                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                        No. 04-12-00853-CR

                                        Carlos ZAMBRANO,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 111th Judicial District Court, Webb County, Texas
                               Trial Court No. 2011CRM000635D2
                          Honorable Monica Z. Notzon, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: March 5, 2014

AFFIRMED

           Appellant Carlos Zambrano, along with co-defendants Abraham Linares and Romeo

Hinojosa, was charged with second-degree aggravated assault with a deadly weapon and first

degree aggravated kidnapping of Nestor Abundez. Zambrano was convicted of both counts and

sentenced to fifteen years and twenty-five years confinement, respectively, and assessed a

$10,000.00 fine in each cause. On appeal, Zambrano argues (1) the trial court abused its discretion

in allowing the State to proceed on a notice of enhancement filed shortly before the start of trial

and (2) the State’s comments during closing argument were improper and outside the scope of
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permissible jury argument and violated his right to a fair trial. We disagree and affirm the

judgment of the trial court.

                                           FACTUAL BACKGROUND 1

A.       The Arrest

         At approximately 2:00 am, on May 2, 2011, Webb County Deputy Gerard Pecina was

patrolling Highway 359 when he witnessed a green Expedition SUV traveling in excess of the

marked speed limit. Deputy Pecina proceeded to follow the SUV into a subdivision, and ultimately

initiated a stop. The SUV eventually came to a stop at a Valero gas station. Deputy Pecina testified

that Hinojosa, the driver of the SUV, immediately exited the vehicle and began to approach Deputy

Pecina’s vehicle.       When Deputy Pecina demanded identification, a very nervous Hinojosa

provided a Texas identification card. Based on Hinojosa’s edginess, Deputy Pecina ordered

Hinojosa to wait by the front of the vehicle while Deputy Pecina attempted to identify the three

other individuals in the SUV—Zambrano, Linares, and Abundez.

         Sergeant Sanchez testified that when he arrived to assist Deputy Pecina, Hinojosa was

already in the back of Deputy Pecina’s vehicle. Pat-downs were conducted on the other men.

Before starting the pat-down on Abundez, however, Abundez informed Deputy Pecina that he did

not know the other individuals and that they had kidnapped him with a gun. 2 Deputy Pecina

testified that Abundez appeared scared, frightened, and nervous. Sergeant Sanchez separated

Abundez from the others and placed him in the back of his patrol car. Abundez then related to

Sergeant Sanchez what happened, including being taken from his residence at gunpoint, that the

firearm was thrown from the SUV by one of the men, and where it was thrown. Deputy Pecina


1
  All three defendants were tried together before one jury. Accordingly, the facts in this opinion, as well as the facts
set forth in the opinions of Abraham Linares and Romeo Hinojosa, are identical.
2
  We note that neither Abundez, nor any of the defendants, spoke English. The officers’ testimony included their
translation of witnesses’ statements. At trial, victim and witness statements were offered via a translator.

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headed to the location where the gun was allegedly thrown and found a weapon, a loaded handgun

magazine, and a gray-colored cell phone.

       Zambrano, Hinojosa, and Linares were placed under arrest for the aggravated kidnapping

of Abundez. Zambrano, Linares, and Hinojosa were each charged with second-degree aggravated

assault with a deadly weapon and first-degree aggravated kidnapping. All three individuals were

tried together and the jury trial began on Monday, October 15, 2012.

B.     The Trial

       1.      Nestor Abundez’s Testimony

       The State’s first witness was Abundez. Abundez testified that about 1:00 a.m. on May 2,

2011, he and his family, along with his brother’s family, were at his house in Laredo, Webb

County, Texas. Abundez testified that he went outside to investigate loud noises and saw a white

Ford truck and two individuals honking the horn. When Abundez’s wife walked outside their

home with Abundez’s cell phone, Abundez took the phone and instructed her to return to the house.

Although he had never seen the two men before, Abundez walked towards the truck. According

to Abundez, once he approached the truck, Zambrano struck him in the head with the handle of

the pistol and then forced him into the vehicle. Shortly thereafter, the white truck met up with a

green Ford Expedition, driven by Hinojosa, and Abundez was transferred to the Expedition.

Abundez testified that while Hinojosa drove, Zambrano held a gun to him.

       Abundez further testified that Zambrano, Linares, and Hinojosa were apparently looking

for another individual named Pelon, a nickname for someone who is bald. Abundez, who was also

bald, explained that he and his family had only lived in the house for a short period of time and to

his knowledge, a person called Pelon lived in the house prior to Abundez.

       During cross-examination, defense counsel suggested Abundez knew the two assailants

and that all three men went to Linares’s house to party and smoke marijuana when a fight broke
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out. After questioning by defense counsel, Abundez acknowledged he had his cell phone prior to

Zambrano and Linares taking it, but explained that he was too nervous to call anyone or use the

phone. Defense counsel also argued the weapon actually belonged to Abundez and that it was

thrown from the Expedition by Abundez. Abundez, however, denied owning or throwing the

firearm located by Deputy Pecina.

        2.      Christian Abundez’s Testimony

        Abundez’s brother, Christian Abundez, testified that after seeing his brother forced into the

truck, he grabbed his keys and started chasing the white truck. At some point, the truck stopped

at a creek and both Linares and Zambrano exited the vehicle. According to Christian, Linares hit

him (Christian) in the back and Zambrano threatened him with a gun. Christian also testified a

third person was driving the truck. At Abundez’s request, Christian left to find their older brother,

Jose.

        Once Christian found Jose, they went back to the creek but no one was there. After driving

around the area trying to find Abundez, they saw the commotion at the gas station. When

questioned by defense counsel, Christian acknowledged seeing the same white truck, which had

been in front of Abundez’s residence and the one he had chased earlier, at the gas station, but did

not notify the officers.

        3.      Sergeant Rolando Elizalde’s Testimony

        Although none of the defendants testified at trial, Sergeant Rolando Elizalde Jr. testified

about the defendants’ interviews taken shortly after their arrest.

        With regard to Hinojosa’s interview, Sergeant Elizalde testified Hinojosa told him that he

was awakened by Linares, his son-in-law, at approximately 1:00 a.m. Hinojosa explained he was

simply driving Linares and Zambrano around because he did not want Linares to get a ticket for

the dark tint on his vehicle. Hinojosa also relayed that he did not know Abundez’s name or
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anything about him and that the other men called him “mojadito” or wetback. During cross-

examination, Sergeant Elizalde acknowledged that Hinojosa seemed surprised the three were being

held on kidnapping charges and asked the officer whether it was the “mojadito” that was making

the allegation. Hinojosa also described the others as drunk.

       While interviewing Hinojosa, Sergeant Elizalde observed that Hinojosa was very calm, but

extremely concerned that his wife have access to the impounded truck so that she could be at work

the following day. According to Sergeant Elizalde, it appeared to him that Hinojosa was more

concerned about his truck being impounded than with the kidnapping charges.

       When asked about Linares’s interview, Sergeant Elizalde testified that Linares relayed that

he and the others had been partying in the San Enriquez Subdivision before they picked up

Abundez. As to his presence at the gas station, Linares explained they were meeting another

person and that Abundez had only been with them for a short period of time when they were

stopped by the deputy. Sergeant Elizalde testified that although Linares acknowledged knowing

about the weapon, he never admitted ownership of the weapon.

       Sergeant Elizalde further testified that immediately after beginning the interview, Linares

told the officer that he was a confidential informant for other officers and that he wanted to talk in

exchange for a “deal.” Sergeant Elizalde described Linares as fidgety, always moving his legs,

and at times crying. During testimony, Sergeant Elizalde described Linares as “look[ing] like a

drug addict, fidgety and nervous.”

       Based on Linares’s statement, Sergeant Elizalde testified that he requested a patrol officer

travel to the San Enriquez Subdivision, but once there, that the officer did not find any evidence

that a party took place. Sergeant Elizalde further explained that he even went back to the area the

following day, but he likewise did not see any evidence suggesting a party.



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       On cross-examination, Sergeant Elizalde acknowledged Abundez was never searched

because Abundez reported the kidnapping before the officers conducted the pat-down. Defense

counsel also extensively questioned Sergeant Elizalde as to why the weapon was not fingerprinted

arguing that it was the officers’ failure to fingerprint the firearm that negated their ability to rule

out Abundez as the owner of the firearm.

       Regarding Zambrano’s interview, Sergeant Elizalde testified Zambrano told him that he

and Linares were at Hinojosa’s and Linares’s house that evening. They began partying around

10:00 p.m. and then went cruising to Los Presidentes and Southgate. They all ended up at “the

ranch” and that was where they picked up Abundez.

       During cross-examination of Sergeant Elizalde, defense counsel suggested that Zambrano

was very drunk when he was arrested and that he had denied using the firearm. Once again,

defense counsel attacked the officers’ failure to fingerprint the firearm and Sergeant Elizalde

indicated that Deputy Pecina made the decision whether to request fingerprint analysis.

Additionally, in response to questioning by defense counsel, Sergeant Elizalde acknowledged that

several rounds of ammunition were located in the impounded SUV, however they were a different

caliber than the firearm collected by Deputy Pecina.

       As a conclusion, Sergeant Elizalde opined that Zambrano, Linares, and Hinojosa’s

statements were conflicting.

4.     Deputy Gerard Pecina’s Testimony

       Deputy Pecina’s testimony included his initial stop of the vehicle and his actions in locating

the firearm. Similar to the cross-examination of Sergeant Elizalde, defense counsel probed Deputy

Pecina’s rationale for failing to submit the firearm for fingerprint analysis. Deputy Pecina

explained that he did not submit the firearm for testing because the location where it was found

corroborated what Abundez, the victim, had reported. He continued that he was working an
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abduction case, the victim identified the individuals, and he did not have any reason to believe

analysis on the weapon would assist in the prosecution. Deputy Pecina acknowledged that no one

requested the gray cell phone be fingerprinted or that additional tests be performed.

C.     The Jury Verdict

       Zambrano was convicted of second-degree aggravated assault with a deadly weapon and

first-degree aggravated kidnapping. The jury sentenced him to fifteen years confinement in the

Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine on the

aggravated assault and twenty-five years confinement and a $10,000.00 fine on the aggravated

kidnapping. This appeal ensued.

       Zambrano alleges the State failed to provide proper notice of enhancement and the

prosecutor’s closing argument exceeded the acceptable areas of proper jury argument. We first

address Zambrano’s allegation that the State failed to provide sufficient notice of their intent to

proceed on an enhancement allegation.

                        PUNISHMENT PHASE NOTICE OF ENHANCEMENT

       Zambrano argues the trial court abused its discretion in allowing the State to proceed on a

notice of enhancement filed on Thursday, October 11, 2012 at 4:53 p.m., less than two business

days, and four calendar days before the start of trial. Prior to the enhancement, Zambrano faced a

penalty range, for the first-degree aggravated kidnapping, of “imprisonment in the Texas

Department of Criminal Justice for life or for any term of not more than 99 years or less than 5

years.” TEX. PENAL CODE ANN. §§ 12.32(a), 20.04(c) (West 2011). Based on the enhancement,

the jury could elect to proceed on a minimum range of the punishment of fifteen years. Id.

§ 12.42(c)(1) (West Supp. 2013).




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A.     Notice of Enhancement

       The State is required to provide notice of their intent to use a defendant’s prior convictions

for enhancement purposes. Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App. 1997)

(reiterating enhancement paragraphs need not be pled in indictment); accord Villescas v. State,

189 S.W.3d 290, 292 (Tex. Crim. App. 2006). “‘The accused is entitled to a description of the

judgment of former conviction that will enable him to find the record and make preparation for a

trial on the question of whether he is the named convict therein . . . and if possible show there is a

mistake in identity, or that there was no final former conviction or the like.’” Villescas, 189 S.W.3d

at 293 (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978)); accord Fairrow

v. State, 112 S.W.3d 288, 294 (Tex. App.—Dallas 2003, no pet.).

       While notice must be pled in some form, “due process does not even require that the notice

be given before the guilt phase begins, much less that it be given a number of days before trial.”

Villescas, 189 S.W.3d at 293–94 (disavowing the requirement of notice ten days prior to trial);

Brooks, 957 marquezkimberly@example.com. Under a due process analysis, the issue is “whether appellant received

sufficient notice of the enhancements so that he had an opportunity to prepare a defense to them.”

Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).

       An appellate court “look[s] to the record to identify whether appellant’s defense was

impaired by the timing of the State’s notice.” Id. Asking for a continuance, without an explanation

as to why, is not sufficient. When a defendant has no defense to an enhancement allegation and

makes no suggestion of the need for a continuance in order to prepare a defense, notice given at

the beginning of the punishment phase satisfies the due process requirements of the United States

Constitution as well as the Texas Constitution’s due course of law requirements. Villescas, 189
S.W.3d at 294; Mayfield v. State, 219 S.W.3d 538, 540 (Tex. Crim. App. 2007).



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B.     Zambrano’s Objection

       On Monday morning, October 15th, prior to the start of trial, Zambrano’s counsel objected

to the State’s notice of enhancement.

       Counsel: Your Honor, one more thing for the record. Although I kind of feel how
                Your Honor – I did want to object, Your Honor, for the record, we are
                given the State’s notice of intent to enhance punishment. We were
                served with it yesterday, and I believe that it’s based on surprise. And
                we, therefore, object on that grounds and ask for a continuance based on
                that.
       Court:   That’s denied and motion for continuance is denied.
       Court:   I did take a look at your objection to the State’s enhancement paragraph.

                   I’m not sure if you have anything else to offer. I’m denying the motion,
                   and I [am] allowing them to go forward on the punishment. I need your
                   client to plead true or not true.

       Prior to the start of the evidence, counsel did not lodge any additional objection or request.

On October 18, 2012, prior to the close of testimony on the guilt-innocence portion of the trial,

Zambrano’s counsel filed a motion to disregard the State’s notice of enhancement.

               Defendant, Carlos Zambrano, objects to State Notice of Enhancement on
       the Grounds of Surprise and insufficient notice. In support, Counsel moves the
       court to look at Hernandez, 914 S.W.2d 226, 228, the holding being, “. . . 3 [days]
       notice over a week end is presumptively unreasonable.” Here, notice was given on
       Friday, the weekend before trial, and should be considered untimely on those
       grounds.

              Defendant prays that the State’s notice of enhancement be found to be
       untimely and not reasonable notice as required by Hernandez.

After the jury returned a guilty verdict but before the start of the punishment, Zambrano’s counsel

again raised the State’s late notice.

       Counsel: Judge, I have one more thing. Your Honor, with respect to my client,
                Mr. Zambrano, Judge, I’d like for the Court to move to strike the notice
                of enhancement filed by the State, Judge, based on surprise and
                untimeliness that it was filed, Your Honor. I have case law to support
                my argument. I can tender it to Your honor if Your Honor wants to see
                it.
       Court:   Okay. That would come in only if he is found guilty, wouldn’t it?


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        Counsel: Yes. It would, Judge. The conviction that he has was transporting a
                 young lady to San Antonio.
        Court:   What I’m saying is, do you want to argue your motion now? Or do you
                 want to wait to [see] if we get to the punishment phase?
        Counsel: Well, I just don’t want the Court to think that I’m not waiving that.
        Court:   No. I know that you filed that. The objection to the enhancement, I
                 received it.

Zambrano subsequently entered a plea of true to the enhancement allegation.

C.      Analysis

        We note that Zambrano asserted no defense to the enhancement allegation and his objection

was simply a request for more time, without an explanation as to why. See Villescas, 189 S.W.3d

at 294. We agree that the State should provide timely and adequate notice of any intent to enhance

the punishment for a defendant. Brooks, 957 S.W.2d at 33–34. Yet, on this record, the State

provided notice before the start of the guilt-innocence phase of the trial and, although protests were

made for timeliness or “surprise,” no suggestion was made that a continuance was required for

discovery or preparation of a defense to the enhancement. See Villescas, 189 S.W.3d at 294–95;

Garza v. State, 383 S.W.3d 673, 676–77 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(reinforcing the appellant “[did] not contend on appeal that he [had] any possible basis for

challenging the State’s evidence of the prior conviction). Accordingly, we cannot conclude the

trial court’s denial of Zambrano’s objections was in error and we overrule this issue.

                                   IMPROPER JURY ARGUMENT

     Zambrano next asserts the prosecutor’s comments during closing argument were improper and

outside the scope of permissible jury argument and violated his right to a fair trial.

A.      Proper Jury Argument

        “The purpose of closing argument is to facilitate the jury’s proper analysis of the evidence

presented at trial in order to arrive at a just and reasonable conclusion based solely on the

evidence.” Harris v. State, 122 S.W.3d 871, 883 (Tex. App.—Fort Worth 2003, pet. ref’d).

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“[P]roper jury argument generally falls within one of four general areas: (1) summation of the

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

counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (same); Coble

v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993) (same). A prosecuting attorney is permitted

to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he

may not use the jury argument to get before the jury, either directly or indirectly, evidence which

is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (citing Jordan

v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983)). Comments which appear to cast aspersions

on the character of defense counsel, and as a result, “strike over counsel’s shoulders at the

defendant,” are not within the zone of proper jury argument. Nevels v. State, 954 S.W.2d 154, 158

(Tex. App.—Waco 1997, pet. ref’d).

       When jury argument falls outside the approved areas, “it will not constitute reversible error

unless [it] is extreme or manifestly improper . . . or injects new facts harmful to the accused into

the trial proceeding.” Temple v. State, 342 S.W.3d 572, 602–03 (Tex. App.—Houston [14th Dist.]

2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013); see Brown, 270 S.W.3d at 570; see also

TEX. R. APP. P. 44.2(b). The Court of Criminal Appeals also consistently rejects arguments that

“strike at a defendant over the shoulder of his defense counsel.” Dinkins v. State, 894 S.W.2d 330,

357 (Tex. Crim. App. 1995). Although articulating precise rules is difficult, the court has

cautioned that “a prosecutor runs a risk of improperly striking at a defendant over the shoulder of

counsel when the argument is made in terms of defense counsel personally and when the argument

explicitly impugns defense counsel’s character.” Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998). Even when couched in terms of a rebuttal, proper defense counsel’s arguments

“cannot serve as a basis for permitting prosecutorial comments that ‘cast aspersion on defense
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counsel’s veracity with the jury.’” Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (quoting Mosley, 983 S.W.2d at 259); accord Dinkins, 894 marquezkimberly@example.com.

B.     Zambrano’s Preservation of Error

       In order to preserve any error based on improper jury argument, the defendant must object

to the argument and pursue the objection until the trial court rules adversely. TEX. R. APP. P.

33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The objection must be “a

timely, specific request that the trial court refuses.” Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.

App. 2004).

       The State contends that Zambrano failed to preserve any alleged error with regard to the

State’s closing argument in two different ways: (1) co-counsel, and not Zambrano’s counsel, made

the objections before the trial court, and (2) although the trial court provided an instruction to

disregard, Zambrano failed pursue the objection to an adverse ruling. TEX. R. APP. P. 33.1(a). We

address each separately.

       1.      Reliance on Co-Defendant’s Counsel

       As the State points out, Zambrano’s counsel did not object before the trial court.

Zambrano’s counsel apparently relied on the objections lodged by his co-defendant’s counsel.

However, to preserve error, a defendant is generally unable to rely on an objection made by a co-

defendant’s counsel, without voicing his own personal objection. Martinez v. State, 833 S.W.2d
188, 191 (Tex. App.—Dallas 1992, pet. ref’d) (citing Lerma v. State, 679 S.W.2d 488, 498 (Tex.

Crim. App. 1982)). To do so, defense counsel, or the defendant himself, may adopt a co-

defendant’s objection and preserve error “when there is sufficient indication in the record of his

intent to adopt the objection.” Martinez, 833 S.W.2d at 191; accord Woerner v. State, 576 S.W.2d
85, 86 (Tex. Crim. App. 1979); Enlow v. State, 46 S.W.3d 340, 346 (Tex. App.—Texarkana 2001,



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pet. ref’d) (“A co-defendant may adopt the objection of his fellow defendant, but that adoption

must be reflected in the record.”).

          Here, Zambrano and his counsel were silent during the objections lodged by his co-

defendant’s counsel. Although the record reflects that Zambrano’s counsel deferred to Linares’s

counsel for closing argument, there is nothing in the record to reflect Zambrano’s counsel joined

in the objections lodged by Linares’s counsel. Therefore, we must conclude that Zambrano and

his counsel failed to preserve any objection to the State’s jury argument. Uyamadu v. State, 359
S.W.3d 753, 767–68 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

          2.     Compliance with Texas Rule of Appellate Procedure 33.1(a)

          In addition to objecting, before complaining about improper jury argument on appeal, an

accused must pursue his objection to an adverse ruling or he forfeits his right to complain about

the argument on appeal. TEX. R. APP. P. 33.1(a); Mathis v. State, 67 S.W.3d 918, 926–27 (Tex.

Crim. App. 2002) (reiterating test set out in Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.

1996)).

          Here, Linares’s counsel lodged several objections.     But counsel only requested an

instruction to disregard the first argument. And even then, when the objection was sustained, an

instruction was given but neither Linares’s defense counsel nor Zambrano’s defense counsel

sought a mistrial. Accordingly, we conclude that Zambrano failed to properly preserve error.

          Assuming, arguendo, the argument was preserved, we turn to the merits of Zambrano’s

complaint regarding the State’s jury argument.

C.        Objections to the State’s Jury Argument

          Because Zambrano raises different objections within the State’s closing, we address each

individually.



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       1.     Video

       Zambrano first argues the prosecutor attempted to shift the burden of proof to the defense

and made disparaging remarks about defense counsel. The State counters the prosecutor’s

statement—that defense counsel did not know how to offer evidence—was not directed at the

ethical integrity or essential functions of defense counsel and was not calculated to draw

distinctions between the prosecution and the defense counsel. To the contrary, the State contends

the prosecutor’s remark was an invited response to the following defense argument.

       Defense Closing
       Defense: What did they bring? They brought Nestor’s uncorroborated story, his
                 brother, a gun of unknown origin or handling, telephones of unknown
                 origin or handling, and bullets from [a] gun not in evidence. I could
                 have showed you a video, but they refused.
       State:    Objection.
       Court:    [That is] in violation of the motion in limine. I’m going to take time off
                 your closing arguments. . . . I don’t want to get into areas that are
                 improper.

       State Rebuttal
       State:     Now, ladies and gentlemen, the Defense wants you to believe that I tried
                  to keep out this video. They brought this out twice during their closing.
                  Ladies and gentlemen, there are rules of evidence, certain things come
                  in and don’t, and if defense attorney doesn’t know how to bring in the
                  evidence, that’s not the State’s fault.

       A prosecutor may properly comment on a defendant’s failure to produce evidence, as long

as the remarks do not fault the defendant for failing to testify. See Jackson v. State, 17 S.W.3d
664, 674 (Tex. Crim. App. 2000); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995).

An appellate court looks at the challenged language from the jury’s standpoint and determines

whether the comment “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.” Bustamante

v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). Reversal is not required where the language




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can be reasonably construed as referring to a defendant’s failure to produce testimony or evidence

from sources other than himself. Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987).

       Here, the prosecutor’s remarks were clearly directed at defense counsel’s closing argument.

See Caron v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(concluding that State’s remarks about appellant’s right to call alibi witnesses constituted

permissible argument and did not shift the burden of proof to appellant); Sanders v. State, 74
S.W.3d 171, 173 (Tex. App.—Texarkana 2002, pet. ref’d) (holding prosecutor’s remark that “the

defense could have subpoenaed [alibi witness] to testify if in fact he had been the one driving, and

the defense had failed to do so” was permissible jury argument). Furthermore, based on the trial

court’s response that the comment violated the motion in limine, defense counsel was aware that

any argument regarding the video was off limits. Accordingly, the prosecutor’s remarks regarding

the video were not improper.

       2.       Tactics/Smoke and Mirrors

       Zambrano next points to the prosecutor’s use of terms like “tactics,” “smoke and mirrors,”

and “hide the ball” to attack defense counsel and his role in ethically representing his client.

       State:      Ladies and Gentlemen, let’s look at the tactics employed here. Tactic
                   number one, put the victim on trial. The victim is on trial here. What
                   does he try to do? Call him a drug dealer. Call him a drug user. The
                   victim is not on trial. This is called smoke and mirrors, hide the ball,
                   distract, look over there because G-d forbid you notice the truth.

                ....

                Now, tactic number two, attack the district attorney by claiming that I
                somehow threated the victim to testify. You’ve heard him. I never
                offered him. I never promised anything, and I didn’t threaten him.
       Defense: Objection, Your Honor.
       Court:   Overruled. The jurors know what the evidence is. Let’s move on.

       Terms such as “rabbit trails” and “smoke screens” have been considered proper in reference

to defense evidentiary tactics. Mosley, 983 S.W.2d at 260 (determining no harm in “[defense
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counsel] want[s] you to take a side road, a series of side roads, rabbit trails, and a rabbit trail that

will lead you to a dead-end”); see also Pope v. State, 161 S.W.3d 114, 126–27 (Tex. App.—Fort

Worth 2004), aff’d, 207 S.W.3d 352 (Tex. Crim. App. 2006) (holding “smoke and mirrors,” “red

herrings or rabbit trails” were response to arguments of defense counsel), Cole, 194 S.W.3d 547

(concluding “another trick” was not an improper response to defense argument); Banks v. State,

643 S.W.2d 129, 134 (Tex. Crim. App. 1982).

       Similar to the present case, in Beasley v. State, 864 S.W.2d 808, 811 (Tex. App.—Fort

Worth 1993), aff’d, 902 S.W.2d 452 (Tex. Crim. App. 1995), the prosecutor argued “but you can

see through the clouds of the smoke screen by a very clever Defense attorney.” The Beasley

remarks, like in this case, were also made in response to defense counsel’s attack of the victim. In

declining to find improper jury argument, the court held the prosecutor’s argument properly

responded to defense counsel’s argument “that sought to place emphasis on the character of the

victims rather than the acts of the defendant.” Id. at 812.

       Although Zambrano points this court to Lopez v. State, 705 S.W.2d 296 (Tex. App.—San

Antonio 1986, no pet.), for authority, the case is inapplicable to the present case. In Lopez, the

prosecutor continuously exceeded the bounds of acceptable jury argument by referencing withheld

evidence, giving his personal assurance of the defendant’s guilt, and “invit[ing] the jury to

speculate as to evidence not in the record.” Id. at 298. The record simply does not support similar

behavior by the prosecutor. Here, defense counsel accused Abundez of making up the alleged

incident and suggested the alleged attack was associated with Abundez’s gang affiliation, the

events were the result of an ongoing fight, and that Abundez had been smoking marijuana on the

night in question. Accordingly, we conclude the State’s arguments were in response to defense

counsel’s closing arguments and were not improper.



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       3.       Defense Counsels’ Conversation with Abundez

       Zambrano next adopts the argument made in Linares’s appellate brief regarding comments

made by the State regarding the attorneys trying to convince Abundez not to testify. Zambrano

contends (1) “the State struck at [Zambrano] over the shoulders of his counsel” by suggesting

counsel acted in bad faith by attempting to persuade Abundez not to testify; (2) “the prosecutor

injected a new and harmful fact in closing argument” never testified to by Abundez; and (3) even

assuming defense counsel’s question during cross-examination was improper, the trial court’s

instruction was sufficient and, therefore, the State’s argument was not invited.

       Abundez Cross-Examination
       Defense: And so when you and I met and spoke 2 or 3 days ago, when you told
                me that you were afraid that they would charge you with the offense,
                you were lying to me?

The State objected and the following was argued out of the presence of the jury.

       State:   This statement that we’re going to charge him with an offense, this is
                ridiculous Your Honor.
       Defense: That’s what he told me.
       State:   It is utterly ridiculous, Your Honor. It’s the most disgusting behavior
                I’ve ever seen in a Defense counsel ever.
                ....
                And, Your Honor, I want everything stricken about the statement,
                threatening to arrest or charge this victim, the victim, mind you, with
                anything.
                ....
       Court:   Again, I’ll remind the jury to disregard any statements made in
                conjunction with the previous one that I asked you to disregard the
                District Attorney’s Office and the allegations of his conduct. Let’s
                proceed.

       Upon further cross-examination, Abundez denied that he was afraid of being charged with

any offense by the State. “The only thing I said was that I did not want to come.”

       State’s Jury Argument
       State:     Then you heard the victim, all three of them went to his house on Friday
                  before trial to try and convince him not to testify.
       Defense: Objection, Your Honor. That leaves a false impression with the Jurors
                  with the lawyers, not the clients.
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       State:   I’m sorry. The three attorneys. The three attorneys went to this person’s
                house to try to get him not to testify the Friday before trial.
       Defense: Objection, Your Honor.
       Court:   Sustained.
       Defense: It mischaracterizes the evidence. Nobody tried to get him not to testify.
       Court:   All right. Move on.
                ....
       State:   What [defense attorneys] say is not evidence as much as they’d like for
                it to be.
       Defense: Objection, Your Honor. It switches the burden.
       Court:   Sustained. Move on.

       Zambrano relies on Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996), abrograted

on other grounds, Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), for support. The

argument in Wilson focused on a portion of the State’s argument.

       I have taken a very sacred oath, in my opinion, to see that justice is done in every
       case I prosecute. It is your duty—and in the last paragraph of this charge you can
       see—to see that justice is done in this case.

       [Defense Counsel] has no such oath, and what he wishes is that you turn a guilty
       man free. That’s what he wishes, and he can wish that because he doesn't have the
       obligation to see that justice is done in this case.

Id. at 58. The court concluded that because the case did not include any evidence of the

prosecutor’s oath, the State’s argument injected new facts into the case and therefore the argument

was harmful to the defendant. Id. at 60.

       The State’s argument in question is not akin to Wilson. Here, during cross-examination of

the State’s key witness, defense counsel suggested (1) that Abundez had been coerced and

threatened by the State regarding his testimony and (2) that Abundez was lying about the events

that evening. The State objected at the time and received an instruction from the trial court.

       Given that defense counsel raised the issue before the jury, unlike the State’s argument in

Wilson, it was the defense that placed the issue of their speaking to Abundez “2 or 3 days” before

the start of the trial. Id. When the State attempted to respond to the defense questions during her

closing argument, the trial court ultimately sustained the defense objection and instructed the State
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to “move on.” We, therefore, conclude the State’s argument responding to defense counsel’s

argument that the State was threatening Abundez to testify and that Abundez was lying regarding

the alleged events was not improper. See Alami v. State, 333 S.W.3d 881, 892–93 (Tex. App.—

Fort Worth 2011, no pet.); Caron, 162 marquezkimberly@example.com.

       Even if a prosecutor’s argument was improper, the appellant still bears the burden to prove

the error affected his substantial rights. TEX. R. APP. P. 44.2(b); Freeman v. State, 340 S.W.3d
717, 728 (Tex. Crim. App. 2011).

       4.         Harm Analysis

       When jury argument falls outside the approved areas, “it will not constitute reversible error

unless [it] is extreme or manifestly improper . . . or injects new facts harmful to the accused into

the trial proceeding.” Temple, 342 S.W.3d at 602–03; see TEX. R. APP. P. 44.2(b). In determining

whether the prosecutor made an improper jury argument, the reviewing court considers (1) “[the]

severity of the misconduct (prejudicial effect [of the prosecutor’s remarks]), (2) curative measures,

[and] (3) the certainty of conviction absent the misconduct.” Martinez v. State, 17 S.W.3d 677,

692–93 (Tex. Crim. App. 2000); accord Mosley, 983 marquezkimberly@example.com.

       We, therefore, turn to the trial court’s instruction for the jury to disregard the prosecutor’s

comments regarding the alleged video. “Ordinarily, any injury from improper jury argument is

obviated when the court instructs the jury to disregard, unless the remark is so inflammatory that

its prejudicial effect cannot reasonably be removed by such an admonishment.” McKay v. State,

707 S.W.2d 23, 37 (Tex. Crim. App. 1985); accord Long v. State, 823 S.W.2d 259, 269–70 (Tex.

Crim. App. 1991); Kelly v. State, 321 S.W.3d 583, 597–98 (Tex. App.—Houston [14th Dist.] 2010,

no pet.). Because the record does not support the conclusion that the remark was so inflammatory

as to not be curable, we conclude the trial court’s instruction to disregard sufficiently negated any

alleged injury.
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                                                                                   04-12-00853-CR


       Finally, with respect to the remaining defense objections, the trial court sustained the

objections and the attorneys were instructed to “move on.” The jury was in a position to “evaluate

the truthfulness of the prosecutor’s assertion[s]” and the trial court’s reactions would lead a

reasonable jury to place little or no credibility on the prosecutor’s statements. See Mosley, 983
marquezkimberly@example.com. Like in Graves, this case “largely turn[ed] on credibility,” and any inappropriate

comments by the prosecutor could not have caused a different result. Id.

       Accordingly, even assuming that some portions of the State’s closing argument exceeded

the areas of acceptable argument, we conclude that Zambrano failed to show his substantial rights

were affected. We, therefore, overrule this issue.

                                          CONCLUSION

       Although the State provided timely and adequate notice of any intent to enhance the

punishment for a defendant, Zambrano failed to argue his continuance was not simply based on

timeliness, but was instead required for discovery or preparation of a defense to the enhancement.

See Villescas, 189 S.W.3d at 294–95; Garza, 383 S.W.3d at 676–77. Most importantly, Zambrano

asserts no defense to the enhancement. Accordingly, we conclude the trial court did not err in

denying Zambrano’s objections with regard to the State’s notice of enhancement.

       Additionally, assuming Zambrano’s complaint regarding the State’s improper jury

argument was preserved, he failed to show error. The remarks regarding the video were clearly

directed at defense counsel’s closing argument, to which the prosecutor objected when the

comment was made and defense counsel was aware that argument regarding the video was off

limits. See Caron, 162 marquezkimberly@example.com. The comments with regard to the tactics and smoke and

mirrors comments were a permissible response to defense’s allegations that Abundez lied about

the alleged attack. And, finally, with regard to defense counsel attempting to influence Abundez’s

testimony, the State’s argument responding to allegations that the State was threatening Abundez
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                                                                                04-12-00853-CR


to testify and that Abundez was lying regarding the alleged events was permissible. See Alami,
333 S.W.3d at 892–93; Caron, 162 marquezkimberly@example.com. Moreover, even assuming the closing argument

exceeded the areas of acceptable argument, Zambrano failed to show his substantial rights were

affected.

       Accordingly, Zambrano’s issues on appeal are overruled and we affirm the trial court’s

judgment.


                                               Patricia O. Alvarez, Justice

PUBLISH




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