                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                        No. 04-12-00855-CR

                                        Abraham LINARES,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 111th Judicial District Court, Webb County, Texas
                              Trial Court No. 2011 CRM 00635 D2
                          Honorable Monica Z. Notzon, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: March 5, 2014

AFFIRMED

           Appellant Abraham Linares, along with co-defendants Carlos Zambrano and Romeo

Hinojosa, was charged with second-degree aggravated assault with a deadly weapon and first-

degree aggravated kidnapping of Nestor Abundez. Linares was convicted of both counts. Linares

was charged as a primary actor and as a party to the offense. The jury assessed punishment at two

years confinement in the Institutional Division of the Texas Department of Criminal Justice, but

suspended and probated the sentence for a period of ten years, and a fine in the amount of
                                                                                                     04-12-00855-CR


$5,000.00 on the aggravated assault with a deadly weapon charge and twenty-five years

confinement and assessed a $10,000.00 fine on the aggravated kidnapping charge.

         On appeal, Linares argues (1) the evidence is legally insufficient to prove that Linares

committed the offense of aggravated kidnapping because there was no evidence that Nestor

Abundez was secreted and (2) the State’s comments during closing argument were improper and

outside the scope of permissible jury argument and violated his right to a fair trial. Linares does

not appeal the aggravated assault with a deadly weapon conviction. Because there was sufficient

evidence to support a finding that Linares acted as a principal or as a party to the offense of

aggravated kidnapping, and the State’s jury argument did not exceed the areas of acceptable

argument, we affirm the judgment of the trial court.

                                           FACTUAL BACKGROUND 1

A.       The Arrest

         At approximately 2:00 am, on May 2, 2011, Webb County Deputy Gerard Pecina was

patrolling Highway 359 when he witnessed a green Expedition SUV traveling in excess of the

marked speed limit. Deputy Pecina proceeded to follow the SUV into a subdivision, and ultimately

initiated a stop. The SUV eventually came to a stop at a Valero gas station. Deputy Pecina testified

that Hinojosa, the driver of the SUV, immediately exited the vehicle and began to approach Deputy

Pecina’s vehicle.       When Deputy Pecina demanded identification, a very nervous Hinojosa

provided a Texas identification card. Based on Hinojosa’s edginess, Deputy Pecina ordered

Hinojosa to wait by the front of the vehicle while Deputy Pecina attempted to identify the three

other individuals in the SUV—Zambrano, Linares, and Abundez.




1
 All three defendants were tried together before one jury. Accordingly, the facts in this opinion, as well as the facts
set forth in the opinions of Carlos Zambrano and Romeo Hinojosa, are identical.

                                                         -2-
                                                                                               04-12-00855-CR


        Sergeant Sanchez testified that when he arrived to assist Deputy Pecina, Hinojosa was

already in the back of Deputy Pecina’s vehicle. Pat-downs were conducted on the other men.

Before starting the pat-down on Abundez, however, Abundez informed Deputy Pecina that he did

not know the other individuals and that they had kidnapped him with a gun. 2 Deputy Pecina

testified that Abundez appeared scared, frightened, and nervous. Sergeant Sanchez separated

Abundez from the others and placed him in the back of his patrol car. Abundez then related to

Sergeant Sanchez what happened, including being taken from his residence at gunpoint, that the

firearm was thrown from the SUV by one of the men, and where it was thrown. Deputy Pecina

headed to the location where the gun was allegedly thrown and found a weapon, a loaded handgun

magazine, and a gray-colored cell phone.

        Zambrano, Hinojosa, and Linares were placed under arrest for the aggravated kidnapping

of Abundez. Zambrano, Linares, and Hinojosa were each charged with second-degree aggravated

assault with a deadly weapon and first-degree aggravated kidnapping. All three individuals were

tried together and the jury trial began on Monday, October 15, 2012.

B.      The Trial

        1.       Nestor Abundez’s Testimony

        The State’s first witness was Abundez. Abundez testified that about 1:00 a.m. on May 2,

2011, he and his family, along with his brother’s family, were at his house in Laredo, Webb

County, Texas. Abundez testified that he went outside to investigate loud noises and saw a white

Ford truck and two individuals honking the horn. When Abundez’s wife walked outside their

home with Abundez’s cell phone, Abundez took the phone and instructed her to return to the house.

Although he had never seen the two men before, Abundez walked towards the truck. According


2
  We note that neither Abundez, nor any of the defendants, spoke English. The officers’ testimony included their
translation of witnesses’ statements. At trial, victim and witness statements were offered via a translator.

                                                      -3-
                                                                                      04-12-00855-CR


to Abundez, once he approached the truck, Zambrano struck him in the head with the handle of

the pistol and then forced him into the vehicle. Shortly thereafter, the white truck met up with a

green Ford Expedition, driven by Hinojosa, and Abundez was transferred to the SUV. Abundez

testified that while Hinojosa drove, Zambrano held a gun to him.

        Abundez further testified that Zambrano, Linares, and Hinojosa were apparently looking

for another individual named Pelon, a nickname for someone who is bald. Abundez, who was also

bald, explained that he and his family had only lived in the house for a short period of time and to

his knowledge, a person called Pelon lived in the house prior to Abundez.

        During cross-examination, defense counsel suggested Abundez knew the two assailants

and that all three men went to Linares’s house to party and smoke marijuana when a fight broke

out. After questioning by defense counsel, Abundez acknowledged he had his cell phone prior to

Zambrano and Linares taking it, but explained that he was too nervous to call anyone or use the

phone. Defense counsel also argued the weapon actually belonged to Abundez and that it was

thrown from the Expedition by Abundez. Abundez, however, denied owning or throwing the

firearm located by Deputy Pecina.

        2.     Christian Abundez’s Testimony

        Abundez’s brother, Christian Abundez, testified that after seeing his brother forced into the

truck, he grabbed his keys and started chasing the white truck. At some point, the truck stopped

at a creek and both Linares and Zambrano exited the vehicle. According to Christian, Linares hit

him (Christian) in the back and Zambrano threatened him with a gun. Christian also testified a

third person was driving the truck. At Abundez’s request, Christian left to find their older brother,

Jose.

        Once Christian found Jose, they went back to the creek but no one was there. After driving

around the area trying to find Abundez, they saw the commotion at the gas station. When
                                                -4-
                                                                                    04-12-00855-CR


questioned by defense counsel, Christian acknowledged seeing the same white truck, which had

been in front of Abundez’s residence and the one he had chased earlier, at the gas station, but did

not notify the officers.

        3.      Sergeant Rolando Elizalde’s Testimony

        Although none of the defendants testified at trial, Sergeant Rolando Elizalde Jr. testified

about the defendants’ interviews taken shortly after their arrest.

        With regard to Hinojosa’s interview, Sergeant Elizalde testified Hinojosa told him that he

was awakened by Linares, his son-in-law, at approximately 1:00 a.m. Hinojosa explained he was

simply driving Linares and Zambrano around because he did not want Linares to get a ticket for

the dark tint on his vehicle. Hinojosa also relayed that he did not know Abundez’s name or

anything about him and that the other men called him “mojadito” or wetback. During cross-

examination, Sergeant Elizalde acknowledged that Hinojosa seemed surprised the three were being

held on kidnapping charges and asked the officer whether it was the “mojadito” that was making

the allegation. Hinojosa also described the others as drunk.

        While interviewing Hinojosa, Sergeant Elizalde observed that Hinojosa was very calm, but

extremely concerned that his wife have access to the impounded truck so that she could be at work

the following day. According to Sergeant Elizalde, it appeared to him that Hinojosa was more

concerned about his truck being impounded than with the kidnapping charges.

        When asked about Linares’s interview, Sergeant Elizalde testified that Linares relayed that

he and the others had been partying in the San Enriquez Subdivision before they picked up

Abundez. As to his presence at the gas station, Linares explained they were meeting another

person and that Abundez had only been with them for a short period of time when they were

stopped by the deputy. Sergeant Elizalde testified that although Linares acknowledged knowing

about the weapon, he never admitted ownership of the weapon.
                                                -5-
                                                                                       04-12-00855-CR


       Sergeant Elizalde further testified that immediately after beginning the interview, Linares

told the officer that he was a confidential informant for other officers and that he wanted to talk in

exchange for a “deal.” Sergeant Elizalde described Linares as fidgety, always moving his legs,

and at times crying. During testimony, Sergeant Elizalde described Linares as “look[ing] like a

drug addict, fidgety and nervous.”

       Based on Linares’s statement, Sergeant Elizalde testified that he requested a patrol officer

travel to the San Enriquez Subdivision, but once there, that the officer did not find any evidence

that a party took place. Sergeant Elizalde further explained that he even went back to the area the

following day, but he likewise did not see any evidence suggesting a party.

       On cross-examination, Sergeant Elizalde acknowledged Abundez was never searched

because Abundez reported the kidnapping before the officers conducted the pat-down. Defense

counsel also extensively questioned Sergeant Elizalde as to why the weapon was not fingerprinted

arguing that it was the officers’ failure to fingerprint the firearm that negated their ability to rule

out Abundez as the owner of the firearm.

       Regarding Zambrano’s interview, Sergeant Elizalde testified Zambrano told him that he

and Linares were at Hinojosa’s and Linares’s house that evening. They began partying around

10:00 p.m. and then went cruising to Los Presidentes and Southgate. They all ended up at “the

ranch” and that was where they picked up Abundez.

       During cross-examination of Sergeant Elizalde, defense counsel suggested that Zambrano

was very drunk when he was arrested and that he had denied using the firearm. Once again,

defense counsel attacked the officers’ failure to fingerprint the firearm and Sergeant Elizalde

indicated that Deputy Pecina made the decision whether to request fingerprint analysis.

Additionally, in response to questioning by defense counsel, Sergeant Elizalde acknowledged that



                                                 -6-
                                                                                      04-12-00855-CR


several rounds of ammunition were located in the impounded SUV, however they were a different

caliber than the firearm collected by Deputy Pecina.

       As a conclusion, Sergeant Elizalde opined that Zambrano, Linares, and Hinojosa’s

statements were conflicting.

4.     Deputy Gerard Pecina’s Testimony

       Deputy Pecina’s testimony included his initial stop of the vehicle and his actions in locating

the firearm. Similar to the cross-examination of Sergeant Elizalde, defense counsel probed Deputy

Pecina’s rationale for failing to submit the firearm for fingerprint analysis. Deputy Pecina

explained that he did not submit the firearm for testing because the location where it was found

corroborated what Abundez, the victim, had reported. He continued that he was working an

abduction case, the victim identified the individuals, and he did not have any reason to believe

analysis on the weapon would assist in the prosecution. Deputy Pecina acknowledged that no one

requested the gray cell phone be fingerprinted or that additional tests be performed.

C.     The Jury Verdict

       Linares was found guilty of aggravated assault with a deadly weapon and aggravated

kidnapping. With regard to the aggravated assault charge, the jury assessed punishment at two

years confinement in the Institutional Division of the Texas Department of Criminal Justice, but

suspended and probated the sentence for a period of ten years, and a fine in the amount of

$5,000.00. With regard to the aggravated kidnapping charge, the jury assessed punishment at

twenty-five years confinement and assessed a $10,000.00 fine. This appeal ensued.

       On appeal, Linares argues the evidence is legally insufficient to prove that Linares

committed the offense of aggravated kidnapping and the State’s comments during closing

argument were improper. Linares does not appeal the aggravated assault with a deadly weapon

conviction. We address the sufficiency argument first.
                                                -7-
                                                                                          04-12-00855-CR


                                   SUFFICIENCY OF THE EVIDENCE

        Linares alleges three bases upon which the evidence is insufficient to support his

conviction: (1) there is no evidence regarding Linares’s mens rea to secrete Abundez or place him

in a place where he could not be found; (2) Abundez’s cross-examination testimony directly

contradicted any evidence the State introduced regarding Linares’s mens rea; and (3) Deputy

Pecina supported Abundez’s testimony that Linares never developed the mens rea to kidnap

Abundez. Linares does not challenge the legal sufficiency of the conviction as a whole, but only

the legal sufficiency of his mens rea to abduct Abundez. The State counters that Linares could

have been found criminally liable by (1) personally committing the offense, (2) intentionally

causing or aiding another to commit the offense, or (3) intentionally failing to take reasonable steps

to prevent the commission of the offense, when he had such a duty. We agree with the State.

A.      Standard of Review

        In reviewing the legal sufficiency of the evidence, an appellate court determines whether,

viewing “all the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.” Hardy v. State, 281

S.W.3d 414, 421 (Tex. Crim. App. 2009); accord Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must defer to the

jury’s assessment of the credibility of the witnesses “and the weight to be given to their testimony,”

Brooks, 323 S.W.3d at 899, and allow for reasonable inferences from the evidence presented.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West 1979) (stating that “the jury, in all cases, is the exclusive judge of the facts

proved, and of the weight to be given to the testimony” except where provided otherwise by law);

Jackson, 442 U.S. at 319 (reiterating it is strictly the province of the jury “fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
                                                   -8-
                                                                                       04-12-00855-CR


ultimate facts”). In so doing, an appellate court presumes that the jury “resolved the conflicts in

favor of the prosecution and therefore defer to that determination.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

       The key question is whether “the evidence presented actually supports a conclusion that

the defendant committed the crime that was charged.” See Williams, 235 S.W.3d at 750. Only

upon a finding the evidence is legally insufficient will this court reverse the trial court’s judgment

and order an acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982). This legal sufficiency

standard applies equally to both direct and circumstantial evidence. Clayton, 235 S.W.3d at 778;

King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

B.     Aggravated Kidnapping

       In the present case, Linares was charged both as a primary actor and as a party to the offense

of aggravated kidnapping. Whether a person is charged as a primary actor or as a party to the

offense, the underlying offense remains the same.

       A person commits the offense of aggravated kidnapping “if he intentionally or knowingly

abducts another person and uses or exhibits a deadly weapon during the commission of the

offense.” See TEX. PENAL CODE ANN. § 20.04(b) (West 2011). For purposes of this statute,

“‘[a]bduct means to restrain a person with intent to prevent his liberation by: (A) secreting or

holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly

force.” See id. § 20.01(2). “‘Restrain’ means to restrict a person’s movements without consent,

so as to interfere substantially with the person’s liberty, by moving the person from one place to

another or by confining the person.”         Id. § 20.01(1).    Restraint is “without consent” if

“accomplished by force, intimidation, or deception.” Id. § 20.01(1)(A); see also Holmes v. State,

873 S.W.2d 123, 126 (Tex. App.—Fort Worth 1994, no pet.) (explaining that “[c]onfining is not

defined in the Penal Code or by case law; thus, we use its common meaning when reviewing the
                                                 -9-
                                                                                       04-12-00855-CR


evidence,” which may include shutting up, imprisoning, enclosing, detaining, relegating to certain

limits, or trapping victim).

       To convict Linares under the law of parties, the jury had to determine that Linares was

criminally responsible for the acts of another. TEX. PENAL CODE ANN. § 7.01(a) (West 2011). “A

person is criminally responsible as a party to an offense if the offense is committed by his own

conduct, by the conduct of another for which he is criminally responsible, or by both.” Id. Section

7.02(a)(2) of the penal code provides that a “person is criminally responsible for an offense

committed by the conduct of another if . . . acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense.” Id. § 7.02(a)(2). Generally, the trial court may instruct the jury on the law of parties

if “there is sufficient evidence to support a jury verdict that the defendant is criminally responsible

under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999). In doing so,

the court may consider the events that took place before, during, and after the commission the

crime. See Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Goff v. State, 931

S.W.2d 537, 545 (Tex. Crim. App. 1996). Allegations that a party is guilty under the law of parties

need not be specifically pled in the indictment. Barrera v. State, 321 S.W.3d 137, 144 n.1 (Tex.

App.—San Antonio 2010, pet. ref’d).

C.     Charge of the Court

       “Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Because Linares does not contend error in the trial court’s charge, we look directly at the

language contained within the trial court’s jury charge.

       1.      Instructions Contained within the Court’s Charge

       The trial court provided the following definition in the charge:
                                                 - 10 -
                                                                                     04-12-00855-CR


              A person is criminally responsible as a party to an offense if the offense is
       committed by his own conduct, by the conduct of another for which he is criminally
       responsible, or both.

              Each party to an offense may be charged with the commission of the
       offense.

               A person is criminally responsible for an offense committed by the conduct
       of another, if acting with intent to promote or assist the commission of the offense,
       he solicits, encourages, directs, aids, or attempts to aid the other person to commit
       the offense.

               A defendant’s mere presence alone will not make him responsible for an
       offense. A defendant’s mere knowledge of a crime or failure to disclose a crime
       also is not sufficient.

       2.      Application Paragraph of Court’s Charge

       To convict Linares of aggravated kidnapping, the trial court’s charge required the jury to

find the following:

                                            V.

             You must determine whether the State has proved the defendant(s)
       committed the crime by his own conduct. To prove this, the State must prove,
       beyond a reasonable doubt, three elements. The elements are that-

               1. On or about the 2nd day of May 2011, in Webb County, Texas,
                  Abraham Linares, Romeo Hinojosa, and/or Carlos Zambrano, caused
                  the abduction of an individual, Nestor Abundez, by restricting his
                  movement with the intent to prevent his liberation by secreting him or
                  holding him in a place where he was not likely to be found;
               2. During the commission of the abduction Abraham Linares, Romeo
                  Hinojosa, and/or Carlos Zambrano, used or exhibited a deadly weapon;
                  and
               3. Abraham Linares, Romeo Hinojosa, and/or Carlos Zambrano, did this
                  intentionally or knowingly.

                                               VI.
                                 Application, Liability as a Party

              Now bearing in mind the foregoing instructions, if you find from the
       evidence beyond a reasonable doubt that

               1. On or about the 2nd day of May 2011, in Webb County, Texas,
                  Abraham Linares, Romeo Hinojosa, and/or Carlos Zambrano, acting
                                                 - 11 -
                                                                                      04-12-00855-CR


                 alone or as a party (a person is criminally responsible as a party to an
                 offense if the offense is committed by his own conduct, by the conduct
                 of another for which he is criminally responsible, or by both) caused the
                 abduction of an individual, Nestor Abundez, by restricting his
                 movement with the intent to prevent his liberation by secreting him or
                 holding him in a place where he was not likely to be found;
              2. During the commission of the assault, Abraham Linares, Romeo
                 Hinojosa, and/or Carlos Zambrano used or exhibited a deadly weapon;
              3. Abraham Linares, Romeo Hinojosa, and/or Carlos Zambrano did this
                 intentionally or knowingly; and
              4. Abraham Linares, Romeo Hinojosa, and/or Carlos Zambrano acted,
                 solicited, encouraged, directed, aided, or attempted to aid with the intent
                 to promote or assist the commission of the offense of Aggravated
                 Kidnapping, First Degree Felony, by Abraham Linares, Romeo
                 Hinojosa, and/or Carlos Zambrano then you must say by your verdict
                 “guilty.”

               If you find that the State did not prove each of the first three elements under
       the heading “Application as Primary” and you find that the State did not prove each
       of these four elements under this heading beyond a reasonable doubt you must say
       by your verdict “not guilty.”

               You need not be unanimous about the theory underlying either your “guilty”
       or “not guilty” verdict. If you all agree the defendant is guilty either as a primary
       actor or as a party, then you must find the defendant “guilty.” If you all agree the
       defendant is not guilty as both a primary actor or as a party, then you must find the
       defendant “not guilty.”

       Additionally, the jury was also instructed that simply being at the scene was not sufficient.

D.     Analysis

       Because Linares only challenges the legal sufficiency of the evidence that he abducted

Abundez, we limit our discussion to the element of “abduct.” The State contends the jury could

have found sufficient evidence that (1) Linares restrained Abundez with intent to secrete or hold

him, (2) Linares intentionally caused or aided Zambrano or Hinojosa to do so, or (3) that Linares

failed to take reasonable steps to prevent either Zambrano or Hinojosa from doing so.

       1.     Evidence that Linares Restrained Abundez

       Linares contends there was no evidence that Abundez was abducted—either secreted or

restrained. As evidence of such, Linares points to Deputy Pecina’s testimony that he did not see
                                                - 12 -
                                                                                      04-12-00855-CR


Abundez restricted in any way. Linares also points to Abundez’s response that he was not “put in

a place where he [was] not likely to be found.” The State, on the other hand, contends this

testimony is taken out of context. The State points out that when asked whether he was free to

leave, Abundez responded “No” and that he “didn’t think [he] could really escape.”

       Assuming these statements were actually conflicting, resolution of such was solely for the

jury to determine and not this court. Brooks, 323 S.W.3d at 899. “It is up to the jury to distinguish

between those situations in which a substantial interference with the victim’s liberty has taken

place and those situations in which a slight interference has taken place.” Hines v. State, 75 S.W.3d

444, 448 (Tex. Crim. App. 2002). “This can be established by looking at all of the circumstances

surrounding the offense.” Id.

       The jury was presented with evidence that Zambrano held Abundez at gunpoint and used

a gun to waive off his brother’s attempt to rescue him. See Santellan v. State, 939 S.W.2d 155,

163 (Tex. Crim. App. 1997) (holding loading victim into car and driving away with her satisfied

restraint); Ramirez v. State, 692 S.W.2d 729, 732 (Tex. App.—Waco, 1985, no pet.) (concluding

that threatening deadly force to abduct a person can be communicated separate and apart from

exhibiting a deadly weapon). The evidence also supports that Linares (1) accompanied Zambrano

at each phase and (2) struck Christian Abundez while Zambrano threatened him with a gun to

dissuade him from thwarting their activities.

       The jury could reasonably deduce these actions supported the conclusion that Linares,

Hinojosa, and Zambrano were not only intentionally keeping Christian Abundez from his brother,

but they were also restraining Abundez from leaving the truck. In addition to “chasing” Abundez’s

brother away, the jury could also reasonably rely on the truck’s “racing away” from Abundez’s

house as evidence that Linares and Zambrano were intentionally trying to secrete or hide Abundez.

See Earhardt v. State, 832 S.W.2d 607, 608 (Tex. Crim. App. 1991) (holding that the only
                                                - 13 -
                                                                                       04-12-00855-CR


requirement for restraint is that the interference with liberty be substantial): Jenkins v. State, 248

S.W.3d 291, 295 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (finding that bearing and firing

a firearm in an apartment while refusing to allow victim to leave constituted restraint by

threatening deadly force); see also Hines, 75 S.W.3d at 448 (holding forcing entry into bank,

threatening employee with weapon, and ordering her to open vault supported finding of abduction

and restraint).

        2.        Evidence that Linares Intentionally Caused or Aided the Others in Restraining
                  Abundez

        For the State to rely on circumstantial evidence to prove Linares intentionally caused or

aided either Zambrano or Hinojosa to restrain Abundez, evidence that Linares was present at the

time is required. Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. [Panel Op.] 1978); see

also Rivera v. State, 12 S.W.3d 572, 575 (Tex. App.—San Antonio, 2000, no pet.). But mere

presence alone is not sufficient; the State must also show an act done by Linares that evidences his

intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985).

A jury may look at events occurring before, during, and after the offense and the defendant’s

behavior to show understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex.

Crim. App. 1994). The jury looks at the cumulative effect of all the incriminating facts, as opposed

to each individual fact. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

        Here, the jury could reasonably deduce that Linares was present at every stage of the

kidnapping and intentionally assisted either Zambrano or Hinojosa along the way. Based on

Abundez’s testimony, Linares was present from the moment Abundez was taken from his home.

Additionally, the testimony substantiated that (1) Linares was in the vehicle when Zambrano held

the gun to Abundez’s head, (2) Linares helped move Abundez from the white truck to the green

Expedition, (3) Linares either hit Christian Abundez in the back or threatened him with a gun, and


                                                - 14 -
                                                                                                      04-12-00855-CR


(4) instead of denying his involvement in the crime, Linares immediately offered to provide

information to the officers. Based on the testimony of the Abundez brothers, and the circumstantial

evidence surrounding the offense, the jury could reasonably infer that Linares agreed to kidnap

Abundez and unintentionally assisted them in doing so. See Tarpley, 565 S.W.2d at 529.

E.       Conclusion

         After viewing “all the evidence in the light most favorable to the verdict,” based on the

evidence presented at trial, including circumstantial evidence, a rational jury could have found

Linares guilty of aggravated kidnapping beyond a reasonable doubt. See Hardy, 281 S.W.3d at

421; Brooks, 323 S.W.3d at 899. Accordingly, this issue is overruled. 3

                                         IMPROPER JURY ARGUMENT

         Linares next asserts the State’s comments during closing argument were improper, outside

the scope of permissible jury argument, and violated his right to a fair trial.

A.       Proper Jury Argument

         “The purpose of closing argument is to facilitate the jury’s proper analysis of the evidence

presented at trial in order to arrive at a just and reasonable conclusion based solely on the

evidence.” Harris v. State, 122 S.W.3d 871, 883 (Tex. App.—Fort Worth 2003, pet. ref’d).

“[P]roper jury argument generally falls within one of four general areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing

counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (same); Coble

v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993) (same). A prosecuting attorney is permitted


3
  Although Linares and the State both briefed the issue of whether the jury could find that Linares intentionally failed
to exercise reasonable efforts to stop the kidnapping, the jury was not charged under such theory and, therefore, could
not have found Linares guilty under such theory. See Vasquez v. State, 389 S.W.3d 361, 370–71 (Tex. Crim. App.
2012). Accordingly, we do not address this issue on appeal. See TEX. R. APP. P. 47.1.

                                                         - 15 -
                                                                                     04-12-00855-CR


to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he

may not use the jury argument to get before the jury, either directly or indirectly, evidence which

is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (citing Jordan

v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983)).

       The Court of Criminal Appeals also consistently rejects arguments that “strike at a

defendant over the shoulder of his defense counsel.” Dinkins v. State, 894 S.W.2d 330, 357 (Tex.

Crim. App. 1995). Comments which attempt to cast aspersions on the character of defense counsel

and necessarily strike over counsel’s shoulders at the defendant are not within the zone of proper

jury argument. Nevels v. State, 954 S.W.2d 154, 158 (Tex. App.—Waco 1997, pet. ref’d).

Although articulating precise rules is difficult, the court has cautioned that “a prosecutor runs a

risk of improperly striking at a defendant over the shoulder of counsel when the argument is made

in terms of defense counsel personally and when the argument explicitly impugns defense

counsel’s character.” Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Even when

couched in terms of a rebuttal, proper defense counsel’s arguments “cannot serve as a basis for

permitting prosecutorial comments that “‘cast aspersion on defense counsel’s veracity with the

jury.’” Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(quoting Mosley, 983 S.W.2d at 259); accord Dinkins, 894 S.W.2d at 357.

       When jury argument falls outside the approved areas, “it will not constitute reversible error

unless [it] is extreme or manifestly improper . . . or injects new facts harmful to the accused into

the trial proceeding.” Temple v. State, 342 S.W.3d 572, 602–03 (Tex. App.—Houston [14th Dist.]

2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013); see Brown, 270 S.W.3d at 570; see also

TEX. R. APP. P. 44.2(b).




                                               - 16 -
                                                                                     04-12-00855-CR


B.     Objections to the State’s Jury Argument

       Linares points to the comments made by the State regarding the attorneys trying to

convince Abundez not to testify. Specifically, Linares contends (1) “the State struck at [Linares]

over the shoulders of his counsel” by suggesting counsel acted in bad faith by attempting to

persuade Abundez not to testify; (2) “the prosecutor injected a new and harmful fact in closing

argument” never testified to by Abundez; and (3) even assuming defense counsel’s question during

cross-examination was improper, the trial court’s instruction was sufficient and, therefore, the

State’s argument was not invited.

       At issue is the following jury argument:

       Abundez Cross-Examination
       Defense: And so when you and I met and spoke 2 or 3 days ago, when you told
                me that you were afraid that they would charge you with the offense,
                you were lying to me?

The State objected and the following was argued out of the presence of the jury.

       State:   This statement that we’re going to charge him with an offense, this is
                ridiculous Your Honor.
       Defense: That’s what he told me.
       State:   It is utterly ridiculous, Your Honor. It’s the most disgusting behavior
                I’ve ever seen in a Defense counsel ever.
                ....
                And, Your Honor, I want everything stricken about the statement,
                threatening to arrest or charge this victim, the victim, mind you, with
                anything.
                ....
       Court:   Again, I’ll remind the jury to disregard any statements made in
                conjunction with the previous one that I asked you to disregard the
                District Attorney’s Office and the allegations of his conduct. Let’s
                proceed.

       Upon further cross-examination, Abundez denied that he was afraid of being charged with

any offense by the State. “The only thing I said was that I did not want to come.”

       State’s Jury Argument
       State:     Then you heard the victim, all three of them went to his house on Friday
                  before trial to try and convince him not to testify.
                                              - 17 -
                                                                                    04-12-00855-CR


       Defense: Objection, Your Honor. That leaves a false impression with the Jurors
                with the lawyers, not the clients.
       State:   I’m sorry. The three attorneys. The three attorneys went to this person’s
                house to try to get him not to testify the Friday before trial.
       Defense: Objection, Your Honor.
       Court:   Sustained.
       Defense: It mischaracterizes the evidence. Nobody tried to get him not to testify.
       Court:   All right. Move on.
                ....
       State:   What [defense attorneys] say is not evidence as much as they’d like for
                it to be.
       Defense: Objection, Your Honor. It switches the burden.
       Court:   Sustained. Move on.

       Linares relies on Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996), abrograted on

other grounds, Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), for support of his

contentions. The argument in Wilson focused on the following portion of the State’s argument:

       I have taken a very sacred oath, in my opinion, to see that justice is done in every
       case I prosecute. It is your duty—and in the last paragraph of this charge you can
       see—to see that justice is done in this case.

       [Defense Counsel] has no such oath, and what he wishes is that you turn a guilty
       man free. That’s what he wishes, and he can wish that because he doesn't have the
       obligation to see that justice is done in this case.

Id. at 58. The court concluded that because the case did not include any evidence of the

prosecutor’s oath, the State’s argument injected new facts into the case and therefore the argument

was harmful to the defendant. Id. at 60.

       Here, the State’s argument is not akin to Wilson. During cross-examination of the State’s

key witness, defense counsel suggested (1) that Abundez had been coerced and threatened by the

State regarding his testimony and (2) that Abundez was lying about the events that evening. The

State objected at the time and received an instruction from the trial court.

       Given that defense counsel raised the issue before the jury, unlike the State’s argument in

Wilson, it was the defense that placed at issue their speaking to Abundez “2 or 3 days” before the

start of the trial. Id. at 60. When the State attempted to respond to the defense questions during
                                                - 18 -
                                                                                    04-12-00855-CR


her closing argument, the trial court ultimately sustained the defense objection and instructed the

State to “move on.” We, therefore, conclude the State’s argument responding to defense counsel’s

argument that the State was threatening Abundez to testify and that Abundez was lying regarding

the alleged events was not improper. See Alami v. State, 333 S.W.3d 881, 892–93 (Tex. App.—

Fort Worth 2011, no pet.); Caron v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.]

2005, no pet.).

       Because we conclude the prosecutor’s argument was not improper, we need not address

whether the argument effected his substantial rights. TEX. R. APP. P. 47.1.

                                          CONCLUSION

       The testimony at trial supports that Linares was present at every stage of the kidnapping

and assisted either Zambrano or Hinojosa along the way. Based on the testimony of the Abundez

brothers, and the circumstantial evidence surrounding the offense, the jury could reasonably infer

there was an agreement between the parties to kidnap Abundez. See Tarpley, 565 S.W.2d at 529.

After viewing “all the evidence in the light most favorable to the verdict,” based on the evidence

presented at trial, a rational jury could have found Linares guilty beyond a reasonable doubt. See

Hardy, 281 S.W.2d at 421; Brooks, 323 S.W.3d at 899.

       Additionally, because the prosecutor’s closing comments responded to arguments made by

defense counsel that the State was threatening Abundez to testify and that Abundez was lying

regarding the alleged events, the State’s argument was not improper.

       For these reasons, Linares’s issues on appeal are denied and we affirm the trial court’s

judgment.


                                                  Patricia O. Alvarez, Justice

PUBLISH


                                               - 19 -
