Robert Leon Mason, Jr. v. State ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00461-CR
Robert Leon Mason, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2010-508, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Robert Leon Mason, Jr. of the offense of aggravated
kidnapping. See Tex. Penal Code § 20.04(a)(4). Punishment was assessed at 60 years’
imprisonment. In five points of error on appeal, Mason asserts that the district court abused its
discretion in overruling two of Mason’s objections to conduct by the prosecutor during voir dire; that
the district court abused its discretion in allowing the admission of hearsay testimony; that the
evidence is insufficient to support Mason’s conviction; and that the district court abused its
discretion in allowing the prosecutor to make a comment during closing argument regarding
Mason’s failure to testify. We will affirm the judgment.
BACKGROUND
The jury heard evidence that, on October 4, 2010, Tiffani Yamin, an event planner,
had an appointment with Norma Lazo and Doris Dollar to discuss catering an event at a country club
located in a subdivision within the Comal County city of Garden Ridge. The meeting was scheduled
to take place at the same country club, which was at an address that was unfamiliar to Yamin.
Yamin testified that she got lost and ended up at what turned out to be an incorrect but similar
address. But not realizing her mistake immediately, Yamin parked in the driveway, approached
the front door, and knocked. “Nobody answered,” Yamin recounted, so she returned to her car to
retrieve her phone. However, before she opened her car door, Yamin continued, “someone came to
the door [of the house] and said, can I help you.” Yamin turned around and saw a man, who she later
identified in court as Mason. Yamin “told him that I had an appointment with Norma Lazo, is she
here; and he said yes, she is, come on in.” Yamin then went inside the house.
Once Yamin entered, she further testified, “He shut the door. I turned around and he
locked the door.” According to Yamin, Mason was standing between her and the door, looking at
her, and not saying anything. After Mason locked the door, Yamin continued, “He pulled his pants
down and started masturbating.” Yamin added that Mason inquired if she “wanted to suck his big
fat dick,” which Yamin perceived to be a “command” because Mason’s voice was “deep” and
“commanding,” and Mason “was aggressive.” Yamin added that Mason’s “eyes were red” and
his stature was “very big, very big . . . he looked like a husky football player.” It was at this point
that Yamin realized that she was in trouble and began “screaming at the top of [her] lungs” for
Norma Lazo, still in the belief that she was at the country club where their event-planning meeting
was scheduled. Yamin added, “I just started to panic.” Yamin testified that Mason then began to
“mock” her and call out “Norma, Norma.” At that point, Yamin realized that she “was in that house
alone.” Yamin explained, “I was shocked. I mean, I was panicked. I . . . just freaked out. I mean,
I was—I was fearful.” She added that she was also afraid because no one knew where she was
at the time.
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Yamin further testified that Mason “started to approach me and I—he’s going to rape
me, that’s what I was thinking.” According to Yamin, Mason “came right up to [her]” and “was in
[her] space.” Yamin could not recall exactly what happened after Mason began to approach her, but
she remembered that she “just kind of ducked him,” unlocked the door, and then “ran out of the
house screaming.” She explained,
And I had my arm out and—he was approaching me and I had my arm out and he
was just kind of going around this way and I just kind of was ducking him. I mean,
I don’t know. I mean, I was just so panicked at that time that I kept my—and on that
door lock because I knew that was the way in and that was my only way out.
Yamin estimated that she was in the house for “a couple of minutes,” but added that “[i]t could be
more. I don’t really—I don’t really know. It felt like a long time.” When asked if she felt restrained
during the incident, Yamin testified, “Yeah, absolutely. I mean, I felt trapped in the house, yeah.”
After escaping the house, Yamin got into her car, drove away, and called
Norma Lazo, leaving her a voicemail message. Shortly thereafter, Lazo called Yamin back, and
Yamin explained what had happened. Lazo and Dollar, who were driving in a car together, met up
with Yamin at an intersection in the subdivision, and Dollar then called the police. An officer
subsequently arrived at the intersection, and Yamin told the officer what had happened. She then
accompanied the officer to the police department and provided a written statement. Subsequently,
Yamin also identified Mason in a photo lineup.
Based on Yamin’s testimony and other evidence, which we discuss in more detail
below as it is relevant to Mason’s points of error, the jury found Mason guilty of the offense of
aggravated kidnapping and assessed punishment as noted above. The district court sentenced Mason
in accordance with the jury’s verdict. This appeal followed.
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ANALYSIS
Voir dire
In his first point of error, Mason asserts that the district court abused its discretion
in allowing the prosecutor to pose an improper commitment question to the jury during voir dire.
In his second point of error, Mason asserts that the district court abused its discretion in allowing
the prosecutor to inform the jury during voir dire of the holding of an appellate court in a case
similar to Mason’s.
The trial court has broad discretion over the process of selecting a jury during
voir dire. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003); Allridge v. State, 762 S.W.2d
146, 167 (Tex. Crim. App. 1988). “Thus, we leave to the trial court’s discretion the propriety of a
particular question and will not disturb the trial court’s decision absent an abuse of discretion.”
Sells, 121 S.W.3d at 755; see Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012);
Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). In this context, our review is focused
on whether a party proffered a proper question regarding a proper area of inquiry. See Hernandez,
390 S.W.3d at 315. A “proper” question is one which seeks to discover a prospective juror’s views
on an issue applicable to the case. Rhoades v. State, 934 S.W.2d 113, 118 (Tex. Crim. App. 1996).
A trial court abuses its discretion either when it prohibits a proper question from being asked,
or allows, over objection, an improper question to be asked. See Barajas, 93 S.W.3d at 38; Atkins
v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997).
We first address Mason’s contention that the State asked an improper commitment
question. A commitment question is one that commits a prospective juror to resolve, or refrain
from resolving, an issue a certain way after learning a particular fact. Hernandez, 390 S.W.3d at 315
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(citing Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001)). “[T]he purpose for
prohibiting improper commitment questions by either the State or the defendant is to ensure that the
jury will listen to the evidence with an open mind—a mind that is impartial and without bias or
prejudice—and render a verdict based upon that evidence.” Sanchez v. State, 165 S.W.3d 707, 712
(Tex. Crim. App. 2005). “Commitment questions require a venireman to promise that he will base
his verdict or course of action on some specific set of facts before he has heard any evidence, much
less all of the evidence in its proper context.” Id. “It is this prejudgment of the value and importance
of certain evidence that is the evil to be avoided . . . .” Id. Not all commitment questions
are improper, however. Hernandez, 390 S.W.3d at 315. Where the law requires a certain type of
commitment from jurors, such as considering the full range of punishment or disregarding illegally
obtained evidence, an attorney may ask prospective jurors to commit to following the law in that
regard. Standefer, 59 S.W.3d at 181. Conversely, “where the law does not require the commitment,
a commitment question is invariably improper.” Id.
In this case, Mason claims that the following discussion by the prosecutor constituted
an improper commitment question:
[Prosecutor]: So in that scenario we have kidnapping, her getting in the car,
doors being locked, and him saying, you’re coming with me.
Plus we have the aggravated circumstance, which is his intent
to terrorize the woman.
Now, there’s a very important thing that you have to
remember about the aggravating circumstances . . . . The
aggravating circumstance does not have to be completed.
That’s a real important fact. Does anybody have a problem
with that issue?
Let’s say—and I touched on—a little bit on my examples.
When she gets out of the car and she has not been sexually
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assaulted, it is still an aggravated kidnapping because the
aggravating circumstance does not have to be completed. The
fact that the—excuse me?
[Venireperson]: The intent.
[Prosecutor]: Yes, that’s—and what was your number, please?
[Venireperson]: 33.
[Prosecutor]: Okay. Thank you.
And so when she saw the rope, let’s assume he was going to
tie her up or choke her to death, okay, that combined with,
you’re not getting out of here—
[Defense counsel]: Judge, I’ll object to that last portion. It’s a misstatement of
the law. We’re not allowed to speculate as to what someone
may have done in the future on that. I don’t—the language
and interpretation is not covered in the statute.
[The Court]: She was referring to the intent. Correct?
[Prosecutor]: The intent.
[The Court]: That’s how I understood it.
[Defense counsel]: So is my objection overruled, Judge?
[The Court]: My point is—can you clarify for me what your objection is?
[Defense counsel]: She had just told the panel—and I guess—it sounds like a
commitment question to me instead of a hypothetical about
because there was a use of a rope, then we can all
assume—and then she listed out certain things and then
asking for a buy-in into that proposition. That is my formal
objection, improper question.
[The Court]: Ladies and gentlemen, you must simply be able to follow the
law because the Court will ultimately give you a charge and
—and—and counsel from neither side is allowed to commit
you to a certain set of facts or circumstances unless that
commitment is in compliance with the dictates of the law.
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So right now, though, I’m going to overrule counsel’s
objection. I understood the comments to go to the
aggravating factors that the law only requires that the intent
be present on that last scenario.
According to Mason, the hypothetical posed by the prosecutor “was clearly designed to ascertain
whether or not a member of the panel could find the requisite intent based upon a certain fact or set
of facts: a period of time of two minutes or less.” In Mason’s view, this constituted an improper
commitment question “because it left members of the panel with the view that if that period of
time were demonstrated, then they were obligated to return a verdict of guilty to the offense of
aggravated kidnapping.”
We disagree with Mason’s characterization on appeal of the above discussion. The
prosecutor was using a hypothetical scenario (and not one involving any alleged “period of time” in
this case) to explain the elements of the aggravated-kidnapping statute, specifically the requirement
that the aggravating circumstance in the offense is the intent to commit a certain act during the
kidnapping, rather than the act itself. For example, as the prosecutor explained, a person commits
the offense of aggravated kidnapping if he has an intent to sexually assault the victim whom he
kidnaps; he does not have to actually commit the sexual assault in order for the aggravating
circumstance to be present. See Tex. Penal Code § 20.04(a)(4). It is not improper for the prosecutor
to explain the law to the venire and inquire into whether the venire can follow the law. See Urtado
v. State, 333 S.W.3d 418, 427 (Tex. App.—Austin 2011, pet. ref’d). Thus, to the extent that the
prosecutor may have asked a commitment question of the venire in the above discussion, we cannot
conclude on this record that the district court abused its discretion in failing to find that any such
question was improper. We overrule Mason’s first point of error.
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We next address Mason’s contention that the prosecutor impermissibly referred to the
holding of an appellate court. The record reflects that the prosecutor made the following comment:
“Okay. In fact, the Texas Court of Appeals has ruled in Hines v. State that—that under the
kidnapping statute, there is no specific time requirement for determining whether a restraint has
taken place, so that’s where we get our law.” Mason made no objection to the prosecutor’s reference
to the case at that time, and the prosecutor continued with her voir dire. However, shortly thereafter,
the following occurred:
[Prosecutor]: There is also a court case, Rodriguez v State, that has said that
less than two minutes—
[Defense counsel]: Judge, I’m going to object that the law comes from the Court
and not the prosecution and—
[The Court]: Overruled.
[Prosecutor]: May I continue, Your Honor?
Less than two minutes is a substantial restriction of liberty
and restraint is complete, so—
[The Court]: It can be, correct? It doesn’t have to be.
[Prosecutor]: That’s correct, Your Honor.
[Venireperson]: So there is a time limit?
[Prosecutor]: There’s not a time limit. And that particular case—I’m going
to go back just in case there’s any kind of question. Less than
two minutes is still a substantial restriction of liberty and
restraint is complete.
And that’s a direct quote from a case, Your Honor. That’s
from the Texas Court of Appeals in Houston from 1982.
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On appeal, Mason asserts that the prosecutor’s reference to the holding of an appellate court “left
the improper impression with the jury that the ultimate responsibility for determining the appellant’s
guilt laid elsewhere: the appellate courts of this State.” In Mason’s view, this violates the decision
of the United States Supreme Court in Caldwell v. Mississippi, 472 U.S. 320 (1985).
As an initial matter, the State argues that Mason failed to preserve error on this point.
We agree. To preserve an issue for appellate review, a party must timely object, stating the specific
legal basis for the objection. See Tex. R. App. P. 33.1(a)(1). An objection is timely if it is made
at the earliest opportunity or as soon as the grounds for the objection become apparent. See Lackey
v. State, 364 S.W.3d 837, 844 n.28 (Tex. Crim. App. 2012); Gillenwaters v. State, 205 S.W.3d 534,
537 (Tex. Crim. App. 2006). Additionally, the point of error on appeal must comport with the
objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Here,
Mason’s objection was neither timely nor did it comport with the point of error raised on appeal.
It was not timely because the prosecutor had earlier made a reference to a similar holding of an
appellate court, Hines v. State, without any objection from Mason. And, when Mason did belatedly
object to a reference to another court’s holding, it was on the ground that “the law comes from
the Court and not the prosecution.” That is not the argument that Mason has raised on appeal.
Accordingly, Mason did not properly preserve error and there is nothing for us to review. See
Tex. R. App. P. 33.1(a)(1).
Moreover, even if Mason had preserved error, we could not conclude on this record
that the prosecutor’s reference to the holding of an appellate court violated the decision in Caldwell.
In that case, the prosecutor had argued to the jury during the State’s closing argument at sentencing
that the jury was not responsible for the death sentence that it could impose on the defendant because
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the jury’s decision would ultimately be reviewed on appeal. See Caldwell, 472 U.S. at 325. The
Supreme Court reversed, holding that a death sentence cannot rest on a determination by a jury that
“has been led to believe that the responsibility for determining the appropriateness of the defendant’s
death rests elsewhere” and that the imposition of sentence following such an argument by the
State violated the Eighth Amendment. Id. at 328-29. The district court would not have abused
its discretion in concluding that that is not what occurred here. In addition to the obvious factual
differences between this case and a case imposing the death penalty, and the procedural differences
between a prosecutor’s comment during voir dire and a prosecutor’s argument during sentencing,
the prosecutor here was not informing the jury that the responsibility for its verdict rested with an
appellate court. Rather, the prosecutor was explaining the law to the jury by referring to the holding
of an appellate court in a different case. Thus, even if Mason had timely and specifically objected
on the basis of Caldwell, we could not conclude that the district court abused its discretion in failing
to find that such a reference would, in Mason’s words, “mislead[] the jury into believing that an
appellate court would ultimately determine the propriety of their verdict.” We overrule Mason’s
second point of error.
Hearsay
We next address Mason’s fourth point of error, in which he asserts that the
district court abused its discretion in admitting testimony by the investigating officer,
Donna O’Connor, that Mason contends was hearsay. Officer O’Connor testified that, on the date
in question, she had responded to a call that had been placed to the Garden Ridge Police Department.
Once she arrived at the location specified in the call, which, according to O’Connor, was
approximately half a mile away from the police department, O’Connor “saw two vehicles on the side
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of the road, but one of them was positioned halfway on the road and halfway off, like it had pulled
very rapidly off the road.” At the scene, O’Connor made contact with three women, Lazo, Dollar,
and Yamin. According to O’Connor, “It was very easy for me to determine which of the three were
the victims because she was very distraught, makeup smeared. She was extremely nervous and
shaken.” When asked to specify “how much time had elapsed between the phone call about the
incident and [her] arrival” at the scene, O’Connor testified, “I would have to say very few
minutes. . . . The sergeant told me [about the call] and I responded the half mile. So it was very, very
rapid, just a few minutes.” O’Connor then proceeded to testify, over repeated hearsay objections by
Mason, as to everything that Yamin had told her about what had occurred.1 The district court
overruled the objections on the ground that the testimony was not being offered to prove the truth
of the matters asserted, but instead was being offered as background information to help explain the
subsequent actions of law enforcement during the investigation.
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The test for abuse of
discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
A trial court abuses its discretion only when its decision “is so clearly wrong as to lie outside that
zone within which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576
(Tex. Crim. App. 2005). Moreover, we must sustain a trial court’s ruling admitting or excluding
1
At the time, Mason also objected on the basis of the Confrontation Clause, but that
complaint has not been carried forward on appeal, presumably because the victim subsequently
testified in court and was available for cross-examination.
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evidence on any theory of law applicable to the case, even if the trial court gives the wrong reason
for its ruling. See Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).
Assuming without deciding that O’Connor’s testimony included statements that went
beyond merely providing background information regarding the actions of law enforcement during
the investigation,2 the district court would not have abused its discretion in finding that O’Connor’s
testimony was admissible under an exception to the hearsay rule, the excited utterance. An excited
utterance is “[a] statement relating to a startling event or condition made while the declarant was
under the stress or excitement caused by the event or condition.” Tex. R. Evid. 803(2). “The basis
for the excited utterance exception is ‘a psychological one, namely, the fact that when a man is in
the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection
necessary to the fabrication of a falsehood and the truth will come out.’” Zuliani v. State, 97 S.W.3d
589, 595 (Tex. Crim. App. 2003) (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim.
App. 1972)). Factors that the trial court may consider in determining whether a hearsay statement
is admissible as an excited utterance include “the length of time between the occurrence and
the statement, the nature of the declarant, whether the statement is made in response to a question,
and whether the statement is self-serving.” Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.
App. 2005). However, “these are simply factors to consider” and are not dispositive. Zuliani,
97 S.W.3d at 596. “The critical determination is ‘whether the declarant was still dominated by the
2
“It is true that testimony by an officer that he went to a certain place or performed a certain
act in response to generalized ‘information received’ is normally not considered hearsay because the
witness should be allowed to give some explanation of his behavior. But details of the information
received are considered hearsay and are inadmissible.” Poindexter v. State, 153 S.W.3d 402, 408
n.21 (Tex. Crim. App. 2005); see also Langham v. State, 305 S.W.3d 568, 577 n.30 (Tex. Crim.
App. 2010); Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999); Schaffer v. State, 777 S.W.2d
111, 114-15 (Tex. Crim. App. 1989).
12
emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.” Id.
(quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). “The critical question”
in deciding whether a statement qualifies as an excited utterance is “whether the declarant was
still dominated by the emotion caused by the startling event when she spoke.” Coble v. State,
330 S.W.3d 253, 294 (Tex. Crim. App. 2010).
Here, Officer O’Connor testified that “very few minutes” had passed between the time
that the police department had received the call reporting the incident and the time that she made
contact with the victim. Additionally, O’Connor testified that Yamin “was very distraught, makeup
smeared. She was extremely nervous and shaken.” Also, O’Connor testified that when the incident
was happening, which occurred shortly before Yamin spoke with O’Connor, Yamin had felt
“terrorized. She thought she was not going to get out. She thought she was going to be raped.”
O’Connor further testified that it was “impossible” at the time of her conversation with Yamin to
get a written statement from her because “[s]he was too shaken and just hysterical.” Even after
Yamin went to the police department, O’Connor testified, “she could not write her statement. She
was still too shaken. I had to type the statement for her.” Based on this and other evidence, it would
not be outside the zone of reasonable disagreement for the district court to conclude that Yamin’s
statements to O’Connor were excited utterances, and were thus admissible on that ground.
Accordingly, we cannot conclude that the district court abused its discretion in admitting the
evidence. We overrule Mason’s fourth point of error.
Evidentiary sufficiency
In Mason’s third point of error, he asserts that the evidence is insufficient to prove
that he committed the offense of aggravated kidnapping as alleged. A person commits the offense
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of aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to
inflict bodily injury on her or violate or abuse her sexually. See Tex. Penal Code § 20.04(a)(4). For
purposes of this statute, “abduct” means to restrain a person with intent to prevent her liberation by
secreting or holding her in a place where she is not likely to be found. See id. § 20.01(2)(A).
When reviewing the sufficiency of the evidence to support a conviction, we consider
all of the evidence in the light most favorable to the finding of guilt to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virgina, 443 U.S. 307, 319 (1979). We must consider all the evidence in the
record, whether direct or circumstantial or properly or improperly admitted. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts
in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports
the finding, and we defer to the trier of fact’s determinations of the witnesses’ credibility and the
weight to be given their testimony. Jackson, 443 U.S. at 318; Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010); Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04.
On appeal, Mason challenges only the sufficiency of the evidence to prove that
the victim was “restrained.” Specifically, Mason asserts that Yamin voluntarily entered Mason’s
residence and shortly thereafter left the residence and that Mason did nothing to interfere
with her departure.
“Restrain” means to restrict a person’s movements without consent, so as to interfere
substantially with the person’s liberty, by moving the person from one place to another or
by confining the person. Id. § 20.01(1). Restraint is “without consent” if it is accomplished by
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force, intimidation, or deception. Id. § 20.01(1)(A). There are many ways in which one may be
“restrained” for purposes of the kidnapping statute. As the court of criminal appeals has explained,
[T]here is nothing in the Texas statute that even suggests that it is necessary for the
State to prove that a defendant moved his victim a certain distance, or that he held
him a specific length of time before he can be found guilty of kidnapping. In fact, we
have consistently held that under the kidnapping statute, there is no specific time
requirement for determining whether a restraint has taken place.
Hines v. State, 75 S.W.3d 444, 447-48 (Tex. Crim. App. 2002). Similarly, there is more than one
way to prove that a person was confined so as to be restrained. See Holmes v. State, 873 S.W.2d
123, 126 (Tex. App.—Fort Worth 1994, no pet.) (explaining that “[c]onfining is not defined in the
Penal Code or by case law; thus, we use its common meaning when reviewing the evidence,” which
may include shutting up, imprisoning, enclosing, detaining, relegating to certain limits, or trapping
victim). Thus, “‘[i]t is clear that our law imposes no minimal requirement for restraint other than
the interference with the victim’s liberty be substantial.’” Rogers v. State, 687 S.W.2d 337, 342
(Tex. Crim. App. 1985) (quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.—Houston
[1st Dist.] 1982, no pet.). “It is up to the jury to distinguish between those situations in which a
substantial interference with the victim’s liberty has taken place and those situations in which a slight
interference has taken place.” Hines, 75 S.W.3d at 448. “This can be established by looking at all
of the circumstances surrounding the offense.”
Here, the circumstance surrounding the offense included the following: (1) Yamin
was in an unfamiliar neighborhood, at a private residence that she had mistakenly believed to be a
country club; (2) Mason enticed Yamin to enter his house by falsely representing to her that
Norma was there when, in fact, she was not; (3) once Yamin had entered the house, a place she had
15
never been previously, Mason locked the door behind her; (4) Mason then proceeded to pull down
his pants and begin masturbating in front of Yamin; (5) Mason also told Yamin, in a “deep” and
“commanding” voice, to “suck my big fat dick”; (6) Mason was standing between Yamin and the
door; (7) Mason was “aggressive” during the incident; (8) Mason’s “eyes were red” and he was “very
big . . . he looked like a husky football player”; (9) Mason was “mocking” Yamin as she was
screaming, by calling out “Norma, Norma” in imitation of Yamin’s screams; (10) Mason then
“approached” Yamin, with his pants still down, and “came right up to [her]” and “was in [her]
space”; (11) in order to escape, Yamin had to “duck” Mason, unlock and open the door, and run
outside to her car; (12) although Yamin estimated that the incident only lasted “a couple of minutes,”
she testified that “it could be more” and that it “felt like a long time”; (13) during the incident,
Yamin “felt trapped in the house”; (14) no one knew where Yamin was when she was inside the
house; (15) during the incident, Yamin was “scared,” “hysterical,” “freaked out,” and afraid that
Mason was going to rape her. Viewing the above evidence and all reasonable inferences therefrom
in the light most favorable to the verdict, we conclude that a rational jury could have found beyond
a reasonable doubt that Mason had restricted Yamin’s movements without her consent, so as to
interfere substantially with her liberty, by confining her. The jury could have reasonably inferred
that Mason had restricted Yamin’s movements by locking the door behind her and positioning
himself, “a very big man,” between her and the door. The jury also could have reasonably inferred
that this was a substantial interference with Yamin’s liberty because of the sexual and aggressive
nature of Mason’s behavior, the verbal command he had given her, and the way he had approached
her and “came right up next to [her]” and “was in [her] space” with his pants still down. The jury
further could have reasonably inferred that Yamin was confined because the door was locked
16
and she was in an unfamiliar house, with Mason blocking her access to the only exit of which she
was aware. And, the jury could have reasonably inferred that the restraint was without Yamin’s
consent because of the manner in which Mason had deceived her into entering the house and
subsequently intimidated her with his conduct. We conclude that the evidence is sufficient to prove
that Mason committed the offense of aggravated kidnapping as charged. We overrule Mason’s
third point of error.
Closing argument
In his fifth point of error, Mason asserts that the district court abused its discretion
in allowing the prosecutor to make a comment during closing argument on Mason’s failure to testify.
During the prosecutor’s closing argument, she discussed the testimony of Maria Villarreal, an
extraneous-offense witness who had testified that Mason had grabbed her breasts in a parking lot
on a prior occasion. The State used this testimony as evidence of Mason’s sexual intent toward the
victim in this case. See Tex. R. Evid. 404(b). Villarreal was not cross-examined by Mason. When
the prosecutor was summarizing Villarreal’s testimony during the State’s argument, the record
reflects that the following occurred:
[Prosecutor]: As evidence of the defendant’s intent, you need look no
further than the testimony of Maria Villarreal. And as the
Judge already read to you in the jury charge, before you can
use that as evidence of what the defendant’s intent was once
he got Tiffini in that house, you have to find beyond a
reasonable doubt that what Maria Villarreal testified from the
stand happened. Maria Villarreal’s testimony was clear and
concise and not controverted at all.
[Defense counsel]: Objection, Judge. I take that as a comment on my client’s
right not to testify. I would ask that last portion of her
argument be stricken.
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[The Court]: Well, I didn’t take it as such. I thought it was just
uncontroverted. Overruled.
According to Mason, the prosecutor’s comment that Villarreal’s testimony was “not controverted
at all” was an impermissible reference to the fact that Mason did not testify at trial.
We review a trial court’s ruling on an objection to improper jury argument for
abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Nzewi
v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). A trial court
abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules
and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Under this
standard, we are to uphold the trial court’s ruling unless it is so clearly wrong as to lie outside that
zone within which reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576
(Tex. Crim. App. 2005).
A comment on a defendant’s failure to testify violates both the state and federal
constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.
App. 2011); see U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08;
see also Griffin v. California, 380 U.S. 609, 615 (1965). However, “the implication that the State
referred to the defendant’s failure to testify must be a clear and necessary one.” Randolph,
353 S.W.3d at 891 (citing Bustamante v. State, 48 S.W.3d 761, 767 (Tex. Crim. App. 2001)). “If
the language might reasonably be construed as merely an implied or indirect allusion, there is
no violation.” Id. (citing Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008)). “The test
[] is whether 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.” Id.;
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see also Bustamante, 48 S.W.3d at 765 (collecting cases). “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.” Id. Courts are not to find that the prosecutor manifestly intended to comment on
the defendant’s failure to testify “if some other explanation for [her] remark is equally plausible.”
Id. (citing United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977)). “[C]ourts must view the
State’s argument from the jury’s standpoint and resolve any ambiguities in the language in favor of
it being a permissible argument.” Id.
In this case, the prosecutor argued that Villarreal’s testimony was “not controverted
at all.” This comment is not necessarily a reference to a defendant’s failure to testify. Here, the
district court could have reasonably found that the comment was a reference to the fact that, after
Villarreal testified for the State, Mason did not offer any cross-examination of the witness. Thus,
as the district court remarked, the testimony was, in effect, “uncontroverted”—by not cross-
examining Villarreal, Mason chose not to attack her credibility as a witness, dispute her recollection
of events, or otherwise question her account of what had happened. Thus, viewing the argument
from the jury’s standpoint, it would not be “outside the zone of reasonable disagreement” for the
district court to conclude that the prosecutor’s comment was not a reference to the fact that Mason
failed to testify, but was instead a reference to the fact that Mason failed to cross-examine the
witness. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992) (“Language that can
reasonably be construed to refer to a failure to present evidence other than from the defendant’s own
testimony does not amount to comment on failure to testify.”); Burnett v. State, 842 S.W.2d 296, 300
(Tex. App.—Fort Worth 1992, pet. ref’d) (use of word “uncontroverted” could be reference to issues
not in dispute, not necessarily reference to defendant’s failure to testify). Accordingly, we cannot
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conclude that the district court abused its discretion in overruling Mason’s objection to the argument.
We overrule Mason’s fifth point of error.
CONCLUSION
We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed: August 28, 2013
Do Not Publish
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