                                                OPINION
                                          No. 04-11-00054-CR

                                         Edward BAUTISTA,
                                             Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CR-1339A
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: January 18, 2012

AFFIRMED

           Edward Bautista appeals his conviction for aggravated assault with a deadly weapon. We

overrule his issues on appeal and affirm the trial court’s judgment.

                                                BACKGROUND

           Bautista was indicted for aggravated assault with a deadly weapon based on a shooting

arising out of a road rage incident. Specifically, after the complainant Jonathan Alvarez cut in

front of Bautista’s vehicle while exiting the highway, Bautista followed Alvarez into his
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neighborhood and shot Alvarez when he approached Bautista’s vehicle. Bautista then fled, but

Alvarez caught up to Bautista and caused Bautista’s vehicle to run off the road and crash into a

fence. Alvarez required nine surgeries and was hospitalized for 27 days. At trial, Bautista

testified that Alvarez “nicked” the front of his vehicle when he cut him off and Bautista followed

him to get his insurance information; he shot Alvarez in self-defense when he ran toward

Bautista’s vehicle. Bautista also testified he had no prior criminal record and had applied for

community supervision. A jury convicted Bautista of committing aggravated assault as charged

in the indictment. Bautista was sentenced to twelve years’ imprisonment, and assessed $90,000

in restitution payable to Alvarez for his medical expenses. Bautista now appeals.

                                           ANALYSIS

       On appeal, Bautista asserts that the judgment must be reversed based on prosecutorial

misconduct and, alternatively, that the judgment must be reformed to conform to the jury’s

verdict.

       Prosecutorial Misconduct

       Bautista asserts the cumulative effect of several instances of prosecutorial misconduct

rendered his trial fundamentally unfair and requires reversal. Specifically, Bautista complains of

the following conduct by the prosecutors during the guilt/innocence phase: (1) describing a

MySpace photo of Bautista holding two guns that was not admitted into evidence; (2) asking

Bautista about a nickname “Trigger-E” after Bautista denied it; (3) in closing argument,

addressing two jurors by name, vouching for the truthfulness of the complainant Alvarez,

making a comment that could be interpreted as mocking Bautista’s claim of self-defense, and

referring to the prosecutor’s own personal experience trying assault cases; in addition, Bautista

complains that during the punishment phase the prosecutors (4) questioned a character witness



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about whether Bautista had committed “offenses in relation to drugs,” (5) presented victim

impact evidence through the testimony of Alvarez’s mother, and (6) in closing argument, asked

the jury to send the message that “we do not accept your tattooed lifestyle” by rejecting

probation and sending Bautista to prison, and again referred to the Trigger-E nickname and

Alvarez’s mother’s testimony. The State does not concede that any of the cited conduct by the

prosecutors was improper; it asserts the challenged questions and arguments were simply

advocacy.

       The record shows that Bautista did not object on the basis of prosecutorial misconduct

when any of these instances occurred. In order for a defendant to preserve a complaint about

prosecutorial misconduct, he must make a timely and specific objection in the trial court, request

an instruction to disregard the matter improperly placed before the jury, and move for a mistrial;

otherwise, his complaint is forfeited. TEX. R. APP. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73,

89 (Tex. Crim. App. 1996); Hernandez v. State, 219 S.W.3d 6, 14 (Tex. App.—San Antonio

2006), aff’d, 273 S.W.3d 685 (Tex. Crim. App. 2008). The necessity to raise an objection in the

trial court applies regardless of whether an instruction to disregard could have cured the

improper argument. Cockrell, 933 S.W.2d at 89; Threadgill v. State, 146 S.W.3d 654, 667, 670

(Tex. Crim. App. 2004) (reaffirming the Cockrell rule). “However, ‘[w]here there is serious and

continuing prosecutorial misconduct that undermines the reliability of the factfinding process . . .

resulting in deprivation of fundamental fairness and due process of law, the defendant is entitled

to a new trial even though few objections have been perfected.’” Jimenez v. State, 298 S.W.3d

203, 214 (Tex. App.—San Antonio 2009, pet. ref’d) (quoting Rogers v. State, 725 S.W.2d 350,

359-60 (Tex. App.—Houston [1st Dist.] 1987, no pet.)); see Berger v. United States, 295 U.S.

78, 84, 88 (1935). Bautista raises just such an assertion of pervasive prosecutorial misconduct.



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Bautista contends “the aggregation of these non-reversible prosecutorial errors” combined to

deny him a fair trial. We must therefore determine whether the record shows that there was on-

going prosecutorial misconduct of such a magnitude that it deprived Bautista of fundamental

fairness and due process of law. See Jimenez, 298 S.W.3d at 214.

       We resolve allegations of prosecutorial misconduct on a case by case basis, and

determine whether the prosecutor’s conduct requires reversal on the basis of the probable effect

on the minds of the jurors. Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988); Hodge

v. State, 488 S.W.2d 779, 781-82 (Tex. Crim. App. 1973); Hernandez, 219 S.W.3d at 13. To

warrant reversal, the question or comment must be harmful to the defendant and “of such a

character so as to suggest the impermissibility of withdrawing the impression produced.”

Hernandez, 219 S.W.3d at 14 (quoting Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App.

1988)(en banc)).

       1. Improper Questions

       We begin by considering Bautista’s complaints about the prosecutors’ questions and

attempts to bring inadmissible evidence before the jury during both phases of trial. Bautista first

complains of two questions asked during cross-examination of Bautista during the defense case

in the guilt/innocence phase. Bautista testified in support of his self-defense claim, and stated

that the gun he used to shoot Alvarez was the first gun he has ever owned. During cross-

examination, the prosecutor described the contents of a MySpace photograph of Bautista that had

not yet been admitted; specifically, after Bautista acknowledged recognizing himself in the

picture, the prosecutor asked, “You’re holding two guns, right?” The defense began to object,

and the court quickly sustained the objection and reprimanded the prosecutor outside the jury’s

presence. When the jury returned, the court instructed them to disregard “all questions so far and



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the statements by the prosecution concerning State’s Exhibit Number . . . 45 . . . and not take it

into consideration for any purposes whatsoever at this time.” Bautista did not request a mistrial.

Next, as part of the prosecutor’s continued line of questioning about Bautista’s experience with

guns, he asked whether Bautista’s friend Eddie “EJ” Norman calls him “Trigger-E.” Bautista

replied, “That’s what they nicknamed me, yes.” No objection was made. A short time later,

after the MySpace photo was ruled inadmissible, the prosecutor asked Bautista again, “Finally,

sir, your friends, EJ, et cetera, do you have any nicknames that they refer to you by?” This time

Bautista answered, “No,” and the prosecutor followed up by asking, “Has anybody ever called

you Trigger-E?” Defense counsel raised a general objection; the court sustained it and instructed

the jury to disregard the question.

       At punishment, on cross-examination of one of Bautista’s character witnesses, Brian

McGill, the prosecutor asked if McGill was aware of Bautista having the nickname “Trigger-E;”

defense counsel raised a general objection which was sustained, and the court instructed the jury

to disregard the question. The prosecutor then referenced Bautista’s tattoos, and asked McGill,

“He does have the symbol for smoking marijuana?” to which Bautista raised a general objection;

the court promptly sustained it and again instructed the jury to disregard the question. The

prosecutor next asked McGill whether he knew if Bautista was “committing any offenses in

relation to drugs?” The defense attorney began to object, and the court immediately sustained it

and excused the jury. The court questioned the prosecutor about the basis for his question about

Bautista committing drug-related offenses; the prosecutor replied the basis for the question was

the fact that Bautista has many tattoos. The court admonished the prosecutor that tattoos do not

show any type of drug use, and warned if he asked another question like that, the court would




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declare a mistrial. When the jury returned, the court instructed them to disregard the last

question and any answer. Defense counsel did not request a mistrial.

       In addition, Bautista complains the prosecutor presented inadmissible victim impact

evidence during punishment through Alvarez’s mother who testified about the impact the

shooting had on her son and the family; she also testified that a priest was called to give Alvarez

his last rites two times during his hospitalization. Her entire testimony takes up only three pages

of the transcript; further, the defense raised no objection to these areas of testimony. On appeal,

Bautista asserts this victim impact testimony, particularly the reference to Alvarez receiving “last

rites,” was not admissible; however, he has not shown that the prosecutor introduced this

evidence, knowing it was inadmissible, and has not shown how he was harmed by admission of

the evidence. See Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim. App. 2005) (general rule is

that victim-impact testimony is admissible during punishment phase when it has some bearing on

defendant’s personal responsibility and moral culpability).

       The State is traditionally afforded great leeway in making reasonable deductions from the

evidence and in phrasing its questions to witnesses. Hernandez, 219 S.W.3d at 14 (citing Gaddis

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988)). Merely asking an improper question

generally will not constitute reversible error; it will usually be cured or rendered harmless

through withdrawal of the question or an instruction to disregard from the court. Rogers, 725

S.W.2d at 359 (citing Brown v. State, 692 S.W.2d 497 (Tex. Crim. App. 1985)). Here, assuming

without deciding that all the challenged questions were improper, the trial court promptly

addressed the errors by giving the jury an instruction to disregard on each occasion. We must

presume that the jury followed the court’s instruction to disregard, and such an instruction is

generally sufficient to cure error associated with an improper question, even one regarding an



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extraneous offense. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). There is

nothing in the record to suggest these questions by the prosecutor were clearly calculated to

inflame the minds of the jurors, or were of such a character as to suggest the error could not be

cured by the trial court’s prompt instructions to disregard. See Hernandez, 219 S.W.3d at 14.

       2. Improper Argument

       We next consider Bautista’s contention that several statements made by the prosecutors

during their closing arguments at guilt/innocence and punishment were improper.

       It is well established that there are four general areas of proper jury argument: (1)

summation of the evidence; (2) reasonable deductions from the evidence; (3) answering an

argument by opposing counsel; and (4) making a plea for law enforcement. Wesbrook v. State,

29 S.W.3d 103, 115 (Tex. Crim. App. 2000). A proper plea for law enforcement may be stated

in several ways — as an argument about the impact of the jury’s verdict on the community, or

the relationship between the jury’s verdict and deterrence of crime in general. See Borjan v.

State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). While a prosecuting attorney may draw

“reasonable, fair and legitimate” inferences from the facts in evidence, he may not use closing

argument to directly or indirectly bring matters before the jury which are outside the record and

prejudicial to the defendant. Id. at 57; Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San

Antonio 2011, no pet.) (recognizing it is well-settled that a prosecutor may not refer to evidence

outside the record during argument or engage in sidebar remarks). It is improper to invite the

jury to speculate about the existence of evidence that was not admitted. Wesbrook, 29 S.W.3d at

115. An argument that falls outside the permissible scope will not constitute reversible error,

however, unless, in the context of the record as a whole, it is “extreme or manifestly improper,

violative of a mandatory statute, or injects new facts harmful to the accused into the trial



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proceeding.” Id. (also stating the prosecutor’s comments must have been a willful and calculated

effort to deprive the defendant of a fair trial). An instruction to disregard, which the jury is

presumed to follow, will generally cure the improper argument. Id.; Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998). “Only offensive or flagrant error warrants reversal

when there has been an instruction to disregard. . . .” Wesbrook, 29 S.W.3d at 116; Wilkerson v.

State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994).

       Here, Bautista complains that during closing argument at guilt/innocence the prosecutors

(i) addressed two jurors by name, (ii) vouched for the truthfulness of the complainant Alvarez,

(iii) referred to the prosecutor’s own personal experience trying assault cases, and (iv) ridiculed

Bautista’s claim of self-defense. With respect to addressing the jurors by name, the prosecutor

did so in the context of explaining that the foreperson must make sure the jury follows the

court’s charge, stating, “So whoever is the foreman or the forewoman — Ms. S- - - or Mr. M- - -

— if it’s you that’s telling them what to do . . . .” No objection was made, and the single

comment, even if improper, was not offensive or egregious. With respect to vouching for

Alvarez’s credibility, the prosecutor referred back to Alvarez’s admission and explanation of his

lengthy criminal history, which included domestic assault, stating, “Jonathan and Isabel, did they

come here with clean hands? Maybe not. That’s for you to decide. But I will tell you this, he

[Jonathan] took that stand with open hands. He told you everything about his life.” The

prosecutor then compared Alvarez’s candor to Bautista’s trial admission that he did not initially

tell the responding police officer the truth about his confrontation with Alvarez, omitting in

particular that he had shot Alvarez.       This comment fell within the permissible area of

summarizing the trial evidence and making a reasonable deduction from the evidence concerning

the two principal actors’ credibility. During this same portion of the argument, the prosecutor



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referenced his own experience trying assault cases, stating with respect to Alvarez’s prior assault

convictions, “Ladies and gentlemen, I’ve tried enough of those cases to know they’re never as

clean as [defense counsel] wants to bring them out. The greatest testimony is, [Jonathan and

Isabel Alvarez] sit there together.” No objection was raised. Even if improper, the sidebar

comment was brief, did not inject new facts into the proceedings that were harmful to Bautista,

and was not manifestly improper.

       In addition, Bautista asserts the prosecutor mocked his defense and sought to inflame and

prejudice the jury’s minds against his claim of self-defense when, as he rose to give his closing

argument, the prosecutor stated, “Ladies and gentlemen, as I rise to my full six-foot-three-inches

of height, I hope I don’t frighten any of you as I approach you. Okay?” The court interrupted

and sua sponte admonished the prosecutor, warning, “If I hear anything like this again, I’m going

to hold you in contempt. You got it?” The prosecutor apologized to the court, and continued his

argument that, “the Defense in this case is a crock.” Although Bautista did not object or request

an instruction to disregard, the court’s prompt reprimand conveyed the message to the jury that

the prosecutor’s comment was improper and should be disregarded.            Moreover, while the

prosecutor’s point could have been properly conveyed to the jury in a different manner, the

reference to Alvarez’s large size was a reply to defense counsel’s closing argument that when

Bautista saw Alvarez, the “six-foot-four man, 300 pounds, in a dark street, on felony probation,”

coming toward him, he was justified in believing his life was in danger and in shooting Alvarez

in self-defense; there were several unobjected-to references to Alvarez’s height and physical size

throughout the trial.

       Finally, Bautista challenges the prosecutor’s statement during closing argument at

punishment in which he asked the jury to send the message that “we do not accept your tattooed



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lifestyle” by rejecting Bautista’s application for probation and sending him to prison; in addition,

the prosecutor again referred to the “Trigger-E” nickname and to Alvarez’s mother’s testimony

that her son received last rites in the hospital. In wrapping up his plea for the jury to send

Bautista to prison, the prosecutor stated, “This is where you must say to the community, and to

him, and to others like him - - and in Mr. McGill’s words, this MTV culture - - ‘This is real.

This is not a game. We do not accept your tattooed lifestyle. We don’t want it. Get it away

from us.’” As defense counsel started to object, the court instructed the jury to disregard the last

statement and admonished the prosecutor that “[a]nother word like that and it’s going to be a

mistrial.” Although the sidebar comment was improper, when viewed in the context of the entire

argument the prosecutor’s comment was a plea for law enforcement and request for the jury to

send a message to the community; there is nothing to suggest the court’s instruction to disregard

was incapable of curing any error caused by this comment.

       Conclusion

       Although the prosecutors may have stretched the limits of permissible advocacy in this

case, we cannot say, considering the entire record, that their conduct rose to the level of

reversible error—in large part because the trial court immediately addressed the borderline

behavior from the beginning of the trial. The court promptly instructed the jury to disregard the

errors as soon as they occurred and did not engage in, or permit, any banter about the conduct

that would have drawn the jury’s attention to the impermissible matter. Having considered each

instance of prosecutorial misconduct alleged by Bautista, and the cumulative effect, we conclude

the record does not show a course of conduct by the prosecutors that could only have been

calculated to inflame and prejudice the minds of the jurors, and that prevented Bautista from

receiving a fair trial. Accordingly, we overrule Bautista’s claim of prosecutorial misconduct.



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       Deadly Weapon Finding in Judgment

       In his other issue, Bautista argues the judgment must be reformed to delete the deadly

weapon finding, and to correct the offense of conviction and the applicable Penal Code section,

because the jury’s general verdict does not support such a finding. In a jury trial, an affirmative

finding on use of a deadly weapon may be entered by the trial court when: (1) the indictment

specifically pleads use of a deadly weapon and the jury verdict states the defendant is guilty “as

charged in the indictment;” (2) the weapon pled is per se a deadly weapon and the verdict states

the defendant is guilty “as charged in the indictment;” or (3) the jury affirmatively answers a

special issue on the use of a deadly weapon. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim.

App. 1985) (a firearm is per se a deadly weapon); see Lafleur v. State, 106 S.W.3d 91, 92, 95

(Tex. Crim. App. 2003) (re-affirming and discussing Polk).

       Here, the indictment charged Bautista with committing aggravated assault by two

alternate manners and means. Paragraph A of Count I of the indictment alleged that Bautista

“did use or exhibit a deadly weapon, namely: a firearm, and Edward Bautista did intentionally,

knowingly and recklessly cause bodily injury to Jonathan Allan Alvarez . . . by shooting the

complainant with said deadly weapon.” See TEX. PENAL CODE ANN. § 22.02 (a)(2) (West 2011).

Paragraph B of Count I alleged that Bautista “intentionally, knowingly and recklessly cause[d]

serious bodily injury to . . . Jonathan Allan Alvarez . . . by shooting a projectile at and in the

direction of the complainant.” See TEX. PENAL CODE ANN. § 22.02 (a)(1) (West 2011). The two

alternate manners and means of committing aggravated assault were submitted disjunctively in

the jury charge, thereby authorizing the jury to convict Bautista of aggravated assault under

either theory. See Gamboa v. State, 296 S.W.3d 574, 582-83 (Tex. Crim. App. 2009) (alternate

theories of committing the same offense may be submitted disjunctively in the jury charge



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without violating the right to jury unanimity); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.

Crim. App. 1991). Bautista did not object to this portion of the jury charge, and did not request

submission of a special issue on use of a deadly weapon. The jury returned a general verdict

finding Bautista “guilty of aggravated assault as charged in the indictment.” The trial court’s

judgment states that Bautista was convicted of aggravated assault with a deadly weapon under

Count I, Paragraph A, of the indictment and section 22.02(a)(2) of the Penal Code; the judgment

contains an affirmative deadly weapon finding.

       Both of the alleged means of committing aggravated assault charged in the indictment

involve the use of a deadly weapon. Landrian v. State, 268 S.W.3d 532, 538 (Tex. Crim. App.

2008). Paragraph A explicitly alleged Bautista used or exhibited a deadly weapon, i.e., a

firearm, during commission of the assault, while Paragraph B alleged Bautista caused serious

bodily injury to Alvarez; “causing serious bodily injury” necessarily implies the use of a deadly

weapon. Id.; Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008); see Vallado v. State,

350 S.W.3d 257, 260 (Tex. App.—San Antonio 2011, pet. struck). Therefore, the indictment’s

allegation of both means of committing aggravated assault put Bautista on notice that use of a

deadly weapon would be an issue at trial and that an affirmative finding on use of a deadly

weapon would be inherent in the return of a guilty verdict. Blount, 257 S.W.3d at 714. Because

use of a deadly weapon was pled in the indictment, and the jury found Bautista guilty of

aggravated assault “as charged in the indictment,” the judgment properly contains an affirmative

finding that a deadly weapon was used during commission of the offense. See Polk, 693 S.W.2d

at 394 (when use or exhibition of deadly weapon is pled in the indictment, a de facto affirmative

finding on use of a deadly weapon is made when the jury finds the defendant guilty “as charged

in the indictment”); see also Garcia v. State, 17 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.]



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1999, pet. ref’d) (where jury found defendant “guilty of aggravated assault as charged in the

indictment,” and indictment alleged use of a deadly weapon during commission of assault, it was

not necessary for jury to answer special issue on deadly weapon). Accordingly, we overrule

Bautista’s issue requesting reformation of the judgment.

                                         CONCLUSION

       Based on the foregoing reasons, we affirm the trial court’s judgment.


                                                 Phylis J. Speedlin, Justice


PUBLISH




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