Allen Eduardo Monroy-Pena v. The State of Texas

Houston, TX - Criminal defense attorney represented Allen Eduardo Monroy-Pena with a Murder charge.

In July 2014, the appellant and his girlfriend, Fabiola Martinez ("Martinez”),

lived with appellant's mother, Blanca Pena ("complainant”), and her husband Jose2

Reyes-Lazo ("Reyes-Lazo”)

1

in a house in Houston, Texas. On the afternoon of

July 25, 2014, Reyes-Lazo drove to an out-of-town job in El Campo, Texas. The

same afternoon, appellant made plans with his friend, Jose Hernandez

("Hernandez”), to go out to a bar later that night. Around 8:00 p.m., appellant

drove Fabiola to the bar where she worked and then picked up Hernandez in a

silver Toyota Celica that Fabiola owned, but appellant frequently drove. Appellant

and Hernandez returned to appellant's house, and Hernandez met the complainant,

who was doing housework. At around 9:30 p.m., appellant and Hernandez left the

house for the bar. At that time, the complainant was at the residence. Around

10:00 p.m., Reyes-Lazo spoke with the complainant over the phone and she was at

home.

At the bar, appellant and Hernandez drank beer and took shots together. At

some point, Hernandez, who had started playing pool with someone else, realized

he "didn't see [appellant] anymore” and began looking for appellant in the bar.

Appellant was supposed to be Hernandez's ride home. Because he could not find

appellant in the bar, Hernandez went outside the bar and called appellant's cell

phone eight times between 11:20 p.m. and 11:31 p.m. Appellant did not answer

his phone. Hernandez called his cousin, who gave him a ride home from the bar.

At approximately 2:29 a.m. on July 26, Martinez began repeatedly calling

appellant to come pick her up from work. Over the course of an hour, between

2:29 a.m. and 3:27 a.m., Martinez called appellant eight or nine times. With regard

to her first three phone calls, the calls to appellant's phone were not connecting to

a cell site, consistent with appellant's phone being turned off. However, at 2:56

a.m. and again at 3:09 a.m., Martinez called appellant and his cell phone connected

to a cell site near his home; it did not connect to a cell site near the bar where he

1 Reyes-Lazo is appellant's stepfather. 3

had been earlier with Hernandez. Martinez made additional phone calls to

appellant at 3:19 a.m. and 3:27 a.m., during which the data showed appellant's cell

phone moved from his house in the direction of the bar where Martinez worked.

Appellant picked Martinez up from work; they returned home around 3:45-4:00

a.m., and went to bed.

Later that morning, around 9:00 or 9:30 a.m., Reyes-Lazo, who was still in

El Campo, received a call from his brother-in-law, Marvin, advising that the

complainant's employer had called him when the complainant did not show up at

her work that morning and was not answering her phone. Reyes-Lazo called his

wife, but his call went straight to her voicemail. Around 9:45 or 10:00 a.m.,

Reyes-Lazo then called appellant, who answered the phone. Reyes-Lazo asked

appellant to go into the complainant's bedroom and see if she was there. Appellant

agreed and called back, reporting to Reyes-Lazo that the complainant was not in

her bedroom and that there was a lot of blood in her bedroom. Reyes-Lazo asked

appellant to call the police. "[V]ery worried[,]” Reyes-Lazo left his jobsite in El

Campo and began driving home.

Appellant called 911 and reported his mother as missing. Around 11:09

a.m., Harris County Sheriff's Office ("HCSO”) Deputy John Garcia ("Deputy

Garcia”) arrived at the complainant's home and began a preliminary investigation.

Deputy Garcia met with appellant and Martinez, who were waiting in the garage,

and obtained initial statements from them. While securing the scene, Deputy

Garcia observed in the complainant's bedroom a large amount of blood pooled in

the fibers of the shag carpet with what appeared to be vacuum streak marks

through the blood; he noticed the complainant's bed had no comforter and no

blankets. Deputy Garcia also observed blood dripped onto the garage floor and

blood swiped across the fenders of the vehicles parked in the driveway. Given the 4

amount of blood and type of blood loss at the scene, HCSO homicide division was

called to proceed with an investigation.

Around 1:30 p.m., HCSO homicide investigator Mario Quintanilla ("Deputy

Quintanilla”) arrived at the scene. Deputy Quintanilla interviewed appellant and

Martinez again, and also interviewed Reyes-Lazo when he arrived. Appellant told

Deputy Quintanilla that he left the house around 9:30 p.m. and did not return until

3:45 a.m., asserting he was with Hernandez at the bar the entire time until it closed.

Appellant also told Deputy Quintanilla that the front door was unlocked when he

and Martinez returned.

At the scene, Deputy Quintanilla observed the same blood stains as Deputy

Garcia, as well as bloody "drag marks” trailing from the complainant's bedroom to

the garage. The "drag marks” became lighter as if someone had washed them off.

"Drag marks” also were visible on the outside of both vehicles parked in the

driveway–Martinez's Toyota Celica and the complainant's Toyota 4Runner.

Deputy Quintanilla obtained appellant's consent to search the house, including

appellant's bedroom, and obtained appellant's and Martinez's consent to search the

Toyota Celica. Deputy Quintanilla had the Celica towed to a police lot for

examination where the police crime scene investigator observed what appeared to

be blood on the outside of the trunk-area of the vehicle, including on the locking

mechanism on the hatchback, on the spare tire rim, and on the plastic molding of

the vehicle's trunk. Deputy Quintanilla also obtained consent for specimens and

collected DNA samples from appellant, Martinez, and Reyes-Lazo. Deputy

Quintanilla noted that appellant's demeanor was unemotional for the

circumstances, but released appellant, Reyes-Lazo, and Martinez at the scene after

concluding his interviews with them. Upon his release, appellant immediately left

the scene.5

HCSO crime scene investigator, Jose Ortiz ("Deputy Ortiz”), after observing

the sliding door and front door of the house, noted there was no forced entry into

the complainant's residence. The complainant's bedroom door, however, appeared

to be damaged by forced entry. Although there were items that suspects in home

invasions typically would take (e.g., jewelry, televisions, weapons, china, or other

valuable items that can be sold or pawned), nothing appeared to be missing or even

moved inside the house. Deputy Ortiz believed that somebody had attempted to

clean the scene up because there were stains in the master bedroom consistent with

using a vacuum cleaner to vacuum up blood. He observed reddish residue within

the clear vacuum cleaner tube. Deputy Ortiz took swabs and samples, tagging over

a hundred items as evidence. There were bloodstains on clothing and a laundry

basket in the appellant's bedroom. One of appellant's shirts was the sole item

inside the washing machine in the house.

Upon returning inside the house, Reyes-Lazo noticed all of the bedding (e.g.,

sheets, blankets, and pillows) was gone from his and the complainant's bedroom.

The complainant's purse also was missing. The complainant's daughter and the

complainant's sister noticed that a large knife was missing from the kitchen.

A day or two later, Martinez returned to the complainant's house to pick up

clothing. Martinez told Reyes-Lazo that she and appellant were staying with her

sister.

Appellant never returned to the house. Over the next two days, the

complainant's family and friends searched for the complainant; appellant did not

assist with or inquire about the search and stopped answering the family's calls.

On July 28, 2014, Reyes-Lazo was notified that the complainant's

decomposing body had been found on the side of the road in a densely wooded

area approximately two miles from her home. The complainant's body was 6

wrapped in a blanket that matched the description of missing bedding from the

complainant's bedroom. The cause of death was sharp force injuries of the neck,

consistent with cuts from a big, sharp knife, such as a butcher knife. Reyes-Lazo

identified the complainant's body from photographs of her tattoos.

Appellant did not attend the complainant's funeral. Instead, appellant

attempted to flee to Canada, where, on or about August 4, 2014, he was

apprehended by United States Border Patrol agents.

Appellant was extradited to Texas, where he was charged with the

complainant's murder. The State also included one punishment-enhancement

allegation in the indictment. On February 6, 2019, a jury found the appellant guilty

of the offense, as charged. On February 7, 2019, the jury found the State's

punishment-enhancement allegation "true” and assessed the appellant's

punishment at confinement in the Texas Department of Criminal Justice,

Correctional Institutions Division, for life and a $10,000.00 fine. On that same

date and in accordance with the jury's verdict, the trial court sentenced appellant in

open court. The trial court's written judgment of conviction included an

affirmative deadly weapon finding and certified appellant's right of appeal.

Appellant timely filed this appeal.

II. ANALYSIS

Appellant presents the following three issues on appeal:

1). The evidence is insufficient as a matter of law to sustain

appellant's conviction for the offense of murder.

2). The trial court erred when it overruled appellant's objection to

the improper argument of the prosecutor commenting on appellant's

right to remain silent and not produce any evidence at trial in violation

of the Fifth Amendment to the United States Constitution as well as

Article 1, Section 10 of the Texas Constitution and Article 38.08 of

the Texas Code of Criminal Procedure.7

3). The trial court erred when it overruled appellant's objection to

the punishment jury charge which included references to the award of

good time credits where appellant had been convicted of a 3G offense

to which good time credits do not apply.

A. SUFFICIENCY OF THE EVIDENCE

1. STANDARD OF REVIEW AND APPLICABLE LAW

We apply a legal-sufficiency standard of review in determining whether the

evidence supports each element of a criminal offense that the State is required to

prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19

(1979); Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020); Temple

v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we

examine all the evidence adduced at trial in the light most favorable to the verdict

to determine whether a jury was rationally justified in finding guilt beyond a

reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d 134,

136–37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). We consider all

evidence in the record, whether admissible or inadmissible. Winfrey v. State, 393

S.W.3d 763, 767 (Tex. Crim. App. 2013).

We also consider both direct and circumstantial evidence, as well as any

reasonable inferences that may be drawn from the evidence. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). "Circumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). The standard of review is the same for both direct and

circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.

App. 2004). We will uphold the jury's verdict unless a rational factfinder must

have had a reasonable doubt as to any essential element. Laster v. State, 2758

S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756

(Tex. App.—Houston [14th Dist.] 2013, pet. ref'd).

We consider all evidence presented at trial, but we do not re-evaluate the

weight and credibility of the evidence or substitute our judgment for that of the fact

finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because

the jury is the sole judge of the witness' credibility and the weight given to their

testimony, we resolve any evidentiary conflicts or inconsistencies in favor of the

verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

We measure sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge and as authorized in the indictment.

Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018) (citing Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The hypothetically correct

jury charge is one that 'accurately sets out 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. (quoting Malik, 953 S.W.2d at 240). "The

'law as authorized by the indictment' includes the statutory elements of the offense

and those elements as modified by the indictment.” Id. (quoting Daugherty v.

State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)).

In this case, appellant challenges the sufficiency of the evidence to sustain

his conviction. Under Texas Penal Code section 19.02, a person commits the

offense of murder if he (1) intentionally or knowingly causes the death of an

individual; or (2) intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual. See Tex. Penal

Code § 19.02(b)(1), (2). It is the State's burden to prove beyond a reasonable 9

doubt that appellant caused the death of the complainant as alleged in the

indictment.

2. APPLICATION

In his first issue, appellant contends the evidence is legally insufficient to

support his conviction, arguing there was no evidence of appellant's motive to kill

the complainant.

Appellant maintains the jury heard Reyes-Lazo testify that appellant and the

complainant had a good relationship and "always got along well.” Reyes-Lazo did

not see appellant and the complainant fight or show signs of discord. Reyes-Lazo

agreed that the complainant and appellant had a normal mother and son

relationship. Appellant asserts "the total absence of any indication of animosity,

ill-will or evidence that [a]ppellant did not like his own mother must be a major

consideration in this court's legal sufficiency review.” Motive is a circumstance

indicative of guilt; however, motive is not an element of the offense of murder.

Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). It is not required

that the State show a motive in order to sustain a conviction of murder. Medina v.

State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (citing Garcia v. State, 495

S.W.2d 257, 259 (Tex. Crim. App. 1973)); see also Perry v. State, No. 14-15-

00471-CR, 2016 WL 4371709, at *4 (Tex. App.—Houston [14th Dist.] Aug. 16,

2016, pet. ref d) (mem. op.) ("Neither does the State have to prove a motive in a

murder prosecution, as motive is not an element of murder.”); Delacruz v. State,

278 S.W.3d 483, 491 (Tex. App.—Houston [14th Dist.] 2009, pet. ref d)

("[M]otive is not an element of murder, thus the State does not have to prove [the

defendant's] motive for killing [the victim].”).

Additionally, the jury heard that appellant was responsible for contacting

911 to report that his mother was missing, and that he did not leave the house prior 10

to the police arriving. Appellant cooperated with law enforcement when they

arrived by signing a consent to search form, allowing a swab for DNA, and

providing a statement. No DNA evidence from appellant connected him to the

death of the complainant. The jury also heard that no weapon was ever recovered

or connected in any way to appellant. There was no surveillance video from the

residence or the location where the complainant's body was found.

The main element in dispute in this sufficiency challenge is identity—i.e.,

whether appellant was the person who caused the complainant's death. There is no

direct evidence in support of that element, but a conviction does not require direct

evidence. See Clayton, 235 S.W.3d at 778. Circumstantial evidence is just as

probative as direct evidence. Id. The record here contains an abundance of

circumstantial evidence establishing that appellant was the offender. Jenkins, 493

S.W.3d at 599 ("A lack of direct evidence is not dispositive of the issue of guilt.”);

see Guevara, 152 S.W.3d at 49 ("Circumstantial evidence alone is sufficient to

establish guilt.”); see Temple v. State, 342 S.W.3d 572, 640 (Tex. App.—Houston

[14th Dist.] 2010) (finding absence of DNA or blood evidence not dispositive),

aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013). The circumstantial evidence not

only tends to prove that the crime occurred, but also tends to point specifically to

appellant as the guilty party. See Guevara, 152 S.W.3d at 50.

The Jury could have found Appellant's Statement to Police that he was with

Hernandez at the Bar all Night Inconsistent with Hernandez's Testimony that

Appellant could not be Located at the Bar

The jury could have inferred guilt from inconsistencies in Hernandez's

testimony, which contradicts appellant's statement to investigating officers.

Appellant told detectives that he was at the bar with Hernandez and did not return

home until 3:45 a.m. with Martinez. Hernandez testified, however, that he could

not locate appellant at the bar, that he tried calling appellant's cell phone eight 11

times between 11:20 p.m. and 11:31 p.m., but appellant did not answer the phone,

and that Hernandez left the bar and got a ride home from his cousin. See Padilla v.

State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010) (recognizing that rational fact

finder can consider a defendant's untruthful statement as affirmative evidence of

guilt); see also Gear v. State, 340 S.W.3d 743, 747 (Tex. Crim. App. 2011)

(explaining that a jury may consider a defendant's inconsistent statements as

affirmative evidence of guilt); King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.

2000) (a defendant's conduct in lying to police officers shows a consciousness of

guilt and may be considered as circumstantial evidence of guilt).

The Jury could have Inferred from Cell Phone Record Evidence that Appellant Left

the Bar and was at his House and/or the Location Where the Complainant's Body

was Subsequently Found

Additionally, the jury could have found Hernandez's testimony to be

credible because it is corroborated by the appellant's, Martinez's, and Hernandez's

cell phone records. Specifically, the cell phone records show that, between 11:20

p.m. and 11:31 p.m., Hernandez called the appellant eight times, and could not

locate appellant at the bar. Further, the records show that Martinez called appellant

three times between 2:29 a.m. and 2:40 a.m., during which time appellant's phone

did not register the calls or connect to a cell site, indicating that his phone was off.

At 2:56 a.m., Martinez called the appellant again; the call connected for 50

seconds, and the appellant's phone connected to a cell site near the complainant's

house, not near the bar. At 3:09 a.m., there was more activity between the

appellant's phone and Martinez's phone, during which the cell site location

information indicated that the appellant's phone was still in the area of either the

complainant's house or the location where her body was subsequently found.

Lastly, several calls were made from appellant's phone to Martinez between 3:19

a.m. and 3:27 a.m., at which point cell site location information showed that 12

appellant's phone was finally moving from the area of either the complainant's

house or the location of the body toward the direction of Martinez's workplace.

A jury could have inferred guilt based on these inconsistencies and from

appellant's unexplained gap in his alibi timeline. This evidence, along with

evidence that appellant was at or near the scene of the murder, further strengthens

the reasonable inference appellant murdered the complainant, because appellant

misrepresented his actual whereabouts during the time of the murder. See, e.g.,

Mamolejo v. State, No. 08-11-00108, 2013 WL 1846672, at *9 (Tex. App. El Paso

Apr. 30, 2013, no pet.) (not designated for publication) (cell phone records

contradicted the defendant's statement as to his whereabouts during the time of the

murder); Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st Dist.]

2012, pet. ref'd) (concluding evidence was legally sufficient to support jury verdict

finding appellant guilty of murder where evidence included appellant's cell phone

records indicating that his phone was located near the murder scene until the time

of the shooting, then the phone moved towards appellant's residence on the other

side of town).

The Jury could have Inferred Evidence at the Crime Scene Inconsistent with

Murder by a Stranger and Indicative of Appellant's Guilt

The jury also could have inferred appellant's guilt in the complainant's

murder because there were no signs of forced entry to the house, indicating the

killer had access to the house, which appellant did, as a resident. The crime scene

itself was inconsistent with a murder committed by a stranger during a home

invasion or robbery because, aside from the complainant's purse, no jewelry,

electronics, or other valuables were stolen, moved, or missing. Also, the

perpetrator attempted to "clean up” the crime scene by vacuuming up blood,

washing the sink, and spraying water on the concrete in the garage; trial testimony

explained that is unusual when the perpetrator is a stranger, but more common13

when the assailant is a family member or resident of a household where a violent

crime occurs, as in this case.

Other evidence further implicated appellant in complainant's murder. There

were bloodstains on clothing and a laundry basket in appellant's bedroom. One of

appellant's shirts was the sole item inside the washing machine in the home.

Reyes-Lazo explained that it was "very strange that only that clothing would be in

the washing machine and nothing else washing[,]” such as a full load of laundry.

See Melgar v. State, 593 S.W.3d 913, 921–22 (Tex. App.—Houston [14th Dist.]

2020, no pet.) (finding circumstantial evidence sufficient to establish the

defendant's identity as the murderer when, among other circumstances, the

evidence showed that: the defendant was at the crime scene during the murder; the

doors and windows around the home were intact, thus supporting the inference that

a stranger or home invader did not commit the murder; and the defendant's

demeanor was unusual and unemotional, thus indicating her guilt).

The Jury could have Inferred Appellant's Guilt as Complainant's Blood was

Found on the Toyota Celica Appellant was Driving the Night of the Murder

Moreover, the jury could have inferred that the Toyota Celica appellant was

driving on the night of the offense was at the crime scene at least shortly after the

murder, given that the complainant's blood was on the vehicle's fender. Because

the appellant was driving the Toyota Celica before and after the crime, the jury

could have rationally inferred that the appellant, too, was at the crime scene around

the time of the murder. Further, given that a substantial amount of the

complainant's blood was found on the trunk latch and throughout the interior of the

trunk of the Toyota Celica, the jury could have inferred that after the complainant

was stabbed, her body was placed in the trunk of the car, which appellant was

driving on the night of the murder. Cf. Clayton, 235 S.W.3d at 779 (noting that the 14

defendant's bloody fingerprints at the crime scene were circumstantial evidence

placing the defendant at the crime scene sometime after the victim was shot).

The Jury could have Inferred Post-Crime Suspicious Conduct by Appellant As

Evidence of Guilt

A jury could have inferred circumstantial evidence of guilt from appellant's

demeanor, which officers described as being "weird”, "not appropriate for what

was happening”, unconcerned, and unemotional, during the police's initial

investigation and in the days that followed. Similarly, a jury could have viewed

appellant's behavior as suspicious and indicative of guilt. After being released

from questioning at the crime scene, appellant never returned; he did not assist

with the search for complainant; he stopped answering phone calls from family

members; and, after the complainant's body was found, he did not attend the

complainant's funeral. Guevara, 152 S.W.3d at 51 (noting appellant showed little

to no emotion after discovering his wife, nor did he appear to be upset at the crime

scene).

The Jury could have Inferred Appellant's Attempt to Flee the United States was

Evidence of Consciousness of Guilt

Finally, the jury could have inferred appellant's guilt by appellant's attempt

to flee the United States to Canada in the days immediately after the murder. On

August 4, 2014, United States Border Patrol agents apprehended appellant as he

was attempting to flee into Canada. Since appellant was already identified as a

suspect in this case, his flight to Canada was relevant to the issue of whether he

committed the complainant's murder. Burks v. State, 876 S.W.2d 877, 903 (Tex.

Crim. App. 1994) ("Evidence of flight is admissible as a circumstance from which

an inference of guilt may be drawn.”); see also Clay v. State, 240 S.W.3d 895, 905

n.11 (Tex. Crim. App. 2007) (explaining that evidence of flight evinces

consciousness of guilt); Hedrick v. State, 473 S.W.3d 824, 831 (Tex. App.—15

Houston [14th Dist.] 2015, no pet.) (reiterating that flight shows consciousness of

guilt and that "[a] consciousness of guilt is perhaps one of the strongest kinds of

evidence of guilt.”).

Based on our review of the record, we conclude any rational trier of fact

could have found the essential elements of murder – appellant intentionally or

knowingly caused the complainant's death or intended to cause serious bodily

injury and committed an act clearly dangerous to human life that caused the

complainant's death – beyond a reasonable doubt. Clayton, 235 S.W.3d at 778;

see Tex. Pen. Code 19.02(b)(1),(b)(2). The inferences necessary to support the

jury's guilty verdict are reasonable based on the combined and cumulative force of

all the evidence when viewed in the light most favorable to the verdict. See

Hooper, 214 S.W.3d at 16-17; see also Clayton, 235 S.W.3d at 778 (when the

record supports conflicting inferences, appellate courts presume the jury resolved

the conflicts in favor of the verdict and defer to that determination in a legal

sufficiency review).

Appellant's first issue is overruled.

B. CLOSING ARGUMENT

In his second issue, appellant contends the trial court erred when it overruled

his objection to the prosecutor's closing arguments, which the appellant argues was

an improper comment on his right to remain silent, in violation of the Fifth

Amendment of the United States Constitution as well as Article 1, Section 10, of

the Texas Constitution and Article 38.08 of the Texas Code of Criminal Procedure.

The State argues that the trial court correctly overruled the appellant's

objection because the prosecutor's complained-of remarks that the appellant's

detachment from his family and flight to Canada were his "testimony”, may be 16

reasonably interpreted as an argument that the jury could infer from the appellant's

behavior that the appellant was highly conscious of his guilt and was, essentially,

confessing to the crime through his actions. The State further argues that the

prosecutor's closing argument, even if erroneous, was harmless, alleging "there is

no reasonable possibility that it contributed to the appellant's conviction.”

1. STANDARD OF REVIEW AND GOVERNING LAW

We review the trial court's ruling on an objection to allegedly improper jury

argument for an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924

(Tex. Crim. App. 2004). "[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);

Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987); Hernandez v. State,

171 S.W.3d 347, 357 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).

Counsel's remarks during final argument must be considered in the context in

which they appear. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

A comment on the defendant's failure to testify violates the United States

and Texas Constitutions, as well as Texas statutory law. See U.S. Const. amend. V

(guaranteeing a criminal defendant the right to remain silent); Tex. Const. art. I,

§ 10; Tex. Code Crim. Proc. art. 38.08 ("[T]he failure of any defendant to. . .

testify shall not be taken as a circumstance against him, nor shall the same be

alluded to or commented on by counsel in the cause.”); Griffin v. California, 380

U.S. 609, 615 (1965) ("[T]he Fifth Amendment, in its direct application to the

Federal Government and in its bearing on the States by reason of the Fourteenth

Amendment, forbids either comment by the prosecution on the accused's silence or

instructions by the court that such silence is evidence of guilt.”); Randolph v. State,17

353 S.W.3d 887, 891 (Tex. Crim. App. 2011) (explaining that a defendant has a

constitutional privilege not to testify in either the guilt or punishment phases of his

trial and, thus, a comment on the defendant's failure to testify in either phase is

improper).

To assess whether a particular statement was a comment on the defendant's

right not to testify, an appellate court must both view both the State's comment

from the standpoint of the jury in light of the context in which the statement was

made and must also resolve any ambiguities in the language in favor of the

comment being a permissible argument. See Bustamante v. State, 48 S.W.3d 761,

765 (Tex. Crim. App. 2001). A violation occurs only if the spoken words clearly

refer to the defendant's failure to testify. Id. An improper comment on an

accused's failure to testify occurs when it 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. If the prosecutor's language might reasonably be

construed as merely an implied or indirect allusion to the defendant's silence or

failure to testify, there is no violation. Randolph, 353 S.W.3d at 891.

2. RELEVANT PORTIONS OF PROSECUTOR'S CLOSING ARGUMENT

The complained-of portions of the prosecutor's closing arguments arose in

the following context. On appeal, appellant challenges the remarks below:

[Prosecutor]: We've also talked about motive. I wish I knew why,

what would drive someone to do this to there [sic] own mother.

What level of rage or anger or -- I don't know. I can't fathom. I can't

fathom why anyone would do this to another human being,

particularly their own mother. All we know is that he did it. And it is

not the State's burden to prove why because the only person who

knows, the only person who knows is the person sitting right

there. And you know what? He might not even know why he did it.

But it doesn't matter because we know that he did do it. (emphasis

added).18

Appellant also challenges the following comments, which were later argued

by the State in closing:

Multiple witnesses testified, he didn't show concern about his mother.

If he's innocent, if he's not guilty, that means that he woke up that

morning and found his mother's bedroom door kicked open with

blood all over the place. And he didn't show me concern, no worry,

the way all of her other relatives did.

He didn't help search. Why? Because he was on his way to Canada.

The rest of her family members and Samuel, they're doing everything

in their power to find her, to find out what happened to her. But one

person knew exactly what happened to her is getting out of the

country as fast as he possibly can.

He didn't go to her funeral. He didn't show any concern. He didn't

help search. He knew where she was. He knew what happened to her

because he's the one that did it.

This is the most damaging piece of evidence. The blood in her trunk.

And you'll be able to look at these swabs. These are picture of two of

the places. They got blood from -- her blood is in several places

inside that trunk. Not just on the outside of the car where he drug the

body past, but inside the car. The car that he admitted that he was

driving, the car that Jose said he was driving, the car that they said had

only one set of keys.

He left that bar in that Toyota Celica, drove home, butchered his

mother, drug her body out of the house and stuffed it in the trunk of

his car and drove to that abandoned spot and dumped it. And then he

fled to Canada.

You have the instruction in your jury charge that say [sic] that the

defendant has a right not to testify against himself and you cannot

consider that fact against him. If you want his testimony, there it is.

This is his testimony. He didn't wait around to see -- he didn't know

what the police had or didn't have. But he knew what they were going

to find. Twenty-five hundred miles through eight states, he was

getting away from his crime as far as he could. That's his testimony.

That's the defendant's [sic] saying to you, saying to everyone loud

and clear, I'm guilty. I'm guilty of killing my mother.

[Defense Counsel]: I'm going to object to this argument. That is a 19

comment on my client's election not to testify. I'm going to ask that

you instruct to jury to disregard those statements.

[Trial Court]: Overruled. Reasonable inference on the evidence.

(emphasis added).

3. APPLICATION

a. FAILURE TO OBJECT TO PROSECUTOR'S FIRST STATEMENT

Appellant failed to object to the portion of the State's closing argument

wherein the State argues "[a]nd it is not the State's burden to prove why because

the only person who knows, the only person who knows is the person sitting right

there.” By failing to object and obtain a ruling from the court, appellant failed to

preserve error regarding his challenge to that portion of the State's closing

argument. See Tex. R. App. P. 33.1(a)(1)-(2). Because appellant raises this

argument for the first time on appeal, any error is waived. See Wead v. State, 129

S.W.3d 126, 130 (Tex. Crim. App. 2004) ("At the outset, the court of appeals erred

in even considering appellant's argument that the prosecutor's comment amounted

to a comment on appellant's failure to testify, since appellant made no such

argument in the trial court.”); Tyson v. State, 857 S.W.2d 697, 699 (Tex. App.—

Houston [14th Dist.] 1993, no pet.) (finding that, because the defendant did not

object to the prosecutor's argument, he waived any error concerning the propriety

of the statements).

b. PROSECUTOR'S SECOND STATEMENTS OUTSIDE PERMISSIBLE

ARGUMENT

Appellant argues that the State erroneously told the jury that the jury charge

said that the "defendant has a right not to testify against himself” and that "[i]f you

want his testimony, there it is. This is his testimony.” The State prosecutor also

stated appellant "didn't wait around to see – he didn't know what the police had or

didn't have. But he knew what they were going to find. Twenty-five hundred 20

miles through eight states, he was getting away from his crime as far as he could.

That's his testimony. That's the defendant's saying to you, saying to everyone

loud and clear, I'm guilty. I'm guilty of killing my mother.” The appellant

objected, and the trial court overruled the objection, finding the prosecutor's

statements to be a reasonable inference from the evidence.

Contrary to the State's contention, the prosecutor's complained-of remarks

in this case went beyond any reasonable inference. The prosecutor's remarks were

neither vague or oblique; rather, the prosecutor's argument necessarily referred to

appellant and juxtaposed his purportedly testimonial conduct with his failure to

testify. The jury could only interpret the prosecutor's remarks as comments on

appellant's choice not to testify at trial, particularly in light of the aforementioned

reference to appellant being the only person who knew what happened. See

Crocker v. State, 248 S.W.3d 299, 307 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref'd) ("The defendant does not testify at trial, electing instead to hold the State to

its burden of proof beyond a reasonable doubt.”).

Next, the prosecutor references appellant's attempt to flee the United States,

an issue from which an inference of consciousness of guilt could have been

reasonably made; the prosecutor, however, did not stop with that inference.

Instead, the prosecutor again commented on appellant's right to remain silent,

overreaching with statements "That's his testimony. That's the defendant's [sic]

saying to you, saying to everyone loud and clear, I'm guilty. I'm guilty of killing

my mother.” This improperly called the jury's attention to testimony only

appellant could supply: "I'm guilty. I'm guilty of killing my mother.” When the

remark calls the jury's attention to the absence of evidence that only a defendant's

testimony could supply, the conviction is subject to reversal. See Garrett v. State,

632 S.W.2d 350, 353 (Tex. Crim. App. 1982) (explaining that "an implied or 21

indirect allusion to the failure of the appellant to testify” is not enough to support

error unless the comment calls "for a denial of an assertion of fact . . . that only the

appellant was in a position to offer”); see also Trevino v. State, 979 S.W.2d 78,

79–80 (Tex. App.—Austin 1998, pet. ref'd) (holding that prosecutor's comment to

jury that "[t]wo people were there that night that know what happened, [the

defendant] and [the complainant]” emphasized the absence of appellant's

testimony and constituted reversible error); Norton v. State, 851 S.W.2d 341, 346

(Tex. App.—Dallas 1993, pet. ref'd) (holding that prosecutor's comment to jury

that "[t]here were only two people out there and we heard from one of them” was

comment on defendant's failure to testify and constituted reversible error).

The prosecutor's remarks were improper as they were a direct reference to

what the jury had not heard from the appellant. See Mercer v. State, 658 S.W.2d

170, 171 (Tex. Crim. App. 1983). Further, such highly inflammatory statements

were not de minimus, particularly in light of purely circumstantial evidence before

the jury.

The necessary and natural effect of the prosecutor's comments, viewed from

the standpoint of the jury, was to direct the jury's attention to appellant's

invocation of his right to remain silent. See U.S. Const. amend. V; Tex. Const. art.

I, § 10; Tex. Code Crim. Proc. art. 38.08. Because the prosecutor's comments

were clearly a direct comment on appellant's failure to testify, we conclude the

trial court abused its discretion in overruling appellant's objection. See

Bustamante, 48 S.W.3d at 765.

Having determined that the prosecutor's comments were outside the areas of

permissible argument, we must determine whether the error warrants reversal.22

c. HARM ANALYSIS

"When a prosecutorial remark impinges upon an appellant's privilege

against self-incrimination under the constitution of Texas or of the United States, it

is error of constitutional magnitude” and must be analyzed under Rule 44.2(a) of

the Texas Rules of Appellate Procedure.” Snowden v. State, 353 S.W.3d 815, 817

(Tex. Crim. App. 2011). Rule 44.2(a) provides that "the court of appeals must

reverse a judgment of conviction or punishment unless the court determines

beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” Tex. R. App. P. 44.2(a). When confronted with a constitutional

error, as here, we analyze the error under Rule 44.2(a), reversing the judgment

unless we can conclude beyond a reasonable doubt that the error did not contribute

to the defendant's conviction or punishment. See id.

Under this harm analysis, we must determine the likelihood that the error

genuinely corrupted the fact-finding process. Snowden, 353 S.W.3d at 819. A

constitutional error does not contribute to a defendant's conviction, and is therefore

harmless, if the verdict would have been the same absent the error. Crayton v.

State, 463 S.W.3d 531, 536 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

(citing Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007)).

An analysis for whether a particular constitutional error is harmless should

consider every circumstance apparent in the record that logically informs the

analysis. Snowden, 353 S.W.3d at 822. "There is no set formula for conducting a

harm analysis that necessarily applies across the board, to every case and every

type of constitutional error.” Id. at 822 n.31. Non-exclusive factors may include

the nature of the error, whether it was emphasized by the State, the probable

implications of the error, and the weight the jury would likely have assigned to it in

the course of its deliberations. Id. We also consider the presence of overwhelming 23

evidence of guilt. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002).

"At bottom, an analysis for whether a particular constitutional error is harmless

should take into account any and every circumstance apparent in the record that

logically informs an appellate determination 'whether beyond a reasonable doubt

[that particular] error did not contribute to the conviction or punishment.'”

Snowden, 353 S.W.3d at 822 (alteration in original) (quoting Tex. R. App. P.

44.2(a)).

Nature and emphasis of the error

Here, the nature of the error at issue is the State's improper argument to the

jury. It was brought about by the prosecutor, and directly violated the appellant's

right against self-incrimination. The error was compounded by the trial court's

overruling of appellant's timely objection, leaving the jury with the impression that

the argument was sanctioned by the trial court.2

"Generally, a comment on a

defendant's failure to testify implicates an illegitimate inference by the jury that

such failure indicates a defendant's guilt because the defendant does not

affirmatively deny the State's allegations. Such an inference is, of course, in

derogation of a defendant's constitutional right to remain silent.” Thompson v.

State, 426 S.W.3d 206, 212 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd)

(citing Snowden, 353 S.W.3d at 824–25). The nature and source of the error, and

the direct comment by the prosecutor are factors that weigh heavily in favor of a

finding of harm.

Probable implications of error and weight

Next, we consider the probable implication of the error and the weight the

jury likely would have placed upon it. See Snowden, 353 S.W.3d at 822. In this

2 Because the trial court overruled appellant's objection, no curative instructions were

given.24

case, a review of the record shows that the State based its case entirely on

circumstantial evidence. There was no eyewitness, no weapon recovered, and no

substantial physical evidence directly linking appellant to the complainant's

murder. There was testimony that appellant and his mother got along and there

was no animosity between her and appellant. While acknowledging the State was

not required to prove motive, defense counsel argued in his closing that appellant

had no motive to kill his mother and it was inconsistent with appellant's past

behavior toward his mother. The jury also heard testimony that appellant

cooperated with the officers at the scene of the crime, consented to a search of the

house, and agreed to a DNA swab. Given the facts of this case, it is possible that a

juror gave at least some weight to the prosecutor's repeated encroachment on

appellant's right to remain silent.

3

Moreover, the facts here are similar to those in many criminal prosecutions

in that a crime occurred with possibly only two individuals present–the victim and

the perpetrator. Crocker, 248 S.W.3d at 307. As our sister court explained:

The defendant does not testify at trial, electing instead to hold the

State to its burden of proof beyond a reasonable doubt. During

closing arguments, the defense presents its theory that the State has

failed to meet its burden. To declare a comment on a defendant's

failure to testify harmless here has some potential to open the door to

similar comments in other cases.

Id.

Based on our review of the argument, the entire record and the federal and

state constitutional implications of the errors, we hold the prosecutor's comments

were of such character that the jury would necessarily and naturally take them as

3 The prosecutor did not make an isolated statement. As referenced above, the first

improper remark went unobjected to and thus was waived. However, the improper comments

did not stop; instead, the prosecution's subsequent comments alleviated any ambiguity that the

State's initial argument during closing concerned appellant's failure to testify.25

comments on appellant's failure to testify. See Bustamante, 48 S.W.3d at 765.

Given this record, we cannot conclude beyond a reasonable doubt that the

prosecutor's improper comments on appellant's right to remain silent did not

contribute to the appellant's conviction or punishment. See Snowden, 353 S.W.3d

at 822; Tex. R. App. P. 44.2(a).

Accordingly, we must sustain appellant's second issue. In light of our

disposition of this issue, we need not reach appellant's remaining issue on charge

error.

We affirm the trial court’s judgment in part as to the first issue, reverse in

part as to the second issue, and remand the case for further proceedings.