Michael Wayne Cantu v. State

Opinion issued October 11, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00876-CR

———————————

MICHAEL WAYNE CANTU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 08-DCR-049734A

OPINION

Michael Wayne Cantu appeals a conviction for murder. See TEX. PENAL

CODE § 19.02(b)(1) (West 2011). A jury found him guilty and assessed his

punishment at forty-eight years in prison. On appeal, Cantu raises three

complaints: (1) the trial judge erred by overruling his objection to the State’s

improper comment on Cantu’s failure to testify; (2) the evidence presented at trial

was legally insufficient to support a guilty verdict because the State failed to prove

that Cantu intentionally or knowingly caused the victim’s death; and (3) the trial

court erred by admitting evidence of Cantu’s previous drug use.1 Finding no

reversible error, we affirm.

Background

One evening in 2008, Michael Wayne Cantu returned home from a business

trip to Corpus Christi. Cantu’s wife, Jackie, and his children were waiting at

home. From the time he got home until about 8:00 p.m., when the kids went to

bed, Cantu spent time with his family and looked at some family pictures on his

laptop in the kitchen. After the kids went to bed, Cantu and Jackie continued to

look at the pictures until about 9:00 p.m. When Jackie returned to the kitchen

around 9:30 to ask Cantu to come to bed, she discovered he was watching

pornography on his computer, and the two argued. Jackie then left in her car and

returned a short while later. It is undisputed that Jackie died in her bathroom later

that night, from a gunshot wound to the head. But, at trial, the jury heard

conflicting evidence about how Jackie was shot.

1

Cantu brought four points of error, but we consider his second and third points

together, because both challenge the sufficiency of the evidence.

2

A. The 911 Call

The jury heard a recording of Cantu’s call to 911 after Jackie was shot. On

that call, an emotional Cantu told the 911 operator that his wife had shot herself

and he thought she was dead. He repeated the statement and then asked the

operator to send someone to save his wife. He told the operator, “We had an

argument, and she grabbed the gun, and she put it in her face and she pulled the

trigger.” The operator asked Cantu if he was in the room when it happened, and he

said, “Yes.” While waiting for law enforcement to arrive, Cantu remained on the

phone with the operator. He repeated several times that he and Jackie had argued,

she had grabbed the gun, and it “just went off.” When asked what they had been

arguing over, Cantu said he could not remember. When the operator asked if they

were “fighting for the gun at all,” Cantu answered, “No.”

B. Cantu’s Videotaped Interview

The jury also saw a video recording of an interview of Cantu on the night of

Jackie’s death. Cantu’s explanation of how the night unfolded changed several

times during the interview. First, Cantu claimed to have blacked out from the

Ambien and alcohol he had consumed that night. He claimed he could not

remember anything between the time he dozed off waiting for Jackie to come

home and the time he found her dead. He claimed to have found her dead on the

floor and assumed she killed herself.

3

Later, as Detective McKinnon, the lead investigator, continued to question

him, Cantu said he assumed Jackie had shot herself, because he was not there and

he “didn’t see anybody else in the house. . . . . Not to say there couldn’t have been

somebody else in the house, but I didn’t see anybody.” Detective McKinnon and

Cantu briefly discussed the possibility of an intruder, before Cantu ruled that out

because he would necessarily have seen anyone leaving the master bathroom

area—the only way out was through the living room where Cantu was.

The detectives continued to question Cantu about the night’s events and

insisted that he remember what happened. Cantu continued to claim for some time

that he had “blacked-out” and simply did not remember. Cantu maintained that

Jackie had gone to bed and, about a half-hour later, came back out. The two

argued, and Jackie left in her car. Although some details varied, Cantu, during this

time, continued to insist that he was not in the room when Jackie was shot.

Cantu’s explanation of the night’s events changed when McKinnon

confronted Cantu with physical evidence showing Cantu was in the room when

Jackie was shot. Specifically, crime scene investigators had found blood spatter on

the right side of Cantu’s torso. The blood spatter was characteristic of “high

velocity” spatter or “blow back” spatter that is released from a gunshot wound.

The blood spatter evidence caused Cantu to admit he was in the room when Jackie

was shot. He claimed that, during the argument, Jackie had become so upset that

4

she held the gun to her head and that the gun discharged as he struggled to get the

gun away from her. Cantu demonstrated what happened, indicating that the gun

was approximately ten inches from Jackie’s head when it discharged. Cantu

explained that Jackie had, in years past, taken the same gun and threatened to kill

herself during intense arguments. Cantu stated that he was unsure who pulled the

trigger and that, if it was him, it was an accident.

C. Expert Testimony

The State called three witnesses to testify about the crime scene and the

physical evidence. Kim Oreskovich, an investigator with the Fort Bend County

Sheriff’s Office Crime Scene Unit, was one of the officers at the scene.

Oreskovich took pictures and video of Jackie’s body and the bathroom.

Oreskovich testified that the gun was found near Jackie’s right arm, pointed

towards her neck. She also testified that there was not a “void” underneath the gun

when she picked it up.2 She concluded that the absence of a void indicated the gun

had not naturally fallen in that position but, rather, was placed there after the pool

of blood formed. Similarly, Oreskovich observed that there was “satelliting” in the

pool of blood where Jackie’s arm was found. 3 Oreskovich concluded that the

2

A void is a lack of evidence (in this case, blood) that is observed when an object

falls or is placed on a surface before the blood flows there.

3

Satelliting is a pattern made when something is dropped into or otherwise disturbs

a blood pool.

5

satteliting and patterns in the pooled blood indicated that someone had moved

Jackie’s right arm into the position in which it was found after the pool of blood

had already formed.

The State also called Dr. Stephen Pustilnik, Chief Medical Examiner for

Galveston County. Pustilnik testified that Jackie’s death was inconsistent with a

suicide. Pustilnik explained that there are three types of gunshot wounds: contact,

intermediate, and distant. In a tight contact wound, the muzzle of the weapon is

pressed against the skin, so that at the time of discharge, no gap between the

muzzle and the skin exists. A tight contact discharge leaves behind a distinctive

pattern, called a stellate wound. Pustilnik opined that, based on the physical

evidence of the stellate splits in Jackie’s wound and the lack of gunpowder on the

skin around the wound, the gunshot to Jackie’s head occurred with the gun pressed

tightly against her skull. He also explained that the trajectory of the bullet,

Jackie’s hand positioning at the time of discharge, and the powder residue on

Jackie’s hands indicated that it was unlikely that Jackie was holding the gun when

it discharged. Pustilnik also explained that the evidence was not consistent with

Cantu’s claim that the gun accidentally discharged as he was pulling it away from

Jackie’s head. According to Pustilnik, the evidence indicates that someone other

than Jackie put the gun to her head and pulled the trigger. In short, Pustilnik

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testified that the wound on Jackie’s head “is not what we see when there’s two

people trying to control the weapon.”

Tom Bevel, a forensic and crime scene expert, also testified for the State.

Bevel opined that Jackie’s body and the gun were “staged.”4 He agreed that the

absence of a void underneath the gun indicated that the gun was placed where

officers found it after Jackie fell and after the blood pooled. Additionally, Bevel

testified that the evidence indicated that Jackie was not standing when she was shot

as Cantu had claimed. Rather, based on blood spatter evidence, Bevel concluded

that Jackie was sitting at the time she was shot.

The defense called two experts of its own to rebut the State’s evidence and

support Cantu’s accident defense. Lawrence Renner, a forensic and crime scene

analyst testified that equally-qualified experts in forensics can come to different

conclusions because the conclusions depend on their training, background, and

particular mind-set at the time they look at the evidence.

Cantu also called Jerome Brown, a psychologist, to address the

inconsistencies in Cantu’s statement to the police. Brown testified that it is

possible that Cantu suffered trauma from Jackie’s death. Therefore, it would be

expected for him to have lapses in his memory. Brown also explained that Cantu

4

Bevel explained that “staging” meant that the evidence was moved for the purpose

of changing the crime scene and misdirecting the investigation.

7

may have changed his story about the events of that night or lied due to the trauma

from Jackie’s death.

The jury found Cantu guilty of murdering Jackie. Cantu appealed.

Sufficiency of the Evidence

In his second and third points of error, Cantu contends that the evidence

presented at trial was legally insufficient to support a guilty verdict. Specifically,

Cantu argues that that the evidence was all circumstantial and the State’s theory

was no more believable than his own, and thus the State failed to exclude

reasonable hypotheses other than his guilt. Cantu also argues that there is no

evidence showing that he caused Jackie’s death, or alternatively, that he did so

intentionally or knowingly.

A. Standard of review and applicable law

In determining whether the evidence is sufficient, a reviewing court views

all the evidence in the light most favorable to the prosecution to determine whether

any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012) (citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2788–89

(1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). When the

record supports conflicting inferences, a reviewing court must presume that the

fact finder resolved the conflicts in favor of the prosecution and defer to that

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determination. Wise, 364 S.W.3d at 903 (quoting Jackson, 443 U.S. at 326, 99 S.

Ct. at 2788–89). The fact finder determines the weight and credibility of evidence.

Id.

The evidence-sufficiency standard of review is the same for both direct and

circumstantial evidence. Id. (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007)). Circumstantial evidence alone can be sufficient to establish guilt.

Hooper, 214 S.W.3d at 15 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.

App. 2004)). Likewise, the State need not disprove all reasonable alternative

hypotheses that are inconsistent with the defendant’s guilt. Wise, 364 S.W.3d at

903 (citing Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991)).

Ordinarily, to sustain a conviction for murder the evidence must demonstrate

that the person (1) intentionally or knowingly (2) caused the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b)(1). A person acts “intentionally” or with intent

with respect to the nature of his conduct or to a result of his conduct “when it is his

conscious objective or desire to engage in the conduct or cause the result.” TEX.

PENAL CODE ANN. § 6.03(a); Wise, 364 S.W.3d at 903. A person acts knowingly

or with knowledge of the nature of his conduct or circumstances “when he is aware

of the nature of his conduct or that the circumstances exist.” TEX. PENAL CODE

ANN. § 6.03(b); Wise, 364 S.W.3d at 903.

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B. Analysis

1. Exclusion of Other Reasonable Hypotheses

Cantu contends that the evidence is legally insufficient because his defensive

theory was as plausible as the State’s theory. Cantu argues, “It is well established

that a conviction based on circumstantial evidence cannot be sustained if the

circumstances do not exclude every other reasonable hypothesis except that of the

guilt of the accused . . . .” Cantu’s argument is unsupported by the law. See Wise,

364 S.W.3d at 903 (“For the evidence to be sufficient, the State need not disprove

all reasonable alternative hypotheses that are inconsistent with the defendant’s

guilt.”).

This court recently explained:

Before Geesa, in a circumstantial evidence case, the State had to

exclude all reasonable hypotheses, other than the defendant’s guilt, in

order for the evidence to be found sufficient on appeal. Carlsen v.

State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983), overruled by

Geesa v. State, 820 S.W .2d 154, 161 (Tex. Crim. App. 1991). That is

no longer the State’s burden.

Damon v. State, 01-09-01074-CR, 2011 WL 2112807, at *9 (Tex. App.—Houston

[1st Dist.] May 26, 2011, no pet.) (mem. op., not designated for publication) (citing

Geesa v. State, 820 S.W.2d 154, 159–61 (Tex. Crim. App. 1991), overruled in part

on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000)).

Because the State did not have the burden Cantu asserts, we overrule this portion

of Cantu’s second and third points of error.

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2. Evidence Cantu Intentionally or Knowingly Caused Jackie’s

Death

The jury heard Cantu describe several different versions of what transpired

on the night Jackie died. In the 911 call, Cantu stated that he was in the room

when she died and that they had not struggled over the gun. During his videotaped

interview, he said he did not remember what happened and insisted he was not in

the room when Jackie was shot. After being confronted with physical evidence

demonstrating that he was in the room when Jackie was shot, Cantu said that

Jackie had held the gun to her head during an argument, as she had done during

previous intense arguments. Cantu said that he tried to take the gun away from

Jackie and as they were struggling over the gun, it accidentally discharged.

The jury also heard testimony indicating that the physical evidence was not

consistent with Cantu’s contention that the shooting was accidental. Oreskovich

testified that, because there was no void underneath the gun, she believed the gun

did not fall naturally into the position in which Oreskovich found it, but rather, that

someone placed the gun there after Jackie’s blood had pooled. Oreskovich also

explained that she observed blood transfer and satellite patterns indicating that

Jackie’s arm had been moved after she fell to the floor to the position in which it

was found. Bevel, a forensic and crime scene expert, agreed with Oreskovich’s

findings and testified that he believed the gun and the arm were purposefully

staged to mislead investigators.

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Dr. Pustilnik, the medical examiner, testified that features of Jackie’s wound

indicated that the gun was pressed tightly to her head when it discharged,

contradicting Cantu’s demonstration during his videotaped statement of how the

shooting occurred. Pustilnik also testified that the evidence—including powder

residue on Jackie’s hand, the angle of the bullet, and the muzzle imprint on her

forehead—was inconsistent with Cantu’s defensive theory that the shooting was an

accident. In his opinion, the evidence was also inconsistent with the theory that the

gun fired during a struggle over the gun.

Although Cantu presented expert testimony and other evidence in support of

his defensive theory, the standard of review requires us to presume that the jury

resolved any conflicts in favor of its verdict and to defer to the jury’s

determination. See Wise, 364 S.W.3d at 903 (citing Jackson, 443 U.S. at 318, 99

S. Ct. at 2788–89). Viewed in the proper light, the evidence is sufficient to support

the jury’s determination that Cantu intentionally or knowingly caused Jackie’s

death. The inconsistencies in Cantu’s statements could cause a rational juror to

doubt the credibility of Cantu’s assertion that the gun discharged accidentally

while he tried to take the gun from Jackie. Expert testimony about the evidence at

the crime scene showed that Cantu had staged the evidence. And undisputed

physical evidence contradicted portions of Cantu’s theory that the shooting was

accidental. Cantu stated and demonstrated on the video that he was pulling the gun

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away from Jackie’s head when it discharged, but the evidence showed the gun was

fired with the muzzle of the gun placed against Jackie’s forehead. Dr. Pustilnik

also explained how other pieces of physical evidence did not support the defensive

theory that the gun accidentally discharged during a struggle. From the evidence

presented, the jury could have rationally concluded beyond a reasonable doubt that

there was no struggle for the gun and that Cantu intentionally or knowingly caused

Jackie’s death. See Howard v. State, 484 S.W.2d 927, 928 (Tex. Crim. App. 1972)

(holding evidence sufficient to support jury’s verdict when physical evidence,

including evidence gun was fired from a distance greater than appellant told police,

was inconsistent with accidental discharge during a struggle); see also Aldridge v.

State, No. 05-07-00777-CR, 2008 WL 3272146, at *2 (Tex. App.—Dallas Aug.

11, 2008) (mem. op., not designated for publication) (holding evidence sufficient

where defendant claimed shooting was accidental and State presented contradicting

testimony); Butler v. State, 700 S.W.2d 319, 323 (Tex. App.—San Antonio 1985,

pet. ref’d) (holding evidence sufficient to support murder conviction where

appellant’s defensive theories of intentional or accidental self-inflicted wound

occurring during struggle contradicted by physical evidence theory). Accordingly,

we hold that the evidence is sufficient to support Cantu’s conviction. See Wise,

364 S.W.3d at 903; Howard, 484 S.W.2d at 928.

We overrule Cantu’s second and third points of error.

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Comment on Cantu’s Failure to Testify

In his first point of error, Cantu contends that the trial court erred by

overruling his objection to the State’s improper comment during closing arguments

on Cantu’s failure to testify.

A. Applicable law and standard of review

This court reviews challenges to overruled objections to improper jury

argument, such as an improper comment on defendant’s decision not to testify, for

an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.

2004). The United States and Texas constitutions guarantee that a defendant in a

criminal trial shall not be compelled to give evidence against himself. See U.S.

CONST. amend. V; TEX. CONST. art. I. Further, the failure of any defendant to

testify on his own behalf shall not be taken as a circumstance against him, nor shall

the same be alluded to or commented on by counsel in the cause. TEX. CODE

CRIM. PROC. ANN. art. 38.08 (West 2005). Therefore, it is improper for the State to

argue from a defendant’s failure to testify. See Bustamante v. State, 48 S.W.3d

761, 764 (Tex. Crim. App. 2001) (citing Davis v. United States, 357 F.2d 438, 441

(5th Cir. 1966)).

To violate the right against self-incrimination, the offending language

must be viewed from the jury’s standpoint and the implication that the

comment referred to the defendant’s failure to testify must be clear. It

is not sufficient that the language might be construed as an implied or

indirect allusion. The test is whether the language used was

manifestly intended or was of such a character that the jury would

14

necessarily and naturally take it as a comment on the defendant’s

failure to testify. 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. at 765; Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). A jury

argument is improper where it calls the jury’s attention to the absence of evidence

that only the defendant’s testimony could supply. See Crocker v. State, 248

S.W.3d 299, 304 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Garrett

v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982)).

While the State cannot comment on a defendant’s failure to testify, it is

permissible for the State to reference admitted statements made by the defendant.

Garcia, 126 S.W.3d at 924. “When a defendant makes a statement which is

admitted into evidence, the State’s reference to the statement and comparison

between the statement and the other evidence collected is not a comment on the

defendant’s failure to testify.” Id. “A reference to the defendant ‘not telling

everything’ where the prosecutor was discussing a written statement made by the

defendant has been held not to be a comment on the failure to testify but a

reference to the written statement.” Wolfe v. State, 917 S.W.2d 270, 280 (Tex.

Crim. App. 1996) (citing Lopez v. State, 339 S.W.2d 906, 910–11 (Tex. Crim.

App. 1960) and holding that referring to defendant’s lack of explanation in his pre-

trial statement is not improper comment on failure to testify). And, in Cruz, the

Court held the prosecutor’s comments were not improper because the context of

15

the statement demonstrated that the prosecutor’s statements referred to the

appellant’s written statement. Cruz, 225 S.W.3d at 549.

B. Analysis

Cantu did not testify at trial, but recordings of his 911 call and his

videotaped interview were in evidence and played for the jury. During closing

arguments, the State emphasized the fact that Cantu gave various inconsistent

accounts of the night of Jackie’s death. The State then argued that the jury should

look at all of the evidence together:

The reasonable deduction is that [Cantu] came home that day from

Corpus. They did look at photos, they were having dinner, enjoying

each other’s company with the family, and something went wrong.

Something went wrong, and we’ll never know, because he won’t tell

us, and what he did tell isn’t true.

Cantu objected that the argument was “a comment on the defendant’s failure to

testify.” The trial court overruled the objection and the State continued with

closing argument.

Assuming this argument was an improper comment on Cantu’s decision not

to testify, we conclude that the trial court’s failure to sustain the objection was

harmless error. A prosecutorial remark that impinges upon an appellant’s privilege

against self-incrimination under the United States or Texas constitutions is an error

of constitutional magnitude. Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim.

App. 2011). When confronted with a constitutional error, a reviewing court must

16

reverse the judgment unless it can conclude, while taking into account any and

every circumstance apparent in the record, that the error did not contribute to the

defendant’s conviction or punishment beyond a reasonable doubt. Id. at 818, 822

(citing TEX. R. APP. PROC. 44.2(a)). Our primary inquiry is what effect the error

had, or reasonably may have had, on the jury’s decision. Lair v. State, 265 S.W.3d

580, 590 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). “This requires us to

evaluate the entire record in a neutral, impartial, and even-handed manner, not in

the light most favorable to the prosecution.” Id. at 591 (quoting Wimbrey v. State,

106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003, pet. ref’d)).

In evaluating whether trial error of a constitutional dimension was harmful

under Texas Rule of Appellate Procedure 44.2(a), we consider: the nature of the

error; the extent to which it was emphasized by the State; the probable implications

of the error; and the weight the jury would likely have assigned to it in the course

of its deliberations. Snowden, 353 S.W.3d 815 at 822. These are not exclusive

considerations in any particular case; many other considerations may logically

serve to inform a proper harm analysis in a given case. Id. On the other hand, not

every factor will necessarily apply to every conceivable constitutional error that

may be subject to an analysis for harm. Id.

Under the first Snowden factor, we conclude that the potential gravity of the

error was lessened by the fact that Cantu’s statements were played for the jury.

17

Taken in context, the prosecutor’s comment could reasonably be considered a

reference to what Cantu did not or would not say during the 911 call or videotaped

interview. As the State points out in its brief, Cantu’s counsel, in his own closing

argument, referred to the statements Cantu made to investigators on the night of

Jackie’s death as “testimony.” According to the State, given the context, the jury

understood the references to what Cantu said or did not say—including references

from both sides—to be references to the videotaped statement, not to what Cantu

said—or did not say—at trial.

Next, we examine the extent to which the State emphasized the error. See

id. Cantu contends that the State emphasized the improper comment later in its

argument when the prosecutor said: “We don’t know why he did it, but we don’t

have to prove that. We don’t know why he did it . . . We don’t have to prove

motive. We may never know why.” To determine whether these additional

comments emphasized the State’s improper comment, the court must first

determine whether the jury would understand the additional comments, in the

context in which they were made, necessarily and naturally as comments on

Cantu’s failure to testify at trial. See Snowden, 353 S.W.3d at 824–25;

Bustamante, 48 S.W.3d at 765; Cruz, 225 S.W.3d at 548. The prosecutor’s later

comment refers to the fact that the State is not required to prove motive, which

correctly explains the State’s burden of proof in the case. It therefore does not

18

necessarily and naturally refer to Cantu’s failure to testify. See Snowden, 353

S.W.3d at 824–25 (concluding that additional comments did not emphasize State’s

prior comment on defendant’s failure to testify because they referred solely to

defendant’s state of mind at the time incident occurred). We conclude the State did

not emphasize the error.

Under the third and fourth Snowden factors, we consider the probable

implication of the error and the weight the jury likely would have placed upon it.

Snowden, 353 S.W.3d at 821. We therefore review the instructions and other

relevant information the jury heard on the issue. See Lair, 265 S.W.3d at 592

(stating appellate court reviews entire record when evaluating potential harm).

Although the trial court overruled Cantu’s objection and thus did not immediately

instruct the jury not to consider Cantu’s decision not to testify, the jury was so

instructed at other points in the trial. At the outset of the trial, during voir dire, the

trial court instructed the venire that neither they nor the State could require

testimony from a defendant and that a defendant’s decision not to testify “cannot

be considered as evidence of his guilt or taken against him in any way.” The trial

court followed up by asking if any venire member would go beyond the law and

require Cantu to testify. No venire member raised his hand. The trial court further

instructed the jury on this point immediately before closing arguments:

In this case, the Defendant has elected not to testify, and you are

instructed that you cannot and must not refer or allude to that fact

19

throughout your deliberations or take it into consideration for any

purpose whatsoever as a circumstance against the Defendant. If any

juror starts to mention the Defendant’s failure to testify in this case,

then it is the duty of the other jurors to stop him at once.

At the end of Cantu’s closing argument, his counsel reminded the jury of the trial

court’s instructions and admonishment not to hold Cantu’s decision not to testify

against him, imploring the jury to “listen to what the Judge told you in his

instructions. . . . [P]ay attention to what the Judge tells you.” Defense counsel

ended his argument, and the State immediately responded: “[Defense counsel] is

right. You do need to follow the law.”

The jury is presumed to follow the trial court’s instructions. Lair, 265

S.W.3d at 591 (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.

1998)). Therefore, the trial court’s instructions would have mitigated the effect of

the State’s comment. See id. Cantu argues that the trial court’s instructions in the

jury charge were insufficient without a curative instruction made immediately after

the State’s improper comment. An immediate instruction, however, is not an

absolute requirement. See Jackson v. State, No. 2-09-023-CR, 2010 WL 1509692,

at *10–11 (Tex. App.—Fort Worth Apr. 15, 2010, pet. ref’d) (mem. op., not

designated for publication) (finding error from improper comment during argument

harmless when trial court, although overruling objection, included proper

instruction addressing issue in jury charge, which was read to jury immediately

before argument began); Garrett v. State, No. 05-08-01394-CR, 2010 WL 338202,

20

at *8 (Tex. App.—Dallas Feb. 1, 2010, pet. ref’d) (mem. op., not designated for

publication) (finding harmless error where trial court improperly overruled

objection to comment on defendant’s failure to testify, but argument was not

repeated and trial court read jury charge containing proper instruction immediately

before argument); Kraft v. State, No. 03-04-00355-CR, 2006 WL 151935, at *12

(Tex. App.—Austin Jan. 19, 2006, pet. ref’d) (mem. op., not designated for

publication) (finding harmless error where trial court overruled objection, but

comment was not repeated or emphasized and jury charge correctly instructed jury

concerning defendant’s right not to testify). The jury was properly instructed

during voir dire, immediately before argument, and in the charge. The improper

comment was brief and not repeated or emphasized. Accordingly, we conclude

that the impact of the State’s comment was mitigated by the trial court’s

instructions and the jury would not have assigned the comment weight during its

deliberations. See Lair, 265 S.W.3d at 591; Crocker, 248 S.W.3d at 306–07

(stating the impact of the State’s improper comment was likely negated to some

extent by the court’s instructions during voir dire and in charge).

After review, we conclude no additional considerations other than the factors

set out in Snowden bear on our resolution of this issue. See Snowden, 353 S.W.3d

at 822. Because (1) the jury could have perceived the comment as a reference to

Cantu’s recorded statements, (2) the State did not emphasize the comment, (3) the

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trial court instructed the jury of Cantu’s right not to testify during voir dire,

immediately before argument, and in the charge, and (4) the defense and State

commented to the jury that it must follow the trial court’s instructions regarding

Cantu’s decision not to testify, we are persuaded beyond a reasonable doubt that

the State’s improper comment regarding Cantu’s failure to testify did not

contribute to his conviction or punishment. See id. at 818; Lair, 265 S.W.3d at

591; Crocker, 248 S.W.3d at 306; Lozano, 2010 WL 150975, at *2.

We overrule Cantu’s first point of error.

Admissibility of Evidence of Cantu’s Prior Drug Use

In his fourth point of error, Cantu contends that the trial court erred by

admitting evidence of his previous drug use.

A. Standard of Review

We review a trial court’s ruling on the admissibility of evidence for an abuse

of discretion. Burke v. State, 371 S.W.3d 252, 258 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d, untimely filed) (citing Page v. State, 213 S.W.3d 332, 337

(Tex. Crim. App. 2006)). A trial court abuses its discretion when its ruling is

arbitrary or unreasonable. Id. (citing State v. Mechler, 153 S.W.3d 435, 439 (Tex.

Crim. App. 2005)). A trial court does not commit an abuse its discretion if its

decision is within “the zone of reasonable disagreement.” Id. (quoting Bigon v.

State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008)).

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B. Applicable law

Under most circumstances, “[e]vidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” TEX. R. EVID. 404(b). Courts have consistently concluded that such

evidence is inherently prejudicial, tends to confuse the issues, and forces the

accused to defend himself against charges not present in the case against him.

Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008). However, Rule

404(b) allows such evidence of other crimes, wrongs, or acts if the evidence has

relevance apart from character conformity. See TEX. R. EVID. 404(b); Moses v.

State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Rebuttal of a defensive

theory is one of the permissible purposes for which evidence may be admitted

under Rule 404(b). Moses, 105 S.W.3d at 626; Albrecht, 486 S.W.2d at 101;

Garrett v. State, 998 S.W.2d 307, 316 (Tex. App.—Texarkana 1999, pet. ref’d)

(holding extraneous evidence that defendant was using drugs admissible under

Rule 404(b) because evidence not offered to show that defendant was drug user

and was using drugs at the time of the offense, but to rebut the defense of

consensual sex). In determining whether extraneous-offense evidence is

admissible to rebut a defensive theory, a trial court can consider a defensive theory

raised by defense counsel in an opening statement. Powell v. State, 63 S.W.3d

435, 438–39 (Tex. Crim. App. 2001).

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C. Relevant Facts

During opening statements, Cantu’s counsel told the jury that Cantu and

Jackie had previously had intense arguments. He explained that during these

fights, Jackie placed the gun to her head and threatened to kill herself. Cantu’s

defensive theory was that Jackie had placed the gun to her head on the night of her

death, just like she had on previous occasions. However, Cantu’s counsel did not

explain that Cantu’s drug use had led to their altercations on those prior occasions.

To rebut Cantu’s defensive theory, the State attempted to show that this incident

was different from the earlier incidents in which Jackie held a gun to her head

because Cantu was not on drugs on the night of Jackie’s death.

The trial court found that because Cantu himself told the jury about the

incidents in which Jackie had held a gun to her head, the State was entitled to

introduce evidence showing that this incident was different, namely, it did not

involve Cantu’s drug use. The State played the video of Cantu’s interview to the

jury. In it, Cantu explained that Jackie had put the gun to her head and threatened

to kill herself in the past. When the detectives questioned him further, Cantu

admitted that the suicide threats occurred during fights about his drug problem,

which, he told detectives, he no longer had. Cantu timely objected under Rule

404(b). The trial court overruled the objection and instructed the jury:

Ladies and gentlemen of the jury, I’m admitting certain evidence

concerning drug use by the Defendant, which is evidence that is

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being admitted only to show other purposes, such as proof of motive,

opportunity, preparation or absence of mistake or accident. I instruct

you to consider this evidence only as evidence to show. . . intent, as

proffered by the State, not as any proof that he is guilty of the charged

crime.

The next time Cantu mentioned his drug use problem in the video statement Cantu

timely objected, and the court granted a running 404(b) objection to the extraneous

evidence regarding Cantu’s previous drug use.

D. Analysis

Cantu’s defense included informing the jury that Jackie had, during past

arguments, taken a gun and placed it to her head. The State attempted to rebut that

defensive theory by showing that the previous fights were over Cantu’s drug use

and this incident was different because the drug test taken after Jackie’s death

showed Cantu was not on drugs. The State’s evidence of Cantu’s previous drug

use generally would be inadmissible under Rule 404(b), but because the State used

it to rebut Cantu’s defensive theory, we conclude that the trial court did not abuse

its discretion in finding the evidence admissible. See TEX. R. EVID. 404(a), (b);

Moses, 105 S.W.3d at 626 (holding trial court did not abuse its discretion in its

admitting extraneous evidence to rebut a defensive theory); Albrecht, 486 S.W.2d

at 100 (“Probably the most common situation which gives rise to the admission of

extraneous offenses is in rebuttal to a defensive theory”); Garret, 998 S.W.2d at

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316 (evidence of defendant’s drug use admissible because offered to rebut

defensive theory).

Cantu also argues that the extraneous evidence is inadmissible because it is

simply background evidence. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim.

App. 1991). Citing Mayes, he observes: “[C]haracter evidence offered on the

rationale that it is background evidence helpful to a jury, but apparently in conflict

with the proscription of Rule 404(b), is not admissible as one of the alternative

purposes such evidence may be introduced under Rule 404(b).” Id. In Mayes

however, there was no defensive theory being submitted. Mayes does not control

this case because the extraneous evidence was not proffered simply as background

evidence, but rather to rebut Cantu’s defensive theory. See Moses, 105 S.W.3d at

626; Albrecht, 486 S.W.2d at 100; Garret, 998 S.W.2d at 316. The trial court in

this case did not abuse its discretion in admitting evidence regarding Cantu’s

previous drug use. See TEX. R. EVID. 404(a), (b); Moses, 105 S.W.3d at 625–26;

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Albrecht, 486

S.W.2d at 100; Garrett, 998 S.W.2d at 316.

We overrule Cantu’s fourth point of error.

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Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

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