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Torres v. State

Court of Appeals of Texas, Fourteenth District

October 17, 2019


          On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1534637

          Panel consists of Justices Christopher, Spain, and Poissant.


          Tracy Christopher, Justice.

         In this appeal from a conviction for robbery, appellant raises three issues concerning (1) the trial court's denial of his motion for mistrial, (2) the trial court's comments regarding his punishment, and (3) the trial court's admission of certain opinion testimony. For reasons explained more fully below, we overrule all of these issues and affirm the trial court's judgment.


         The complainant in this case was robbed in a coordinated attack as she was driving down a residential street. The attack began around midnight when a car passed the complainant and came to a stop directly in front of her. A second vehicle then pulled up from the rear, boxing the complainant in. A man quickly exited the driver's door of the front car, walked towards the complainant, and swung open her door. The man then pressed a gun to the complainant's face and demanded that she give him her purse and her cellphone. After the complainant complied with these demands, the man departed, along with the other vehicle, leaving the complainant physically unharmed.

         The complainant raced to a neighbor's house, where she called police. A sheriff's deputy came to her door at roughly 12:30 that morning and questioned her about what was taken and who was responsible. In her description of the robber, the complainant said that the man was short and Hispanic. She also said that she noticed tattoos on his face, even though a part of his face had been concealed with a bandana.

         At around 3:30 that same morning, after having previously spoken with the complainant, the deputy was dispatched to a motor vehicle accident in the vicinity of the robbery. Appellant was one of the drivers involved in that accident, and because he matched the physical description of the complainant's robber, the deputy came to suspect that appellant had been involved in that earlier offense. The deputy patted down appellant and found a cellphone in his pocket that matched the cellphone that had been reported stolen by the complainant. The deputy then searched appellant's vehicle and found a social security card bearing the complainant's name. The deputy did not find a purse, a bandana, or a gun in appellant's vehicle, but he did find a knife that was designed to resemble a gun.

         The deputy returned to the complainant's home later that morning with the items he found from the motor vehicle accident. The complainant identified the cellphone and social security card as her own. She said that the knife had not been used in her robbery, but she said that it resembled the gun that had been used.

         Appellant was charged with aggravated robbery with a deadly weapon. At his trial for that offense, the complainant identified appellant in open court as her robber. The complainant also insisted that appellant had used an actual gun in the aggravated robbery, not a knife, but the jury convicted appellant of just the lesser offense of simple robbery. The jury then assessed appellant's punishment at twenty-two years' imprisonment.


         During the punishment phase of trial, the prosecutor emphasized that appellant was twenty-four years old, that he was a member of a notorious street and prison gang, and that he already had at least one prior robbery conviction. To protect the citizens of the county, the prosecutor encouraged the jury to sentence appellant to a lengthy term of imprisonment. The prosecutor did not suggest any particular term of years, but he did raise the topic of parole eligibility.

         The punishment charge already included certain instructions regarding parole eligibility. Those instructions, which are specifically prescribed by statute, informed the jury that some defendants could be released early on parole, but that these defendants "will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed or fifteen years, whichever is less." See Tex. Code Crim. Proc. art. 37.07, § 4(b). The instructions further provided as follows:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

         In his summation of these instructions, the prosecutor made the following argument:

When we talk about parole, I don't want to get too hung up on it, but I want to make sure I explain it so you understand it a little bit. The Judge did a great job already. It's the actual time-[the defendant is] not parole eligible until the actual time served plus any good time earned equals one fourth. So hypothetical, you come back today, you say, you know what? Give him the minimum five years. He is probation- parole, I apologize, parole eligible at 1.25 years. Not saying he will get it. We don't know. But he could be back out in the streets in 1.25 years, plus any good time he has accrued. Does that scare you? It should. It scares me.

         Defense counsel objected as follows: "I object to this argument, Judge. The law says you're not supposed to make an argument like this. The jury is not supposed to look at it this way, not the way they're supposed to do it." The trial court overruled the objection, but sua sponte advised the jury: "You may consider parole, but do not try to factor in the eligibility of this person. He could receive it, he could be denied parole. It's ...

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