matched the
cellphone that had been reported stolen by the complainant. The deputy then
searched appellant’s vehicle and found a social security card bearing the
complainant’s name. The deputy did not find a purse, a bandana, or a gun in
appellant’s vehicle, but he did find a knife that was designed to resemble a gun.



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      The deputy returned to the complainant’s home later that morning with the
items he found from the motor vehicle accident. The complainant identified the
cellphone and social security card as her own. She said that the knife had not been
used in her robbery, but she said that it resembled the gun that had been used.

      Appellant was charged with aggravated robbery with a deadly weapon. At his
trial for that offense, the complainant identified appellant in open court as her robber.
The complainant also insisted that appellant had used an actual gun in the aggravated
robbery, not a knife, but the jury convicted appellant of just the lesser offense of
simple robbery. The jury then assessed appellant’s punishment at twenty-two years’
imprisonment.

                            MOTION FOR MISTRIAL

      During the punishment phase of trial, the prosecutor emphasized that
appellant was twenty-four years old, that he was a member of a notorious street and
prison gang, and that he already had at least one prior robbery conviction. To protect
the citizens of the county, the prosecutor encouraged the jury to sentence appellant
to a lengthy term of imprisonment. The prosecutor did not suggest any particular
term of years, but he did raise the topic of parole eligibility.

      The punishment charge already included certain instructions regarding parole
eligibility. Those instructions, which are specifically prescribed by statute, informed
the jury that some defendants could be released early on parole, but that these
defendants “will not become eligible for parole until the actual time served plus any
good conduct time earned equals one-fourth of the sentence imposed or fifteen years,
whichever is less.” See Tex. Code Crim. Proc. art. 37.07, § 4(b). The instructions
further provided as follows:

      You may consider the existence of the parole law and good conduct
      time. However, you are not to consider the extent to which good

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      conduct time may be awarded to or forfeited by this particular
      defendant. You are not to consider the manner in which the parole law
      may be applied to this particular defendant.

      In his summation of these instructions, the prosecutor made the following
argument:

      When we talk about parole, I don’t want to get too hung up on it, but I
      want to make sure I explain it so you understand it a little bit. The Judge
      did a great job already. It’s the actual time—[the defendant is] not
      parole eligible until the actual time served plus any good time earned
      equals one fourth. So hypothetical, you come back today, you say, you
      know what? Give him the minimum five years. He is probation—
      parole, I apologize, parole eligible at 1.25 years. Not saying he will get
      it. We don’t know. But he could be back out in the streets in 1.25 years,
      plus any good time he has accrued. Does that scare you? It should. It
      scares me.
      Defense counsel objected as follows: “I object to this argument, Judge. The
law says you’re not supposed to make an argument like this. The jury is not supposed
to look at it this way, not the way they’re supposed to do it.” The trial court overruled
the objection, but sua sponte advised the jury: “You may consider parole, but do not
try to factor in the eligibility of this person. He could receive it, he could be denied
parole. It’s merely the option that the Board of Pardon and Paroles considers, along
with the governor’s office.”

      The prosecutor continued: “You heard that minimum part of it. Come back
with say 60, one fourth of that, that’s 15. Parole eligible in 15 years.”

      Defense counsel objected on the same ground as before: “Doing the same
thing.” But this time, the trial court sustained the objection and told the jury,
“Disregard the math process of parole. It’s merely an option that may be in his future
one way or the other.” Counsel then moved for a mistrial, which the trial court
denied. Appellant now complains of that ruling in his first issue on appeal.

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      We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Because
a mistrial is a serious remedy, it should be reserved for only extreme situations of
highly prejudicial and incurable misconduct. Id. If the trial court could have
reasonably determined that the challenged misconduct did not rise to that level, then
the trial court’s denial of a motion for mistrial must be upheld. Id.

      Appellant believes that a mistrial was warranted in this case because the
prosecutor “argued a hypothetical” on the topic of parole eligibility. But there was
nothing improper with the prosecutor’s hypothetical argument. The prosecutor was
allowed to explain how the rules on parole eligibility would apply towards sentences
of varying lengths. See Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007)
(“In the case before us, the prosecutor did not convey any information beyond what
was properly contained in the charge when he explained how the parole eligibility
rules set out in the charge worked with forty, sixty and seventy-five years sentences.
The explanation simply ensured that the jury understood the language set out in the
instructions.”). For that reason alone, there was no prejudicial misconduct that the
trial court needed to cure.

      Appellant also complains that a mistrial was warranted because the prosecutor
said that he was scared about the possibility of appellant’s early release. Appellant
does not specifically contend in his brief that the prosecutor’s invocation of his own
personal fears constituted an improper plea for law enforcement (a point that was
not preserved in any event). Instead, appellant quotes from Hawkins v. State, 135
S.W.3d 72 (Tex. Crim. App. 2004) and contends that the prosecutor’s argument was
improper because “the jury is simply prohibited from considering how parole law
and good time would be applied to a particular defendant.” Id. at 84. Even if we
agreed that the prosecutor’s argument was improper, the trial court issued a curative

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instruction on this very point: “You may consider parole, but do not try to factor in
the eligibility of this person.” We presume that the jury followed this instruction,
which was sufficient to cure any unfair prejudice stemming from the prosecutor’s
argument. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (“We
generally presume the jury follows the trial court’s instructions in the manner
presented.”).

                       COMMENTS ON PUNISHMENT

      Appellant’s next complaint focuses on certain comments that the trial court
made on the first morning of trial, before the jury was ever selected. We reproduce
those comments here:

      Court:       It is Mr. Torres’s trial date. I extended an offer to Mr.
                   Torres today of 23 years in prison on the charge of
                   aggravated robbery with a deadly weapon. He is enhanced
                   with an alleged prior evading arrest charge, which if found
                   guilty, Mr. Torres, we already talked about this, if that
                   prior conviction that is true, you’re looking at a minimum
                   sentence of 15 years, maximum sentence of life in prison,
                   possible fine not to exceed $10,000. I’m guessing if you
                   got a lot of advice from fellow inmates in your block up
                   there about not taking any deals, being tough about these
                   things, my offer today was 23 years because you turned
                   down 20 last time you were here. You have had time to
                   talk to your lawyer today about this issue. Do you choose
                   to accept or reject my offer of 23 years, Mr. Torres?
      Appellant: I reject.
      Court:       You reject. Good for you. The offer on the table is no
                   longer available, Mr. Torres. Mr. Torres, you understand
                   if they do find you guilty, if that prior is true, it’s 15 to life.
                   Clear to you?
      Appellant: Yes, sir.
      Court:       You have had time to discuss this with your lawyer. You
                   understand all your options; is that correct, sir?

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      Appellant: Yes, sir, Your Honor.
      Court:        I understand you have chosen to have the jury assess your
                    punishment if they find you guilty; is that correct, sir?
      Appellant: Yes, sir.
      Court:        All right. [Defense counsel], something to add to the
                    record here?
      Counsel:      No.
      Court:        All right. Mr. Torres, good luck with this, sir. Let’s get this
                    trial started up for you.

      Based on these comments, appellant argues that the trial court failed to
consider the full range of punishment, resulting in a deprivation of due process and
a violation of this court’s decision in Cabrera v. State, 513 S.W.3d 35 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). But in Cabrera, we held that “it is a denial of
due process for a trial court to arbitrarily refuse to consider the entire range of
punishment for an offense or to refuse to consider the evidence and impose a
predetermined punishment.” Id. at 38. That authority is not applicable here because
appellant’s punishment was determined by the jury, not by the trial court.

      Appellant complains in the alternative that the trial court’s comments had the
effect of improperly intruding into plea negotiations. On its face, the record does
suggest that the trial court may have exceeded its proper role in the process of plea
negotiations. See Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009) (“The
only proper role of the trial court in the plea-bargain process is advising the
defendant whether it will ‘follow or reject’ the bargain between the state and the
defendant.”). But this complaint was not preserved for appellate review because
appellant never objected to the trial court’s comments. See Hallmark v. State, 541
S.W.3d 167, 170 (Tex. Crim. App. 2017) (“A defendant forfeits error if he fails to
object to a trial judge’s improper participation in plea negotiations.”).


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                             OPINION TESTIMONY

      During the guilt phase of trial, the sheriff’s deputy testified that he questioned
appellant about the items that were found in appellant’s possession but that appeared
to belong to the complainant. The testimony led to the following exchange:

      Q.     So deputy, when you were talking to the defendant, when did he
             state that he got those items that you presented to the
             complainant?
      A.     He stated that he received those items from another person
             Thursday night into Friday morning.
      Q.     And when did the aggravated robbery take place?
      A.     It was actually Sat—I took the report on the 18th, I believe. I
             want to say that was a—
      Q.     Was it a Sunday evening going to Monday morning?
      A.     It was Sunday night. It was Sunday morning when I took the
             report. So the incident occurred sometime Saturday night into
             Sunday morning.
      Q.     So is that in conflict with what he is telling you right there?
      A.     Yes, it is.
      Q.     And your opinion, is he lying about when he got these items?
             Defense Counsel: Objection, calls for an opinion, Your Honor.
             Court:        I hear you counsel. Overruled.
      A.     I took it as he was lying to me.
      Appellant now attacks the trial court’s ruling on his objection, arguing that the
deputy should not have opined on whether appellant was being truthful. Even if we
assumed for the sake of argument that the deputy’s live opinion testimony was
inadmissible, we could not conclude that appellant suffered any harm because the
same opinion was admitted elsewhere in the form of a video exhibit.

      The video was recorded several hours after appellant’s motor vehicle accident,
and it documented an interview that was conducted out in the field between just the
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deputy and appellant. Though he was not under arrest at the time of the interview,
appellant was advised of his constitutional rights, and he agreed to waive those rights
and answer the deputy’s questions.

      The deputy asked appellant how he came to possess the items that were found
in his vehicle, and appellant responded that he received the items from a third person
several days earlier. The deputy replied, “Edward, I’m not a rookie.” Appellant
responded, “I wouldn’t lie.”

      An exchange ensued in which the deputy repeatedly expressed his disbelief.
The deputy said, “What if I tell you that I don’t believe you? What would you say?”
Appellant answered, “I wouldn’t lie to you, sir.”

      The deputy pressed further, “What if I told you I don’t believe you? What
would you tell me then? If I told you, Edward, I want you to think about what you’re
telling me. I want you to seriously think about what you’re saying. Because I don’t
believe you. What would you say then?” Appellant repeated his earlier answer, “I
wouldn’t lie to you, sir.”

      The deputy continued, “What if I tell you I don’t believe what you’re telling
me right now? Not even half of it. Would you say you’re lying to me?” Appellant
responded, “If I was, I’d say my bad.”

      Because this video interview was admitted without objection, the deputy’s
opinion was already before the jury. The deputy’s live opinion testimony was merely
cumulative of that evidence, which means that any error in its admission was
harmless. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999)
(“Moreover, any error in admitting the evidence was harmless in light of other
properly admitted evidence proving the same fact.”).



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                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                       /s/      Tracy Christopher
                                                Justice

Panel consists of Justices Christopher, Spain, and Poissant.
Publish — Tex. R. App. P. 47.2(b).




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