                          NUMBER 13-13-00714-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

ROBERT JOHN ANTHONY MARTINEZ a/k/a
ROBERTO MARTINEZ a/k/a
ROBERT JOHN MARTINEZ a/k/a
ROBERT MARTINEZ,                                                      Appellant,

                                        v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 103rd District Court
                       of Cameron County, Texas.


                      MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Justice Benavides

      By four issues, appellant Robert John Anthony Martinez a/k/a Roberto Martinez

a/k/a Robert John Martinez a/k/a Robert Martinez appeals his conviction for murder.

See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through Ch. 46 2015 R.S.). Martinez
alleges by four issues that: (1) his second oral statement to police was taken in violation

of Article 38.22 of the Code of Criminal Procedure and should not have been allowed into

evidence during his jury trial; (2) the trial court committed error by not including an

instruction in the jury charge on the voluntariness of Martinez’s statement; (3) the trial

court made comments on the definition of reasonable doubt during the State’s voir dire,

thereby amounting to an improper comment on the weight of the evidence; and (4) the

prosecutor’s comments during the punishment phase of the trial amounted to misconduct

and a mistrial should have been granted. We affirm.

                                   I.      BACKGROUND

       On November 19, 2012, Martinez stabbed Angel Perez with a knife and killed him.

At trial, Martinez testified in his own defense and stated that he and his friends were at a

gathering when they heard that Perez and Perez’s friends were breaking into vehicles in

their neighborhood and stealing car radios. Martinez and his friends left the gathering in

search of Perez and his friends.        Martinez encountered Perez and confronted him.

According to Martinez’s statement, Martinez and Perez then engaged in a physical

altercation.   Martinez claims that Perez was overpowering him during their altercation.

Martinez stated that he stepped back, pulled out a knife, and when Perez approached

him again, Martinez stabbed him.         Perez was stabbed more than eighteen times,

including a fatal stab wound to his heart. Martinez said he dropped the knife and left the

scene, knowing the police would arrive shortly.   Martinez was apprehended the following

morning at a friend’s home and initially charged with possession of marijuana.    See TEX.

HEALTH AND SAFETY CODE § 481.121 (West, Westlaw through Ch. 46 R.S. 2015).



                                              2
       Upon his arrest, Martinez was questioned by investigators from the San Benito

Police Department. Initially, the purpose of the questioning was to gather information

about some cell phones that had been located relating to the murder.             The officers

testified during a motion to suppress hearing that Martinez had been read his Miranda

warnings before each interview, but that the first interview was not videotaped because

they were just gathering information regarding the phones.         During the first interview,

Martinez began asking questions regarding the stabbing of Perez and then Martinez

stated to them that he had stabbed Perez.          Investigators immediately stopped the

interview and set up a video recording for the subsequent interview in compliance with

article 38.22 of the code of criminal procedure.     See TEX. CODE CRIM. PROC. ANN. art.

38.22 (West, Westlaw through Ch. 46 R.S. 2015).            Police again read Martinez his

Miranda rights on the video and Martinez gave the investigators more details about his

altercation with Perez.

       The State indicted Martinez with Perez’s murder. Following a jury trial, Martinez

was convicted of murder and the jury assessed punishment at fifty-years in the Texas

Department of Criminal Justice—Institutional Division.     This appeal followed.

                 II.      STATEMENT TAKEN IN VIOLATION OF ARTICLE 38.22

       By his first issue, Martinez alleges that the videotaped statement was taken in

violation of Article 38.22 of the Code of Criminal Procedure and the trial court committed

error by admitting the statement into evidence during the trial.    See TEX. CODE CRIMINAL

PROC. ANN. art. 38.22.      The voluntariness of the statement was challenged during a

hearing on a motion to suppress held prior to the start of Martinez’s jury trial.



                                              3
         A.    Standard of Review

         We review a trial court’s suppression ruling under a bifurcated standard.        Hubert

v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010).           Appellate courts must view all of

the evidence in the light most favorable to the ruling.      Vasquez v. State, 453 S.W.3d 555,

564 (Tex. App.—Houston [14th Dist.] 2014, pet. granted).           At a suppression hearing, the

trial judge is the sole factfinder.    Id.    Regarding findings of fact, especially when those

findings are based on an evaluation of credibility and demeanor, we review the trial court’s

rulings under an abuse of discretion standard.           See Xu v. State, 191 S.W.3d 210, 215

(Tex. App.—San Antonio 2005, no pet.); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). We afford almost total deference to a trial court’s determination of historical

facts supported by the record.        See id.     However, “the trial court’s resolution of mixed

questions of law and fact, which does not turn on an evaluation of credibility and

demeanor, is reviewed de novo.”              Xu, 191 S.W.3d at 215.     The court of appeals is

obligated to “uphold the trial court’s ruling on appellant’s motion to suppress if that ruling

was supported by the record and was correct under any theory of law applicable to the

case.”    Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc).

         B.    Applicable Law

         Statements made by defendants to law enforcement are governed by Article 38.22

of the Code of Criminal Procedure.           See TEX. CODE CRIM. PROC. ANN. art. 38.22.   Under

Article 38.22, “no written statement made by an accused as a result of custodial

interrogation is admissible as evidence against him in any criminal proceeding unless it

is shown” that he received the required warnings as determined by Miranda v. Arizona.

Id. § 2; Miranda v. Arizona, 384 U.S. 436 (1966). Additionally, no oral statement made

                                                   4
as a product of custodial interrogation shall be admissible against a defendant unless:

       (1) an electronic recording, which may include motion picture, video tape,
       or other visual recording, is made of the statement;

       (2) prior to the statement but during the recording the accused is given the
       warning in Subsection (a) of Section 2 above and the accused knowingly,
       intelligently, and voluntarily waives any rights set out in the warning;

       (3) the recording device was capable of making an accurate recording, the
       operator was competent, and the recording is accurate and has not been
       altered;

       (4) all voices on the recording are identified;

       (5) not later than the 20th day before the date of the proceeding, the attorney
       representing the defendant is provided with a true, complete, and accurate
       copy of all recordings of the defendant made under this article.

TEX. CODE CRIM. PROC. ANN. art. 38.22(§ 3)(a)(1). The warnings contained in section 2

of Article 38.22 are as follows:

       (a) the accused, prior to making a statement, either received from a
       magistrate the warning provided in Article 15.17 of this code or received
       from the person to whom the statement is made a warning that:

       (1) he has a right to remain silent and not make any statement at all and
       that any statement he makes may be used against him at his trial;

       (2) any statement he makes may be used as evidence against him in court;

       (3) he has the right to have a lawyer present to advise him prior to and
       during any questioning;

       (4) if he unable to employ a lawyer, he has the right to have a lawyer
       appointed to advise him prior to and during any questioning; and

       (5) he has the right to terminate the interview at any time; and

       (b) the accused, prior to and during the making of the statement, knowingly,
       intelligently, and voluntarily waived the rights set out in the warning
       prescribed Subsection (a) of this section.

Id. at § 2.   However, the Court of Criminal Appeals has held that “for oral statements

                                              5
made as a result of custodial interrogation to be admissible, the warnings given prior to

those statements need to only ‘substantially comply’ with the warnings set out in art.

38.22, § 2(a).” Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001) (en banc);

see also Coffey v. State, 435 S.W.3d 834, 841 (Tex. App.—Texarkana 2014, pet. ref’d).

       There have been cases where the Miranda safeguards have been misused.

Miranda, 384 U.S. 436.     In Missouri v. Siebert, the defendant was deliberately not given

her Miranda warnings until after she gave a confession.            542 U.S. 600 (2004).

Following the defendant’s initial confession without any Miranda warnings, the officers

gave her a short break and then went over the same information again, this time following

the proper warnings.     Id. The Supreme Court held that this “question first” technique

was not acceptable because it deliberately attempts to go around giving a defendant

notice of his rights under the Miranda standard.   Id.

       The Texas Court of Criminal Appeals has also held that this “two-step” or

“question-first” technique is not acceptable. In Martinez v. State, the Court of Criminal

Appeals held that questioning the defendant without the proper warnings, and then

coming back and questioning him again with proper warnings rendered the second

statement inadmissible.    272 S.W.3d 615, 627 (Tex. Crim. App. 2008). However, there

are situations where a police officer does not initially warn a defendant of his rights that

the court of criminal appeals found not to be a “question-first” situation.    In Carter v.

State, the arresting officer conversed with the defendant briefly, at which time the

defendant made an incriminating statement. 309 S.W.3d 31, 33–35 (Tex. Crim. App.

2010). The officer immediately realized he had not read the suspect his Miranda rights

and stopped the interview in order to warn him.     Id. at 33. The trial court in that case

                                             6
found that “the failure of Trooper Henderson to warn Carter before those two questions

were asked was simply an oversight” and the court of criminal appeals affirmed the ruling,

stating the facts “do not necessarily exemplify the deliberate ‘question-first, warn later’

gamesmanship so obvious in Seibert”. Id. at 34–35, 41.

       “Courts should determine ‘whether the evidence shows that [the interrogating

officer] deliberately employed a two-step ‘question-first, warn later’ interrogation

technique to circumvent [the] appellant’s Miranda protections.’”        Vasquez, 453 S.W.3d

at 569 (citing Carter, 309 S.W.3d at 38). To make this determination will “‘invariably turn

on the credibility of the officer’s testimony in light of the totality of the circumstances

surrounding the interrogation.”   Carter, 309 S.W.3d at 39 (citing United States v. Stewart,

536 F.3d 714, 720–21 (7th Cir. 2008)).       “This is a factual finding entitled to deference on

appeal’ and reviewed only for clear error.”     Id. (citing Stewart, 536 F.3d at 720–21).

       C.     Discussion

       Martinez argues that his 38.22 warnings were given “mid-stream”, that he was

interviewed multiple times before his 38.22 warnings were given, and even when the

warnings were given, they did not comply with article 38.22.      See TEX. CODE CRIM. PROC.

ANN. art. 38.22.

       “The State, as the proponent of the evidence of appellant’s confession, bears the

burden of establishing its admissibility.”    Vasquez, 453 S.W.3d at 567.        “It is also the

State’s burden to establish a valid waiver of Miranda rights by a preponderance of the

evidence.”   Id.   During the pre-trial hearing on Martinez’s motion to suppress, the State

called two officers who were part of the initial and videotaped interrogation of Martinez:

Captain Mario Perea and Detective Israel Ambriz of the San Benito Police Department.

                                                7
Both officers stated that Martinez was read his 38.22/Miranda warnings prior to both

interrogations.      See TEX. CODE CRIM. PROC. ANN. art. 38.22; Miranda, 384 U.S. 436.

Both officers stated that the initial interrogation was not videotaped because they were

gathering information regarding cell phones in the custody of San Benito Police

Department, not information about Perez’s murder.             However, both men testified

Martinez was properly warned prior to the commencement of any questioning.

       Martinez’s trial counsel questioned the officers regarding Martinez’s understanding

of the warnings and if there were any promises made to him for giving the statement.

Captain Perea felt Martinez understood and waived his rights because Martinez

continued to talk to them.    Perea also stated the videotape was made in order to comply

with article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22.        Detective Ambriz stated

that no one promised Martinez a reduction of charges for his cooperation and even though

the first interrogation was not written or videotaped, Ambriz felt he would be able to testify

about it in court based on his credibility.   Martinez’s trial counsel argued that the video

confession should be suppressed based on Seibert and the “question-first, warn-later”

behavior, but the trial court stated on the record that it did not believe it was a “two-tiered”

interrogation and denied the motion to suppress.       See Seibert, 542 U.S. at 600.

       Additionally, Martinez testified in his own defense during the guilt-innocence

portion of his jury trial.   He was questioned about the offense by both his own trial

counsel and the State. During his testimony, Martinez admitted to stabbing Perez during

their altercation.

       Based on the record from the motion to suppress hearing and the trial transcript,

as well as the findings of the trial court on the record, we do not find that the videotaped

                                               8
confession was a product of the “question-first, warn-later” technique prohibited by

Seibert and its progeny.       See Seibert, 542 U.S. at 600.   As a result, the trial court’s

ruling was proper, and we overrule Martinez’s first issue.

                        III.      VOLUNTARINESS JURY INSTRUCTION

       By his second issue, Martinez states the trial court committed error by not sua

sponte including an instruction on the voluntariness of his statement in the jury charge.

       A.     Standard of Review

       In reviewing a challenge to a jury charge, we first must determine if the jury charge

contained error.   Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error

is found, we then ‘analyze the harm resulting from the error.”          Id.    If “an error is

preserved with a timely objection…then the jury-charge error requires reversal if the

appellant suffered some harm as a result of the error.”      Sanchez v. State, 376 S.W.3d

767, 774 (Tex. Crim. App. 2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985)).   But if the “defendant never presents a proposed jury instruction (or

fails to object to the lack of one), any potential error in the charge is reviewed only for

‘egregious harm’ under Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim.

App. 2008). The failure to preserve jury-charge error is not a bar to appellate review,

but rather it establishes the degree of harm necessary to the reversal.       Warner v. State,

245 S.W.3d 458, 461 (Tex. Crim. App. 2008).

       To determine harm, we consider four factors: (1) the charge itself, (2) the state of

the evidence, including contested issues and the weight of the probative evidence, (3)

arguments of counsel, and (4) any other relevant information revealed by the trial record

as a whole.   Trejo v. State, 313 S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.] 2010,

                                              9
pet. ref’d) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).            To

establish both egregious or “some” harm, the “appellant must have suffered actual, rather

than theoretical, harm.”     Warner, 245 S.W.3d at 461.          Neither party bears the burden

on appeal to prove harm.      Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

       If the “error in the charge was the subject of a timely objection in the trial court,

then reversal is required if the error is ‘calculated to injure the rights of the defendant,’

which means no more than that there must be some harm to the accused from the error.”

Id. (citing Almanza, 686 S.W.2d at 171). When an “appellant d[oes] not object to the

charge, the error does not result in reversal ‘unless it was so egregious and created such

harm that appellant was denied a fair trial.’”    Warner, 245 S.W.3d at 461 (citing Almanza,

686 S.W.2d at 171). “Egregious harm deprives appellant of a fair and impartial trial.”

Trejo, 313 S.W.3d at 871 (citing Almanza, 686 S.W.2d at 171). “Errors that result in

egregious harm are those that affect the ‘very basis of the case,’ ‘deprive the defendant

of a valuable right,’ or ‘vitally affect a defensive theory.’”   Warner, 245 S.W.3d at 461–62

(citing Hutch, 922 S.W.2d at 171).

       B.      Applicable Law

       Martinez alleges that the trial court committed harm by not including an instruction

on the voluntariness of his statement in the jury charge.         There was no objection to the

jury charge by Martinez’s trial counsel. We first conduct a review to establish if there

was: (1) error in the jury charge and (2) if there was error, was the error egregious harm

to Martinez.

       Section 6 of article 38.22 states:

       Upon the finding by the judge as a matter of law and fact that the statement

                                                 10
       was voluntarily made, evidence pertaining to such matter may be submitted
       to the jury and it shall be instructed that unless the jury believes beyond a
       reasonable doubt that the statement was voluntarily made, the jury shall not
       consider such statement for any purpose nor any evidence obtained as a
       result thereof.

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6. Section 7 of article 38.22 states “when the

issue is raised by the evidence, the trial judge shall appropriately instruct the jury,

generally, on the law pertaining to such statement.”       Id. at § 7.   Additionally, under

article 38.21, “A statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or

persuasion.”   Oursbourn, 259 S.W.3d at 169 (citing TEX. CODE CRIM. PROC. ANN. art.

38.21).

       A defendant would be “entitled to an instruction on voluntariness of his statement

under art. 38.22 § 6, if he introduces evidence at trial from which a reasonable jury could

find that the statement was not voluntarily made.”      Vasquez, 225 S.W.3d at 545.     “If a

reasonable jury could find that the facts, disputed or undisputed, rendered him unable to

make a voluntary statement, he is entitled to a general voluntariness instruction when he

has raised a question of the voluntariness of his statement.”   Oursbourn, 259 S.W.3d at

176.   When the defendant “presents evidence raising a voluntariness question, the

prosecution must controvert that evidence and prove voluntariness by a preponderance

of the evidence.”   State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999) (en

banc). However, the prosecution “is not put to this burden unless a defendant presents

evidence that raises a voluntariness question.”   Id.

       C.      Discussion

       Although Martinez’s trial counsel questioned the two police officers who testified

                                            11
during the motion to suppress hearing regarding the voluntariness of Martinez’s

statements, the issue of voluntariness was not raised during the trial. There was no

evidence put before the jury to give rise to the idea that Martinez had not voluntarily

cooperated with the officers based on his own free will. The State presented evidence

that Martinez was given the proper warnings required under the law and knowingly,

intelligently, and voluntarily waived those rights.     See TEX. CODE CRIMINAL PROC. ANN.

art. 38.22 § 2.   In order for Martinez to be entitled to a jury instruction on the voluntariness

of his statement, he must have presented evidence during the trial to say his statement

was not voluntarily given.     For an issue to be “raised by the evidence”, there must be a

genuine factual dispute.     Oursbourn, 259 S.W.3d at 176.

       At no time did this occur. Martinez even testified in his own defense during the

trial and never made a claim that he did not receive his warnings, did not voluntarily give

his statement, or did not wish to cooperate with the investigation. Additionally, Martinez

cites to no place in the record from the trial to show where he presented any evidence

requiring the instruction on voluntariness.

       A “trial judge has an absolute sua sponte duty to prepare a jury charge that

accurately sets out the law applicable to the specific offense charged.”       Id. at 179 (citing

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).                “But it does not

inevitably follow that he has a similar sua sponte duty to instruct the jury on all potential

defensive issues, lesser-included offenses or evidentiary issues.        These are issues that

frequently depend upon trial strategy and tactics.”         Id. (citing Delgado v. State, 235

S.W.3d at 249).      Although Martinez claims the trial court should have included this

proposed instruction on its own, without more evidence elicited during testimony, the trial

                                               12
court did not violate its duty to include defensive issues in the jury charge.                          See id.

Therefore, there was no error in the jury charge.               We overrule Martinez’s second issue.

                IV.      COMMENTS MADE BY THE TRIAL COURT DURING VOIR DIRE

        By his third issue, Martinez complains that the trial court violated “his Sixth

Amendment right to jury determination” and violated Rule 605 of the Texas Rules of

Evidence by commenting on reasonable doubt during the State’s voir dire, thereby

committing fundamental error.             See U.S. CONST. amend. VI; TEX. R. EVID. 605 (West,

Westlaw through Ch. 46 R.S. 2015).

        A.       Standard of Review and Applicable Law

        In order to “preserve a complaint of improper voir dire for appellate review, the

appellant must make a timely and specific objection and receive an adverse ruling from

the trial court.”      Fears v. State, No. 13-13-00111-CR, ___ S.W.3d ____, 2015 WL

1869792, at *15 (Tex. App.—Corpus Christi Apr. 23, 2015, pet. filed); see Archie v. State,

221 S.W.3d 695, 699 (Tex. Crim. App. 2007); TEX. R. APP. P. 33.1 (West, Westlaw

through Ch. 46 R.S. 2015). “Here, because appellant did not object, he has waived his

complaint on appeal except for fundamental error.”                    Fears, 2015 WL 1869792 at *15;

see Archie, 221 S.W.3d at 699.            The proper test for “determining whether an error during

voir dire is fundamental, and therefore may be raised for the first time on appeal, is

whether the error involves a violation of a right that is ‘waivable only’ or a denial of an

absolute, systematic requirement.”1              Fears, 2015 WL 1869792 at *15; see Aldrich v.


        1   “Examples of rights that are waivable-only include the rights to assistance of counsel, the right to
trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute specifically
made waivable-only.” Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (en banc). “Absolute
systemic requirements include jurisdiction of the person, jurisdiction of the subject matter, and a penal
statute’s being in compliance with the Separation of Powers Section of the state constitution.” Id.

                                                       13
State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). “This Court has held in the past

that the right to an impartial judge is an absolute, systematic requirement that may be

raised for the first time on appeal if the judge’s comments are ‘so egregious as to deem

the judge biased.’”    Fears, 2015 WL 1869792 at 15; see Hernandez v. State, 268 S.W.3d

176, 185-86 (Tex. App.—Corpus Christi 2008, no pet.).

         Under Texas Rule of Evidence 605, “a judge may not testify in a proceeding over

which the judge is presiding.”     TEX. R. EVID. 605; see Hensarling v. State, 829 S.W.2d

168, 171 (Tex. Crim. App. 1992) (en banc).         In order to determine if the trial court

testified, “the question should be whether the judge’s statement of fact is essential to the

exercise of some judicial function or is the functional equivalent of witness testimony.”

Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990).         However, “substantial

rights are not affected by the erroneous admission of evidence ‘if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the

jury, or had but a slight effect.’” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002).

         B.       Discussion

         Martinez complains of an exchange between the trial court and a prospective juror

during the State’s portion of voir dire.      A potential juror posed a question about

reasonable doubt: about knowing someone was guilty but not having the requisite proof.

The trial court asked a follow up question to clarify the prospective juror’s question and

then stated the following:

         Court:        Okay. I guess the – there is no definition for beyond a
                       reasonable doubt. When you say you know he did it, I’m not
                       sure how someone knows he did it if there was no proof that

                                             14
                      he did it, because then you don’t know. You might think he
                      might have done it. There may be something in your mind
                      that believes he might have done it, but you don’t know he did
                      it unless the proof was there. So if the proof is not there, then
                      you don’t really know it. You believe it or you think, maybe,
                      but I guess that’s what’s throwing me off, is if you know it, then
                      how can you know it if the proof’s not there?

       ....

       Court:         Okay. The state’s got to prove it beyond a reasonable doubt.
                      If they don’t prove it beyond a reasonable doubt, then that’s
                      different. But I guess what threw me is when you say, “I
                      know he did it.” Well if you know someone did it, then there
                      must have been proof there, because if not, you wouldn’t
                      know it. You would think it, you might guess it, but you don’t
                      know it. I mean, if the proof’s there and you know it, then that
                      would be beyond a reasonable doubt if you know it. If you
                      don’t know it and you think it, then there may not be enough
                      proof.

       It is apparent from the comments made by the trial court that it was exercising its

judicial function by clarifying a confusion in the law.    See Hammond, 799 S.W.2d at 746.

The juror was unsure of how to arrive at a proper disposition based on information that

had been provided. The trial court was within its duty to try to rectify that confusion,

while not making any specific comments on the evidence in the case or stating improper

assumptions of the law.    Although it is the right of Martinez to have an impartial, unbiased

judge, the trial court did not show any partiality towards the State or bias against Martinez.

       Additionally, as the State argues in its brief, the trial court was not functioning as a

witness in the case because no evidence had been presented to the jury yet.          In looking

at the record as a whole, even if these comments would have amounted to error, the error

was slight and did not influence the jury’s verdict.      The trial court encouraged the jurors

to have proof, rather than just a feeling or emotion, in order to get beyond a reasonable


                                              15
doubt. The trial court did not comment on its beliefs regarding the case and therefore

caused no fundamental error. Martinez’s third issue is overruled.

                                V.      PROSECUTOR MISCONDUCT

       By his fourth issue, Martinez claims the trial court committed error by not granting

a mistrial when the prosecutor allegedly engaged in misconduct during the punishment

portion of the trial.

       A.      Standard of Review and Applicable Law

       We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.

Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004) (en banc).                     The

“question of whether a mistrial should have been granted involves most, if not all, of the

same considerations that attend a harm analysis.”              Id. at 77.    “Harm analysis is

employed only when there is error, and ordinarily, error occurs only when the trial court

makes a mistake.”       Id. at 76.   “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.’” Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1070, 120 S.Ct. 1680 (2000)). The trial court acts with an appellate function:

“determining whether improper conduct is so harmful that the case must be redone.”            Id.

Harm analysis is done “in light of the trial court’s curative instruction.”        Id.   “Only in

extreme circumstances, where the prejudice caused by the improper argument is

incurable,” will a mistrial be required.      Thomas v. State, 461 S.W.3d 305, 310 (Tex.

App.—Fort Worth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7; Whitney v.

State, 396 S.W.3d 696, 704 (Tex. App.—Fort Worth 2013, no pet.).



                                                 16
       The Court of Criminal Appeals found that the “Mosley factors should be used to

evaluate whether the trial court abused its discretion in denying a mistrial…[in cases] in

which constitutional rights are not implicated”    Hawkins, 135 S.W.3d at 77. The Mosley

factors are used by balancing these three factors: (1) the severity of the misconduct

(prejudicial effect), (2) curative measures, and (3) the certainty of the punishment

assessed absent the misconduct (likelihood of the same punishment being assessed).”

Id. (citing Martinez, 17 S.W.3d at 693-94); see Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466 (1999).              “An

instruction to disregard an improper jury argument is generally sufficient to cure harm.”

Thomas, 461 S.W.3d at 311; see Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.

App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407 (2001). “On appeal, a reviewing

court presumes that the jury followed the trial court’s instruction in the manner presented.”

Id.; see Archie, 340 S.W.3d at 741.          “Although the presumption is refutable, the

defendant must rebut the presumption by pointing to evidence that the jury failed to follow

the trial court’s instruction.”   Id.; see Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.

App. 2005).

       B.       Discussion

       Martinez argues that the prosecutor’s confrontation with him during his testimony

in the punishment phase of the trial warranted a mistrial.       The following statements

occurred:

       State:         Why do you say it’s so hard?

       Martinez:      Because it is. I mean, you have – I mean, I would imagine
                      you had a perfect life growing up.


                                              17
State:       You think I had a perfect life growing up?

....

State:       I’ll tell you a little bit about myself, Mr. Martinez. I grew up in
             a neighborhood in Houston. It was interracial. Do you
             know what interracial means?

Defense:     Objection, Your Honor. Relevance.

Court:       Sustained.

State:       He asked about my life, Judge.

Court:       I understand. Sustained.       Let’s move on.

State:       It was Hispanics and Blacks in this neighborhood. We had
             sirens going off every night.

Defense:     Your Honor, this is the same.

Court:       All right.   Sustained. Let’s move on.

State:       We had the Ku Klux Klan living at the corner of my
             neighborhood.

Defense:     Your Honor, objection. Your Honor, may we approach?

(At the bench, on the record):

Defense:     We’re going to ask that [the prosecutor] be admonished to
             respond to your rulings.

State:       He asked about my life.      He said I had a perfect life growing
             up.

Court:       I understand that.

Defense:     But we have –

Court:       I’ve already sustained the objection.    Let’s move on.

State:       Yes, Your Honor.

Court:       I do not want to hear any more.

                                     18
       ....

       Court:          And I don’t want to have to admonish you.

       ....

       Court:          So let’s move on from that line of questioning.

       ....

       Court:          I’ll instruct the jury to disregard.

       Defense:        And we move for a mistrial.

       Court:          That will be denied.

       (End of bench discussion):

       Court:          All right, Ladies and Gentlemen, you are to disregard the last
                       statements being made by the state as far as his life. That’s
                       irrelevant to this trial, and we’ll concentrate on the situation at
                       hand. Let’s move on.

       “On appeal, we generally presume the jury follows the trial court’s instructions in

the manner presented.”       Thrift, 176 S.W.3d at 224.       “The presumption is refutable, but

the appellant must rebut the presumption by pointing to evidence that the jury failed to

follow the trial court’s instruction.”   Id.   Normally, “a prompt instruction to disregard will

cure error associated with an improper question and answer.”                Ovalle v. State, 13

S.W.3d 774, 783 (Tex. Crim. App. 2000) (en banc).

       Using the Mosley factors to analyze the complained-of conduct, we first look to the

severity of any misconduct.      Hawkins, 135 S.W.3d at 77 (citing Martinez, 17 S.W.3d at

693–94).      Although the prosecutor’s comments and disregard for the trial court’s rulings

were improper, their severity was slight.      After the complained of confrontation, the State

moved on to a different line of questioning and the exchange was not emphasized in the

                                                 19
closing remarks.    Second, we look at the curative measures taken by the trial court.

The trial court gave the proper instruction and asked the jury to disregard, stating that the

comments were irrelevant to the situation at hand. Third, we look to the likelihood of the

same punishment being assessed absent any improper remarks. Martinez points to no

place in the record where it would be obvious that the jury failed to follow the trial court’s

instructions. There is no evidence presented that the jury held the statements made

against Martinez in any way.    Even though he was given a lengthy prison sentence, the

State had asked for life imprisonment. The fact that Martinez admitted to stabbing Perez

from the witness stand and the number of wounds Perez received most likely led to the

term of years he received. We find there was no abuse of discretion by the trial court for

denying the motion for mistrial. We overrule Martinez’s fourth issue.

                                    VI.     CONCLUSION

       We affirm the trial court’s judgment.



                                                         GINA M. BENAVIDES,
                                                         Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
31st day of August, 2015.




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