Hilario Hernandez A/K/A Hilario Munoz Hernandez v. the State of Texas ( 2023 )

NUMBER 13-21-00147-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
HILARIO HERNANDEZ A/K/A
HILARIO MUNOZ HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Peña
Memorandum Opinion by Justice Tijerina
A jury found appellant Hilario Hernandez a/k/a Hilario Munoz Hernandez guilty of
the felony offense of driving while intoxicated (DWI) and sentenced him to twenty years’
imprisonment. 1 See TEX. PENAL CODE ANN. § 49.04, .09. By six issues, Hernandez
asserts: (1) the State failed to prove he was operating the vehicle; (2) the trial court relied
on the wrong burden of proof on the issue of whether he was operating a vehicle; (3) the
trial court erred by admitting hearsay evidence; (4) the trial court erred by admitting his
statements in violation of Miranda; (5) the State made improper arguments; and (6) the
trial court violated his right to due process through cumulative error. We affirm.
I. BACKGROUND
Hernandez was charged by indictment with felony DWI. See id. On April 27, 2021,
the trial court held a jury trial.
Sheriff Deputy Omar Lara with the Cameron County Sheriff’s Office testified that
on June 9, 2019, he was dispatched to Harlingen in response to a vehicle accident. Upon
his arrival, he observed two individuals attempting to hold Hernandez down on the
roadway. Deputy Lara stated that Hernandez appeared intoxicated, and he received
information that Hernandez was involved in a hit-and-run accident. Deputy Lara clarified
that he could not conduct a DWI investigation because the sheriff’s office was not
conducting DWI investigations at that time, and they had to turn those cases over to other
agencies. Thus, Deputy Lara detained Hernandez pending the arrival of Texas
Department of Public Safety (DPS).
DPS Trooper Jose Gonzalez arrived at the scene to investigate. Trooper Gonzalez
observed that “half” of a red truck “was off of the roadway” while Hernandez’s grey truck
1 Hernandez pleaded true to enhancement allegations concerning prior convictions for DWI, so the
offense was enhanced to a felony offense. See TEX. PENAL CODE ANN. § 49.09(b).
2
was stalled in the middle of the roadway facing the red truck. Trooper Gonzalez stated
that the damage to the front of Hernandez’s truck was consistent with the damage to the
red truck. It appeared to Trooper Gonzalez that Hernandez was intoxicated: he had a
strong odor of alcohol emanating from his person; his speech was slurred; and his tongue
was heavy. He further observed Hernandez was dirty with dirt and grass all over his shirt
and pants, and he had a cut and was bleeding on the left side of his face.
Trooper Gonzalez spoke with Hernandez, and Hernandez admitted he consumed
“several drinks of beer.” According to Trooper Gonzalez, when he asked Hernandez
where he was coming from, Hernandez stated he was coming from a family barbecue in
“Rangerville” and that he was headed to his house. 2 Trooper Gonzalez conducted
standardized field sobriety tests (SFSTs), and arrested Hernandez for DWI. On cross-
examination, Trooper Gonzalez acknowledged that Hernandez informed him, “You didn’t
see me driving,” to which Trooper Gonzalez replied, “No, I didn’t. It would have helped,
but I didn’t need to see you driving.”
The jury convicted Hernandez and sentenced him to twenty years’ imprisonment.
See id. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, Hernandez contends the evidence is insufficient to prove that he
was operating the vehicle. Specifically, he challenges two statements, which he claims
the State relied on: (1) that someone in the crowd scene purportedly said Hernandez was
the driver; and (2) that Hernandez mispronounced “Rangerville Road” when Trooper
2 Trooper Gonzalez clarified that Hernandez could not pronounce “Rangerville.”
3
Gonzalez questioned where he was coming from.
A. Standard of Review & Applicable Law
In reviewing the sufficiency of the evidence, we consider all the evidence in the
light most favorable to the verdict and determine whether any rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
App. 2010) (plurality op.). Direct and circumstantial evidence are treated equally. Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The fact finder is the exclusive
judge of the facts, the credibility of witnesses, and the weight to be given their testimony.
Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in favor of the
judgment. Id.We measure the sufficiency of the evidence in reference to the elements of the
offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). “Such a 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.” Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d
at 240).
Under the Texas Penal Code, an individual commits the offense of DWI if he “is
intoxicated while operating a motor vehicle in a public place.” See TEX. PENAL CODE ANN.
4
§ 49.04. Hernandez does not dispute that the evidence established that he was
intoxicated or that he and the vehicle were in a public place; instead, he argues that the
evidence did not establish that he operated the vehicle during the relevant time period.
Although the penal code does not define the word “operate,” the Court of Criminal Appeals
has explained that, in a sufficiency review, “a person ‘operates’ a vehicle when ‘the totality
of the circumstances [ ] demonstrate that the defendant took action to affect the
functioning of his vehicle in a manner that would enable the vehicle’s use.’” Kirsch v.
State, 357 S.W.3d 645, 650–51 (Tex. Crim. App. 2012) (quoting Denton v. State, 911
S.W.2d 388, 390 (Tex. Crim. App. 1995)); see Priego v. State, 457 S.W.3d 565, 569 (Tex.
App.—Texarkana 2015, pet. ref’d) (stating that term “operating” is interpreted broadly).
Even though “driving does involve operation” of a motor vehicle, “operation does not
necessarily involve driving.” Denton, 911 S.W.2d at 389.
B. Discussion
Aside from the two statements that Hernandez specifically challenges, other
evidence was presented at trial indicating that Hernandez operated the vehicle. Trooper
Gonzalez testified that due to the point of impact, he concluded Hernandez’s vehicle had
collided with the red truck that was halfway off the road. Hernandez was intoxicated, dirty,
and injured. According to Trooper Gonzalez, Hernandez informed him that it was
Hernandez’s grey truck that was involved in the collision. Trooper Gonzalez then
questioned Hernandez about the accident:
[Trooper]: I asked him, what was his vehicle—why did he leave his
vehicle in the middle of the road. He replied somewhere along
the lines of, I can’t recall correctly the exact words he used,
but said that they pulled him out, that they just stopped him
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there.
[State]: Okay. Did you ask him if he had any drinks?
[Trooper]: I did.
[State]: Okay. And what was his answer?
[Trooper]: He said he did, he had dr[u]nk.
When Trooper Gonzalez asked Hernandez where he was coming from “before the crash,”
Hernandez responded that he was coming from his relative’s house after “barbecuing and
drinking there.” Trooper Gonzalez informed the jury:
At this part, I was there for a crash, and it was confirmed by my training and
experience that the crash did occur. I had both vehicles there. I gathered
that he had a strong odor of alcohol coming from him. He showed initial
signs of intoxication due to his strong odor of alcohol, his slurred speech,
he had a heavy tongue when he spoke, him saying that he was coming from
Rangerville Road, his demeanor, just those initial clues or signs of
intoxication. Also, him stating that he had several drinks of beer . . . . [and]
[h]e stated he was headed home . . . . It appeared that he was bleeding from
his face, from the left side.
Although Trooper Gonzalez did not see Hernandez driving the vehicle, the jury could have
considered other portions of Trooper Gonzalez’s testimony wherein Hernandez admitted
it was his truck in the middle of road, that he was traveling to his home, and that the
pedestrians pulled him out of the vehicle. See Merritt v. State, 368 S.W.3d 516, 525–26
(Tex. Crim. App. 2012) (“When the record supports conflicting inferences, we presume
that the jury resolved the conflicts in favor of the verdict and defer to that determination.”).
Although the vehicle registration showed that the truck was registered to
Hernandez’s wife, she was not found near the scene, and Hernandez did not mention
being a passenger or anyone else driving the vehicle that night. Thus, the evidence before
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the jury was that: (1) Hernandez’s truck was involved in a collision and blocking the middle
of the roadway; (2) Hernandez was intoxicated; (3) Hernandez admitted he was “heading
home”; (4) Hernandez stated “they” pulled him out of his vehicle; and (5) Hernandez was
injured. Because circumstantial evidence is treated as equally as direct evidence and in
light of the evidence presented during trial, as well as the reasonable inferences that the
jury was free to make from that evidence, we conclude that the evidence is sufficient to
establish that Hernandez operated a motor vehicle before he collided. See Denton, 911
S.W.2d at 389. Accordingly, we overrule Hernandez’s first issue on appeal.
III. BURDEN OF PROOF
By his second issue, Hernandez argues that “by misunderstanding the burden of
proof in this case, the trial judge submitted to the jury a case alleging proof that
[Hernandez] was operating a vehicle, based on no competent evidence. For this reason,
this Court should reverse and acquit [Hernandez] of DWI.” Hernandez further states that
“more than a mere scintilla is required to support a defense submission of a lesser
included offense,” and “a scintilla is adequate to order a competency trial”; however, “for
the purpose of sustaining a verdict, a scintilla is not enough.” However, neither situation
is applicable to the facts here, and we are unable to understand this specific argument.3
See TEX. R. APP. P. 38.1(i) (providing that appellant’s “brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities and
to the record”). Nonetheless, the trial court did not instruct the jury that in order to find that
3To the extent that Hernandez challenges the sufficiency of the evidence supporting the verdict,
we have already concluded that the evidence presented at trial was legally sufficient.
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Hernandez operated the vehicle, the jury merely needed to find only a scintilla of
evidence. Conversely, the record provides that the trial court instructed the jury that it
needed to find the evidence “beyond a reasonable doubt.” See TEX. PENAL CODE ANN.
§ 2.01. Accordingly, we overrule his second issue.
IV. CONFRONTATION CLAUSE
In issue number three, Hernandez argues “the trial court erred by admitting
hearsay evidence putting [him] behind the wheel and saying he tried to flee” in violation
of the Confrontation Clause. The State responds that the statements were not testimonial,
not offered to prove the truth of the matter asserted, and not relied on to prove the
elements of the offense.
A. Applicable Law
The Confrontation Clause of the Sixth Amendment, made applicable to the states
via the Fourteenth Amendment, provides a right to confront and cross-examine adverse
witnesses. See U.S. CONST. amends. VI, XIV; Woodall v. State, 336 S.W.3d 634, 641
(Tex. Crim. App. 2011). The Confrontation Clause bars the admission of out-of-court
testimonial statements of a witness unless (1) the witness is unavailable to testify and (2)
the defendant had a prior opportunity to cross-examine the witness. Crawford v.
Washington, 541 U.S. 36, 53–54 (2004). The threshold question in any Confrontation
Clause analysis is whether the statements at issue are testimonial or nontestimonial in
nature. Campos v. State, 256 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d). Testimonial statements are those “that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
8
available for use at a later trial.” Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App.
2013).
Even if we assume that the complained-of statements were testimonial in nature
and that the trial court erred when it admitted them, constitutional error will result in a
reversal of a conviction only if we determine beyond a reasonable doubt that the error
contributed to Hernandez’s conviction. See Langham v. State, 305 S.W.3d 568, 582 (Tex.
Crim. App. 2010); see also TEX. R. APP. P. 44.2(a). Thus, we determine whether the
alleged error adversely affected the integrity of the process that led to Hernandez’s
conviction. See Langham, 305 S.W.3d at 582.
We consider several nonexclusive factors when we determine whether the error
contributed to the jury’s deliberations and verdict, such as: (1) the importance of the
statements to the State’s case; (2) whether the statements are cumulative of other
evidence; (3) the presence or absence of evidence corroborating or contradicting the out-
of-court statement on material points; (4) the overall strength of the State’s case; (5) the
source and nature of the error; (6) the extent to which the error was emphasized by the
State; and (7) the weight the jury may have assigned the inadmissible statement.
Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011). We consider “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.” Id. (cleaned up). Although we do not focus on whether
the jury verdict was supported by the evidence, the presence of “overwhelming evidence
of guilt is a factor to be considered.” Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App.
9
2002).
B. Harm Analysis
The jury heard the following testimony when the State questioned why Trooper
Gonzalez detained Hernandez:
[Trooper]: He was detained due to the fact that he was
intoxicated, he was involved in a physical altercation,
and the fact that multiple people at the scene pointed
out that he—
[Hernandez]: Objection. “Multiple people”? Objection. That’s
hearsay, and it’s a Crawford violation, and it’s a
confrontation-c[l]ause violation.
The Court: You don’t know what he’s going to say about the
multiple people.
[Hernandez]: Oh, I know what he’s going to say. Everybody knows
what he’s about getting ready to do, Your Honor.
The Court: All right. Rephrase it.
[Trooper]: Okay. He was detained due to the fact that I received
information that he was the actor of a possible hit-and-
run.
[State]: Of what? I’m sorry.
[Trooper]: Of a hit-and-run.
[Hernandez]: Object—
The Court: He was a possible actor, and as part of his
investigation,—
[Hernandez]: I’m still objecting as to being hearsay.
The Court: All right. That will be overruled. Ladies and Gentlemen
of the Jury, I’m going to allow it in as information he
received for him to believe that he needed to
investigate this further, not for the truth of the matter.
10
He was not there, he did not witness the event. He had
to gather information from the people who were there
as part of his investigation. That does not go that what
they’re telling him is true, just that it was uttered to him;
okay?
....
[Trooper]: The information given to me was that they had the
driver detained because he attempted to flee.
Assuming but not deciding that the trial court erred when it admitted these statements on
the stated basis of background context, the allegedly erroneous admission of Trooper
Gonzalez’s statement does not justify a reversal of Hernandez’s conviction.
Trooper Gonzalez’s statement was of minimal importance to the State’s case. The
State adduced an abundance of evidence that linked Hernandez with the charged
offense, including Hernandez’s candid admission that he was intoxicated, he was heading
home, and bystanders pulled him out of his truck. Trooper Gonzalez’s statement was also
cumulative of other unobjected-to evidence such as Hernandez’s collided truck,
Hernandez’s injury, and the fact that there were no other witnesses present at the scene.
Moreover, Trooper Gonzalez’s statement was corroborated by Deputy Lara’s non-
hearsay testimony that he responded to a vehicle accident and observed multiple
bystanders attempting to hold Hernandez down in the middle of the roadway. Therefore,
even if Trooper Gonzalez’s statement was improperly admitted, Hernandez’s own
admissions, Trooper Gonzalez’s other testimony, evidence of the collision, and Deputy
Lara’s testimony all independently established that Hernandez operated a motor vehicle
in a public roadway while intoxicated.
Furthermore, the State did not emphasize Trooper Gonzalez’s testimony during its
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case in chief or during its opening or closing arguments. Finally, the trial court admonished
and instructed the jury not to consider Trooper Gonzalez’s challenged statement for the
truth of the matter asserted, and it is presumed that the jury follows the instructions of the
trial court regarding the consideration of evidence. See Archie v. State, 340 S.W.3d 734,
741 (Tex. Crim. App. 2011) (“The law generally presumes that instructions to disregard
and other cautionary instructions will be duly obeyed by the jury.”). Therefore, any
potential harm to Hernandez would be further mitigated by the trial court’s limiting
instructions. See id.We have thoroughly reviewed the record before us and the factors stated above,
and we are satisfied beyond a reasonable doubt that the admission of Trooper Gonzalez’s
challenged statement neither contributed to Hernandez’s conviction nor affected the
integrity of the process. See Snowden, 353 S.W.3d at 822. Thus, there is no reasonable
probability that the alleged error “moved the jury from a state of non-persuasion to one of
persuasion on a particular issue” in the context of the entire trial. Id. As such, the trial
court did not commit reversible error when it admitted this evidence. See Motilla, 78
S.W.3d at 357. Accordingly, we overrule Hernandez’s third issue.
V. MOTION TO SUPPRESS
By his fourth issue, Hernandez argues that the trial court erred by denying his
motion to suppress and admitting his statement after he was in custody and before being
advised of his Miranda rights. The State responds that Hernandez was detained pursuant
to an investigative detention and was not under arrest, and therefore, his statements
made to law enforcement prior to receiving his Miranda warnings were properly admitted
12
into evidence. However, we need not reach the merits of whether the trial court erred in
denying Hernandez’s motion to suppress because we conclude that any alleged error in
violation of Miranda was harmless. See TEX. R. APP. P. 44.2(a); Murkledove v. State, 437
S.W.3d 17, 28 (Tex. App.—Fort Worth 2014, pet. dism’d) (assuming error and holding
that any assumed error was harmless).
A. Applicable Law
We assess harm using the standard set forth in Texas Rules of Appellate
Procedure 44.2(a) for constitutional errors. See TEX. R. APP. P. 44.2(a); Campbell v.
State, 325 S.W.3d 223, 239 (Tex. App.—Fort Worth 2010, no pet.). Under this standard,
we must reverse a judgment of conviction unless we determine beyond a reasonable
doubt that the trial court’s alleged constitutional error did not contribute to the conviction.
See TEX. R. APP. P. 44.2(a). Constitutional error does not contribute to the conviction if
the verdict “would have been the same absent the error.” Clay v. State, 240 S.W.3d 895,
904 (Tex. Crim. App. 2007) (citations omitted). We “calculate, as nearly as possible, the
probable impact of the error on the jury in light of the record as a whole.” Wall v. State,
184 S.W.3d 730, 746 (Tex. Crim. App. 2006). We consider the nature of the alleged error,
whether the alleged error was emphasized by the State, the probable implications of the
alleged error, and the weight the jury likely would have assigned to the alleged error in
the course of its deliberations. See Snowden, 353 S.W.3d at 822. Because the alleged
error in this case relates to the alleged improper admission of evidence, we must consider
whether the record contains other properly admitted evidence that supports the material
fact to which the alleged inadmissible evidence was directed. See Wall, 184 S.W.3d at
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746. That is, we determine whether absent the statement Hernandez made to officers at
the scene, there was sufficient evidence of Hernandez’s guilt, such that the jury’s verdict
would have been the same. See Funes v. State, 630 S.W.3d 175, 183 (Tex. App.—El
Paso 2020, no pet.).
B. Discussion
On appeal, Hernandez specifically complains that the trial court improperly
admitted one statement: “I’m coming from Rangerville Road.” However, even if that
statement had been suppressed, the record contains other significant evidence to
establish that Hernandez was guilty of the offense of DWI. See id.As set forth above, Deputy Lara testified that he was dispatched to a hit-and-run
accident. Upon arrival at the scene, he noticed the accident. He further observed two
individuals “in a physical altercation” attempting to hold Hernandez down in the middle of
the roadway—approximately one hundred feet from where the accident occurred. See
Gonzales v. State, 330 S.W.3d 691, 695 (Tex. App.—San Antonio 2010, no pet.) (“Flight
from the scene of a crime may . . . be circumstantial evidence of guilt.”). Deputy Lara
stated that Hernandez appeared intoxicated. As part of Deputy Lara’s investigation, he
gathered information from the bystanders that Hernandez was involved in the collision.
Trooper Gonzalez testified that the crashed vehicle in the middle of the roadway
was registered to Hernandez’s wife. There were no other witnesses present at the scene
claiming to be the driver, Hernandez’s wife was not present at the scene, and there was
no evidence to indicate that someone else was driving his vehicle. Due to the point of
impact, Trooper Gonzalez surmised that Hernandez’s vehicle collided with another
14
vehicle and caused damage to the other vehicle. As previously stated, Trooper Gonzalez
immediately noticed Hernandez was intoxicated—a fact Hernandez does not dispute.
Trooper Gonzalez was informed that Hernandez had attempted to flee, so Hernandez
was being detained by Deputy Lara. Furthermore, Deputy Lara testified that Hernandez
appeared to be injured, which is some evidence that he was inside the vehicle when the
accident occurred.
Hernandez admitted to Trooper Gonzalez that the truck in the middle of the
roadway belonged to him. When Trooper Gonzalez questioned why Hernandez left his
vehicle in the middle of the road, Hernandez responded that bystanders pulled him out of
the vehicle. Moreover, Hernandez admitted to Trooper Gonzalez that he had consumed
“several drinks of beer” prior to the crash. Hernandez also failed the SFSTs.
In light of this additional evidence, the probable impact on the jury of the
complained-of statement was minimal. See Snowden, 353 S.W.3d at 822. That is, the
jury could have found the evidence was sufficient to support a conviction for DWI absent
Hernandez’s statement that he came from Rangerville Road. See Kirsch v. State, 357
S.W.3d 645, 650–51 (Tex. Crim. App. 2012) (providing that a person “operates a vehicle
when the totality of the circumstances . . . demonstrate that the defendant took action to
affect the functioning of his vehicle in a manner that would enable the vehicle’s use”)
(internal quotations omitted); Funes, 630 S.W.3d at 184; see also Campbell, 325 S.W.3d
at 238–39 (holding that the failure to suppress defendant’s statement that he had been
drinking was harmless where the evidence showed that the defendant had been driving
recklessly, smelled of alcohol, and failed a SFSTs). Further, although the State mentioned
15
Hernandez’s statement in its closing argument, the State did not emphasize it. In fact, the
State attempted to cast doubt on Hernandez’s statement, arguing that it was likely he was
coming from a bar, rather than his relative’s home on “Rangerville Road.” Accordingly,
we are confident beyond a reasonable doubt that Hernandez would have been convicted
of the offense in absence of the complained-of statement. See TEX. R. APP. P. 44.2(a).
We therefore conclude that any error in admitting the statement at trial was harmless
beyond a reasonable doubt. See Clay, 240 S.W.3d at 904. We overrule his fourth issue.
VI. JURY ARGUMENTS
By his fifth issue, Hernandez argues that the State’s closing argument was
improper because the State: (1) relied on hearsay; (2) shifted the burden to him and
commented on his failure to testify; (3) commented on his past convictions; and (4) asked
the jury to send a message to the community.
A. Standard of Review
We review a trial court’s ruling on an objection to improper jury argument for an
abuse of discretion. Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San Antonio
2014, no pet.). “Such argument does not result in reversal ‘unless, in light of the record
as a whole, the argument is extreme or manifestly improper, violative of a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding.’” Id. (quoting
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)). “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.” Id.16
B. Applicable Law
The “purpose of closing argument is to facilitate the jury’s proper analysis of the
evidence presented at trial so that it may arrive at a just and reasonable conclusion based
on the admitted evidence alone.” Fant–Caughman v. State, 61 S.W.3d 25, 28 (Tex.
App.—Amarillo 2001, pet. ref’d). Jury argument must fall within one of four general areas:
“(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer
to opposing counsel’s argument; or (4) plea for law enforcement.” Id. (citing Cantu v.
State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). In order to determine if the State’s
argument falls into one of the four permissible areas, we must consider the argument in
the context where it appears and in light of the entire record. See Gaddis v. State, 753
S.W.2d 396, 398 (Tex. Crim. App. 1988).
C. Discussion
1. Hearsay
Hernandez complains that the State improperly argued to the jury by eliciting
hearsay when it made the following argument:
Like I told you before, no officer saw him driving. There is no video of him
actually driving, but you heard from the deputy that through his
investigation, he learned that the defendant was driving that truck and that
he crashed into the red truck. You heard from the trooper that the trooper
asked him, “Where are you coming from? Where are you going to,” and the
defendant answered.
The extent of Hernandez’s complaint is as follows: “As described above, this use of the
hearsay testimony was excluded in a Rule 104 hearing before trial and again when the
testimony was offered. Despite this, the prosecutor argued it anyway.” For purposes of
this analysis, we will assume Hernandez made the proper objection. Here, the State
17
clarified that Trooper Gonzalez asked Hernandez where he was coming from and where
he was going, and Hernandez answered. Thus, the State did not request that the jury rely
on a statement, other than the one made by Hernandez. See TEX. R. EVID. R. 801(d)(1)
(proving that hearsay is a statement, other than one made by the declarant while testifying
at the trial or a hearing, offered in evidence to prove the truth of the matter asserted).
Accordingly, we cannot find that that such an argument is “extreme or manifestly
improper, violative of a mandatory statute, or injects new facts harmful to the accused
into the trial proceeding.” Wesbrook, 29 S.W.3d at 115.
2. Burden Shift
According to Hernandez, the State improperly shifted the burden of proof to
Hernandez:
[The State]: Cop is asking you over and over again, “Where are you
coming from? Were you the one driving? Where were
you going? How much beer did you have?” All he says
is, “I wasn’t driving. I wasn’t driving. I wasn’t driving. I
wasn’t driving.” Then who was driving?
[Hernandez]: Objection. Is he putting the burden on my client, Your
Honor, to present a defense? That’s impermissible.
The Court: That’s going to be overruled. I don’t hear him placing
the burden on your client, merely the fact that—
[The State]: And I’ll clarify that, Your Honor.
The Court: Okay.
[The State]: To be completely fair, he doesn’t have to say a single
word.
The following statements do not suggest that Hernandez has any burden of proof. The
State was merely responding to Hernandez’s defensive theory that he was not driving.
18
See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (observing that the
State did not improperly shift the burden of proof to the defendant by responding to
defendant’s assertion that the State’s evidence was lacking). In fact, the State clarified
that Hernandez did not have to say a single word. See id. (“In this context, the challenged
comments did not impermissibly shift the burden of proof to the defense, particularly given
the prosecutor’s repeated reminders to the jury that the defense was not required to
present any evidence.”). Therefore, we reject this argument.4
3. Extraneous Offenses
Hernandez complains of the following exchange:
[The State]: He’s been in these situations before. He knows how to
play the system.
[Hernandez]: Objection, Your Honor. He cannot make comments
about the prior—the prior convictions are not to talk
about—that he’s been in this situation before; it’s just
to establish that this is a felony offense.
[The State]: I never said that he’s guilty of this cause because he’s
been convicted prior.
[Hernandez]: He said he’d been in this situation before. He can’t—
The Court: That will be over—okay. That will be overruled.
[Hernandez]: He can’t reference 4.04, Your Honor.
The Court: Mr. Perez, he can reference the fact that he’s got the
two prior convictions; he just cannot say that that is
evidence to show that he’s guilty of this offense.
4 Hernandez further argues that the State improperly commented on Hernandez’s failure to testify.
However, Hernandez did not object on this basis. To cure erroneous jury argument, “the defendant must
object and pursue his objection to an adverse ruling.” Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim.
App. 2018). Because Hernandez did not object on this basis, he has waived his right to appeal this issue.
See id.; TEX. R. APP. P. 33.1(a).
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[Hernandez]: That’s exactly what he’s saying, by saying he’s been in
this situation before.
[The Court]: No, he’s merely stating that your—never mind. It
doesn’t matter. I’m not going to get into that discussion
because then I think that makes the situation worse.
But continue.
Here, the State briefly stated that Hernandez has been in this situation before and knows
how to play the criminal justice system. The State did not present evidence of
Hernandez’s prior convictions in its case in chief. Hernandez’s two prior DWI offenses
were validly mentioned in the indictment and validly introduced into evidence via his
stipulation. Thus, the comment that Hernandez has been in the criminal justice system
before was a legitimate subject in closing arguments. See Hollen v. State, 117 S.W.3d
798, 802 (Tex. Crim. App. 2003) (“Since the two prior offenses were validly mentioned in
the indictment and validly introduced into evidence via the stipulation, there was likewise
no error in the jury instructions, and the prior convictions were the legitimate subject of
voir dire, opening statements, and closing arguments.”).
4. Plea for Law Enforcement
Hernandez further complains that the following portion of the State’s closing
argument was improper: “Send a message. Send a message to that man, send a
message to our community that we won’t tolerate drunk drivers, that we’re going to protect
our streets. What you should do is send a message to law enforcement that sometimes,
we can have your back.”
“An argument constitutes a proper plea for law enforcement if it urges the jury to
be the voice of the community.” Harris v. State, 122 S.W.3d 871, 888 (Tex. App.—Fort
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Worth 2003, no pet.) (holding that the State’s request that the jury “represent the
community” and “send a message” “falls squarely within the parameters of proper
argument as a plea for law enforcement”); see Cortez v. State, 683 S.W.2d 419, 421 (Tex.
Crim. App. 1984). Here, the State was asking the jury to enforce the law when referring
to the community. See Harris, 122 S.W.3d at 888; Smith v. State, 114 S.W.3d 66, 72
(Tex. App.—Eastland 2003, pet. ref’d) (holding that the argument to the jury to get
appellant off the streets was a proper plea for law enforcement); see also Salinas v. State,
No. 13-18-00536-CR, 2019 WL 2847450, at *3 (Tex. App.—Corpus Christi–Edinburg July
3, 2019, no pet.) (mem. op., not designated for publication) (“The State can ask the jury
to send a message to the community.”). The State did not pressure the jury to reach a
particular verdict based on the demands, desires, or expectations of the community. See
Harris, 122 S.W.3d at 888. Finding no improper jury argument, we overrule Hernandez’s
fifth issue.
VII. CUMULATIVE ERROR
Lastly, Hernandez argues there is a cumulative prejudicial effect of all the alleged
errors. A number of minor errors may be found harmful in their cumulative effect. See
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). However, having
concluded that there are no errors related to the complained-of actions, or that such errors
are harmless, and that Hernandez has not preserved certain complaints that he now
raises on appeal, we cannot conclude in this case that the cumulative effect of trial court’s
purported errors has deprived him of his rights of due process of law and a fair trial. See
id. (explaining unless and until multiple errors found to have been committed, there can
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be no cumulative error effect because non-errors cannot in their cumulative effect create
harmful error); see also Jenkins v. State, 493 S.W.3d 583, 613 (Tex. Crim. App. 2016)
(where defendant failed to show trial court erred, “there is no error to cumulate”). We
overrule his last issue.
VIII. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
2nd day of February, 2023.
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