Ruben Guerrero Gonzalez v. State ( 2013 )


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  • Affirmed and Memorandum Opinion filed January 31, 2013.
    In The
    Fourteenth Court of Appeals
    NO. 14-11-00995-CR
    RUBEN GUERRERO GONZALEZ, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 176th District Court
    Harris County, Texas
    Trial Court Cause No. 1269771
    MEMORANDUM                     OPINION
    A jury convicted appellant, Ruben Guerrero Gonzalez, of aggravated assault
    of a family member and assessed punishment at twenty years‘ incarceration in the
    Texas Department of Criminal Justice, Institutional Division.    In five issues,
    appellant appeals his conviction and sentence. We affirm.
    I. BACKGROUND
    A. Guilt-Innocence
    The following evidence was presented at the guilt-innocence phase of trial.
    Anna Vasquez, the complainant, had been married to appellant for sixteen years
    until their divorce in 2007. Anna and appellant had four children. Anna was
    planning a ―quinceanera‖—a fifteenth birthday party—for their daughter, Isabel.
    On June 19, 2010, appellant called Anna and told her to come to his house because
    he was going to give her money for Isabel‘s party. Appellant was not there when
    Anna arrived, but he arrived about ten minutes later. Appellant asked Anna to go
    to the bank with him. Appellant asked Anna to ride in his car, but she had
    ―doubts‖ and was afraid and chose to drive separately in her car.
    On the way to the bank, appellant pulled into the driveway of a construction
    site. Anna parked next to appellant, and got out of her car. Appellant said he
    wanted to talk to Anna and asked her to sit in his car. Anna responded that she
    could hear him from outside the car. Appellant told Anna that he wanted her to
    come back to him, but Anna said she would not. Appellant became furious, and
    his face changed: ―He looked as though evil had just confronted him.‖ Anna
    walked quickly back to her car and got in. When she started to put the car in
    reverse, she saw that appellant was sitting in the passenger seat.
    Appellant said to Anna, ―You dog, with how many have you cheated on
    me.‖ Appellant raised his t-shirt and pulled out a black object, which Anna later
    realized was a gun. Appellant put the gun against her right side and began to
    shoot. Anna tried to block the bullets with her arm. Appellant said, ―They say the
    ones that are going to die, they tell the truth. . . . Tell me, with how many you have
    cheated on me, bitch.‖ Anna asked appellant to take her to the hospital. She
    believed that she was going to die, and she was afraid her family would not know
    2
    where her body was. Appellant agreed to take her to the hospital if she did not say
    anything and if she promised to go back to him. Appellant laid Anna on the
    backseat, but she felt like she was choking. She asked appellant to sit her up, and
    she hugged the seat. Appellant threw the gun away in a trash can at the hospital
    before they pulled into the driveway and she was taken out of the car.
    Appellant went inside and informed hospital personnel that he had seen
    Anna on the side of road and drove her to the hospital. Appellant identified
    himself as Pedro Guerrero. When asked by hospital personnel and the police,
    appellant said that he did not know Anna, nor did he mention that Anna was his
    former wife. When Officer Woodrow Tomkins asked Anna, who was in and out of
    consciousness, if she knew who had shot her, she ―kind of muttered no no, like she
    was afraid of me or something.‖
    At this point the police treated appellant as a witness. Officer Gabriel
    Olvera took appellant back to where appellant had left his car. Olvera looked for
    evidence, but did not find any. Olvera followed appellant back to his house and
    then drove appellant to the police station to give a witness statement. 1 Olvera
    1
    In his statement to the police, appellant stated that his name was Ruben Guerrero
    Gonzalez and explained the following:
    About 1:30 p.m. this afternoon I was driving to Sellers Brothers Grocery
    Store when I saw this white car sitting on the side of the road in a driveway with a
    closed gate. I saw that the trunk of the car was wide open. I pulled over next to
    the car to see if someone needed help. I saw the girl sitting in the drivers [sic]
    side of the car bleeding from the side of the body and [she] told me to help her.
    I asked her what happened and she repeatedly told me to help her. I
    opened her car door, took her out of the drivers‘s [sic] side and put her in the back
    seat. I then got back into the driver [sic] side and drove her to Humble Hermann
    Memorial Emergency Room taking, [sic] Little York Road to E. Hardy going
    north to the Beltway 8 East and then to Highway 59 North.
    Once I got to the hospital, I asked for help from the people at the
    emergency room. I then got her out of the car and placed her on the wheel chair
    for the people to help her. I then waited there at the emergency room because the
    3
    found it odd that appellant did not take Anna to a closer hospital. Appellant said it
    was the only hospital he knew, and he did not call 911 because he thought it would
    be quicker to drive Anna to the hospital.              Appellant referred to Anna in his
    statement as ―the girl,‖ and he did not tell Olvera that Anna was his former wife.
    Anna was transferred by helicopter to another hospital in the medical center.
    Anna‘s family did not find out that she had been shot and was in the hospital until
    the following day, June 20, when a social worker called Anna‘s sister, Blanca
    Vasquez. Anna‘s daughter, Isabel, learned of Anna‘s condition when the daughter
    of one of Anna‘s other sisters called Isabel. Anna‘s children came to the hospital
    with appellant on June 20. Appellant told Blanca he just found out that Anna had
    been shot. He did not tell Blanca that he had taken Anna to the hospital the day
    before.
    Anna‘s sisters and appellant took turns staying with Anna at night because
    they did not know who had shot her. Appellant stayed with Anna three nights;
    Isabel was with appellant one of those times. Blanca thought it was unusual for
    appellant to help out at the hospital because he and Anna had been divorced for a
    long time and he was known for ―being a person that is not willing to help.‖ Anna
    was not able to speak for about two weeks.
    The police did not develop a suspect until July 7, 2010, when Officer Lewis
    Hernandez interviewed Anna‘s brother, Jorge Rodriguez, her sister, Blanca
    Vasquez, and her son, Victor Gonzalez.                  These witnesses told Hernandez
    appellant‘s name, which Hernandez recognized from a report as the person who
    had dropped Anna off at the hospital. Hernandez put together a photospread, from
    people told me to wait.
    I left my car with the keys in the ignition at the place where I saw the girl
    in her car.
    4
    which Anna identified appellant.     Hernandez and Sergeant J.C. Bonaby then
    interviewed Anna and took a recorded statement.
    Bonaby and Hernandez obtained an arrest warrant for appellant, and found
    appellant in the waiting room at the hospital. Appellant consented to the search of
    his residence and vehicle. During a search of appellant‘s residence, the police
    recovered a box of .32 caliber Smith and Wesson bullets underneath a mattress.
    There were bullets missing from the box.
    From Anna‘s car, the police recovered two fired bullets with blood on them
    from the driver‘s seat and between the driver‘s seat and the center console. The
    fired bullets were .32 caliber. One of the fired bullets, State‘s Exhibit 7, was
    consistent with the bullets from the box in terms of size, weight, and style. A
    portion of the other fired bullet, State‘s Exhibit 8, was missing. However, the
    firearms examiner did not know if the fired bullets came from the box.
    There was blood on the steering wheel, the center console, the driver‘s seat,
    and the back seat. The police also recovered Anna‘s purse from the floor on the
    passenger‘s side of the car. The purse contained documents, a cell phone, and
    $765.63 in cash. Bonaby testified that this case did not involve a robbery because
    Anna‘s purse was found in the car with the cash still in it. In Bonaby‘s opinion,
    the person who shot Anna was inside the vehicle because Anna was mostly shot on
    the right side, indicating that the bullets came from the passenger side. Having
    interviewed Anna, his opinion that she was shot in the vehicle is consistent with
    her story.
    Anna was shot six times—the common number of rounds in a revolver. She
    had four surgeries and spent nearly two months in the hospital, getting out on
    August 13, 2010. The jury found appellant guilty of aggravated assault of a family
    member.
    5
    B. Punishment
    The following evidence was presented at the punishment phase of trial.
    Regarding a previous conviction, on June 7, 1999, appellant was convicted on his
    guilty plea for assaulting Anna. According to Anna, appellant came home from
    work and started drinking. The children were asking for food, and there was
    nothing in the refrigerator. Anna told appellant, but she eventually borrowed some
    money from a neighbor and went to the store.            When Anna later chastised
    appellant, he became ―very angry, and started beating [her].‖ Isabel called 911,
    and the police came.
    Regarding the current conviction, Anna‘s four surgeries included the
    reconstruction of her pancreas, liver, and intestines. At the time of trial, Anna still
    needed more surgery on her intestines. Anna was not able to communicate for two
    weeks after the shooting. During that time, appellant would see her. He threatened
    Anna, gave her water even though her doctor said could not have any, applied
    pressure to the intravenous needles causing pain, and caused morphine to be
    administered to her when she had not asked him to do so.
    Appellant presented the testimony of two brothers and a sister-in-law
    regarding his good character. Appellant‘s sister-in-law testified that appellant
    helped her take his brother to the doctor.       Appellant‘s brothers testified that
    appellant had not been convicted of a felony in Texas or any other state.
    Appellant‘s younger brother believed that appellant would successfully complete
    the terms of probation if appellant received probation, and appellant would not be a
    danger to society or Anna. However, none of appellant‘s witnesses was aware that
    he had been convicted of assault in 1999.
    A community supervision officer testified that in a case involving domestic
    violence, the defendant is required to participate in a domestic violence program
    6
    and cannot have any contact with the victim. The officer could not say how
    effective the domestic violence program is or that the probation department could
    guarantee that appellant would not attack Anna again.             The jury assessed
    appellant‘s punishment at twenty years‘ confinement.
    II. ANALYSIS
    A. Motion for New Trial
    In his first issue, appellant contends that the trial court abused its discretion
    by failing to hold a hearing on his motion for a new trial. The State urges that this
    issue should be overruled because appellant‘s affidavit in support of the motion for
    new trial was untimely and conclusory.
    ―A defendant may file a motion for new trial before, but no later than 30
    days after, the date when the trial court imposes or suspends sentence in open
    court.‖ TEX. R. APP. 21.4(a). ―Within 30 days after the date when the trial court
    imposes or suspends sentence in open court but before the court overrules any
    preceding motion for new trial, a defendant may, without leave of court, file one or
    more amended motions for new trial.‖ 
    Id. 21.4(b). Filing
    an affidavit in support of
    a motion for new trial more than thirty days after sentencing is considered an
    untimely attempt to amend the motion. Klapesky v. State, 
    256 S.W.3d 442
    , 455
    (Tex. App.—Austin 2008, pet. ref‘d) (citing Dugard v. State, 
    688 S.W.2d 524
    ,
    529–30 (Tex. Crim. App. 1985), overruled on other grounds by Williams v. State,
    
    789 S.W.2d 802
    , 803 (Tex. Crim. App. 1989) (op. on reh‘g)); Flores v. State, 
    18 S.W.3d 796
    , 798 (Tex. App.—Austin 2000, no pet.). The motion for new trial
    must not only be filed timely, but also it must be ―presented‖ to the trial court
    within ten days of its filing. TEX. R. APP. P. 21.6.
    On November 2, 2011, the trial court signed the judgment. On November
    7
    30, 2011, appellant filed a motion for new trial, alleging that (1) his punishment is
    unjust and inappropriate; (2) the verdict is contrary to the law; and (3) he received
    ineffective assistance of counsel. No affidavit accompanied the motion for new
    trial. However, on December 5, 2011, appellant filed an ―Affidavit in Support of
    Motion for New Trial with Briefing.‖ On December 7, 2011, the trial court signed
    the order denying appellant‘s motion for new trial.            The order includes the
    handwritten notation, ―Presented 7 Dec 2011,‖ and it is signed by the trial court.
    While appellant timely filed his motion for new trial on November 30, 2011,
    he did not file his affidavit until thirty-three days after the trial court had signed the
    judgment. This was an untimely attempt to amend the motion for new trial. See
    
    Klapesky, 256 S.W.3d at 455
    ; 
    Flores, 18 S.W.3d at 798
    . The motion for new trial
    was presented timely on December 7, 2011, within ten days after appellant filed
    the motion. We have no reporter‘s record of any proceeding that took place on
    December 7, 2011, and there is no written objection by the State to the late-filed
    affidavit. The record does not reflect whether the trial court considered appellant‘s
    untimely affidavit when it denied appellant‘s motion for new trial.
    We need not determine whether the trial court considered the untimely
    affidavit. Even if the trial court considered the affidavit, we conclude that the
    affidavit was not sufficient and the trial court did not abuse its discretion by
    denying the motion for new trial without a hearing.
    The right to a hearing on a motion for new trial is not absolute. Reyes v.
    State, 
    849 S.W.2d 812
    , 815 (Tex. Crim. App. 1993). As a prerequisite to obtaining
    a hearing, the motion must be verified or supported by an affidavit by the accused
    or someone else specifically showing the truth of the grounds of attack. Jordan v.
    State, 
    883 S.W.2d 664
    , 665 (Tex. Crim. App. 1994). A defendant is entitled to a
    hearing on a motion for new trial if the motion and the supporting affidavits raise
    8
    matters not determinable from the record that could entitle him to relief. Wallace
    v. State, 
    106 S.W.3d 103
    , 108 (Tex. Crim. App. 2003). The affidavit is not
    required to reflect every component legally required to establish relief but the
    motion for new trial or affidavit must reflect that reasonable grounds exist for
    holding that such relief could be granted. 
    Jordan, 883 S.W.2d at 665
    ; 
    Reyes, 849 S.W.2d at 816
    . Affidavits which are conclusory in nature and unsupported by facts
    are not sufficient to put the trial court on notice that reasonable grounds for relief
    exist. 
    Jordan, 883 S.W.2d at 665
    . If the defendant‘s motion and affidavit are
    sufficient, a hearing on the motion is mandatory. 
    Id. We review
    the trial court‘s
    denial of a hearing for an abuse of discretion. Smith v. State, 
    286 S.W.3d 333
    , 338
    (Tex. Crim. App. 2009).
    Unlike the other issues raised by appellant‘s motion for new trial, whether
    appellant receive ineffective assistance of counsel during trial is not determinable
    from the record; therefore, we must determine whether appellant‘s affidavit
    provides reasonable grounds which would entitle him to a hearing on his motion
    for new trial. See Buerger v. State, 
    60 S.W.3d 358
    , 362 (Tex. App.—Houston
    [14th Dist.] 2001, pet. ref‘d); see also 
    Smith, 286 S.W.3d at 341
    (―Because the
    appellant‘s [ineffective assistance] claim is not determinable from the record, we
    must decide whether his motion and affidavit show reasonable grounds that could
    entitled him to relief.‖). ―To do so, the appellant must allege facts that would
    reasonably show that his counsel‘s representation fell below the standard of
    professional norms and that there is a reasonable probability that, but for his
    counsel‘s conduct, the result of the proceeding would have been different.‖ 
    Smith, 286 S.W.3d at 341
    .
    In his affidavit, appellant states:
    My trial attorney did not represent me capably. I gave him several
    9
    specific witnesses at both guilt and innocence and at punishment and
    he did not speak with them or call them at trial. I believe that my case
    was not handled correctly. My lawyer did not investigate the defenses
    that I provided him nor conduct any independent investigation of my
    case. At punishment there were a number of favorable witnesses that
    could have been called[—]he did not subpoena or obtain any of my
    school records or work history or good behavior while in jail or
    present any good character evidence from friends or family. I
    received the maximum sentence possible and I believe this was due to
    Mr. Rodriguez‘s failure to represent me properly.
    Appellant‘s affidavit is conclusory, and his motion for new trial contains only bare
    assertions of his trial counsel‘s alleged deficiencies.
    Appellant has not explained what the uncalled witnesses would have
    testified to or that they would have been available to testify at all. Moreover,
    appellant has not specifically stated what investigation his trial counsel failed to
    conduct or what defenses he provided to trial counsel that trial counsel failed to
    investigate.   See King v. State, 
    29 S.W.3d 556
    , 569 (Tex. Crim. App. 2000)
    (holding that the appellant‘s bare assertions, including those of ineffective
    assistance of counsel, did not entitle him to a hearing on his motion for new trial;
    the appellant did not allege what further investigation counsel should have
    conducted, who his alibi witness was, or how an alibi defense could have been
    persuasive); 
    Jordan, 883 S.W.2d at 665
    (holding that the appellant‘s affidavit was
    conclusory in nature because he failed to say why counsel‘s investigation was
    deficient, or what any further investigation would have revealed; therefore, the
    motion for new trial was not sufficient to put the trial court on notice that
    reasonable grounds existed to believe that counsel‘s representation was
    ineffective); 
    Klapesky, 256 S.W.3d at 455
    (holding that the appellant‘s affidavit,
    which was conclusory, and the motion, which made only bare assertions that
    counsel failed to present easily obtainable evidence of his innocence and call
    witnesses who would have substantiated his affirmative defense, were insufficient
    10
    to put the trial court on notice that reasonable grounds existed for relief).
    We hold that appellant‘s motion for new trial and affidavit are not sufficient
    to put the trial court on notice that reasonable grounds exist for relief to be
    granted.2 Therefore, because appellant‘s affidavit was deficient, the trial court did
    not abuse its discretion in failing to hold a hearing on appellant‘s motion for new
    trial. We overrule appellant‘s first issue.
    B. Motion for Mistrial
    In his second issue, appellant complains that the trial court erred in denying
    his motion for a mistrial because there was no instruction that could have cured
    Anna‘s emotional plea to the jury. After Anna finished testifying and as she was
    leaving the witness stand, she held her hands in a praying position and said,
    ―please,‖ to the jury.      Appellant‘s counsel saw Anna‘s plea to the jury and
    informed the trial judge and the prosecutor, neither of whom saw Anna‘s action.
    The following exchange took place at the bench out of the hearing of the jury:
    MR. RODRIGUEZ [APPELLANT‘S COUNSEL]: I didn‘t
    want to say this in front of the jury so they could hear, but for the
    record, when the witness walked in front of the jury, she held her
    hands in a praying motion, like pleaing [sic] to them as she looked at
    them, and said please before she walked out of the courtroom.
    Because of that, I would ask for a mistrial or that the State instruct its
    witnesses not to communicate with the jury in that manner.
    MR. MOSS [THE PROSECUTOR]: When did this happen?
    MR. RODRIGUEZ: When she was walking from the witness
    stand to the door.
    MR. MOSS: I wouldn‘t —
    THE COURT: I wasn‘t paying any attention.
    2
    Furthermore, the record does not support appellant‘s assertion that trial counsel was
    ineffective for failing to present ―good character evidence from family friends.‖ Three family
    members testified as to appellant‘s ―good character.‖
    11
    MR. MOSS: I didn‘t see that. I will talk to them. I don‘t have
    anymore [sic] civilian witnesses.
    With the jury out of the courtroom, the trial court then questioned Anna and
    determined that she, in fact, had communicated to the jury:
    THE COURT: . . . Ms. Vaquez, when you got down from the
    witness stand and walked to the back door, did you put your hands
    together in a praying motion and look to the jury and say please?
    MS. VASQUEZ: Correct.
    THE COURT: And what was the purpose of that?
    MS. VASQUEZ: Praying that they would answer my prayer.
    THE COURT: And who told you that you could speak to the
    jury directly when you‘re not on the witness stand?
    MS. VASQUEZ: Excuse me, I didn‘t know that.
    THE COURT: So do you really speak English?
    MS. VASQUEZ: Just simple words.
    The following discussion took place among the trial court, appellant‘s
    counsel, and the prosecutor concerning the remedy for Anna‘s action:
    THE COURT: Okay. I realize we‘re dealing with rather
    unsophisticated people here, so as far as I see it, my options are this, I
    can individually question the jury about what they saw and whether or
    not that‘s going to affect their verdict, or I can bring them out and
    admonish them as a group to completely disregard that little
    demonstration, or I could instruct them to disregard the demonstration
    and then question them either as a group or individually whether or
    not that‘s going to affect their verdict. What‘s your druthers?
    MR. MOSS: The State would just ask for an admonishment.
    MR. RODRIGUEZ: The Defense, your Honor, would ask for
    an admonishment not to allow anything — or to disregard any outside
    actions other than direct testimony, and then ask generally if anybody
    was affected by any outside action. That‘s what [the] Defense would
    ask for.
    THE COURT: I‘ll be happy to do that, since they have been
    repeatedly admonished not to let anything.
    12
    And are you saying there are no more civilian witnesses?
    MR. MOSS: I have only two experts left, your Honor.
    THE COURT: I assume your experts will not pray to the jury for a
    verdict.
    All right. Let‘s have the jury back out.
    The jury returned to the courtroom, and the trial court admonished the jurors
    not to consider Anna‘s plea and asked whether they could disregard Anna‘s plea:
    THE COURT: . . . All right. Ladies and gentlemen, it was
    brought to my attention that as the complaining witness left the
    witness stand, Ms. Vasquez, as she passed by the jury box, that she
    put her hands together in a praying motion and mouthed or said the
    word ―please‖ to you all in English.
    Please understand, ladies and gentlemen of the jury, we cannot
    have you take those actions, which were completely unauthorized, to
    give any consideration whatsoever for that unauthorized act. What I
    need to know — you are to disregard it completely and not let it play
    any factor whatsoever in your deliberations in this case. It is not
    evidence. It‘s not sworn evidence. It‘s just nothing.
    Now, I need to know from you now if there is anyone that‘s
    going to let those actions by the complaining witness affect them in
    their deliberations. Anybody? Can everybody raise their hands and
    assure me that they can completely disregard those actions by the
    complaining witness? Everybody raise your hand if you can.
    (Hands raised.)
    THE COURT: Okay. Raise your hand if you think you cannot,
    or if you know you cannot.
    All right. I see all twelve hands raised that they can completely
    disregard those actions by the complaining witness. Very good.
    Appellant‘s counsel then moved for a mistrial ―just to protect the record,‖
    which the trial court denied.
    A mistrial is a device used to halt trial proceedings when error is so
    prejudicial that expenditure of further time and expense would be wasteful and
    13
    futile. Ladd v. State, 
    3 S.W.3d 547
    , 566 (Tex. Crim. App. 1999). The trial court
    may properly exercise its discretion to declare a mistrial if an impartial verdict
    cannot be reached, or if a verdict of conviction could be reached but would have to
    be reversed on appeal due to an obvious procedural error. 
    Id. An outburst
    by a witness or other bystander ―‗which interferes with the
    normal proceedings of a trial will not result in reversible error unless the defendant
    shows a reasonable probability that the conduct interfered with the jury‘s verdict.‘‖
    Gamboa v. State, 
    296 S.W.3d 574
    , 580 (Tex. Crim. App. 2009) (quoting Landry v.
    State, 
    706 S.W.2d 105
    , 112 (Tex. Crim. App. 1985)). In the context of such
    outbursts, instructions to the jury are generally considered sufficient to cure
    improprieties that occur during trial because it is presumed that the jury will follow
    those instructions. Coble v. State, 
    330 S.W.3d 253
    , 292 (Tex. Crim. App. 2010),
    cert denied, — U.S. —, 
    131 S. Ct. 3030
    (2011); 
    Gamboa, 296 S.W.3d at 580
    . We
    review the denial of a motion for mistrial under an abuse of discretion standard.
    
    Coble, 330 S.W.3d at 292
    ; 
    Gamboa, 296 S.W.3d at 580
    . The determination of
    whether a given error necessitates a mistrial must be made by examining the
    particular facts of the case. 
    Ladd, 3 S.W.3d at 566
    .
    In Stahl v. State, the trial court cautioned the mother of the murder victim,
    before she testified, not to show emotion when being shown a morgue photograph
    of her son; she responded that ―I can assure you I will try. . . . I can‘t say what‘s
    going to happen.‖ 
    749 S.W.2d 826
    , 828 (Tex. Crim. App. 1988) (op. on reh‘g).
    When shown the picture of her son, she stated, ―Oh, my God. . . . Oh, my God.
    My baby. My God. . . . May he rest in hell. May he burn in hell. Oh, my baby.‖
    
    Id. The trial
    court instructed the jury to disregard these statements but denied the
    motion for mistrial. 
    Id. The record
    revealed that the prosecutor had anticipated the
    mother‘s behavior. 
    Id. at 829.
    The prosecutor further sought to exacerbate the
    14
    impact of the mother‘s emotional outburst on the jury by referring to the mother‘s
    conduct during closing argument. 
    Id. at 830.
    The court noted its observation of
    ―the prosecutor‘s desire to use the outburst for inflammatory purposes.‖ 
    Id. Stahl is
    distinguishable from the facts in this case. Stahl was decided on the
    basis of prosecutorial misconduct, not merely the witness‘s emotional outburst.
    
    Coble, 330 S.W.3d at 292
    (discussing Stahl). Here, there is no suggestion by
    appellant of prosecutorial misconduct. When appellant‘s counsel informed the trial
    court about Anna‘s direct plea to the jury, it is clear from the prosecutor‘s reaction
    that he had not seen Anna‘s action and that he did not know that she was going to
    communicate to the jury. The prosecutor did not draw further attention to Anna‘s
    conduct by referring to it during closing argument.
    We find the witness‘s communication to the jury in Brown v. State similar to
    Anna‘s plea to the jury in this case. See 
    92 S.W.3d 655
    (Tex. App.—Dallas 2002),
    aff’d on other grounds, 
    122 S.W.3d 794
    (Tex. Crim. App. 2003). In Brown, the
    father of the victim in a capital murder trial, after the prosecutor had passed the
    witness and defense counsel had no questions, stated to the jury, ―Give my son
    justice, please.‖ 
    Id. at 661.
    When the defendant started to object, the trial court
    stated, ―Mr. Gray [the witness], unfortunately, that‘s out of line.‖ 
    Id. Upon the
    defendant‘s request for an instruction to disregard, the trial court announced, ―The
    jury will disregard,‖ but denied the defendant‘s motion for mistrial. 
    Id. First, the
    Brown court distinguished the facts of that case from those in Stahl. 
    Id. at 661–62.
    Then the court noted that the trial court‘s instruction to disregard was immediate,
    and it presumed that the jury followed the instruction to disregard. 
    Id. at 662.
    The
    court held that the father‘s statement was neither so offensive nor so flagrant that
    the trial court‘s immediate reprimand of the witness and the instruction to the jury
    to disregard could not have cured the error. 
    Id. 15 Anna‘s
    plea to the jury was no more harmful than the victim‘s father‘s plea
    in Brown or other arguably more inflammatory outbursts in other cases, which
    have been held not to warrant a mistrial. See 
    Coble, 330 S.W.3d at 291
    –93
    (holding capital murder defendant was not entitled to mistrial based on outbursts
    by two witnesses: (1) ―And I hate you for making me go through this again and my
    kids. You‘re mean.‖; and (2) ―Evil piece of shit.‖); 
    Gamboa, 296 S.W.3d at 580
    (holding that capital murder defendant was not entitled to a mistrial based on an
    outburst by a victim‘s family member shouting, ―You did this for 200 dollars?‖,
    during the testimony of a prosecution witness).
    Here, the trial court, which had not witnessed Anna‘s plea, immediately
    determined what had occurred and then gave a lengthy admonishment to the jury
    not to consider Anna‘s direct plea. We presume that the jury followed the trial
    court‘s instruction to disregard. See 
    Coble, 330 S.W.3d at 292
    ; 
    Gamboa, 296 S.W.3d at 580
    . Furthermore, the trial court questioned the jurors about whether
    Anna‘s communication to them would affect their deliberations and determined
    that it would not.
    We conclude that Anna‘s direct plea to the jury was not so prejudicial that it
    could not be cured by the trial court‘s thorough instructions to disregard.
    Therefore, the trial court‘s denial of appellant‘s motion for mistrial was not an
    abuse of discretion. We overrule appellant‘s second issue.
    C. Comment on the Failure to Testify
    In his third, fourth, and fifth issues, appellant complains that it was harmful
    error for the prosecutor to comment on appellant‘s failure to testify at punishment.
    Appellant contends that such comment violated Article 38.08 of the Texas Code of
    Criminal Procedure, Article I, Section 10 of the Texas Constitution, and the Fifth
    16
    Amendment to the United States Constitution.3
    During closing argument at punishment, the following took place:
    MR. MOSS [THE PROSECUTOR]: . . . People who are on
    probation, what‘s the first thing they always tell you, you got to accept
    responsibility, right? You got to accept responsibility for actions
    before you can ever improve yourself.
    MR. RODRIGUEZ [APPELLANT‘S COUNSEL]:                    Your
    Honor, I would make an objection at this time that that‘s a comment
    on his Fifth Amendment right not to testify.
    THE COURT: That‘s overruled.
    MR. MOSS: When he took her to the hospital and didn‘t give
    his name, was he taking responsibility for his actions? Was he saying
    I did this, I‘m sorry? I shot her, I lost my temper, please help her.
    Did he do that? No, he didn‘t. He took her there, denied knowing
    her, and tried to get away with it. Did he then accept responsibility
    that night? Did he take his own kids —
    MR. RODRIGUEZ: Your Honor, may I have a running
    objection as to accepting responsibility being a violation of his Fifth
    Amendment right not to testify?
    THE COURT: Well, I don‘t see how a running objection is
    going to apply to context [sic]. It‘s overruled, if that‘s your objection
    to what he just said about that night.
    MR. RODRIGEZ: Then I renew my objection as to accepting
    responsibility in violation of his Fifth Amendment right not to testify.
    THE COURT: That‘s overruled.
    MR. MOSS: That night when he went to the hospital, did he
    accept responsibility for his actions?
    MR. RODRIGUEZ: Your Honor, I object again. Unless I have
    3
    See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN.
    § 38.08 (West 2005). The State argues that appellant waived his arguments under the Texas
    Constitution and section 38.08 of the Code of Criminal because his objections in the trial court
    were based solely on the Fifth Amendment to the U.S. Constitution. Even if appellant waived
    his state law and state constitutional arguments, we conclude as addressed below that the
    prosecutor did not refer to appellant‘s failure to testify.
    17
    a running objection I object every time he says that he doesn‘t accept
    responsibility because that‘s a violation of his Fifth Amendment right.
    THE COURT: He‘s talking about that night. That‘s overruled.
    MR. MOSS: When he didn‘t bring their children to the
    hospital, we all heard, she might die, there was a good probability, did
    he bring his children to the hospital that day to say good-bye to their
    mom? Does he do that as a hero would? No, he didn‘t. He didn‘t tell
    anyone they were there. In fact, not until the next day did any of her
    family, including her children, know she was in the hospital, in critical
    condition. Nobody knew that. Is that him being a hero? Is that him
    doing what people on probation need to do? No.
    And what do we know about his family? They were very nice
    people, but they said that, first of all, they didn‘t even know he‘d been
    convicted before. And second, they said they didn‘t believe he‘d done
    it. Well, if your own family can‘t accept responsibility how are they
    going to assure he goes by it. Nobody wants to accept responsibility
    for what he did. He doesn‘t want to do it. His family members don‘t
    want to believe it.
    MR. RODRIGUEZ: Your Honor, we object to the comment
    about Mr. Gonzalez not accepting responsibility being a violation of
    his Fifth Amendment right.
    THE COURT: Overruled.
    A comment on a defendant‘s failure to testify violates both the state and
    federal constitutional privileges against self-incrimination, as well as Texas
    statutory law. Randolph v. State, 
    353 S.W.3d 887
    , 891 (Tex. Crim. App. 2011);
    Archie v. State, 
    340 S.W.3d 734
    , 738 (Tex. Crim. App. 2011). Such a violation
    occurs when ―the language used was manifestly intended or was of such a
    character that the jury would necessarily and naturally take it as a comment on the
    defendant‘s failure to testify.‖ Cruz v. State, 
    225 S.W.3d 546
    , 548 (Tex. Crim.
    App. 2007). In applying this standard, the context in which the comment was
    made must be analyzed to determine whether the language used was of such
    character. 
    Randolph, 353 S.W.3d at 891
    ; Busatmante v. State, 
    48 S.W.3d 761
    , 765
    (Tex. Crim. App. 2001). It is not sufficient that the comment might be construed
    18
    as an implied or indirect allusion to a defendant‘s failure to testify. 
    Busatmante, 48 S.W.3d at 765
    . We view the challenged argument from the jury‘s standpoint and
    resolve any ambiguities in the language in favor of it being a permissible
    argument. 
    Randolph, 353 S.W.3d at 891
    . ―‗We cannot find that the prosecutor
    manifestly intended to comment on the defendant‘s failure to testify, if some other
    explanation for his remark is equally plausible.‘‖ 
    Id. (quoting United
    States v.
    Rochan, 
    563 F.2d 1246
    , 1249 (5th Cir. 1977)). In a case in which the defendant
    does not testify, a statement that the defendant has not taken responsibility for his
    actions could constitute an impermissible comment on the failure to testify. 
    Id. at 891–92.
    Under the circumstances of this case, however, the complained-of argument
    does not amount to a comment on appellant‘s failure to testify. The prosecutor
    specifically asked, ―Did he then accept responsibility that night?‖ and ―That night
    when he went to the hospital, did he accept responsibility for his actions?‖4 The
    prosecutor further asked, ―[D]id he bring his children to the hospital that day to say
    good-bye to their mom?‖ Here, the prosecutor was referring to the defendant‘s
    actions when he took Anna to the hospital after the shooting, not his failure to
    testify. Permissible jury argument includes (1) summation of the evidence; (2)
    reasonable deduction from the evidence; (3) answer to the argument of opposing
    counsel; or (4) plea for law enforcement. David v. State, 
    329 S.W.3d 798
    , 821
    (Tex. Crim. App. 2010), cert. denied, — U.S. —, 
    132 S. Ct. 128
    (2011). If
    evidence in the record supports the prosecutor‘s remarks, there is no error.
    
    Randolph, 353 S.W.3d at 892
    . Viewed from the jury‘s standpoint, the prosecutor‘s
    remarks could be construed as a summation of the evidence or a reasonable
    deduction from the evidence. The prosecutor‘s argument was clearly supported by
    4
    Emphasis added.
    19
    evidence in the record that appellant did not admit to hospital personnel or the
    police that he even knew Anna, much less that they had been married, and that he
    did not tell Anna‘s family or children that she was in the hospital or that she had
    been shot.
    The prosecutor also referred to appellant‘s family‘s refusal to accept
    responsibility for appellant‘s actions.            Appellant‘s family did not know that
    appellant had been convicted of assaulting Anna in 1999.                  The prior assault
    conviction did not impact their opinions that appellant is of good character. Again,
    from the jury‘s viewpoint, the prosecutor‘s comments about appellant‘s family
    constituted a summation of the evidence or a deduction from the evidence, not a
    comment on appellant‘s failure to testify.
    We conclude that the prosecutor‘s argument was not manifestly
    intended to or was of such a character that the jury would necessarily and naturally
    take it as a comment on the his failure to testify. See 
    id. at 891.
    We overrule
    appellant‘s third, fourth, and fifth issues.
    Having overruled all of appellant‘s issues, we affirm the trial court‘s
    judgment.
    /s/     Sharon McCally
    Justice
    Panel consists of Justices Boyce, McCally, and Mirabal.5
    Do Not Publish — TEX. R. APP. P. 47.2(b).
    5
    Senior Justice Margaret Garner Mirabal sitting by assignment.
    20