                                  IN THE
                          TENTH COURT OF APPEALS

                                No. 10-09-00325-CR
                                No. 10-09-00326-CR

DAVID SEGOVIA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                        From the 85th District Court
                           Brazos County, Texas
           Trial Court Nos. 08-01596-CRF-85 and 08-02618-CRF-85


                          MEMORANDUM OPINION


      After two indictments charged David Segovia with aggravated robbery, a jury

found him guilty on both charges and assessed punishment at forty years in prison and

a $2,500 fine in each case.     The trial court ordered the sentences to be served

concurrently. Segovia appeals from both judgments, filing a joint brief that asserts five

issues. We will affirm.

      On the evening of December 13, 2007, the apparently same person committed

back-to-back armed robberies of two Handi-Stop convenience stores in Bryan within an
hour of each other. Both robbery victims said that the robber “clicked” his gun and

pointed it at them in the robberies. About six months later, one of the stores’ cashiers

identified Segovia in a police photo line-up as the robber. At trial, the cashier identified

Segovia as the robber, and the manager of the other store testified that Segovia looked

like the robber, but she could not positively identify him. The robberies were recorded

by the stores’ security cameras, and two other witnesses who were familiar with

Segovia identified him in each robbery videotape.

        In his first two issues, Segovia challenges the legal and factual sufficiency of the

evidence on venue. He asserts that the evidence is insufficient to prove that the offenses

occurred in Texas or that Brazos County is in Texas because no witness testified that

Brazos County is in Texas. The State first responds that Segovia’s venue complaint is

waived because the presumption that venue was proved applies. See TEX. R. APP. P.

44.2(c)(1); Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981).

                Venue is not an element of the offense. Fairfield v. State, 610 S.W.2d
        771, 779 (Tex. Crim. App. [Panel Op.] 1981); State v. Blankenship, 170
        S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d); Henley v. State, 98
        S.W.3d 732, 734 (Tex. App.—Waco 2003, pet. ref’d). Thus, it need be
        proved by only a preponderance of the evidence. See TEX. CODE CRIM.
        PROC. ANN. art. 13.17 (Vernon 2005); Murphy v. State, 112 S.W.3d 592, 604
        (Tex. Crim. App. 2003); Fairfield, 610 S.W.2d at 779; Blankenship, 170 S.W.3d
        at 681; Sudds v. State, 140 S.W.3d 813, 816 (Tex. App.—Houston [14th Dist.]
        2004, no pet.). An appellate court must presume that venue was proved
        unless it was challenged in the trial court or the record affirmatively
        shows the contrary. TEX. R. APP. P. 44.2(c)(1); Hernandez v. State, 198
        S.W.3d 257, 268 (Tex. App.—San Antonio 2006, pet. ref’d); Blankenship, 170
        S.W.3d at 681; Henley, 98 S.W.3d at 734.

Witt v. State, 237 S.W.3d 394, 399 (Tex. App.—Waco 2007, pet. ref’d).

        Segovia did not dispute venue in the trial court. We next determine if it is

Segovia v. State                                                                          Page 2
affirmatively shown in the record that the presumption of proper venue is inapplicable.

Lee v. State, 903 S.W.2d 845, 847 (Tex. App.—Beaumont 1995, pet. ref’d). For the record

to affirmatively show that venue was improper, it must affirmatively negate whatever

proof was made by the State on venue. Holdridge v. State, 707 S.W.2d 18, 21-22 (Tex.

Crim. App. 1986); see also O’Hara v. State, 837 S.W.2d 139, 143 (Tex. App.—Austin 1992,

pet. ref’d).

        The cashier testified that she lived and worked in Bryan and that both stores that

were robbed were in Brazos County. We take judicial notice that Bryan is in Brazos

County and that Brazos County is in Texas. See Black v. State, 645 S.W.2d 789, 791 (Tex.

Crim. App. 1983). The record does not affirmatively show that venue was improper.

We therefore presume that venue was proved.            Accordingly, Segovia’s sufficiency

complaints on venue are waived, and we overrule his first two issues.

        In his third and fourth issues, Segovia complains that the prosecutor improperly

commented on Segovia’s failure to testify in the State’s rebuttal argument in the

punishment phase. The argument at issue is:

               [PROSECUTOR]: Again, at one [sic] point does this man take
        responsibility for anything he’s ever done? And before any change could
        ever happen, there has to be an admission and responsibility. And it’s
        required your verdict --

               [DEFENSE COUNSEL]: Objection, Your Honor. … State is going
        to defendant’s election not to testify. It’s clearly a violation of -- of his
        right to not testify and not incriminate himself or make a statement. His
        argument is clearly inappropriate and outside the scope.

                   THE COURT: Sustained.

                   [DEFENSE COUNSEL]: Judge, I move for a mistrial.

Segovia v. State                                                                        Page 3
                   THE COURT: Denied.

               [DEFENSE COUNSEL]: Ask the jury be instructed to disregard his
        prior statement.

               THE COURT: The jury is instructed that any argument that could
        be interpreted as any comment upon the defendant’s failure to testify in
        this case is improper, and you should disregard the last argument of the
        prosecutor that was made that could have any such implication. The
        defendant is free to not testify, and that circumstance cannot be taken or
        used in any way in determining his punishment that should be assessed in
        this case.

        Issue three specifically asserts that the State’s improper argument so infected the

trial with unfairness as to make the resulting punishment a denial of due process and

due course of law. Rule 33.1 applies to objections to jury argument. See Threadgill v.

State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); TEX. R. APP. P. 33.1(a). To preserve a

complaint for appellate review, the issue on appeal must comport with the objection

made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). “[A]n objection

stating one legal theory may not be used to support a different legal theory on appeal.”

Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (op. on reh’g). Constitutional

claims are not preserved if not timely made in the trial court. See Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1995); Barker v. State, --- S.W.3d ---, ---, 2011 WL

505236, at *2 (Tex. App.—Houston [14th Dist.] Feb. 15, 2011, no pet. h.) (holding that

alleged federal and state due-process violations were not preserved because they were

not asserted in trial court). The constitutional grounds being asserted in issue three

were not asserted in the trial court and thus are not preserved for appellate review.

Accordingly, issue three is overruled.

Segovia v. State                                                                     Page 4
        Issue four specifically asserts that the argument was calculated to deny Segovia a

fair and impartial trial. We construe this issue as a complaint that the trial court erred

in failing to grant a mistrial.   Jury argument is limited to: (1) summations of the

evidence; (2) reasonable deductions from the evidence; (3) answers to argument of

opposing counsel; and (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154

(Tex. Crim. App. 1999). “A comment on an accused’s failure to testify violates the

accused’s state and federal constitutional privileges against self-incrimination.” Smith v.

State, 65 S.W.3d 332, 339 (Tex. App.—Waco 2001, no pet.); see also TEX. CODE CRIM. PROC.

ANN. art. 38.08 (Vernon 2005).

        The State replies that the rebuttal argument at issue was invited by Segovia’s

counsel’s punishment-phase argument that Segovia may not be wholly responsible for

both robberies and that the argument was thus not improper. See, e.g., Long v. State, 823

S.W.2d 259, 269 (Tex. Crim. App. 1991). We will assume without deciding that the

argument was uninvited and will proceed to a mistrial analysis.

        The denial of a motion for mistrial, which is appropriate for “highly
        prejudicial and incurable errors,” is reviewed under an abuse of discretion
        standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)
        (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)); Ladd v.
        State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

           [T]he question of whether a mistrial should have been granted
           involves most, if not all, of the same considerations that attend a
           harm analysis. A mistrial is the trial court’s remedy for improper
           conduct that is “so prejudicial that expenditure of further time and
           expense would be wasteful and futile.” In effect, the trial court
           conducts an appellate function: determining whether improper
           conduct is so harmful that the case must be redone. Of course, the
           harm analysis is conducted in light of the trial court’s curative


Segovia v. State                                                                      Page 5
           instruction. Only in extreme circumstances, where the prejudice is
           incurable, will a mistrial be required.

        Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, the
        appropriate test for evaluating whether the trial court abused its
        discretion in overruling a motion for mistrial is a tailored version of the
        test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex. Crim.
        App. 1998), a harm analysis case. See Hawkins, 135 S.W.3d at 77. The
        Mosley factors that we consider in determining whether the trial court
        abused its discretion in denying a mistrial during the punishment phase
        are: (1) the prejudicial effect, (2) curative measures, and (3) the likelihood
        of the same punishment being assessed. Hawkins, 135 S.W.3d at 77; see
        Mosley, 983 S.W.2d at 259.

Abbott v. State, 196 S.W.3d 334, 347 (Tex. App.—Waco 2006, pet. ref’d).

        Considering the Mosley factors, we cannot say that the trial court abused its

discretion in denying the motion for mistrial. Any prejudicial effect was not incurable

because the State’s comment was indirect, was arguably invited, and was not flagrantly

improper. The trial court’s instruction to disregard was the proper curative measure in

this instance.     See Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000).

Finally, Segovia was facing a sentence of life or five to ninety-nine years in prison for

these aggravated robberies, which are first-degree felonies. In each robbery, Segovia

pointed a gun at the victim. Punishment evidence included Segovia’s prior state-jail

felony conviction for possession of a controlled substance (heroin) and evidence of two

loaded guns (a pistol and a shotgun) and drug-dealing paraphernalia found in his

bedroom. The likelihood of the same punishment being assessed without the State’s

comment is very high. See Hawkins, 135 S.W.3d at 85. Issue four is overruled.

        Segovia’s fifth issue asserts that he was denied due process and due course of

law by the introduction of evidence of a flawed identification. Segovia complains that

Segovia v. State                                                                         Page 6
the pretrial photo line-up that the cashier used to identify him was impermissibly

suggestive and tainted the cashier’s in-court identification of Segovia as the robber. The

cashier had told police that the robber had a teardrop tattoo, and Segovia complains

that his photo was the only one with a facial tattoo. He also complains that many of the

persons in the other photos “differ dramatically” from Segovia’s photo.

        The State correctly argues that Segovia has failed to preserve this complaint for

appellate review because he did not obtain a pretrial ruling on the photo line-up, nor

did he object at trial to the cashier’s testimony or the introduction of the line-up into

evidence. See TEX. R. APP. P. 33.1(a); In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (citing Perry v. State, 703 S.W.2d 668, 670 (Tex.

Crim. App. 1986)). Accordingly, we overrule issue five.

        Having overruled all of Segovia’s issues, we affirm the trial court’s judgments.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 11, 2011
Do not publish
[CRPM]




Segovia v. State                                                                     Page 7
