                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00542-CR
                             NO. 02-13-00543-CR
                             NO. 02-13-00544-CR
                             NO. 02-13-00545-CR


JOSE ALCALA                                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
      TRIAL COURT NOS. 1308691D, 1308695D, 1316190D, 1316192D

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      A jury convicted Appellant Jose Alcala of two counts of aggravated robbery

and two counts of burglary of a habitation and, on each count, sentenced him to

imprisonment in the Institutional Division of the Texas Department of Criminal



      1
      See Tex. R. App. P. 47.4.
Justice for forty years. In one issue, Appellant contends the trial court erred by

denying his motion for mistrial during final arguments. We affirm.

                            Procedural Background

      In trial court cause numbers 1308691D and 1308695D (appellate court

cause numbers 02-13-00542-CR and 02-13-00543-CR), the State indicted

appellant for the offenses of aggravated robbery of T.S. and B.B., respectively.

See Tex. Penal Code Ann. §§ 29.02(a)(2) (robbery), 29.03(a)(2) (using or

exhibiting a deadly weapon raises robbery to an aggravated robbery) (West

2011). In trial court cause numbers 1316190D and 1316192D (appellate cause

numbers 02-13-00544-CR and 02-13-00545-CR), the State indicted Appellant for

the offenses of burglary of a habitation with the complainants being, respectively,

B.B. and T.S. See Tex. Penal Code Ann. § 30.02(a)(1), (3) (West 2011). The

burglary indictments included deadly weapon notices.         All four indictments

contained the same habitual offender notice of two prior felony convictions.

      Before a jury, Appellant pled not guilty to each of the four charges. During

trial, Appellant admitted participating in the offenses but maintained he did so

under duress. After hearing the evidence, the jury found Appellant guilty of all

four offenses. The jury also made a deadly weapon finding in the two burglary

cases. During the punishment phase of the trial, Appellant entered a plea of true

to the habitual offender paragraph.       The jury found the habitual offender

paragraph true in accordance with Appellant’s plea and assessed his punishment

as noted earlier.


                                        2
                                 Factual Background

      T.S. and his girlfriend, B.B., lived together and were both nineteen. They

met Appellant in late 2012 in a parking lot of a Wal-Mart when Appellant noticed

B.B.’s tattoo and volunteered that he did tattoos.       They exchanged phone

numbers and later arranged for Appellant to perform tattoo work for them in their

apartment. T.S. said he paid Appellant cash for the tattoo work Appellant did on

him and B.B. B.B. said T.S. paid for all the supplies needed for the tattoos.

      On December 12, 2012, when responding to a knock at the door, T.S.

cracked the door open, and Appellant and another male forced their way into

T.S. and B.B.’s apartment.      Neither man covered his face.       B.B. said she

recognized Appellant immediately.

      Appellant had a taser, and the other man had a gun. Appellant took a

number of T.S.’s and B.B.’s belongings, wrapped them up in a blanket, and

placed the blanket in a pillowcase.     Appellant then tied their hands and feet

together with zip ties. B.B. said Appellant threatened to kill them if they called

the police.

      T.S. thought Appellant was “kind of” the one in charge, because Appellant

was the one getting everything, Appellant was the one who tied them up, and

Appellant was the one who knew where they lived. T.S. acknowledged that was

just an assumption and that he really did not know who was in charge. T.S. said

the other man, Edward Flores, had the gun and, without pointing the gun directly

at Appellant, Flores pointed it somewhat in the same direction as Appellant. T.S.


                                         3
acknowledged Appellant told Flores, “Don’t do it.” T.S. thought Appellant was

telling Flores not to shoot them.

      T.S. said he had agreed to sell marijuana to Appellant but did not think he

ever actually had sold any to him. Because he was selling drugs and, therefore,

afraid to call the police, T.S. said he called his father before calling the police.

T.S. said ultimately it was his stepmother who called the police. So T.S. could

testify, the State granted T.S. immunity.

      Officer Michael Tyler testified he was dispatched to the apartment on

December 12, 2012, where he met T.S., B.B., who was crying, and T.S.’s father,

who was holding the taser that had been used during the offense. Officer Tyler

took possession of the taser. Officer Tyler said both T.S.’s and B.B.’s wrists and

ankles had marks consistent with zip ties. Officer Tyler further testified that the

smell of marijuana in their apartment hit him “like a brick wall.”

      Appellant testified and admitted participating in the burglaries and

robberies. Appellant maintained, however, that the idea was Flores’s and that

Flores forced him to participate. Appellant said he just wanted to collect the

money T.S. owed him for the tattoo work he had done earlier because he was

short of money to pay the rent. Appellant acknowledged he understood that just

because someone owed him money, he could not steal from them. Appellant

stressed that he knew Flores had a gun at all times and that Flores had

threatened to shoot or kill him. Once Flores had him at gun point, Appellant said

he had no choice. Appellant testified his choices were going along with Flores or


                                            4
getting shot by Flores. Appellant described Flores as a friend, but Appellant said

Flores turned on him when he resisted the idea of robbing T.S. and B.B.

Appellant later clarified that Flores never threatened to kill him, but that Appellant

felt Flores would have shot or killed him on “the spur of the moment.” Appellant

insisted he was forced to commit the robbery.

      Appellant said Flores gave him the taser. Appellant admitted leaving the

taser behind. Appellant said he did not want to use the taser, so when he was

gathering up other stuff, he placed it to the side.

      Appellant said he told Flores, “Don’t do it.” Appellant said he did not do

violent crimes, he hated guns, and he did not want anyone getting shot or losing

his or her life.   Appellant admitted being scared and said robbery was not

something he normally would have done.

      Appellant acknowledged two days later he stole a car and both he and

Flores drove it. Appellant agreed no one forced him to steal the car. Appellant

acknowledged he did not try to conceal his identity from the car dealership.

Appellant admitted he had participated in four or five “beer runs,” which involved

stealing beer from stores and reselling it. Appellant admitted he tried to steal

TVs from Wal-Mart while making no attempt to disguise himself.

                            Appellant’s Point of Error

      During final arguments, the following occurred:

      [Prosecutor]: And in reaching that decision this charge also tells you
      something I think is very important, is that you are the sole judges of
      the credibility of the witnesses. It’s your decision about who you are


                                          5
      going to believe and what you are going to believe. You heard from
      several witnesses. You heard what they told you. And they were
      truthful with you from the State’s side. Okay. [T.S.] and [B.B.]

      [Defense Counsel]:     I object to her characterization of the
      truthfulness based upon her opinion. It’s for the jury to decide.

      THE COURT: Sustained.

      [Defense Counsel]: And instruct the jury, Your Honor.

      THE COURT: Instruct the jury to disregard that last comment.

      [Defense Counsel]: Request a mistrial.

      THE COURT: Denied.

      [Prosecutor]: [B.B.] and [T.S.] told you the truth. Officer Tyler told
      you the truth.

      [Defense Counsel]: Objection, Your Honor, same objection.

      THE COURT: Sustained.

      [Defense Counsel]: Instruct the jury, please.

      THE COURT: Disregard the last argument of the prosecutor.

      [Defense Counsel]: Request a mistrial.

      THE COURT: Denied.

      In a single point of error, Appellant contends the trial court erred by not

granting his motion for mistrial due to the State’s improper argument.

Permissible jury argument generally falls into one of four areas: (1) summation

of the evidence; (2) reasonable deduction from the evidence; (3) an answer to

the argument of opposing counsel; or (4) a plea for law enforcement. Cannady v.

State, 11 S.W.3d 205, 213 (Tex. Crim. App.), cert. denied, 531 U.S. 850 (2000).


                                        6
Appellant argues it is improper for a prosecutor to bolster a victim’s testimony by

injecting the prosecutor’s personal, unsworn opinion about the victim’s honesty

and truthfulness. See Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App.

1981) (op. on second motion reh’g); Flores v. State, 778 S.W.2d 526, 528 (Tex.

App.—Corpus Christi 1989, no pet.). The State concedes, albeit grudgingly, that

the prosecutor’s argument was improper.2

      Appellant maintains there are three factors to consider when assessing the

impact of the harm after an improper jury argument:         (1) the severity of the

misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks);

(2) the measures adopted to cure the misconduct (the efficacy of any cautionary

instruction by the judge); and, (3) the certainty of conviction absent the

misconduct (the strength of the evidence supporting the conviction).            See

Threadgill v. State, 146 S.W.3d 654, 666–67 (Tex. Crim. App. 2004); Mosley v.

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070

(1999). Appellate courts review a trial court’s denial of a motion for mistrial under

an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.

App. 2000). Mistrial is appropriate for only highly prejudicial and incurable errors.

Id. Appellant contends the trial court should have granted a mistrial after the first




      2
        In its brief, the State argues only that any error was harmless, stating: “It
would appear that this jury argument was moderately incorrect. It is axiomatic
that a prosecutor has a duty to keep his view of the evidence to himself.”


                                         7
violation and certainly after the second violation. Appellant contends the trial

court’s failure to grant a mistrial constitutes an abuse of discretion.

      Regarding the severity of the misconduct, Appellant emphasizes that the

prosecutor vouched for the witnesses’ credibility not once but twice. Appellant

contends repeating the misconduct immediately after the trial court corrected the

identical error added to the severity of the prosecutor’s misconduct. We agree

the record shows the prosecutor vouched for the witnesses’ credibility twice, and

we agree the second time was immediately after the trial court had sustained

Appellant’s objection and instructed the jury to disregard the prosecutor’s

comments, which could hardly be characterized as a mitigating factor and could

fairly be characterized as an exacerbating one.

      An improper jury argument requires reversal only if it is so inflammatory

that its prejudicial effect cannot be reasonably removed from the minds of the

jurors by a trial court’s instruction to disregard. Tucker v. State, 15 S.W.3d 229,

237 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see Rudd v. State, 616

S.W.2d 623, 624 (Tex. Crim. App. [Panel Op.] 1981) (sustaining objection and

instructing jury to disregard removes any harm); Thompson v. State, 612 S.W.2d

925, 928–29 (Tex. Crim. App. [Panel Op.] 1981) (sustaining objection and

instructing jury to disregard renders complained-of statements harmless). An

instruction to disregard cures almost any improper argument. Garcia v. State,

943 S.W.2d 215, 217 (Tex. App.—Fort Worth 1997, no pet.). When determining

the curative effect of an instruction to disregard, the question is whether the


                                          8
argument was extreme or manifestly improper, whether it injected new and

harmful facts into the case, or whether it violated a mandatory statutory provision

and was thus so inflammatory that an instruction to disregard could not cure its

prejudicial effect. Id.

      Appellant contends the curative measures were insufficient to overcome

the harm. He argues that when the prosecutor immediately returned to the same

improper argument, the trial court should have taken additional curative

measures in the form of an admonishment to the prosecutor or a more forceful

and detailed instruction to the jury. Not having more forceful admonishments or

instructions with which to work, the State has, not surprisingly, taken the position

the instructions to disregard, such as they were, were nevertheless sufficient and

effective.

      Regarding the certainty of conviction absent the misconduct, Appellant

contends the credibility of the witnesses was critical to the case.       Appellant

maintains he would have prevailed on his duress defense but for the prosecutor

having improperly bolstered the witnesses’ credibility. Appellant emphasizes that

the State granted T.S., who sold marijuana, immunity for his testimony. The

State responds that absent the misconduct, the certainty of conviction weighed

heavily in its favor. The State points out that even without T.S.’s testimony, there

was still B.B.’s testimony. Appellant admitted he heard B.B.’s testimony and said

she testified truthfully. The State also relies on Appellant’s testimony; Appellant

admitted committing the offenses but claimed he committed them under duress.


                                         9
      The prosecutor’s argument was articulated improperly, but the thrust of her

argument appears to have been that the complainants’ testimony was undisputed

and, therefore, could be believed without the prosecutor belaboring the point with

argument. After the above-quoted exchange, the prosecutor directly addressed

Appellant’s duress defense and attacked Appellant’s credibility. Inasmuch as

Appellant admitted committing the offenses but maintained he did so only under

duress, we conclude the critical witnesses were not the complainants or the

police officers; rather, the critical witness was Appellant himself.

        Appellant’s credibility had significant issues. Appellant said he had been

to prison on three separate occasions, twice for burglary of a habitation and once

for possession of a controlled substance in a correctional facility. Appellant said

that in 2002 he was also charged for and convicted of burglary of a vehicle and

evading arrest. In addition to the present four offenses, Appellant acknowledged

he was also accused of (1) theft of property of $50 to $500 that allegedly

occurred on or about October 21, 2012; (2) theft of property of $500 to $1,500

that allegedly occurred on or about December 3, 2012; (3) another theft of

property of $50 to $500 that allegedly occurred on or about December 3, 2012;

and (4) theft of $1,500 to $20,000 that allegedly occurred on or about December

14, 2012, which involved the theft of a car from the Yate’s Auto Dealership.

There were also charges of resisting arrest and evading arrest from December

17, 2012.




                                          10
       Regarding the theft of the vehicle on December 14, 2012, it occurred at a

dealership where the salespeople knew Appellant because Appellant had, shortly

before that, taken one of his girlfriends to the same dealership to help her buy a

car.   Flores and Flores’s brother were the ones who took Appellant to the

dealership. Flores himself was later found in the car Appellant stole. As the

prosecutor noted during her final arguments, Appellant’s duress contention made

no sense when, only two days later, Appellant and Flores were still together and

where Flores was ostensibly helping Appellant commit another felony.

       We hold the magnitude of the prejudicial effect, even after the prosecutor

repeated the misconduct, was not so great that the trial court’s instructions to

disregard were ineffective. See Threadgill, 146 S.W.3d at 666–67. We hold that

the strength of the State’s evidence was such that the prosecutor’s improper

argument, even when repeated after Appellant’s objection was sustained and the

jury instructed to disregard, did not affect the certainty of conviction. See id. In

the context of the record as a whole, the misconduct was not so highly prejudicial

that it was incurable. See Wood, 18 S.W.3d at 648; Flores, 778 S.W.2d at 528

(“In the instant case, we construe the prosecutor’s argument, given the context in

which the credibility of the complainant was being addressed, as not to be so

extreme as to require reversal.”).    We hold the trial court did not abuse its

discretion by denying Appellant’s motions for mistrial. We overrule Appellant’s

sole point of error. See Wood, 18 S.W.3d at 648.




                                        11
                                 Conclusion

      Having overruled Appellant’s point of error, we affirm the trial court’s

judgment.


                                                /s/ Anne Gardner
                                                ANNE GARDNER
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 4, 2014




                                     12
