Affirmed and Memorandum Opinion filed June 27, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00805-CR

                       REYNALDO GARCIA, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1318987

                       MEMORANDUM OPINION

      Appellant was convicted of aggravated robbery and sentenced to a term of
five years’ imprisonment. The only question on appeal is whether the trial court
abused its discretion by denying a motion for mistrial. We affirm.

      The facts of this case are relatively simple. The complainant testified that he
was approached outside a sports bar by appellant and one other man, who together
demanded his keys and wallet. Appellant tried to prevent the complainant from
fleeing while his partner threatened the complainant at gunpoint. The robbery was
quickly thwarted by a security guard patrolling the area. Appellant and his partner
were both arrested at the scene.

      After detailing this evidence during closing summation, the prosecutor
concluded her argument with a final discussion on the presumption of innocence.
The argument proceeded as follows: ―It’s true, everybody is presumed innocent.
But as soon as the witnesses take the stand, soon as they tell their story, soon as
evidence is introduced, they are no longer presumed innocent.‖ Appellant timely
objected to this argument as a misapplication of the law. The trial court agreed
with appellant and instructed the jury to disregard the statement. Appellant then
moved for a mistrial, which the trial court denied.

      Appellant complains in his brief that the trial court erred by ―permitting the
prosecutor’s improper argument.‖ We construe appellant’s issue to be a challenge
to the denial of his motion for mistrial.

      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, 77 (Tex. Crim. App. 2004). When the
refusal to grant a mistrial follows an objection for improper jury argument, we
evaluate the trial court’s decision using the following factors: (1) the severity of the
misconduct; (2) the measures adopted to cure the misconduct; and (3) the certainty
of conviction absent the misconduct. Id. (citing Mosley v. State, 983 S.W.2d 249,
259 (Tex. Crim. App. 1998)).

      When assessing the severity of an improper jury argument, our primary
focus is the prejudicial effect of the misconduct. Id. In deciding whether prejudice
was incited, we examine the improper conduct ―in light of the facts adduced at trial
and in the context of the entire argument.‖ See McGee v. State, 774 S.W.2d 229,
239 (Tex. Crim. App. 1989); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
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App. 1988); see also Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)
(stating that a mistrial is appropriate for a ―narrow class of highly prejudicial and
incurable errors‖). Here, the improper argument was not ―particularly offensive or
outrageous.‖ Hawkins, 135 S.W.3d at 77–78 (stating that arguments of this type
give rise to a natural inference of prejudice). The jury received several instructions
on the presumption of innocence, both prior to trial and in its charge. The
prosecution and the defense also described the presumption accurately in earlier
stages of their closing arguments. After the trial court sustained appellant’s
objection, the prosecutor did not revisit her point regarding the presumption of
innocence, choosing instead to make a plea for law enforcement. When viewed in
the context of the entire closing argument, the prosecutor’s improper statement is
best characterized as an isolated occurrence and not clearly calculated to deprive
appellant of a fair and impartial trial. See Brown v. State, 270 S.W.3d 564, 573
(Tex. Crim. App. 2008).

      We next consider the effect of the trial court’s curative measures. Under this
second factor, we generally presume that a prompt instruction to disregard will
cure any error associated with improper jury argument. See Phillips v. State, 130
S.W.3d 343, 356 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). ―Only
offensive or flagrant error warrants reversal when there has been an instruction to
disregard . . . .‖ Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). In
this case, the trial court promptly instructed the jury to disregard the prosecutor’s
statement. The statement, though inaccurate, would not rise to the level of
rendering the curative instruction ineffective. Cf. id. at 115–16 (concluding that
improper remarks did not warrant reversal where prosecutor accused the defendant
of fabricating his story during closing argument). We conclude the curative
measure was effective.


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      We finally address the certainty of conviction absent the prosecutor’s
misconduct. The jury heard testimony from the complainant, the security guard,
and two other law enforcement officials who participated in the arrest; appellant
did not testify himself, nor did he produce any defense witnesses. According to the
complainant, the robbery occurred late at night when the complainant arrived at a
sports bar to pick up a cousin who was too impaired to drive. The defense had a
different theory of the case, and claimed that the incident was just a verbal
disagreement rather than an aggravated robbery. According to the defense, the
complainant was the one who had been drinking in the sports bar, and when he
walked into the parking lot, the complainant instigated an argument with appellant
and his friend. Citing contradictions in the testimony, the defense also suggested
that the complainant was not credible: the complainant testified that he was never
touched by his attackers, but one of the officers testified that the complainant had
reported being physically assaulted on the night in question.

      We are in no position to weigh the credibility of the evidence. That task was
left to the jury, which resolved any conflicts in the evidence in favor of the State.
We note, however, that the prosecution had more circumstantial support for its
case; a loaded handgun was recovered at the scene, and a responding officer did
not detect any obvious signs of intoxication in the complainant. We conclude that
appellant’s conviction was more certain than not, and that appellant would have
been convicted in the absence of the prosecutor’s statement.




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      Having considered each of the pertinent factors, we conclude that the trial
court did not abuse its discretion by denying appellant’s motion for mistrial.
Appellant’s sole issue is overruled and the judgment of the trial court is affirmed.




                                 /s/   Martha Hill Jamison
                                       Justice



Panel consists of Justices Frost, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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