Opinion issued April 21,2005




                                    In The


                                    For The




                             NO. 01-04-00491-CR


                     PAULO CESAR SOLIS, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee

                  On Appeal from the 263rd District Court
                          Harris County, Texas
                        Trial Court Cause No. 927855


                        MEMORANDUM OPINION

     A jury found appellant, Paulo Cesar Solis, guilty ofthe offense of aggravated
assault1 and assessed his punishment at confinement for 20 years. In three points of

error, appellant contends that (1) the trial court erred in overruling his objections to

the State's improperjury argument at the punishment phase oftrial, (2) thetrial court

erred in denying his requests for a mistrial following allegedly improper cross-

examination of appellant during the guilt phase of trial, and (3) the evidence was

legally and factually insufficient to support his conviction. We affirm.

                       Factual and Procedural Background

      Daniel Maldonado, the complainant, testified that, at approximately 1:00 a.m.

on August 17,2002, he was outsidethe Los Primosbar near downtown Houston. He

saw appellant, whom he knew as "Sapo," drive a Lincoln Navigator into the bar's

parking lot. After appellant stopped the Navigator, Joe Jasso, the front seat

passenger, exited the vehicle, approached the complainant, and started to fight with

him. Whenthe complainantsaw appellant cometowards him, he ran towardthe front

of the bar. The complainant then heard Jasso scream "shoot him," and, as the

complainant turned, he saw appellant pull a gun from his waistband.                The

complainant openedthe bar door,and he heard approximately eight to ten gun shots.

Appellant followed the complainant into the bar and called out for the complainant,

who was hiding inside the diskjockey booth. Appellant then left the scene. While


      TEX. PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2004-2005).

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inside the bar,thecomplainant noticed thathe hadbeenshot in the foot. When police

officers arrived, the complainant told themthat appellant had shot him. After he was

released fromthehospital,thecomplainantexplained to apolice officerthat appellant

had shot him because of a fight that they had two months earlier.

      The complainant's friend, Francisco Santibanez, also testified that, on the

morning of August 17, 2002, while he was with the complainant outside the Los

Primos bar, appellant drove up in a Lincoln Navigator with Jose Jasso in the

passenger seat. According to Santibanez, after Jasso and thecomplainant got into a

fight, appellant approached thecomplainant, thecomplainant broke free from Jasso,

Jassoshouted"shoot him," and appellantpulleda gun,aimedat the complainant, and

shot. As Santibanez ran for cover, he heard eight to nine shots.

      Richard Olvera testified that, sometime after 2:00 a.m on the morning of

August 17, 2002, three men, including appellant and Jasso, approached the
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complainant outside the Los Primos bar. Jasso attempted to grab the complainant, but
the complainant got away. Olvera then heard gunshots and ran inside the bar, and the
complainant followed him into the bar. As Olvera was hiding in the bar, he saw
appellant enter the barwith a gun and call for the complainant. After appellant left
the bar, Olvera and the complainant walked out ofthe bar and police officers arrived

at the scene.


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      In his defense, appellant testified that he did not shoot the complainant.

Appellant also presented two alibi witnesses who testified that appellant was with

themduring the earlymorning hours ofAugust 17,2002 at the timeofthe shooting.

                           Improper Jury Argument

      In his first point of error, appellant contends that the trial court erred in

overruling his objectionto a portion ofthe State's jury argument in the punishment

phase of the trial. Appellant argues that the following argument was improper and

highly prejudicial because it encouraged the jury to speculate on matters outside of

the record:


      [State]:                  You also had the opportunity to consider what
                                type of person this is. Well, we talked a little
                                bit about his criminal history and some ofthe
                                things he's done. You're entitled to consider
                                how it is that this individual was a landscaper,
                                managed to put down over $11,000 on cash
                                on a Lincoln Navigator with a sticker price of
                                over $50,000.

      [Defense Counsel]:        Excuse me. Judge, I'm going to object to that
                                again as not being material or relevant to any
                                issue in this case.


      [Trial Court]:            Well, it's part of the record, so it will be
                                overruled.


      [State]:                  For punishment purposes, you're entitled to
                                consider that. Where is he getting that kind of
                                cash? As I—
      [Defense Counsel]:        Excuse me. Judge, I object to that not being
                                material or relevant And she is encouraging
                                the jury to speculate.

      [Trial Court]:            It's overruled.



      [State]:                 You're entitled to ask yourselves the
                               question, where is he getting that kind of
                               cash? He goes in to buy some high dollar
                               rims for his car at a sticker price of over
                               $6,000, for wheels. Once again, ladies and
                               gentlemen, where is he getting that kind of
                               cash? I think everybody on this panel can
                               leap—cantakewhateverconclusionyouwant
                                out of that.      But it's ridiculous for the
                                defendantto say that he's mowing lawns, he's
                                a landscaperyet has the kind ofcash to throw
                                down on those types of luxuries.

      [Defense Counsel]:        Again, Judge, we object to counsel arguing
                                outside the record and bringing—attempting
                                to encourage the Jury to speculate on matters
                                that are not material or relevant to any issue in
                                this portion ofthe case.

      [Trial Court]:            Well, it's overruled. Move on to something
                                else.


      Appellant asserts that the above arguments were made to encourage the jury

to speculate that he had obtained the funds for the purchase of hisvehicle and rims

forhis vehicle through illegal means, butthat there was no evidence in the record to
support such speculation.

      The law provides for, and presumes, a fair trial free from improper argument

bytheState. Long v. State, 823 S.W.2d259,267 (Tex. Crim. App. 1991); Thompson

v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist] 2002, pet. refd).

Permissible jury argument generally falls within one of four categories: (1)

summationofthe evidence; (2) reasonable deductions from the evidence;(3) answer

to argument of opposing counsel; and (4) pleas for law enforcement. Thompson, 89

S.W.3d at 850.

      It has longbeen established that the Statecannot use closing argument to get

before the jury evidence that is outside the record and prejudicial to the accused.

Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986).            Arguments

referencing matters that are neither in evidence nor inferable from the evidence are

usually "designed to arouse the passion and prejudices of the jury and as such are

highly inappropriate." Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990);

Thompson, 89 S.W.3d at850. However, the State isallowed wide latitude indrawing

inferences from the evidence so longasthe inferences are"reasonable, fair, legitimate

andoffered in goodfaith." Shannon v. State, 942 S.W.2d 591,597 (Tex. Crim. App.

1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

      Here, the challenged arguments discussed evidence, some of which was
introduced byappellant, inthe record.2 Atthe time the State made thecomments, the
juryhadbeen presented with evidence that appellant owned theexpensiveNavigator,

that he had madea down paymenton it,andthat he had purchased expensiverims for

it. Thejury also heard evidence thatappellant owned a landscaping business or was

thegeneral manager ofa landscaping business, thatappellant's take-home pay from

this job averaged about $8,900 per month during the summer months, and that

appellant's wife was also employed.

      The State did not expressly argue that appellant had engaged in illegal

activities in orderto finance his purchase of theNavigator and its rims. However, in

arguing for amore severe punishment,the State did implythatappellanthad obtained

the money for these purchases unlawfully, and that thejurywas "entitled toconsider"

thatinassessing hispunishment. Because there isnoevidence to show thatappellant

unlawfully obtained the money for these purchases, the State's implication wasnot

a reasonable deduction from the evidence. Therefore, we conclude that the trial court

erred in overruling appellant'sobjections to the State'sjury argument. Weconsider



      State's witness Isaac Hernandez testified, after the trial court overruled appellant's
      relevance objection, that appellant made a down payment of$11,000on his Lincoln
      Navigator. Mr. Hernandez also testified that the total purchaseprice of appellant's
      vehicle was approximately $50,000. Appellant's witness, Feliciano Davila, testified
      thatappellant paid$6,3819.15 for hisvehicle'srims. Appellant also introduced into
      evidence a receipt of appellant's purchase of his rims.
the State's comments, like most comments that fall outside the areas ofpermissible

jury argument, to be nonconstitutional error. Martinez v. State, 17 S.W.3d 677, 692

(Tex. Crim. App. 2000). We must now evaluatethis error under rule 44.2(b), which

provides that "nonconstitutional error that does not affect substantial rights must be

disregarded." TEX.. R. APP. P.44.2(b). Wewill affirmthejudgmentofthetrial court

ifwe have "fair assurance that the error did not influence the jury or had but a slight

effect." Johnsonv. State, 967 S.W.2d 410,417 (Tex. Crim. App. 1998). Determining

whether the non-constitutional error affected appellant's substantial rights requires

us to consider (1) the severity ofthe misconduct, (2) curative measures, and (3) the

certainty of the punishmentabsent the misconduct. Hawkins v. State, 135 S.W.3d72,

77 (Tex. Crim. App. 2004).

      As to the severity of the misconduct, we find that any prejudicial effect of the

State's comments was minimal because the comments were based on facts in the

record.   The State did not attempt to interject specific unsupported facts about

appellant or expressly accuse appellant of engaging in unrelated illegal activities.

Additionally, even though the State's improper argument occurred at the punishment

phase, appellant had previously addressed the evidence concerning the cost of his

vehicle and rims in his jury argument at the guilt phase of the trial by arguing that

such evidence was irrelevant, that appellant worked for his money, that, at most,
appellant was a "wasteful spender,'* and that the evidence concerning appellant's

spending habitswasnothingmorethana"rabbittrail"offeredbythe Stateto account

for an otherwise weak case. We conclude that the severity ofthe misconduct from

the State's implication that appellant had unlawfully obtained the money for his

purchases was minimal.

      As to the second factor, the trial court overruled appellant's objections.

However, the trial court's charge specifically instructed the jury that in assessing

appellant's punishment, it could consider evidence ofan extraneous crimeor other

bad act "only ifthe extraneous crime or bad act has been shown by the State beyond

a reasonabledoubtto have been committed by the defendant or is one for which the

defendant could be held criminally responsible.'* Absent evidence to the contrary,

we presume that thejury followed this instruction. Hutch v. State, 922S.W.2d 166,

170(Tex. Crim. App. 1996).

      Finally, in addressing the certainty of appellant's punishment absent the

misconduct, we must examine the entire proceeding, including all the evidence

presented during thepunishment phase. Because thejury found theallegation inthe

enhancement paragraph that appellant had previously been convicted of a felony

offense to be true, he faced a punishment by confinement ofnot less than five years

nor more than ninety-nine years or life. TEX. PEN. Code Ann. §§ 12.33 (Vernon
2003), 22.02(a)(2) (Vernon Supp. 2004-2005).

      During thepunishment phase, theState presentedevidence ofdefendant's prior

conviction ofthe felonyoffenseofautotheft. The Statealso presented evidence that

the appellanthad been chargedwith driving while intoxicated. Appellant presented

the testimony ofhis wife,who testified, among otherthings, that appellant served as

a providerfor his two children. Appellantalso disputedthe merit ofhis DWIcharge.

In its jury argument during the punishment phase, the State focused on the

dangerousness of the crime of which appellant had been convicted and emphasized

that the evidence establishedthat appellant fired multiple shots in a crowdedparking

lot, that he hit the complainant and another person, and that he followed the

complainant into a crowded bar brandishing a gun. The State requested a sentence

of 25 to 35 years and appellant requested a punishment of no more than five years.

Given the evidence of the severity of appellant's actions in committing the offense
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andhis priorfelony conviction, we conclude thatany impact ofthe State's improper

punishment argument on the jury's assessment of punishment, confinement for 20

years, was negligible.

      Accordingly, considering that the State's comments, when taken in context,

were not severe, and considering the court's charge regarding extraneous offenses,

the other evidence before the jury, and the negligible impact of the State's improper

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comments on the jury, we further conclude with fair assurance that the trial court's

error in overruling appellant's objection to the State's punishment argument did not

influence thejury or hadbuta slightaffect, andthussucherror shouldbedisregarded.

      We overrule appellant's first point oferror.

                               Request for Mistrial

      In his second point of error, appellant contends that the trial court erred in

denying hisrequests for a mistrial during theguiltphaseoftrial. Appellant madethe

requests during the State's cross-examination of appellant, when the State asked

appellant (1) if hehad paid $55,000 for the Navigator, (2) if he would agree to the

approximate price of the vehicle, and (3) if he would agree that he put some cash
down on the vehicle. In response to the first question, appellant answered that he

bought the vehicle on credit. Appellant did not answer the second and third
questions, as appellant timely and specifically objected to them on grounds of
                                                                               <r




relevance, and the trial court sustained his objections. The trial court alsoinstructed

thejury to disregard the State's questions.

      We review a trial court's denial of a motion for mistrial for an abuse of

discretion. Laddv. State, 3 S.W.3d 547,567 (Tex. Crim. App. 1999). A trial court

may declare a mistrial when anerror occurs that isso prejudicial thatthe expenditure

of further time and expense would be wasteful. Wood v. State, 18 S.W.3d 642,648

                                          11
(Tex. Crim. App. 2000). Improper evidence will seldom call for a mistrial because

any harm can usually be cured by an instruction to disregard. Id.

      Pursuant to the appellant's request, the trial court instructed the jury to

disregard the State's questions, and we presume the jury complied with this

instruction. Wesbrookv. State, 29 S.W.3d 103,116 (Tex. Crim. App. 2000). During

a bench conference, the trial court also told the State that its questioning "had nothing

to do with this case" and instructed it to "move on." "Only offensive or flagrant error

warrants reversal when there has been an instruction to disregard." Id.; see also

Gardner v. State, 730 S.W.2d 675,696-97 (Tex. Crim. App. 1987). In this case, the

error was not so offensive or flagrant that the trial court's instruction was ineffective,

and thus we hold that any possible error was cured by the trial court's instructions and

that the trial court did not err in denying appellant's motions for mistrial.3

      We overrule appellant's second point of error.

                           Legal and Factual Sufficiency

      In his third point oferror, appellant contends that the evidence was legally and

factually insufficient to support the jury's guilty verdict. We review a challenge to



3     We also note that while the trial court prohibited the State from questioning the
      appellant about the price ofhis vehicle and the amount ofappellant's down payment,
      other witnesses presented testimony on these facts.

                                           12
the legal sufficiency of the evidence by viewing the evidence in the light most

favorable to the verdict to determine ifany rational fact finder could have found the

essential elements of the offense beyond a reasonable doubt King v. State, 29

S.W.3d 556,562 (Tex. Crim. App. 2000). In a legal sufficiency review, we may not

substitute our own judgment for that of the fact finder. Id

      Wereview a challengeto the factual sufficiency ofthe evidence by examining

all ofthe evidenceneutrally, not in the lightmostfavorable to the verdict,and we will

set asidethe verdict"only ifthe evidence is so weak that the verdict is clearlywrong

or manifestly unjust, or the contrary evidence is so strongthat the standard of proof

beyond a reasonable doubt could nothave been met" Escamillav. State, 143 S.W.3d

814,817 (Tex. Crim. App. 2004); seealso Johnson v. State,23 S.W.3d 1,6-7 (Tex.

Crim. App. 2000). Although ouranalysis considers all the evidence presented attrial,

thetrier offact istheexclusivejudge ofthe facts, thecredibility ofthewitnesses, and

theweight to begiven to theirtestimony. Sharp v. State, 707S.W.2d 611,614 (Tex.

Crim. App. 1986). Unless the record clearly reveals that a different result is
appropriate, wemust defertothejury'sdeterminationconcerningwhatweight togive

contradictory testimonial evidence because thejurors were in attendance when the

testimony was delivered. Johnson, 23 S.W.3d at 8.

      A person commits the offense ofaggravated assaultifthe person intentionally

                                         13
or knowingly causes bodily injury to another and he uses and exhibits a deadly

weapon during the commission of the assault TEX. PEN. CODE ANN. § 22.02(a)(2)

(Vernon Supp. 2004-2005).

      Here, appellant testified that he was not present at the Los Primos bar on the

morning of August 17, 2002 and did not shoot the complainant. Appellant also

presented two alibi witnesses who testified that appellant was with them at another

bar at the time ofthe shooting. However, the complainant identified appellant as the

shooter to police officers shortly afterthe incident and two days laterwhen he again

met with a police officer. Two other witnesses also identified appellant as the

shooter. Santibaneztestified that appellant approached the complainant outside the

barand that appellant pulleda gunand shot toward the complainant. Olveratestified

that three men, including appellant, approached the complainant, that he then heard

gunshots and ran inside the bar and the complainant followed right behind him.
                                                                             i-




Olvera also testified that, when he was hiding in the bar, he saw appellant enter the

bar with a gun and call for the complainant.

      Thus, the jury was presented with the testimony of three witnesses that

appellant wastheperson whoshotat complainant onthemorning ofAugust 17,2002.

Thejury may simply have found appellant's testimony andthe testimony of his alibi

witnesses not credible. The jury, as the trier of fact, was the sole judge of the

                                         14
credibility ofthese witnesses and was free to accept or to reject all or part ofthe their

testimony. Jones v. State, 944 S.W.2d642,647 (Tex. Crim. App. 1996). It was the

"exclusive province ofthe jury" to reconcile the conflicting testimony. Wesbrook,

29S.W3datllL

      Considering this evidence, a rational fact finder could have found, beyond a

reasonable doubt, that appellant committed the felony of aggravated assault Thus,

we hold that the evidence was legally sufficient to support appellant's conviction.

Additionally, viewing all of the evidence neutrally, we conclude that the evidence

was not so weak that the verdict was clearly wrong or manifestly unjust and that the

contrary evidence was not so strong that the standard of proofbeyond a reasonable

doubtcouldnot have beenmet. Accordingly, we hold that the evidencewas factually

sufficientto support appellant's conviction.

       We overrule appellant's third point oferror.




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                                Conclusion


      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice


Panel consists of Justices Nuchia, Jennings, and Alcala.




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




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