Opinion filed April 23, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-14-00215-CR

__________

ERNEST VILLA MARQUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CR42478

M E M O R A N D U M O P I N I O N

After an open plea of guilty, the trial court found Ernest Villa Marquez 

guilty of burglary of a building, found the enhancement paragraphs to be “true,”

and sentenced Appellant to confinement for ten years and no fine. Appellant 

argues, in his sole issue, that the trial court erred when it did not declare a mistrial 

after the State’s prosecutor, during closing argument, referred to Appellant’s prior 

criminal history of burglaries and twice referred to Appellant as someone who 

continued to “rob.” We affirm.
2

I. Evidence at Trial

Because Appellant does not advance a sufficiency challenge, we recite only 

the facts necessary to review his appeal. The grand jury indicted Appellant for 

burglary of a building and alleged he had intentionally and knowingly entered a 

building without the owner’s consent and had attempted to commit and committed 

theft in the building, a “7–Eleven” convenience store.1 Appellant waived his right 

to a jury trial and freely and voluntarily pleaded guilty to the indictment, and the 

trial court found him guilty of the offense of burglary of a building. Appellant also 

pleaded “true” to two enhancement paragraphs2that alleged he had committed two 

felony offenses of burglary of a building.3 After hearing evidence from the State 

and Appellant, the trial court found two enhancement paragraphs to be “true” and 

later sentenced Appellant to confinement for a period of ten years. 

II. Analysis

Appellant argues, in his sole issue, that the trial court erred when it did not 

declare a mistrial after the State’s prosecutor, during closing argument, referred to 

him as someone who continued to “rob”; Appellant claims this was harmful 

closing argument.

The prosecutor emphasized Appellant’s lengthy criminal history that 

included nine convictions for burglary and other convictions for unauthorized use 

of a motor vehicle, theft, and other offenses. The record reflected that Appellant 

had prior convictions for burglary but no convictions for robbery. The prosecutor 

outlined this lengthy criminal history to argue for a longer sentence than Appellant 

had received for previous convictions. The prosecutor sought the maximum

 

1See TEX. PENAL CODE ANN. § 30.02(c)(1) (West 2011).

2See id. § 12.425(b) (West Supp. 2014).

3During Appellant’s sentencing hearing, the State also adduced evidence of multiple convictions 

by Appellant for DWI and other offenses, but these convictions were not the basis for the enhancement 

paragraphs.
3

sentence available: confinement for twenty years.4 During his closing arguments 

before the court, the prosecutor made two references to “rob” in close succession, 

but immediately after the second instance, he recognized his error and corrected 

himself. He stated that “rob” was “the wrong term” and that he meant to say 

“burglar[iz]ing their businesses.”

During this part of the closing argument, defense counsel did not object. To 

preserve error, Appellant must object or the error is waived. TEX. R.

APP. P. 33.1(a); see Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010); 

Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Threadgill v. State,

146 S.W.3d 654, 670 (Tex. Crim. App. 2004). Courts have applied this rule to 

bench trials. Dorsey v. State, No. 01-13-01022-CR, 2014 WL 6602517, at *2 

(Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. ref’d) (mem. op., not 

designated for publication); Parker v. State, No. 02-11-00032-CR, 2011 WL 

5984539, at *2–3 (Tex. App.—Fort Worth Dec. 1, 2011, no pet.) (mem. op., not 

designated for publication) (failure to object to prosecutor’s closing arguments,

during bench trial, forfeited any potential error for appellate review).

But even if defense counsel had objected, and we assumed error, it would be 

reviewed under TEX. R. APP. P. 44.2(b) and disregarded unless Appellant’s 

substantial rights were affected. See Martinez v. State, 17 S.W.3d 677, 692–93 

(Tex. Crim. App. 2000). Given that Appellant pleaded guilty to burglary, that he 

admitted having been previously convicted of burglaries, and that he had a lengthy 

criminal history, which included no robbery convictions, any error in the 

prosecutor’s closing argument did not affect Appellant’s substantial rights and had 

no impact on the trial court. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. 

App. 1996) (citing Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990)).

 

4The punishment range for a state jail felony with two prior felony enhancements is not more than 

twenty years of imprisonment but not less than two years of imprisonment. See PENAL §§ 12.33,

12.425(b).
4

In reviewing the entire record and the prosecutor’s entire closing argument, we 

hold the two isolated references did not cause Appellant harm. We overrule 

Appellant’s sole issue.

III. This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE 

April 23, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.