                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-155-CR


RICARDO SANMIGUEL CAMPOS                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      In two points, appellant Ricardo Sanmiguel Campos argues that the trial

court erred by overruling his objection to the State’s alleged comment on his

failure to testify and that the trial court abused its discretion by denying his

motion for mistrial after the State made an improper argument regarding

Campos’s other crimes. We will affirm.



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          … See Tex. R. App. P. 47.4.
                           II. P ROCEDURAL B ACKGROUND

      Campos was charged with both aggravated sexual assault of a child and

indecency with a child, and a jury convicted him of indecency with a child.

Campos pleaded “true” to the felony repetition enhancement allegation in the

indictment.   After the jury found the enhancement allegation to be true, it

assessed punishment at fifty years’ imprisonment and assessed a $10,000 fine.

The trial court sentenced Campos accordingly.

              III. A LLEGED C OMMENT ON C AMPOS’S F AILURE TO T ESTIFY

      In his first point, Campos contends that the trial court erred by overruling

his objection during closing argument that the prosecutor commented on his

failure to testify. During closing argument, the prosecutor stated:

      Do you remember in opening statements the defense got up there
      and told you that he’s [Campos] . . . guilty of being old and poor
      health, uneducated. You didn’t hear any evidence of that. And I
      would submit to y’all that there was ample opportunity for the
      defense to ask that. [Campos’s step-daughter] Lisa took the stand.
      They never asked her those questions.

Campos objected that this remark improperly commented on his failure to

testify; the trial court overruled his objection.

      The Texas Code of Criminal Procedure provides that a defendant’s failure

to testify on the defendant’s own behalf may not be held against the defendant

and that counsel may not allude to the defendant’s failure to testify. Tex. Code



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Crim. Proc. Ann. art. 38.08 (Vernon 2005).         To determine whether a

prosecutor’s comment violated article 38.08 and constituted an impermissible

reference to an accused’s failure to testify, we must decide whether the

language used was manifestly intended or was of such a character that the jury

naturally and necessarily would have considered it to be a comment on the

defendant’s failure to testify. Id.; see Bustamante v. State, 48 S.W.3d 761,

765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex.

Crim. App.), cert. denied, 528 U.S. 1026 (1999).

      The offending language must be viewed from the jury’s standpoint, and

the implication that the comment referred to the accused’s failure to testify

must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d

223, 225 (Tex. Crim. App. 1992). A mere indirect or implied allusion to the

defendant’s failure to testify does not violate the accused’s right to remain

silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick

v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995), cert. denied, 517

U.S. 1106 (1996).

      If the prosecutor’s remark calls to the jury’s attention the absence of

evidence that only the defendant’s testimony could supply, the comment is an

improper comment on the defendant’s failure to testify. See Fuentes, 991

S.W.2d at 275. But if the remark reasonably can be construed to refer to the

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defendant’s failure to present evidence other than his own testimony, the

comment is not improper. Id.; Wolfe v. State, 917 S.W.2d 270, 279 (Tex.

Crim. App. 1996); Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App.

1990), cert. denied, 499 U.S. 954 (1991); Harris v. State, 122 S.W.3d 871,

884 (Tex. App.—Fort Worth 2003, no pet.).

      Here, during the defense’s opening statement, the defense attorney set

forth what evidence the defense would present at trial and stated that “Mr.

Campos is guilty of being old, he’s guilty of being in poor health, he is blind in

one eye, he is uneducated, guilty of that. He’s guilty of not being the brightest

tool in the shed. He has borderline intellectual functioning.” By referring back

to this argument during its closing argument, the State was not making a

comment on Campos’s failure to testify; the State was pointing out that the

defense had failed to produce any evidence to support its contention that

Campos was old, in poor health, and uneducated. See Fuentes, 991 S.W.2d

at 275; Harris, 122 S.W.3d at 884–85 (holding State’s comment as proper

summation of evidence where it specifically pointed out lack of testimony from

other witnesses concerning any motive for female witnesses to falsely accuse

appellant of sexual assault); Singh v. State, No. 02-04-00338-CR, 2005 WL

1542665, at *4 (Tex. App.—Fort Worth June 30, 2005, pet. ref’d) (not

designated for publication) (holding that prosecution’s argument was not

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improper because it “pointed to the absence of testimony from sources other

than [appellant]”). This evidence could have come from witness testimony, not

just from Campos’s own testimony. As the State pointed out in its closing

argument, the defense could have asked Campos’s step-daughter Lisa questions

regarding Campos’s mental and physical infirmities. Furthermore, the argument

was a proper response to the defense’s remarks during its opening statement.

See Strickland v. State, 193 S.W.3d 662, 669–70 (Tex. App.—Fort Worth

2006, pet. ref’d); Martinez v. State, 851 S.W.2d 387, 389–90 (Tex.

App.—Corpus Christi 1993, pet. ref’d) (noting that State may answer opposing

counsel’s jury argument, even if it includes a comment on the defendant’s

failure to testify) (citing Porter v. State, 601 S.W.2d 721, 723 (Tex. Crim. App.

1980)).

         After reviewing the prosecutor’s comments in context, we conclude that

they were not manifestly intended, or of such a character that the jury would

naturally and necessarily consider them, to be a comment on Campos’s failure

to testify. See Tex. Code Crim. Proc. Ann. art 38.08; Fuentes, 991 S.W.2d at

275; Strickland, 193 S.W.3d at 669–70. Consequently, we hold that the trial

court did not err by overruling Campos’s objection. We overrule Campos’s first

point.




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                            IV. M OTION FOR M ISTRIAL

      In his second point, Campos argues that the trial court abused its

discretion by denying his motion for mistrial after sustaining his objection to a

different portion of the prosecutor’s jury argument. The prosecutor made the

following comment during closing argument:

            [Prosecutor]: When does it end? When do we say, you know
      what, maybe there’s been other things along the way we missed
      too, but now we know those two things, and we know what your
      intent is.

            [Defense Attorney]: Object to the statement there’s other
      things along the way. We would vigorously object to that. There’s
      no evidence.

            The Court: Sustained.

            [Defense Attorney]: We’d ask the jury to be instructed to
      disregard the statement of the prosecutor.

           The Court: You’ll disregard that statement made by the
      prosecutor.

            [Defense Attorney]: We would ask the Court – my duty
      requires to ask the Court for a mistrial.

            The Court: That’s denied.

Campos argues that the prosecutor’s comment improperly asked the jury to

consider his prior crimes in arriving at its verdict. He claims that the harm from

this improper argument could not be cured by a jury instruction to disregard the




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comment and that, consequently, the trial court abused its discretion by

denying his motion for mistrial.

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973).

      When the trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether

the trial court abused its discretion in denying the mistrial. Hawkins v. State,

135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in extreme circumstances,

when the prejudice caused by the improper argument is incurable, i.e., “so

prejudicial that expenditure of further time and expense would be wasteful and

futile,” will a mistrial be required. Id.; see Simpson v. State, 119 S.W.3d 262,

272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).

      In determining whether the trial court abused its discretion by denying the

mistrial, we balance three factors:        (1) the severity of the misconduct

(prejudicial effect), (2) curative measures, and (3) the strength of the State’s

case against Campos. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

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1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); accord Hawkins,

135 S.W.3d at 77.

      Looking at the first factor—the severity of the misconduct—evidence at

trial showed that two years prior to Campos’s incident with the complainant,

the complainant’s older brother also had complained that Campos had touched

him in an inappropriate manner. Thus, the prosecutor could have been referring

to this when she made the complained-of comment. The comment does not

directly impinge Campos’s failure to testify and is not inflammatory in nature.

Regarding the second factor—the curative measures taken—the trial court cured

any prejudice from the prosecutor’s comment by immediately instructing the

jury to disregard it, and we presume that the jury complied with the instruction.

See Mosley, 983 S.W.2d at 259; Simpson, 119 S.W.3d at 272; Wesbrook v.

State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000), cert. denied., 532 U.S.

944 (2001). Concerning the third factor—the strength of the State’s case—the

complainant testified that Campos touched her private area, and the

complainant’s mother, the mother’s fiancé, and a nurse practitioner who

examined the complainant corroborated her testimony. A CPS investigator also

testified that Campos confessed to her that he had inappropriately touched the

complainant. The jury acquitted Campos of sexual assault and convicted him

of the less serious offense of indecency with a child. Given the mildness of the

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prosecutor’s remark during closing argument and the strength of the State’s

case against Campos, any error was harmless.

     Thus, weighing the appropriate factors, we hold that the trial court did

not abuse its discretion by denying Campos’s motion for mistrial. See Mosley,

983 S.W.2d at 259; Simpson, 119 S.W.3d at 272.        We overrule Campos’s

second point.

                               V. C ONCLUSION

     Having overruled Campos’s two points, we affirm the trial court’s

judgment.




                                         SUE WALKER
                                         JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

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

DELIVERED: March 26, 2009




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