                              NUMBER 13-17-00649-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


AGUSTINA HERNANDEZ HERNANDEZ,                                                             Appellant,

                                                        v.

THE STATE OF TEXAS,                                                                         Appellee.


                       On appeal from the 107th District Court
                            of Cameron County, Texas.


                            MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Rodriguez and Benavides1
             Memorandum Opinion by Justice Benavides

        By three issues, appellant Agustina Hernandez Hernandez challenges her

conviction for possession of between fifty and two hundred pounds of marijuana, a

second-degree felony.           See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5).

        1
           The Honorable Nelda V. Rodriguez, former Justice of this Court, was a member of the panel
when this case was orally argued but did not participate in this decision because her term of office expired
on December 31, 2018.
Hernandez argues that: (1) the trial court erred by denying her motion to suppress; (2)

it was error to permit the introduction of evidence of her immigration status; and (3) the

State’s closing argument warranted the reversal of her conviction and a new trial. We

affirm.

                                     I.     BACKGROUND

          On April 8, 2017, Hernandez was arrested approximately 700 yards from the

border with Mexico, along with other adults, and two bundles of marijuana were found in

her vehicle. She was charged by indictment for the possession of marijuana. See id.

Prior to a trial on the merits, the trial court held a hearing on Hernandez’s motion to

suppress.

A.        Suppression Hearing

          Agent Jonathan Hanson of the United States Border Patrol (Border Patrol) testified

that he received information that the remote video surveillance cameras utilized by Border

Patrol showed individuals exiting the Los Fresnos canal and loading bundles into a

vehicle. Agent Hanson stated he was near the area and responded when he noticed a

vehicle on the opposite side of the canal from his location. He also explained the location

was an area where people frequently cross the Rio Grande and he was familiar with the

activities and location. As he approached the vehicle, Agent Hanson saw four to five

people in the minivan and saw two bundles in plain sight. He stated that Hernandez was

driving the minivan and complied with his directives to exit the vehicle. Agent Hanson

had a canine officer respond and conduct a free-air sniff. The canine officer alerted to

the presence of narcotics. Agent Hanson explained he and other agents who responded


                                              2
arrested Hernandez and the other occupants of her vehicle. The bundles were taken to

the Border Patrol station and field tested, yielding a positive test for marijuana.

       Hernandez also testified at the suppression hearing. She stated she believed she

was driving on a public roadway and was “cruising around.” Hernandez explained that

a friend had asked her to go pick up two men, who got into her vehicle with bundles. She

stated she thought their truck had broken down, even though she stated she did not see

a truck, and did not know them or why they were wet. She agreed that the men loaded

the bundles in her vehicle. She also admitted that she was the driver, had control of the

vehicle, and could have prevented the men from entering her vehicle.

       The trial court denied the motion to suppress and continued to trial.

B.     Trial on the Merits

       At trial, the State called Agent Hanson who explained he was patrolling near the

Los Fresnos pump, west of Brownsville. He stated that the road that leads out to the

pump is not well maintained or frequented, and that only the pump caretaker and an

occasional fisherman are usually seen on it. Agent Hanson agreed with the State that if

he had seen a vehicle out in that area, he would have gone to investigate why it was

there, as the area was known for having illegal immigrants and narcotics pass through it.

Agent Hanson was speaking to Border Patrol agent Marshall Maynard when they got a

radio call from the remote video surveillance operator regarding “bodies coming out of the

canal” in a nearby area and entering a vehicle. Agent Hanson stated he did not see

anyone loading a vehicle personally, but saw Hernandez’s minivan in the area with its

headlights on and went to investigate. As he approached Hernandez on the driver’s


                                              3
side, he was able to observe bundles inside the vehicle. Agent Hanson explained the

bundles were wrapped and painted, which is common among narcotics traffickers, and

he recognized the distinct odor of marijuana. Hernandez complied with Agent Hanson’s

commands to step out of the vehicle and he spoke to her in Spanish. A canine unit was

called out, did a free-air sniff, and alerted to the presence of narcotics. The occupants

of the minivan were arrested, read their rights, and the adults declined to speak to

authorities.

       Defense counsel questioned Agent Hanson on his training and experience

involving drug identification, if he had seen fisherman in the area at night, and if he

recovered any kind of phone or GPS device from Hernandez. On re-direct questioning,

the State asked:

       State:       The people arrested that particular day, were any of them U.S.
                    citizens?

       Defense:     Objection, Your Honor, relevance.

       Court:       Overruled.

       Hanson:      I’m not positive. I’m going to have to check the report here.
                    I think some of them were. But give me a second here. Yes,
                    one of them.

       State:       And who was that?

       Hanson:      His last name is Salas, first name Eduardo

                    ....




                                           4
      State:        Okay. And the defendant, Ms. Hernandez, was she a U.S.
                    citizen?

      Hanson:       No.

      State:        Did you find any fishing equipment at all inside the vehicle?

      Hanson:       No.

      The State next called Agent Rolando Caballero of the Border Patrol.                  Agent

Caballero stated he was a canine handler, briefly explained the training he completed to

be a canine handler, and described how he responded to the Los Fresnos canal area

where he was asked to conduct a free-air sniff of the minivan. Agent Caballero testified

that he was also tasked with testing the bundles when they arrived at the Border Patrol

station and the bundles tested positive for marijuana.           Agent Caballero read the

individuals arrested their rights in Spanish. The State then asked:

      State:        Do you know whether or not Ms. Hernandez is an American
                    citizen or not?

      Caballero:    At this moment of the arrest, I didn’t, until we got to the station,
                    her citizenship was determined there.

      Defense:      Your Honor, I’m going to ask the Court to grant me a running
                    objection to this line of questioning.

      Court:        You will have a running objection.

                    ....

      State:        And when at the station, how was it determined that Ms.
                    Hernandez was not a U.S. citizen?




                                             5
      Caballero:   They asked her to state her citizenship, and she stated she
                   was from Mexico.

On cross-examination, defense counsel asked the following:

      Defense:     And you testified that Ms. Hernandez and some other
                   individuals there were not U.S. citizens, is that correct?

      Caballero:   Correct.

      Defense:     You testified that there was one U.S. citizen there, is that
                   correct?

      Caballero:   Correct.

      Defense:     What was the name of that individual?

      Caballero:   I don’t remember the name of the individual, but it was her
                   son.

                   ....

      Defense:     And her son is how old?

                   ....

      Caballero:   Possible [sic] 10. I didn’t ask his age because he was a
                   minor.

      Defense:     He was young.

      Caballero:   Yes.

      Defense:     Do you know whether she has any other U.S. citizen children?

      Caballero:   That I know of, no.

      Defense:     Do you know whether she was at any point married to a U.S.
                   citizen?

      Caballero:   That I know of, no.

      Defense:     Do you know whether she has any legal proceedings to
                   become a U.S. citizen in the works?

                                         6
Caballero:   No.

Defense:     Do you know whether being involved in illegal drug trafficking
             would negatively affect a person’s opportunity to become a
             U.S. citizen?

Caballero:   To be honest, I don’t know if she was applying for anything.
             I don’t know.

Defense:     Okay.

Caballero:   It could affect you, but I don’t know if she was applying for
             something.

Defense:     You don’t know if she was applying.

Caballero:   No.

Defense:     But it could affect you if you were applying.

Caballero:   Yes, it could affect you.

Defense:     Negatively.

Caballero:   Correct.

Defense:     Do you know typically if somebody is not a U.S. citizen, if they
             get a conviction for narcotics, whether they will be deported or
             not?

Caballero:   Correct.

Defense:     And so, if they have U.S. citizen children, maybe they will be
             deported and separated from their families?

Caballero:   That, I do not make that call. I don’t know what happens after
             they get transferred from our custody to the U.S. Marshals or
             whoever takes them.

Defense:     Sure. I understand. You don’t make that call, right?

Caballero:   No.


                                     7
Defense:     You’re not the one who deports people, right?

Caballero:   Correct.

Defense:     You are not the one who makes a determination that this
             person can no longer remain in the United States, right?

Caballero:   Correct.

Defense:     But it does happen when somebody gets convicted, right?

Caballero:   That I know of, I haven’t heard it.

During closing argument, the State argued:

State:       We do know that everyone in that car at that time that Agent
             Hanson brought that Car to a stop were in control and in
             possession of the marijuana. Think about that. It’s against
             our law in the State of Texas to be in possession of marijuana.
             That’s our law. Whether we like it or not, the Legislature has
             put it that way, and it’s not changing. An individual who has
             possession of 90 pounds of marijuana, that’s a lot of
             marijuana. How she got it or where she got it or whatever,
             we don’t know. The defendant did not testify and we cannot
             use that against her.

Defense:     Objection, Judge, he is talking about the fact that she didn’t
             testify in his closing.

Court:       I’ll sustain.

Defense:     Your Honor, I move for a mistrial at this time.

Court:       That will be denied.

State:       All I said is we can’t use that against her.

Court:       Okay. Go ahead.

State:       We are not using that against her. All we are going on is what
             the evidence does show.




                                     8
      Hernandez’s defense counsel agreed in his closing argument that the State had

proven the bundles contained marijuana. He also explained that the State was required

to prove Hernandez intentionally and knowingly possessed the marijuana.         Defense

counsel continued:

      Defense:       What do you take with you if you are going to traffic drugs?
                     What do you take with you? Your ten-year-old son? You
                     take a ten-year-old son to go drug trafficking? They asked
                     Agent Hanson, is she a U.S. citizen? Is she a U.S. citizen?
                     Because you know Mexicans are bringing drugs, they’re
                     bringing guns and some of them are good people, but they
                     are rapists. What does she have to lose? What does she
                     have to lose? She is a Mexican. She is not here legally.
                     She is probably doing drugs. They know all the drugs, the
                     dealers. Who does that? Who was a [sic] ten-year-old in
                     the car? He is a U.S. citizen. Who was he? That’s what
                     she had to lose. She has got other U.S. citizen children. Did
                     they tell you . . .

      State:         Objection, there is nothing about that in evidence.

      Defense:       It is not in the narrative.

      Court:         I’ll sustain.

      Defense:       It’s not in the narrative. They don’t want it in there. What
                     about her husband? What is somebody is applying for
                     citizenship?

      State:         Objection, this matter is not in evidence.

      Court:         Overruled.

      Defense:       It was in evidence.

                     ....

      Defense:       What happens if you get convicted and you’re trying to adjust
                     your status. You heard her say, well, I don’t know. What do
                     you mean you don’t know? You want her to get in the car,
                     people get in, you don’t even know her. You know what?

                                               9
                     She had to know there was marijuana because I know it’s
                     marijuana through my years of training and experience.

                     Well, what happens to somebody who gets convicted of this
                     kind of crime? Do they get ripped apart from their family? I
                     don’t know.

During the final part of closing, the State argued:

       State:        Counsel wants to talk about a narrative like it’s all the State’s
                     fault for bringing the agents to testify that this was marijuana,
                     and it was found out here on this road on April the 8th in a car
                     driven by the defendant.

                     But let me switch around a little bit, because this attorney is
                     trying to say this lady is a Mexican National and she is going
                     to lose her kids, loose [sic] her husband.

       Defense:      Your Honor, that was the evidence put on by the State. I
                     object to this line of closing.

       Court:        Overruled. Go ahead.

                     ....

       State:        You know, the State doesn't have to prove absolutely
                     everything, that they put their left foot in front of that right or
                     right foot in front of their left and so on. We don’t do that.
                     The State has to prove beyond a reasonable doubt the
                     elements. What are the elements? The date, where this
                     took place, in Cameron County, Texas, did they have care,
                     custody and control? Yes. And was it marijuana? Yes.

       Defense:      Your Honor, I’m objecting, the State has to [prove] intent and
                     knowledge as well, Judge.

       Court:        It will be overruled.

                     ....

       State:        Now, the law of parties comes in, because somebody is doing
                     something illegal, and I aided and assisted them. I am just
                     as guilty as they are of that which they are doing in a wrongful
                     way. Now, counsel brings up knowledge and intent. If you

                                             10
don’t have anything to argue in a criminal case, you argue
knowledge and intent. Well, how in the world does the State
ever prove knowledge and intent? By your actions. Your
actions speak louder than anything else.

Counsel wants you to believe that on this particular day, Ms.
Hernandez came down 281 and came along there because
her mechanic told her, and this is what he said in opening
remarks today, told her to take go out there and pick up some
people. Well, stop and think for a moment. We don’t know
that the people that the Border Patrol saw on the cameras are
the same people that were in this car. When Agent Hanson
stopped them, we don’t know, because he did not see that.
All we do know is Agent Hanson stopped this vehicle on the
west side of that canal, and in that vehicle were four adult
persons and they had marijuana. Much the same as law
enforcement would do at the mall here in Brownsville, the mall
in Harlingen, the mall in San Antonio, the mall in anyplace else
in the United States.

Now, if I am a person from some other country, I am not going
to violate any law of the country that I am in, in the hopes that
I can get some sort of citizenship. If this defendant is trying
to get citizenship, we don’t know that. But let me ask you
this, if every one of you were in Mexico and they stopped you
with 90 pounds of marijuana, what do you think they would do
to you? They would throw us in jail and we would sit there.
Now, I would probably be sitting there a whole lot longer than
some of you, but that’s the way life is. But I know that I would
be treated differently if I was in control of marijuana in Mexico
than what we treat Mexican Nationals in this country, and
that’s a matter of fact. We have what’s being paid good
money in this country to watch our borders. And if we just sat
back and say, you, okay, Border Patrol agent, you sit in your
car here at this corner, and you wait for somebody to come
by. Well, it’s going to be realized that they can just duck
around and go around that Border Patrol agent, and that
Border Patrol agent won't go to get him, we've wasted our
money.

....




                       11
                    We know for a fact that this vehicle was here on the west side
                    of the canal. We know for a fact there was marijuana in that
                    car. And we know for a fact that there were four individuals,
                    all of a [sic] whom were arrested for possession of marijuana.
                    This lady, regardless of what story there may be, whether she
                    is going by for a mechanic, or whether she is going by some
                    other means, is out there driving on a road to the river and
                    very suspiciously, that's where the individuals are being
                    located. It was her intent and knowledge go out there. It’s
                    her intent and knowledge to have everything that’s in her car,
                    much the same as I asked in voir dire yesterday morning, or
                    yesterday afternoon.

                    Are you in control of everything that goes in and out of your
                    car? Yes. I am in control. She is in control. She knew
                    what was going on. Don’t be fooled by her attorney's
                    remarks.

                    I ask you to find this lady guilty because she is guilty, and if
                    she was so worried and concerned about losing her kids
                    because of her status, she should have thought of that before.
                    And if you really care about your family, you wouldn’t be
                    breaking the law.

      The jury found Hernandez guilty. The trial court sentenced her to ten years’

imprisonment in the Texas Department of Criminal Justice–Institutional Division, probated

for ten years with no fine. Hernandez did not file a motion for new trial. This appeal

followed.

                              II.    MOTION TO SUPPRESS

      By her first issue, Hernandez alleges the trial court committed error by denying her

motion to suppress. Hernandez argues that the Border Patrol agents had nothing more

than a “mere hunch,” rather than reasonable suspicion to approach her vehicle.

A.    Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a bifurcated


                                           12
standard. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). At a motion

to suppress hearing, the trial judge is the sole trier of fact and judge of credibility of

witnesses and the weight to be given to their testimony. Id. at 190. Therefore, we give

almost total deference to the trial court’s determination of historical facts. Love v. State,

543 S.W.3d 835, 840 (Tex. Crim. App. 2016). However, we review de novo whether the

facts are sufficient to give rise to reasonable suspicion in a case. Lerma, 543 S.W.3d at

190. When the trial court does not make explicit findings of fact, as in the case before

us, we view the evidence in the light most favorable to the trial court’s ruling and assume

the trial court made implicit findings of fact supported by the record. Id. We will sustain

the ruling of the trial court if it correct under any applicable theory of law. Id.

B.     Applicable Law and Discussion

       Under the Fourth Amendment, a traffic stop must be supported by reasonable

suspicion of criminal activity. See U.S. CONST. amend. IV. In order to determine if

reasonable suspicion existed for the stop of the vehicle, the United States Supreme Court

has listed several factors to consider:

       1.     the characteristics of the area in which the officer encounters the
              vehicle;

       2.     the proximity to the border;

       3.     the usual patterns of traffic on the particular road;

       4.     officer’s previous experience in detecting illegal entry and smuggling;

       5.     information on recent illegal border crossings in the area;

       6.     the driver’s behavior, such as erratic driving or obvious attempts to
              evade officers;


                                              13
       7.       physical aspects of the vehicle and the vehicle’s load; or

       8.       an extraordinary number of passengers, their behavior, or persons
                trying to hide.

United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); Saenz v. State, 842 S.W.2d

286, 289 (Tex. Crim. App. 1992).

       During his testimony, Agent Hanson stated he had received information that

Border Patrol’s remote video surveillance cameras had detected individuals exiting the

canal. He additionally stated that Hernandez’s vehicle was the only one in the area and

there was hardly ever traffic on that road, especially at the time of night Agent Hanson

approached Hernandez. Testimony showed that Hernandez was stopped 700 feet from

the border canal between the United States and Mexico. Agent Hanson testified that he

had training and experience in detecting illegal entry and narcotics, and upon approaching

Hernandez’s vehicle, he was able to see bundles of narcotics in plain view through the

windows.

       Based on the testimony presented and the reasonable suspicion factors as set

forth in Brignoni-Ponce, the trial court could have found that Agent Hanson’s facts

amounted to more than a “mere hunch” and reasonable suspicion existed for the stop.

See 422 U.S. at 885; Lerma, 543 S.W.3d at 190. Therefore, we overrule Hernandez’s

first issue. See Lerma, 543 S.W.3d at 190.

                                 III.   IMMIGRATION STATUS

       By her second issue, Hernandez alleges the trial court committed reversible error

when it permitted evidence to be introduced regarding her status as an illegal immigrant

during trial.    By her third issue, Hernandez alleges the State’s closing argument

                                              14
warranted the reversal of her conviction.

A.     Admission of Evidence

       1.     Standard of Review

       We review a trial court’s ruling to admit or exclude evidence under an abuse of

discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

A trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement. Id. We may not substitute our own decision for that of the trial court.

Id.   In applying an abuse of discretion standard, we will not disturb the trial court’s

evidentiary ruling if it is correct under any applicable theory of law. De la Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Error in the admission of evidence is non-

constitutional error and is subject to a harm analysis under Rule 44.2(b) of the Texas

Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b); Taylor v. State, 286 S.W.3d

571, 592 (Tex. Crim. App. 2008). “We have construed this to mean that an error is only

reversible when it has a substantial and injurious effect or influence in determining the

jury’s verdict.” Taylor, 286 S.W.3d at 592. “We should not overturn the conviction if we

have fair assurance from an examination of the record as a whole that the error did not

influence the jury, or had but a slight effect.” Id.

       2.     Applicable Law and Discussion

       Relevant evidence is generally admissible; irrelevant evidence is not. Gonzalez,

544 S.W.3d at 370; see TEX. R. EVID. 402. Relevant evidence is evidence which has any

tendency to make the existence of any fact of consequence more or less probable than it

would be without the evidence. Gonzalez, 544 S.W.3d at 370; see TEX. R. EVID. 401.


                                              15
Evidence does not need to prove or disprove a particular fact by itself to be relevant; it is

sufficient if the evidence provides a small nudge toward proving or disproving a fact of

consequence. Gonzalez, 544 S.W.3d at 370.

       Texas courts have long held that the national origin or race of the defendant is an

inappropriate focal point for argument by the prosecution. Riascos v. State, 792 S.W.2d

754, 758 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d).          The State argues that

Hernandez’s immigration status became an issue in this case due to questions of Agent

Hanson regarding his training to investigate illegal narcotics and immigration. The State

argues Hernandez’s immigration status became relevant to understand why Agent

Hanson went to investigate her vehicle.

       Hernandez, however, objected to the relevance of the State asking if people in the

vehicle were citizens, and the trial court overruled that objection. The State continued

on that same line of questioning, asking specifically if Hernandez was a U.S. citizen. If

the State was trying to show why Agent Hanson went to investigate Hernandez’s vehicle

after getting a report of “bodies” exiting the canal, then it was sufficient to show that some

of the individuals in the vehicle were illegal immigrants. However, the State continued

questioning both Agent Hanson and later, Agent Caballero regarding Hernandez’s

specific immigration status. Hernandez’s immigration status was not relevant to the

crime she was on trial for, possession of marijuana. See Gonzalez, 544 S.W.3d at 370.

Therefore, we find the trial court erred in allowing the admission of Hernandez’s

immigration status over the relevancy objection.




                                             16
       After finding error, we must determine if the error affected Hernandez’s substantial

rights considering: (1) the character of the alleged error and how it might be considered

in connection with other evidence; (2) the nature of the evidence supporting the verdict;

(3) the existence and degree of additional evidence indicating guilt; and (4) whether the

State emphasized the error. Gonzalez, 544 S.W.3d at 373; see Gutierrez v. State,

___S.W.3d___, No. 14-18-00201-CR, 2019 WL 3945893, *11 (Tex. App.—Houston [14th

Dist.] Aug. 20, 2019, no pet. h.). We consider everything in the record and may consider

the jury instructions, the parties’ theories of the case, and the closing arguments. Motilla

v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). Generally, error is harmless if

very similar evidence is admitted without objection. Gutierrez, 2019 WL 3945893 at *11;

see Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010); see also Leday

v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (“It is well established that the

improper admission of evidence does not constitute reversible error if the same facts are

shown by other evidence which is not challenged.” (quotation omitted)). The Texas

Court of Criminal Appeals has held that an appellant can waive an earlier preserved

objection,

       the rule that a later statement of ‘no objection’ will forfeit earlier-preserved
       error is context-dependent. By that we mean that an appellate court should
       not focus exclusively on the statement itself, in isolation, but should consider
       in the context of the entirety of the record. If the record as a whole plainly
       demonstrates that the defendant did not intend, nor did the trial court
       construe, his ‘no objection’ statement to constitute an abandonment of a
       claim of error that he had earlier preserved for appeal, then the appellate
       court should not regard the claim as ‘waived,’ but should resolve it on its
       merits.

Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013).


                                             17
      Although we find the trial court committed error by allowing the State to introduce

Hernandez’s immigration status into the trial, it was Hernandez’s questioning that led to

an extended highlighting of her illegal immigration status. The State did elicit testimony

from both Agents Hanson and Caballero that Hernandez was not a U.S. citizen.

However, Hernandez’s counsel then asked Agent Caballero who in the vehicle was a

U.S. citizen; if Hernandez had other U.S. citizen children; if Hernandez was married to a

U.S. citizen; if Hernandez was in proceedings to obtain legal status in the U.S.; if drug

trafficking would affect paperwork for immigration; if a conviction could be a deportable

offense; and if she would be separated or deported with her children. Additionally, in

closing arguments, Hernandez’s counsel again brought up Hernandez’s immigration

status extensively, speaking about the information he introduced through his questions of

Agent Caballero, as well as information that was not introduced through any witnesses.

After defense counsel’s closing, the State referenced that Hernandez was an illegal

immigrant who brought her son to pick up narcotics with her; stated in a hypothetical that

people would be treated differently if this offense had occurred in Mexico; and how

Hernandez’s actions placed her in her current situation.

      Hernandez’s counsel’s actions rendered the trial court’s error harmless. Although

Hernandez properly objected to the State’s initial introduction of evidence regarding her

immigration status, Hernandez’s counsel continued to make her status the focus of his

cross-examination with Agent Caballero and the focus of his closing arguments.

Moreover, the State presented substantial evidence to prove the elements of possession

of marijuana. See Gonzalez, 544 S.W.3d at 373; see also Gutierrez, 2019 WL 3945893


                                           18
at * 11. There was little question that Hernandez was in control of the vehicle in which

Agent Hanson first viewed the marijuana bundles. See Gonzalez, 544 S.W.3d at 373.

Although the State addressed Hernandez’s immigration status briefly during its

examination of Agents Hanson and Caballero and in its closing, the main emphasis on

Hernandez’s immigration status came from her counsel. See id.

       The State presented overwhelming evidence that Hernandez’s vehicle, which she

was driving, contained bundles of marijuana in plain view as the agents first approached

her. Agents testified that they received an alert from their remote cameras showing

people exiting the canal, Hernandez’s vehicle was the lone vehicle in the same general

area, and Agent Hanson explained that the area where Hernandez was located is known

for issues with illegal narcotics and immigration trafficking. Therefore, in evaluating if the

admission of evidence of Hernandez’s immigration status violated her fundamental rights,

we hold that the error in the admission did not have a “substantial and injurious effect” or

influence on the jury’s verdict. See Taylor, 286 S.W.3d at 592; see also TEX. R. APP. P.

44.2(b). Although it was error to allow the admission of Hernandez’s immigration status

into evidence, because Hernandez was the party who placed repeated emphasis on it,

there was no harm. We overrule Hernandez’s second issue.

B.     Closing Arguments

       By her third issue, Hernandez argues that the State’s closing argument improperly

commented on Hernandez’s failure to testify, attempted to negate elements of the

offense, and stated that the jurors would be treated differently if they had been arrested

in Mexico for the same offense as Hernandez.


                                             19
       1.     Standard of Review and Applicable Law

       The purpose of closing argument is to facilitate the jury in properly analyzing the

evidence presented at trial so that it “may arrive at a just and reasonable conclusion based

on the evidence alone, and not on any fact not admitted in evidence.” Milton v. State,

572 S.W.3d 234, 239 (Tex. Crim. App. 2019) (quoting Campbell v. State, 610 S.W.2d

754, 756 (Tex. Crim. App. [Panel Op.] 1980)). It should not “arouse the passion or

prejudice of the jury by matters not properly before them.” Campbell, 610 S.W.2d at 756.

Proper jury argument generally falls within one of four areas: (1) summation of the

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

opposing counsel; and (4) plea for law enforcement. Milton, 572 S.W.3d at 239.

       The court of criminal appeals has stated that “arguments that go beyond these

areas too often place before the jury unsworn, and most times believable, testimony of

the attorney.”    Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

However, even when an argument exceeds the permissible bounds of these approved

areas, such will not constitute reversible error unless, in light of the record as a whole, the

argument was extreme or manifestly improper, violative of a mandatory statute, or

injected new facts harmful to the defendant into the trial. Wesbrook v. State, 29 S.W.3d

103, 115 (Tex. Crim. App. 2000); see Molina v. State, ___ S.W.3d ___, No. 01-18-00317-

CR, 2019 WL 4065508, *7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019, no pet. h.).

The remarks must have been a willful and calculated effort on the part of the State to

deprive appellant of a fair and impartial trial. Wesbrook, 29 S.W.3d at 103.




                                              20
      The focus has always been upon encouraging the jury to decide the case on the

evidence in front of it rather than encouraging juries to reach a decision based upon

information outside the record. Milton, 572 S.W.3d at 240. This is because improper

references to information outside the record are generally designed to arouse the passion

and prejudice of the jury, and, as such, are inappropriate. Id.; see Borjan v. State, 787

S.W.2d 53, 57 (Tex. Crim. App. 1990).           Generally, the bounds of proper closing

argument are left to the sound discretion of the trial court. Milton, 572 S.W.3d at 240;

see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010).



      2.       Discussion

      a.       Elements of the Offense

      Hernandez complains of three different statements made during the State’s closing

argument. Her first point is that the State improperly argued to the jury that it was not

required to prove every element of the offense. The complained of argument stated:

       State:        You know, the State doesn't have to prove absolutely
                     everything, that they put their left foot in front of that right or
                     right foot in front of their left and so on. We don't do that.
                     The State has to prove beyond a reasonable doubt the
                     elements. What are the elements? The date, where this
                     took place, in Cameron County, Texas, did they have care,
                     custody and control? Yes. And was it marijuana? Yes.

      Defense:       Your Honor, I’m objecting, the State has to [prove] intent and
                     knowledge as well, Judge.

      Court:         It will be overruled.




                                             21
           Although the State did not specifically mention “intent” and “knowledge” in this

particular part of its argument, it did properly characterize that the State was required to

prove the elements beyond a reasonable doubt. Later in closing, the State argued:

           Now, counsel brings up knowledge and intent. If you don't have anything
           to argue in a criminal case, you argue knowledge and intent. Well, how in
           the world does the State ever prove knowledge and intent? By your
           actions. Your actions speak louder than anything else.

The jury charge contains the elements the State is required to prove in order to convict

Hernandez of possession of marijuana.               The argument fell within the confines of

permissible jury argument. See Milton, 572 S.W.3d at 239. The trial court properly

overruled Hernandez’s objection to this part of the closing argument.

           b.       Failure to Testify

           Next, Hernandez argues that the State improperly commented on her failure to

testify.        During its closing, the State argued:

           State:          We do know that everyone in that car at that time that Agent
                           Hanson brought that Car to a stop were in control and in
                           possession of the marijuana. Think about that. It’s against
                           our law in the State of Texas to be in possession of marijuana.
                           That’s our law. Whether we like it or not, the Legislature has
                           put it that way, and it’s not changing. An individual who has
                           possession of 90 pounds of marijuana, that’s a lot of
                           marijuana. How she got it or where she got it or whatever,
                           we don’t know. The defendant did not testify and we cannot
                           use that against her.

           Defense:        Objection, Judge, he is talking about the fact that she didn’t
                           testify in his closing.

           Court:          I’ll sustain.

           Defense:        Your Honor, I move for a mistrial at this time.

           Court:          That will be denied.

                                                  22
      State:        All I said is we can’t use that against her.

      Court:        Okay. Go ahead.

      State:        We are not using that against her. All we are going on is what
                    the evidence does show.

      A comment on a defendant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891

(Tex. Crim. App. 2011). The defendant has a separate Fifth Amendment privilege not to

testify at either the guilt or punishment phases of trial. Id. In assessing whether the

defendant’s Fifth Amendment right has been violated, courts must view the State’s

argument from the jury’s standpoint and resolve any ambiguities in the language in favor

of it being a permissible argument. Id. Thus, the implication that the State referred to

the defendant’s failure to testify must be a clear and necessary one. Id. The test is

whether the language used was manifestly intended or was of such a character that the

jury would necessarily and naturally take it as a comment on the defendant’s failure to

testify. Id. In applying this standard, the context in which the comment was made must

be analyzed to determine whether the language used was of such character.                Id.

Comments about a defendant’s failure to testify can be permissible if they are a “fair

response” to the defendant’s claims or assertions.        Id. at 892.   Additionally, if the

evidence in the record supports the prosecutor’s remarks, there is no error. Id. at 893.

      In opening statements, defense counsel had told the jury that Hernandez had

received a call from a friend, who asked her to go pick someone up, that “this is her

mechanic calling her and telling her, somebody needs a ride” to explain why Hernandez


                                            23
was out near the river. However, evidence that her mechanic asked her to go pick up a

friend was only brought before the jury in defense counsel’s opening and closing

arguments, not through the testimony of any witness. The State stated that the jury could

not hold Hernandez’s failure to testify against her, even though there may have been facts

they wanted to know that were missing. Although the State did make a comment on

Hernandez’s failure to testify, it was in response to defense counsel’s claims made during

argument, and there was evidence in the record to support the State’s remarks. See id.

at 892–93. Therefore, the State’s comment was not error.

      c.     State’s Final Argument

      The final argument Hernandez complains of was made by the State as it concluded

its closing argument. The State spoke about Hernandez being a “Mexican national” and

facing the possibility of losing her children and husband, to which Hernandez objected.

However, it was Hernandez’s counsel who introduced the evidence during his cross-

examination of Agent Caballero. Hernandez’s counsel repeatedly questioned the agent

about what would happen to Hernandez and her family in certain situations. The State

also referenced in a hypothetical scenario what would happen if the jurors or it would be

facing similar charges in a country such as Mexico and how the procedures would be

different. Hernandez did not object to the hypothetical scenario introduced.

      A harm analysis is only employed when there is error, and ordinarily, error occurs

only when the trial court makes a mistake. Hawkins v. State, 135 S.W.3d 72, 76 (Tex.

Crim. App. 2004). Hernandez’s objection was to a misstatement of the evidence, stating

that the State introduced questions regarding her husband children.        However, our


                                           24
review of the record shows that Hernandez was the party who asked how this type of

offense would affect Hernandez and her family; therefore, Hernandez’s objection that this

“evidence was put on by the State” is incorrect. The trial court properly overruled the

objection to the State’s argument. Additionally, Hernandez never objected to the State’s

hypothetical scenario in Mexico argument. Therefore, no error was preserved for this

Court to analyze. See TEX. R. APP. P. 33.1. We overrule Hernandez’s third issue.

                                   IV.    CONCLUSION

       We affirm the trial court’s judgment.



                                                             GINA M. BENAVIDES,
                                                             Justice

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

Delivered and filed the
31st day of October, 2019.




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