                                    NO. 07-06-0358-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   NOVEMBER 6, 2007

                          ______________________________


         SECUNDINO ESTRADA A/K/A PINO DINO ESTRADA, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                NO. 17,959-A; HONORABLE DAVID GLEASON, JUDGE

                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Secundino Estrada a/k/a Pino Dino

Estrada, was convicted by a jury of arson with an affirmative finding on use of a deadly

weapon and sentenced to seventeen years confinement and a $7,500 fine. He presents

two points of error by which he maintains the trial court abused its discretion (1) by failing
to give an instruction to the jury on assault, a lesser included offense,1 and (2) by denying

the defense a mistrial after the State’s prosecuting attorney gave improper final closing

argument to the jury during the punishment phase. He maintains the trial court’s action

denied him due process and equal protection of the law. We affirm.


       Upon arriving home from work one afternoon, a neighbor heard Erica Vasquez

hollering from a few houses away about a fire. He smelled smoke and ran down the street

to help. Vasquez was shouting accusations that Appellant had set fire to the house. She

is Appellant’s stepsister and mother of his two young children. The evidence showed that

Appellant became angry when Vasquez told him she was ending their relationship. Based

on Vasquez’s accusations that Appellant had started the fire, the assisting neighbor asked

Appellant to “hang around a minute” and wait for law enforcement. According to the

neighbor, Appellant had a knife and threatened to cut him before fleeing. Responding

officers pursued him on foot and eventually “boxed” him into an alley where he was

handcuffed and arrested. A search incident to arrest produced a knife with a burnt tip.


       Appellant’s second point contention is that the trial court erred in denying a mistrial

after the prosecutor gave improper jury argument during the punishment phase. We

disagree. To be permissible, jury argument must fall within one of the following four

general areas:    (1) summation of the evidence; (2) reasonable deduction from the


       1
        Point of error one was addressed by this Court in Appellant’s appeal of his
aggravated assault conviction in companion case bearing cause number 07-06-0357-CR
and is not relevant to the arson conviction in this appeal.

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evidence; (3) answer to opposing counsel's argument; or (4) plea for law enforcement.

See Gallo v. State, No. AP-74900, 2007 WL 2781276, *6 (Tex.Crim.App. Sept. 26, 2007);

Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997).


       During closing argument of the punishment phase, the prosecutor commented:


       [b]y the way, it doesn’t take a rocket scientist that he’s been arrested and
       charged with a pending robbery. It’s kind of hard for us to try it here before
       it’s tried somewhere else. . . .


Defense counsel objected on the ground that “[e]vidence of such robbery if it existed,

would have been admissible regardless of where it happened.” The trial court sustained

the objection and instructed the jury to disregard the prosecutor’s statement.


       During the guilt/innocence phase, Vasquez testified that she was aware Appellant

had an outstanding warrant for felony robbery. No objection was lodged by defense

counsel. Officer Raymond Holsey, who had been dispatched to the fire, also testified

without objection that he knew Appellant had an outstanding warrant for robbery.


       When the trial court sustains an objection to improper argument and instructs the

jury to disregard, there is no error by the trial court. Archie v. State, 221 S.W.3d 695, 699

(Tex.Crim.App. 2007). The only adverse ruling and occasion for a mistake is the trial

court’s denial of a motion for mistrial, which is reviewed for abuse of discretion. Id. at 699-

700. See also Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). In determining

whether the trial court abused its discretion by denying a mistrial, we balance three factors:

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(1) the severity of the misconduct (prejudicial effect), (2) curative measure, and (3) the

certainty of the punishment assessed absent the misconduct. See Gallo, 2007 WL

2781276, at *7; Hawkins, 135 S.W.3d at 77.


                                Severity of the Conduct


      Appellant argues that the prosecutor’s comments do not fall within any of the

categories of permissible jury argument. When assessing the prejudicial effect of the

prosecutor’s comments, we view them in light of the entire record. Hawkins, 135 S.W.3d

at 78-80. It is arguable that the comments amount to summation of evidence from

Vasquez’s and Officer Holsey’s testimony that Appellant had an outstanding warrant for

robbery. Thus, we decline to find that the prosecutor’s statement constituted severe

misconduct.


                                   Curative Measure


      The trial court sustained Appellant’s objection and immediately issued a curative

instruction to the jury. We presume the jury followed the court’s instructions. Gardner v.

State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). Appellant contends the prosecutor’s

comments were so “manifestly improper” that no instruction could cure the damage. He

argues that under Rule 404(b) of the Texas Rules of Evidence, evidence of other crimes

is not admissible to prove Appellant’s bad character.




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       Under article 37.07, § 3 of the Texas Code of Criminal Procedure Annotated

(Vernon 2006), evidence may be offered as to any matter the court deems relevant to

sentencing, including but not limited to the defendant’s prior criminal record. Additionally,

evidence of Appellant’s warrant for robbery was testified to by two witnesses without

objection during the guilt/innocence phase. Evidence introduced from other sources

without objection waives subsequent complaints about the introduction of the same

evidence from another source. Reyes v. State, 84 S.W.3d 633, 638 (Tex.Crim.App. 2002).

Accordingly, we find the court’s curative instruction was sufficient to attenuate any claim

of harm.


           Certainty of the Punishment Assessed Absent the Misconduct


       Where, as here, the argument occurred during the punishment phase of trial, we

must analyze the punishment assessed against the probability that the same or similar

punishment would have been imposed absent the alleged misconduct. Archie, 221

S.W.3d at 700. Appellant was convicted of arson with an affirmative finding on use of a

deadly weapon, a first degree felony. A first degree felony carries a sentence of life or any

term of not more than ninety-nine years or less than five years, with the possibility of a fine

not to exceed $10,000. Tex. Penal Code Ann. § 12.32. (Vernon 2003). Appellant was

sentenced to seventeen years confinement and a $7,500 fine. The confinement is on the

low end of the statutory range of punishment and certainly within the range of punishment

that might have been imposed by a fair and reasonable juror.


                                              5
       While there was some evidence that Appellant may have been unaware he started

the fire, and may have even tried to extinguish it, the jury had already heard of Appellant’s

robbery warrant from other witnesses prior to the comments by the prosecutor. There is

nothing in the record to indicate that Appellant might have received a lesser sentence

absent those comments.


                                       Conclusion


       After balancing the three factors to determine whether the trial court abused its

discretion in denying Appellant’s motion for mistrial, we conclude there was no abuse.

Point of error two is overruled. Having overruled Appellant’s only contention pertinent to

his arson conviction, the trial court’s judgment in trial court cause number 17,959-A is

affirmed.


                                                  Patrick A. Pirtle
                                                      Justice



Do not publish.




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