Cruz Crisoforo Chavez v. State

Opinion issued

June 30, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00394-CR

———————————

CRUZ

CRISOFORO CHAVEZ, Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial

Court Case No. 1180719

MEMORANDUM

OPINION

The

jury found appellant, Cruz Crisoforo Chavez, guilty of the offense of murder. [1] The jury assessed punishment at 25 years in

prison. Appellant challenges the

judgment of conviction in three issues.

We affirm.

Background

A

grand jury indicted appellant for the murder of the complainant, Jose

Lopez. The indictment alleged that

appellant had caused the complainant’s death by stabbing him with a knife. More particularly, it alleged that appellant

either (1) had intentionally and knowingly caused the complainant’s death or

(2) had intended to cause serious bodily injury to the complainant and had

caused his death by knowingly committing an act clearly dangerous to human

life, namely, stabbing the complainant with a knife.

At trial, the State and the

defense presented different versions of the events surrounding the complainant’s

death. The State presented evidence showing

that appellant had intentionally stabbed the complainant because the

complainant owed appellant’s wife money.

The defense presented evidence that appellant was not the person who

stabbed the complainant.

The State’s evidence showed

that Jose Alvarado, the complainant’s roommate and appellant’s friend, saw

appellant and the complainant fighting in a common area of the apartment

complex where all three men lived.

Alvarado heard appellant tell the complainant that he wanted to kill

him. Alvarado saw the complainant

backing away from appellant with his hands in the air, and saw appellant advancing

toward the complainant. Alvarado also

saw that appellant had a large kitchen knife in his hand.

When Alvarado intervened,

appellant warned him to stay out of it.

Appellant threatened to stab Alvarado and swiped at him with the

knife. Alvarado then ran behind a car

that was about 10 feet away. Appellant

pursued the complainant, who continued to hold his hands up in the air. The complainant was leaning against a car

when appellant stabbed him. Appellant

then ran to his nearby apartment.

Maria Mediata was also a

witness at the scene. While she was

driving through the apartment complex parking lot, Mediata and Alvarado, who

was a passenger in her car, noticed appellant and the complainant struggling

with each other. Mediata stopped the car

to let Alvarado out to allow him to intervene in the altercation. Mediata testified that she heard appellant

yelling “bad words” at the complainant.

She saw that appellant was holding onto the complainant, who was trying

to pull away from appellant.

After parking her car,

Mediata returned to the scene and saw that the complainant was injured and

bleeding. Mediata also saw appellant running

from the scene carrying a knife. Mediata

heard appellant cussing. She also heard

him say that no one should try to get close to him or “they also would be

fucked up.”

Mediata and Alvarado attempted

to aid the complainant, who was bleeding profusely from a stab wound in his

side. The complainant told Mediata that

appellant was upset because the complainant owed appellant’s wife $100 for

lunches that she had prepared for the complainant. The complainant was taken to the hospital

where he died the next morning.

Police recovered a knife

from the front seat of appellant’s truck and another knife from the kitchen

sink of appellant’s apartment. Appellant

voluntarily surrendered to the police several days later.

At trial, an assistant

medical examiner testified that the complainant’s cause of death was a five and

one-half-inch stab wound to his torso. The

medical examiner testified that the stabbing had also fractured appellant’s

rib, indicating that significant force had been used to make the wound.

Appellant testified in his

own defense at trial. He provided a

different version of the events from that provided by Alvarado and Mediata. Appellant testified that on the night in

question, he was working on his car using a small knife to strip the battery

cable. He stated that the complainant

approached him from behind and threatened him with a knife. At first, appellant did not realize that it

was the complainant; rather, he thought that it was a stranger attempting to

rob him. Appellant stated that he had

never had any problem with the complainant in the past. Appellant testified that the complainant did

not owe appellant’s wife money.

Appellant testified that the

complainant lunged at him with the knife a couple of times. According to appellant, the complainant cut

himself on the arm with his own knife. Appellant

testified that he feared for his life.

Appellant testified that

Jose Alvarado and Maria Mediata arrived at the scene in a truck with another

man. They told appellant that they were

trying to stop the altercation. Appellant

stated that “they took [the complainant]” with them in the truck. Appellant testified that he did not stab the

complainant.

The jury found appellant

guilty of the offense of murder and assessed punishment at 25 years in

prison. Appellant now appeals the

judgment of conviction in three issues.

Spousal Privilege

In his first issue,

appellant contends it was error for the trial court to permit the State to call

his wife to the stand and to require that she invoke her spousal privilege in

the jury’s presence.

A. Relevant Portions of the Record

Before the State called

Maria Acosta as a witness, defense counsel requested the trial court to conduct

an “in camera hearing” to permit Acosta to assert her spousal privilege not to

testify against appellant and to allow the parties to question Acosta regarding

issues related to her assertion of that privilege. The trial court denied the request. The trial court informed the parties that the

State could call Acosta as a witness, and, if she asserted her spousal

privilege, then the trial court would conduct a hearing outside the presence of

the jury to allow the parties to ask questions pertinent to the privilege.

When

questioned by the State, Acosta acknowledged that she had told an investigating

police officer that she was not married to appellant. When asked whether she currently claimed that

appellant is her husband, Acosta responded, “In my heart, he is my husband.” The State then asked whether Acosta knew that

if she claimed that appellant is her husband, she may not have to testify. Acosta stated, “I don’t want to testify

against him because I love him.” The

prosecutor clarified, “That’s not my question.

My question is have you been informed if you claim he’s your husband,

you don’t have to testify about your knowledge of the events surrounding this

case?” At that point, the defense made a

relevancy objection, which the trial court overruled. Acosta then answered the question indicating

that she had not been informed of the spousal privilege.

The

State proceeded to question Acosta regarding whether appellant had been

drinking beer on the day of the offense.

Acosta indicated that appellant had been drinking beer with his friends

at the apartment complex. After Acosta

had answered 15 questions on this topic, defense objected, stated that Acosta

had claimed the spousal privilege and requested that the questioning stop.

The

trial court stopped the questioning and conducted a hearing outside the

presence of the jury. Defense counsel

conducted a voir dire examination of Acosta to establish that she was appellant’s

common law wife. Counsel elicited

testimony from Acosta in which she indicated that she was asserting her spousal

privilege. The trial court noted on the

record that Acosta had asserted the privilege.

At that point, Acosta left the witness stand. The jury was brought in and the State

rested. No mention was made to the jury

regarding Acosta’s departure from the witness stand.

B. Pertinent Legal Principles

Rule of Evidence 504(b)(1)

provides that the spouse of an accused has a privilege not to be called as a

witness for the State. Tex. R. Evid . 504(b)(1). This is not an absolute privilege; it must be

invoked by the defendant’s spouse. See id. ; Benitez v. State , 5 S.W.3d 915, 918 (Tex. App. — Amarillo 1999, pet ref’d); see also Johnson v. State , 803 S.W.2d

272, 281 (Tex. Crim. App. 1990), overruled

on other grounds , Heitman v. State ,

815 S.W.2d 681 (Tex. Crim. App. 1991). Claims

of privilege generally should be made without the jury’s knowledge. See Tex. R. Evid. 513(b). The spouse’s invocation of privilege in front

of the jury, without more, almost necessarily compels the jury to draw an

inference adverse to the defendant. Johnson , 803 S.W.2d at 282 ; see also Benitez , 5 S.W.3d at 920 . However, it is not automatic error if the jury

divines what occurred. Benitez , 5 S.W.3d at 919 . One court has held, “[I]t is the jury’s

perception of the situation, coupled with the knowledge by the prosecutor that

the claim would likely be invoked, which creates the error.” Id .

Any error by the trial court

in allowing the State to call appellant’s spouse as a witness and force the

invocation of privilege in front of the jury is subject to a harm analysis. See Johnson ,

803 S.W.2d at 283 (conducting harm analysis under former Rule of Appellate

Procedure 81(b)(2)). Because such error

does not implicate the constitutional rights of an appellant, we apply Rule of

Appellate Procedure 44.2(b) to determine whether the error affected the appellant’s

substantial rights. See Tex. R. App. P.

44.2(b). A substantial right is affected

when the error has a substantial and injurious effect or influence in

determining the jury’s verdict. See King

v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is not affected “if the

appellate court, after examining the record as a whole, has fair assurance that

the error did not influence the jury, or had but a slight effect.” Motilla

v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see Casey v. State , 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Stated differently, if we have “a grave

doubt” that the result was free from the substantial influence of the error, we

must treat the error accordingly. Burnett v. State , 88 S.W.3d 633 , 637 – 38 (Tex. Crim. App. 2002). “Grave doubt” means that “in the judge’s mind,

the matter is so evenly balanced that he feels himself in virtual equipoise as

to the harmlessness of the error.” Id .

In assessing the likelihood

that a jury’s decision was adversely affected by the errors, we consider

everything in the record, including any testimony or physical evidence

admitted, the nature of the evidence supporting the verdict, the character of

the alleged error and how it might be considered in connection with other

evidence. Motilla , 78 S.W.3d at 355 . We

may also consider statements made during voir dire, jury instructions, the

State’s theory, any defensive theories, closing argument, and whether the State

emphasized the errors. Id . at 355 – 56.

B. Harm Analysis

On

appeal, appellant complains of the trial court’s overruling of his request to conduct

a hearing outside the presence of the jury regarding spousal privilege, and the

trial court’s requiring Acosta to assert her privilege in front of the

jury. Appellant contends that the trial

court’s actions likely resulted in the jury making an adverse inference against

him, namely, an inference that Acosta’s testimony would have been detrimental to

him.

Even if we assume that the

trial court erred as asserted by appellant, we conclude that the error was

harmless because it did not affect appellant’s substantial rights. See Tex. R. App. P. 44.2(b). After examining the record of appellant’s trial

as a whole, we have fair assurance that the error did not have a substantial

and injurious effect or influence in determining the jury’s verdict. First, Alvarado and Mediata each provided

detailed eyewitness testimony that supported the jury’s guilty finding. Their testimony placed appellant at the scene

with a large knife in his hand, the size of that which the assistant medical

examiner testified was used to kill the complainant. Alvarado and Mediata also testified that

appellant was the aggressor in the altercation with the complainant, and they heard

appellant make threatening and incriminating statements at the scene. Although Alvarado testified that he could not

see the exact location on the complainant’s body where appellant stabbed the

complainant, Alvarado responded affirmatively when asked whether he saw

appellant “using the knife to stab [the complainant].”

Appellant denied being the

aggressor, and denied stabbing the complainant, but admitted that he and the

complainant had engaged in a physical altercation on the night in question. Appellant also admitted to possessing a knife

during the altercation, albeit a small knife.

When they were called to the

scene on the night of the complainant’s death, the police recovered a butcher

knife with a seven inch blade from the kitchen sink of appellant’s

apartment. The knife tested negative for

blood, but both Alvarado and Mediata testified that it looked similar to the

knife that appellant wielded when attacking the complainant. The assistant medical examiner testified that

the knife recovered was consistent with the type of knife that inflicted the

complainant’s fatal wound.

Moreover, the jury heard

Acosta state that she did not want to testify against appellant because she

loved him. The jury did not hear Acosta

specifically say that she was asserting her spousal privilege not to testify. Defense counsel mentioned the privilege in

front of the jury when he objected. At

that point, the jury had already heard Acosta provide testimony detrimental to

appellant, namely, that appellant had been drinking beer on the night of the

offense. No evidence was presented by

either side that Acosta was present at the scene of the stabbing or otherwise

had direct knowledge of the offense. In

addition, the State did not draw attention to either Acosta’s assertion of the

privilege or the fact that the defense did not call Acosta as a witness. Cf. Tex. R. Evid. 504( b )(2) ( “Failure by an accused to call

the accused’s spouse as a witness, where other evidence indicates that the

spouse could testify to relevant matters, is a proper subject of comment by

counsel.”).

In conclusion, after examining

the record as a whole, we have fair assurance that the complained-of error did

not have a substantial and injurious effect or influence in determining the

jury’s verdict, or had but a slight effect. Casey ,

215 S.W.3d at 885 . Therefore, any error

by the trial court in denying appellant’s request to conduct a hearing

regarding spousal privilege outside the presence of the jury and creating a

situation in which the privilege would be asserted in front of the jury was

harmless.

We overrule appellant’s first

issue.

Lesser-Included Offenses

In his second issue,

appellant contends that the trial court erred when it denied his request for

lesser-included offense instructions for the offenses of manslaughter and

criminally negligent homicide.

A. Legal Principles

We employ a two-part test to

determine whether a trial court should have given a lesser-included offense

instruction requested by the defendant. See Guzman v. State , 188 S.W.3d 185, 188

(Tex. Crim. App. 2006); Salinas v. State ,

163 S.W.3d 734, 741 (Tex. Crim. App. 2005). In the first part, we determine whether an

offense is a lesser-included offense of the alleged offense. Hall v.

State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); Salinas , 163 S.W.3d at 741 . The lesser-included offense must be

included within the proof necessary to establish the offense charged. See Rousseau

v. State , 855 S.W.2d 666 , 672–75 (Tex. Crim. App. 1993).

The second step is to

determine if there is some evidence that would permit a rational jury to find

that the defendant is guilty of the lesser offense but not guilty of the

greater. Hall , 225 S.W.3d at 536 ; Salinas ,

163 S.W.3d at 741 . Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a charge on

the lesser offense. Hall , 225 S.W.3d at 536 . “[I]t

is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense, but rather, there must be some evidence directly germane to

the lesser-included offense for the finder of fact to consider before an

instruction on a lesser-included offense is warranted.” Hampton

v. State , 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).

We review all evidence

presented at trial to make this determination. Rousseau ,

855 S.W.2d at 673 . If the evidence

raises the issue of a lesser-included offense, a jury charge must be given

based on that evidence, “whether produced by the State or the defendant and

whether it be strong, weak, unimpeached, or contradicted.” Id .

at 672 (quoting Bell v. State , 693

S.W.2d 434, 442 (Tex. Crim. App. 1985)).

B. Analysis

The State does not contest

that, as charged in this case, manslaughter and criminally negligent homicide

are lesser included offenses of murder. See Cardenas v. State , 30 S.W.3d 384 ,

392 – 93 (Tex. Crim. App. 2000)

(noting that manslaughter and criminally negligent homicide are lesser included

offenses of capital murder). Therefore,

we must determine whether there is some evidence in the record that would

permit the jury to find that if appellant is guilty, he is guilty only of

manslaughter or criminally negligent homicide. In other words, there must be some evidence

from which a jury could rationally acquit appellant of the greater offense of

murder while convicting him of the lesser included offenses of manslaughter or

criminally negligent homicide. See Mathis v. State , 67 S.W.3d 918, 925

(Tex. Crim. App. 2002). To make such a

finding, the evidence must establish the lesser included offense as a valid

rational alternative to the charged offense. Hall ,

225 S.W.3d at 536 .

The essential difference

between murder and either manslaughter or criminally negligent homicide is the

culpable mental state required for each offense. See Ross

v. State , 861 S.W.2d 870, 875 (Tex. Crim. App. 1992) (holding involuntary

manslaughter lesser included offense of murder); Thomas v. State , 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) (holding

criminally negligent homicide lesser included offense of murder). A person is guilty of murder (1) if he

intentionally or knowingly causes the death of an individual or (2) if he

intended to cause serious bodily injury and commits an act clearly dangerous to

human life. [2] Tex.

Penal Code Ann . § 19.02(b) (Vernon 2003). In contrast, manslaughter is defined as

recklessly causing the death of an individual, id . § 19.04(a) (Vernon 2003), [3] while criminally negligent

homicide requires a person to cause the death of an individual by criminal

negligence. [4] Id .

§ 19.05(a) (Vernon 2003). Accordingly, appellant

was entitled to an instruction on manslaughter if there is some evidence from

which a rational jury could find that he only consciously disregarded the

substantial and unjustifiable risk that his conduct would cause the

complainant’s death. Appellant was

entitled to an instruction on criminally negligent homicide if there was some

evidence from which a rational jury could find that he only should have been

aware of a substantial and unjustifiable risk that the complainant’s death

would occur.

To support his assertion

that he was entitled to the lesser-included instructions, appellant cites the

following argument he presented to the trial court:

I would like the lesser included offense of both

manslaughter and criminally negligent homicide to be included into the charge.

I have the standard, basically, boilerplate

charge that we use for those two lesser options here in Harris County available

for the court reporter or for the record.

Judge, I think there is evidence

when we consider Maria Mediata talked about a struggle, at some point one of

the combatants had a knife. There was

talk or testimony from Jose Alvarado about close proximity and nobody has

testified that they saw [appellant] intentionally or knowingly stab the decedent

Jose Lopez with a knife. And, therefore,

Judge, I think a Jury might find him not guilty of murder and should have the option

of considering whether they want to find him guilty of manslaughter for causing

manslaughter, basically, killing him without the intent to kill him or without

even the intent to commit serious bodily injury by committing an act clearly

dangerous to human life, the other possible way to convict him of murder.

I think

the Jury might find him not guilty of both of those things and possibly

manslaughter as sort of an accident in the struggle. And, again, Judge, I have a proposed charge

to include on that.

By an extension of that

argument, Judge, if they do not feel that whatever conduct out there, whatever

careless contact out there might have actually constituted manslaughter, then

they could·have the option if they thought [appellant’s] conduct rose to the

level of criminal negligence.

The culpable mental state for

murder refers to the result of the conduct—a person’s death—not to the nature

of that conduct. See Cook v. State , 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). As

a result, there must be some affirmative evidence, from some source, that at

the moment appellant stabbed the complainant, he did not intend his death or

know that it was reasonably certain to occur.

See Mays v. State , 318 S.W.3d

368, 387 (Tex. Crim. App. 2010); see also

Hampton v. State , 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (holding that before

one is entitled to an instruction on a lesser-included offense, there must be

“affirmative” evidence “directly germane” to the existence of the

lesser-included offense).

The evidence appellant points to

does not affirmatively show that he was either reckless or negligent about the

likelihood that a death would occur at the moment he stabbed the complainant. In the trial court, appellant pointed to evidence

that Alvarado and Mediata saw appellant and the complainant struggling. Appellant posited that the struggle led to an

accidental stabbing. However, there is

no affirmative evidence to support this theory.

To the contrary, Alvarado and Mediata each testified that appellant was

the aggressor and that the complainant was attempting to back away from

appellant during the altercation. In

addition, Alvarado testified that he heard appellant tell the complainant that

he wanted to kill him. Appellant was wielding

a large kitchen knife. When Alvarado

tried to intercede, appellant swiped at him with the knife. Alvarado also testified that appellant

pursued the complainant, who had his hands in the air. Thereafter, appellant stabbed the

complainant.

When he testified, appellant

did not state that the stabbing was accidental.

Instead, appellant denied stabbing or hurting the complainant altogether. Appellant stated that Alvarado and Mediata

had taken the complainant, who was still alive, with them in a truck.

We conclude

that there is no evidence in the record showing that, if he is guilty,

appellant is guilty only of the lesser-included offense of manslaughter

or criminally negligent homicide . We hold that the trial court properly denied

appellant’s request for the lesser-included offense instructions.

We overrule

appellant’s second issue.

Closing Argument

In his third

issue, appellant contends that the trial court erred in overruling his

objection to the State’s argument.

Proper jury argument falls within

one of the following categories: (1) summation of the evidence, (2) reasonable

deduction from the evidence, (3) response to argument of opposing counsel, and

(4) plea for law enforcement. Davis v. State , 329 S.W.3d 798, 821

(Tex. Crim. App. 2010). Here, appellant

complains of the State’s closing argument contained in the following discourse:

[Prosecutor:]

[Defense counsel] also wants you to believe that the fact that those two

witnesses [Alvarado and Mediata] and the defendant had the time [of the

stabbing] around 10:00 o’clock means that there is something foul about their

testimony. Well, there wasn’t. Just

means they were wrong about the time.

You heard the testimony from the medical examiner. There is no way that [the complainant] would

have survived two hours bleeding the way he was. You heard the doctor testify that without

immediate medical attention he would have expired.

[Defense counsel:]

Judge, that’s a mischaracterization of the evidence. He actually lived 9 hours.

[Prosecutor:] Without medical attention, Your Honor.

The Court:

Overruled.

Contrary to appellant’s contention,

the foregoing argument by the State was proper.

It was offered in response to the appellant’s closing argument in which

he assailed Alvarado’s and Mediata’s credibility. They had testified that the stabbing occurred

around 10:30 p.m., but other evidence showed that the police had been called

around midnight. When it made the

complained-of remark, the State was highlighting that Alvarado and Mediata had

simply been mistaken about the time of the stabbing.

The complained-of

statement by the prosecutor was also a reasonable deduction from the assistant

medical examiner’s testimony. The

assistant medical examiner testified that a person who had sustained a knife wound,

such as that sustained by the complainant, might die “in a matter of 10

minutes.” The doctor stated that the

rate of death depended on how many blood vessels were severed and whether there

was immediate access to medical therapy.

The record shows that the complainant received medical treatment

following the stabbing. The assistant

medical examiner also testified that the complainant had extensive blood loss

and that his liver had been lacerated. Thus,

when she made the statement, the prosecutor was reasonably deducing from the

doctor’s testimony that the complainant had received his medical treatment

within two hours of being stabbed.

Appellant

also complains of another remark by the State made in response to an argument by

the defense. The defense argued that

appellant’s post-incident conduct indicated that he did not kill the

complainant. The defense pointed out

that, after the incident, appellant did not flee to Mexico. The State responded that there might be other

reasons that appellant did not flee, such as the fact that appellant’s wife and

child live in Houston and “How about the fact that he didn’t have any money on

him at that point? Didn’t have any

identification.”

Appellant

objected on the ground that “the fact” that appellant did not have money or

identification was not in evidence. The

trial court overruled the objection.

Appellant is correct that no

evidence was offered regarding these facts.

Nonetheless, even if we assume that it was error for the trial court to

overrule the objection, any error was harmless.

Improper-argument error is

non-constitutional error. Brown v. State , 270 S.W.3d 564, 572

(Tex. Crim. App. 2008). Non-constitutional

error that does not affect substantial rights must be disregarded. Id .;

see Tex.

R. App. P. 44.2(b). To determine whether appellant’s substantial

rights were affected by improper argument, we balance the following factors:

(1) the severity of the misconduct (the magnitude of the prejudicial effect of

the prosecutor’s comment), (2) any curative measures taken (the effect of any

cautionary instruction by the trial court), and (3) the certainty of conviction

absent the misconduct (the strength of the evidence supporting the conviction).

Mosely

v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

We first

consider the severity of misconduct. The

Court of Criminal Appeals has equated the “severity of the misconduct” with the

prejudicial effect of the prosecutor’s remarks. Id . When evaluating the severity of the

misconduct, we must assess whether the jury argument is extreme or manifestly

improper by examining the entire record of final argument to determine if there

was a willful and calculated effort on the part of the State to deprive

appellant of a fair and impartial trial. Brown ,

270 S.W.3d at 573 .

The complained-of argument was made

in conjunction with remarks that were supported by the evidence; that is, the

State also argued that appellant had reason not to flee because his wife and

child lived in Houston. These facts were

supported by testimony admitted at trial.

When read in context, the complained-of remarks appear to be inadvertent

and innocuous. Moreover, the record

reflects that the complained-of argument was only a small portion of the State’s

entire jury argument. The State instead

emphasized the incredibility of appellant’s testimony, the credibility of

Alvarado’s and Mediata’s testimony, and the forensic evidence. After reviewing

the State’s closing argument as a whole, we conclude that there was no willful

and calculated effort on the part of the State to deprive appellant of a fair

and impartial trial. Nor can we conclude

that appellant was prejudiced by the remark.

Although there were no curative

measures, such as an instruction to disregard, the objectionable statement was

an isolated statement, and the prosecutor moved on after the objection and did

not mention it again. Moreover, given

the evidence as a whole, including the eye-witness testimony, the knife

recovered from appellant’s kitchen sink, and the forensic evidence, the

certainty of the conviction was unaffected by the isolated remark by the State. The pertinent decision that the jury had to

make in this case was whether to believe Alvarado and Mediata or whether to

believe appellant. The complained-of

comment by the prosecutor that appellant did not flee because he lacked money

and identification had little, if any, bearing on the jury’s credibility assessments.

After reviewing the record as a

whole, we conclude that appellant’s substantial rights were not affected by the

complained of error. See Tex. R. App. P. 44.2(b). Therefore, assuming the trial court

erred by overruling appellant’s objection, we hold that the error was harmless.

We overrule

appellant’s third issue.

Conclusion

We

affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of

Justices Jennings, Higley, and Kerrigan. [5]

Do not

publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. § 19.02(b) (Vernon 2003).

[2] A person acts intentionally 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) (Vernon 2003). A person acts knowingly with respect to a

result of his conduct when he is aware that his conduct is reasonably certain

to cause the result. Id . § 6.03(b).

[3]

A person acts recklessly with respect to

circumstances surrounding his conduct or the result of his conduct when he is

aware of but consciously disregards a substantial and unjustifiable risk that

the circumstances exist or the result will occur. Id .

§ 6.03(c).

[4]

A person acts with criminal negligence with respect

to the circumstances surrounding his conduct or the result of his conduct when

he ought to be aware of a substantial and unjustifiable risk that the

circumstances exist or the result will occur. Id .

§ 6.03(d).

[5] The Honorable Patricia Kerrigan, Judge

of the 190th District Court of Harris County, participating by assignment.