                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00201-CR

LOUIS GERARDO NIEVES                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                            STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Louis Gerardo Nieves, who was charged with intoxication

manslaughter, pled guilty to a jury that assessed his punishment at twenty years’

confinement. Although Appellant stood mute as to the deadly weapon allegation,

the jury found that he did, indeed, use a deadly weapon in the commission of the

offense. The trial court sentenced him in accordance with the jury verdict.


      1
       See Tex. R. App. P. 47.4.
      In two issues, Appellant contends that (1) the trial court abused its

discretion by admitting evidence at punishment without proper authentication in

violation of the Confrontation Clause and (2) the trial court erred by allowing, over

objection, the prosecutor’s improper jury argument injecting facts not proven at

trial. Because we hold that the trial court did not reversibly err, we affirm the trial

court’s judgment.

Summary of the Facts

      On the night in question, Appellant, who worked at a local Mexican

restaurant, had celebrated a friend’s birthday at a downtown club in Fort Worth.

In the early morning hours, he had left the club and was headed eastbound in the

westbound lanes of the I-30 freeway. Alejandro Raya, driving a tanker truck

carrying 7,780 gallons of gasoline, was headed westbound in the westbound

lanes of the same freeway.        Appellant’s vehicle collided with Raya’s truck,

causing an explosion and fire that burned so intensely that it compromised the

structural integrity of the bridge where the collision occurred. A witness stated

that it appeared that “[t]he entire freeway was on fire.” Flames rose 200 to 300

feet above the freeway.       The investigator for the medical examiner’s office

reported that the fire was so hot and had burned so intensely that large portions

of Raya’s truck had melted into pools of metal. Raya was killed by the fire, and

his body was so badly destroyed that his identity had to be determined by DNA

testing.




                                          2
      Appellant’s blood-alcohol concentration (BAC) was between .16 and .23

when tested after the collision.     Extrapolation suggested that his BAC was

between .19 and .24 at the time of the collision. A coworker who had been at the

birthday party with Appellant corroborated his extreme intoxication and testified

that he had prevented Appellant from taking another friend with him to an

afterparty. Although Appellant admitted his guilt by pleading guilty at trial, an

eyewitness to the collision testified that, immediately after the wreck, Appellant

had claimed that his uncle had been driving.

      The State offered evidence of Appellant’s criminal history, which included

three federal immigration offenses and a poor driving record from Washington

State. The jury also viewed an in-car video lasting five and a half minutes that

depicted the fire caused by the collision.

Social Security Number

      In his first issue, Appellant argues that the trial court abused its discretion

by admitting evidence without proper authentication, violating the Confrontation

Clause. Specifically, he contends that the trial court abused its discretion by

admitting evidence that he had used someone else’s social security number on

an employment application because the State failed to show that he, rather than

the employer or another person, actually provided the number and because the

admission of the extraneous act violated his Sixth Amendment right to confront

his accuser.




                                         3
      A special agent with the Social Security Administration Office of the

Inspector General testified that Appellant had used the social security number of

another person when applying for employment at a Mi Cocina restaurant a few

weeks before the collision.    The special agent relied on an application for

employment form provided by the restaurant. The State filed its notice of intent

to offer the business record before trial. At trial, the document in question was

offered as a business record and relied on by the special agent.              The

employment application before us contains no social security number because it

has been redacted. The handwriting on the application is markedly different from

the handwriting on the W-4 form.       Nothing suggests that the employment

application was prepared for purposes of trial or even after the commission of the

offense, and Appellant likewise raises no such challenge.

      In Burch v. State, 2 the Texas Court of Criminal Appeals held that the lab

report identifying the substance seized as cocaine and providing the quantity

seized was testimonial and that its admission absent the testimony of the analyst

who prepared it violated Burch’s rights under the Confrontation Clause. 3 In that

opinion, however, the Texas Court of Criminal Appeals distinguished Williams v.

Illinois, a case in which a majority of the United States Supreme Court upheld the

admission of testimony by a prosecution witness that the defendant’s DNA profile

      2
       401 S.W.3d 634 (Tex. Crim. App. 2013).
      3
       Id. at 637–38, 640.



                                        4
came from semen within the complainant, even though that witness had gleaned

that information solely from reading an independent lab report. 4 The Texas Court

of Criminal Appeals explained:

             Justice Alito delivered the judgment of the court and an
      opinion that garnered four votes. In the view of the plurality, the
      petitioner’s rights were not violated because the out-of-court
      statement (that the DNA profile came from semen within the victim)
      was not offered to prove the truth of the matter asserted. Instead, it
      was merely alluded to in order to explain the basis of the witness’s
      independent conclusions (that the profile matched the petitioner’s
      DNA). Alternatively, as a second and independent basis for the
      decision, Justice Alito stated that the report was not testimonial
      because it was created before there was a specific suspect.
      Consequently, it was not inherently inculpatory or created for use
      against the petitioner. 5

      Here, the application for employment was not offered for the truth of the

matter asserted, nor was it prepared as an accusation against Appellant. We

therefore hold that the application for employment was not testimonial and not

hearsay; its admission was therefore not a violation of the right of confrontation.

      Appellant also argues that the trial court abused its discretion when it

admitted evidence that he had used the social security number of another

because the State did not prove beyond a reasonable doubt that Appellant

committed the extraneous offense. He bases his argument on the fact that no

one who testified saw him fill out the form purporting to contain the social security


      4
       Williams v. Illinois, 132 S. Ct. 2221, 2227–28 (2012).
      5
       Burch, 401 S.W.3d at 638–39 (citations omitted).



                                         5
number or interviewed anyone who saw Appellant fill out the form. Nor did the

special agent for the Social Security Administration who testified regarding the

unlawful use of another’s social security number verify Appellant’s signature.

      Appellant’s signature was on other documents available for comparison.

Additionally, although it is clear from comparing the handwriting that someone

other than Appellant filled out the form in question, Appellant is the person who

worked under that social security number. While providing the number may be

one manner of using the number, it is not the only manner. Appellant held his job

under that number and received payment for his work under that number, and

that number is reflected on his W-4 form. The evidence is sufficient to show that

Appellant used that number. 6

      Additionally, although Appellant discusses the requirement that the trial

court instruct the jury that they are not to consider extraneous acts of misconduct

unless they find the evidence of the extraneous acts to have been proved beyond

a reasonable doubt, Appellant does not point to any specific failure of the trial

court to provide such instruction. He argues only that the State failed to provide

sufficient evidence to prove the extraneous acts beyond a reasonable doubt. We

hold the evidence sufficient to support a rational trier of fact’s determination


      6
       See, e.g., United States v. Buchanan, No. 11-20918, 506 Fed. App’x 314,
315 (5th Cir. Jan. 8, 2013) (not designated for publication in federal reporter);
U.S. v. Oliver, 630 F.3d 397, 415–16 (5th Cir.), cert. denied, 132 S. Ct. 758
(2011).



                                        6
beyond a reasonable doubt that Appellant used another’s social security number.

The trial court therefore did not abuse its discretion by admitting the evidence.

We overrule Appellant’s first issue.

Jury Argument

      In his second issue, Appellant complains about the State’s improper

argument at punishment. To be permissible, the State’s jury argument must fall

within one of the following four general areas: (1) summation of the evidence;

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

counsel; or (4) plea for law enforcement. 7

      If a jury argument exceeds the bounds of proper argument, a trial court’s

erroneous overruling of a defendant’s objection is not reversible error unless it

affected the appellant’s substantial rights. 8    In determining whether the

appellant’s substantial rights were affected, we consider (1) the severity of the

misconduct (that is, the prejudicial effect of the prosecutor’s remarks);

(2) curative measures; and (3) the certainty of the punishment assessed absent

the misconduct. 9

      7
       Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert.
denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.
Crim. App. 1973).
      8
       Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.
Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      9
       Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259.



                                         7
      Appellant argues that, in the State’s closing argument, the prosecutor

improperly stated to the jury, “And I know you’re not going to consider probation

because I know you know that based on the evidence you’ve heard, that he’s

illegally in this country, and he will be deported. He will never serve a day on that

probation.”

      On appeal, Appellant does not point to any specific objections he made to

that argument; he merely disputes the accuracy of the argument. At trial, the

objection was that the prosecutor was asking the jury to disregard the court’s

instructions.   The prosecutor’s closing argument continued with no further

objection until Appellant finally objected that the argument was outside the

record. At that point, the prosecutor was instructed to rephrase his argument.

      Appellant also argues in this issue that the prosecutor falsely claimed that

Appellant had lied about being born in this country. Rather than pointing to a

specific objection, Appellant merely disputes the truthfulness of this argument.

      When the prosecutor argued, “You know, unfortunately, for [defense

counsel at trial], the proof that [Appellant] lied is the fact that we have two

documents that his name is on that he swore to,” Appellant objected that the

prosecutor was misstating the evidence and that there was no evidence that any

document was ever sworn to. The trial court overruled his objection. While this

was probably technically error, in that the employment application was not a

verified document, the evidence was before the jury. They had the opportunity to

take the documents into the jury room and to see for themselves that the


                                         8
prosecutor had misstated the record. We therefore hold that this error did not

affect Appellant’s substantial rights, and we overrule his second issue.

      We note with concern that the State’s punishment evidence and argument

dwelt to a large extent on Appellant’s being from Mexico and in this country

illegally. The prosecutor’s argument included the following:

      And there’s no doubt he lied on those documents. So it has to make
      you wonder. What is it that he thought about our state that made
      him start his lies when he got here? Because when he answered
      questions—when he got his license, he told the truth. What does
      that tell us about his attitude about the way things work in Texas?

The prosecutor discussed the impact of the complainant’s death on his family,

the facts of the offense, and Appellant’s conduct in lying about who was driving

and his irresponsible conduct that night. Then the prosecutor argued,

      And that is why he deserves the maximum punishment so that no
      one else from Washington, Vancouver, Idaho, wherever else they’re
      traveling from, will have any doubts about what is the wrong place to
      come to a community, engage in this conduct, lie about your
      responsibility, lie about whether you were born in this country,
      destroy a family, destroy a bridge—

      Our sister court in Houston has addressed referencing a defendant’s

nationality in jury argument. The prosecutor in that case argued, “I am going to

ask you to find this man guilty of three counts of aggravated sexual assault of a

child because he did this to these children. It wasn’t right, and in this country we

don’t allow foreigners to rape little girls.” 10 The appellate court held that the


      10
         Zakkizadeh v. State, 920 S.W.2d 337, 340 (Tex. App.—Houston [1st
Dist.] 1995, no pet.).


                                         9
objection,—“improper      argument”—was      sufficient   to   preserve   Appellant’s

complaint and held the argument was improper, albeit harmless. 11

Conclusion

      While we are greatly disturbed by the tenor of the State’s punishment

evidence and the jury argument, we are constrained to hold that the trial court did

not reversibly err by allowing the arguments actually complained of or by

admitting the evidence complained of. Having overruled Appellant’s two issues,

we must therefore affirm the trial court’s judgment.


                                             /s/ Lee Ann Dauphinot
                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 12, 2014




      11
        Id. at 340–41.



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