                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                  ________________________

                                      No. 07-17-00192-CR
                                  ________________________

                                  LATHER LEWIS, APPELLANT

                                                   V.

                                  STATE OF TEXAS, APPELLEE



                            On Appeal from the 364th District Court
                                    Lubbock County, Texas
           Trial Court No. 2017-411,783; Honorable William R. Eichman II, Presiding


                                            August 22, 2018

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


        Appellant, Lather Lewis, appeals his conviction for the offense of aggravated

assault.1 By two issues, he maintains (1) the State failed to prove beyond a reasonable

doubt that he committed the offense and (2) the trial court erred when it denied his motion

        1 TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). As indicted, the offense is a second degree

felony punishable by confinement of not more than twenty years or less than two years and by a fine not to
exceed $10,000. § 12.33(a).
for a mistrial following the State’s alleged improper comment on his right to not testify.

We affirm the judgment of the trial court.


       BACKGROUND

       On April 24, 2015, Richard Segura and Antonio Gonzales were assaulted when

they left a Lubbock night club known as the Hitching Post. Prior to the assault, both men

had been drinking heavily and it was shown that Gonzales’s blood alcohol content was

over four times the legal limit. As Segura and Gonzales proceeded to Segura’s vehicle,

an altercation broke out between them and a group of men standing in the parking lot.

Both men were able to enter Segura’s vehicle and shut the doors before they realized

that Segura had dropped his key during the altercation. When Segura exited his vehicle

to retrieve his key, he was assaulted by a slim black male wearing a white t-shirt and

identified at trial as Appellant. Gonzales also exited the vehicle and he too was assaulted.

When Segura was able to get to the other side of his vehicle he found Gonzales lying on

the ground unresponsive. During the assault, Segura suffered a broken cheekbone and

Gonzales sustained a severe head injury. Gonzales was taken to the hospital where he

died approximately a week later.


       At trial, Stevie Manahan, the owner of the Hitching Post, identified Glen Hooper

and Appellant as being the persons involved in the melee with Segura and Gonzales.

Although no one could say for certain who it was that assaulted Gonzales, Manahan

testified that he overheard Appellant saying “outlaw, one hitter quitter,” which he

interpreted as “bragging” about knocking Gonzales out. As to the reference “outlaw,”

Manahan identified Appellant as being a member of a horse riding group calling itself the

“outlaws.” Another witness testified that, after the altercation, Appellant came back into

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the bar and was bragging, “I just got me one outside . . . a Spanish guy, old Spanish guy,”

while still another witness attributed Appellant as bragging, “this is how we knock them

out.”


         Appellant, a slim black male, was later apprehended wearing a blood-spattered t-

shirt and tennis shoes. DNA testing identified the blood on Appellant’s t-shirt as matching

Segura’s DNA profile. In a statement given to the police, Appellant admitted to being at

the Hitching Post during the altercation, but he denied any involvement in the altercation,

explaining that he was only trying to help the two Hispanic males find their keys.

Photographs of Appellant’s hands taken by the police showed no signs of his having been

involved in a fight.


         Appellant did not testify; however, he did offer the testimony of two witnesses. One

witness testified that Manahan had once told her that Hooper killed a man at the Hitching

Post and that an innocent man was in jail. Later cross-examination, however, indicated

that the witness believed Manahan was talking about a shooting incident at the club and

not the altercation that occurred on April 24, 2015. The other witness merely testified that

she was at the Hitching Post the night of the altercation, that Appellant was there, and

that she did not see the fight.


         In his closing arguments, Appellant’s counsel argued that he did not have the

requisite intent to cause serious bodily injury to Gonzales and he further contended that

the result—Gonzales’s death—should not be considered as conclusive evidence of his

intent. In response, the State argued that “[Appellant] wishes Mr. Gonzales hadn’t died .

. . .”   Appellant’s counsel immediately objected to the prosecutor’s statement as a


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comment on Appellant’s failure to testify. The trial court sustained the objection and

instructed the jury to disregard the prosecutor’s comments. Appellant’s subsequent

request for a mistrial was denied.


       The Court’s Charge to the jury included a “law of parties” instruction. Following its

deliberations, the jury returned a verdict of “guilty.” Appellant elected to have the court

assess his punishment and, during the punishment phase, he plead “Not True” to the

State’s enhancement allegation. The trial court found the enhancement allegation to be

true and assessed his punishment at fifty years confinement in the Institutional Division

of the Texas Department of Criminal Justice. Appellant gave timely notice of appeal.


       AGGRAVATED ASSAULT

       A person commits the offense of aggravated assault “if the person commits assault

as defined in Section 22.01 [of the Texas Penal Code] and the person . . . causes serious

bodily injury to another.” TEXAS PENAL CODE ANN. § 22.01(a)(1) (West 2011). An “assault”

is committed “if the person . . . intentionally, knowingly, or recklessly causes bodily injury

to another.” Id. Serious bodily injury is defined as “bodily injury that creates a substantial

risk of death or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” § 1.07(a)(46).


       LAW OF PARTIES

       Under the law of parties, “[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.” § 7.01(a) (West 2011); Adames v. State,

353 S.W.3d 854, 862 (Tex. Crim. App. 2011). A person is criminally responsible for an


                                              4
offense committed by the conduct of another if “acting with the 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.” § 7.02(a)(2) (West 2011); Adames, 353 S.W.3d

at 862. Mere presence alone will not constitute one a party to an offense and it is

insufficient to support a conviction as a party to the offense. Gross v. State, 380 S.W.3d

181, 186 (Tex. Crim. App. 2012).


       STANDARD OF REVIEW

       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to

support a conviction, a reviewing court considers all the evidence in the light most

favorable to the verdict and determines whether, based on that evidence and reasonable

inferences to be drawn therefrom, a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616,

622 (Tex. Crim. App. 2017).


       Here, as to guilt or innocence, the jury was the sole judge of the credibility of the

witnesses and the weight to be given to their testimonies, and as a reviewing court, we

must defer to those determinations and not usurp its role by substituting our judgment for

that of the jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.

2012)). The duty of a reviewing court is simply to ensure that the evidence presented

supports the fact finder’s verdict and that the State has presented a legally sufficient case

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of the offense charged. Id. When a reviewing court is faced with a record supporting

contradicting conclusions, the court must presume the fact finder resolved any such

conflicts in favor of the verdict, even when not explicitly stated in the record. Id. “Under

this standard, evidence may be legally insufficient when the record contains no evidence

of an essential element, merely a modicum of evidence of one element, or if it conclusively

establishes a reasonable doubt.” Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex.

Crim. App. 2013)).


       The sufficiency standard set forth in Jackson is measured against a hypothetically

correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Such a charge is one that accurately sets forth the law, is authorized by the indictment,

does not unnecessarily increase the State's burden of proof or unnecessarily restrict the

State's theories of liability, and adequately describes the particular offense for which the

defendant was tried. Id.


       ISSUE ONE

       To establish Appellant’s guilt, the State was required to prove beyond a reasonable

doubt that (1) Appellant, (2) intentionally, knowingly, or recklessly, (3) caused serious

bodily injury, (4) to Antonio Gonzales. Furthermore, under the law of parties, the evidence

would be sufficient if the State were able to prove, again beyond a reasonable doubt, that,

acting with the intent to promote or assist Glen Hooper in the commission of the offense

of aggravated assault, he solicited, encouraged, aided, or attempted to aid Hooper in the

commission of that offense. We will first analyze whether the evidence was sufficient to

establish Appellant’s guilt under the law of parties. If the evidence is sufficient to establish



                                               6
Appellant’s guilt under that theory, it becomes unnecessary for us to analyze whether he

would also be guilty as the primary actor.


       As to the four elements listed above, the only element Appellant challenges is the

question of whether he, or a person for whom he was criminally responsible, was the

person responsible for Gonzales’s injuries. In that regard, the testimony established that

he was present at the scene of the assault and he was sufficiently close to the action to

have Segura’s blood on his clothing. Evidence also established that he was either aiding

or being aided by Glen Hooper in the commission of that assault and the statements

attributed to Appellant, “outlaw, one hitter quitter,” and “I just got me one outside . . . a

Spanish guy, old Spanish guy,” can be considered as circumstantial evidence of his

personal involvement in the blows that felled Gonzales. Considering this evidence in the

light most favorable to the verdict and based on that evidence and reasonable inferences

to be drawn therefrom, we find a rational trier of fact could have found the essential

elements of the offense of aggravated assault beyond a reasonable doubt. Issue one is

overruled.


       ISSUE TWO

       By his second issue, Appellant contends the trial court erred when it denied his

motion for a mistrial following the State’s alleged improper comment on his right to not

testify. Reflecting on Gonzales’s death as an unfortunate result of a bar fight—defense

counsel argued that Appellant did not have the requisite intent to cause serious bodily

injury. In response, the State postulated, “[Appellant] wishes Mr. Gonzales hadn’t died .

. . .” (Emphasis added.) Appellant’s counsel immediately objected to the prosecutor’s



                                             7
statement as a comment on Appellant’s failure to testify. The trial court sustained the

objection and instructed the jury to disregard the prosecutor’s comments. It also denied

Appellant’s subsequent request for a mistrial.


       A mistrial is an extreme remedy that is reserved for a very narrow classification of

circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284

S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004)). A mistrial is used to halt proceedings when the error involved

makes the expenditure of further time and expense wasteful and futile. Id. (citing Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). The decision to grant a mistrial is

governed by the particular facts of the case. Id. We review a trial court’s decision to deny

a motion for mistrial for an abuse of discretion. Id. The denial of the motion for mistrial

must be upheld if, when viewing the evidence in the light most favorable to the denial, it

was within the zone of reasonable disagreement. See id.


       Ordinarily, a prompt instruction to disregard will cure any prejudice arising from an

inadvertent statement. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000);

Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). In determining whether an

offending statement is “highly prejudicial and incurable,” reviewing courts have applied

the three-factor balancing test articulated in Mosley v. State, 983 S.W.2d 249, 259 (Tex.

1998). In their analysis, courts have looked at: (1) the severity of the misconduct (i.e., the

magnitude of the prejudicial effect of the prosecutor’s remark); (2) the curative measures

taken (the efficacy of any cautionary instruction by the trial judge); and (3) the certainty of

conviction absent the misconduct (the strength of the evidence supporting the conviction).



                                              8
       Here, the prosecutor’s brief statement was not uninvited, as defense counsel had

already made argument regarding Appellant’s intent with respect to the nature of the

injuries sustained. Furthermore, because someone’s state of mind subsequent to an

offense is irrelevant to his subjective intent at the time the offense was committed, it

cannot be said with any degree of certainty that the prosecutor’s misstatement even

prejudiced him. Also, the trial court took immediate action in admonishing the jury to

disregard the prosecutor’s statement. That instruction was clear and specific and we can

presume the jury followed that instruction. Finally, the ultimate fact contained in the

statement (Gonzales’s death) was not fact determinative of the offense. The evidence

clearly and sufficiently established that the victim had sustained a serious bodily injury.

Under these facts, we cannot say that the prosecutor’s statement was highly prejudicial

and incurable. Accordingly, the trial court did not err in denying Appellant’s motion for

mistrial. Issue two is overruled.


       CONCLUSION

       The judgment of the trial court is affirmed.



                                                        Patrick A. Pirtle
                                                             Justice

Do not publish.




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