Opinion filed April 23, 2015



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 14

- 00 215

- C R

__________ 

### ERNEST VILLA MARQUEZ , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 142nd District Court Midland County, Texas
Trial Court Cause No. CR42 478

M E M O R A N D U M O P I N I O N After an open plea of guilty, t he trial court found Ernest Villa Marquez guilty of burglary of a building , f o und 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 with out 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 paragraphs 2 that 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 para g ra p hs to be “true ” and
later sentenced Appellant to confinement for a period of ten years.
I I

. 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 continue d to “ rob ” ; A ppellant claim s 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 b ut no convictions for robbery. The prosecutor outlined this lengthy criminal history to argue for a longer sentence than Appellant had received for previous conviction s

. T he prosecutor sought the maximum

1 See T EX

. P ENAL C ODE A NN

. § 30.02(c)(1) ( West 2011 ).

2 See id. § 12.42 5 (b) (West Supp. 2014 ).

3 During 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 t wo 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

. T o
preserve error, Appellant must object or the error is waived. T EX

. R.
A PP

. P

. 33.1 (a) ; s ee 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 p rosecutor ’ 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 T EX

. R. A PP

. 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 burglar ies, and that he had a lengthy criminal history , which included no robbery convictions
, a ny 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 (Te x. Crim. App. 1996) (citing Orona v. State , 791 S.W.2d 125, 130 (Tex. Cr im

. App. 1990 ) ).

4 The 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 P ENAL § § 12.33
, 12.42 5 (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 T EX

. R. A PP

. P. 47.2(b)

. Panel consists of: W right , C.J., W illson, J

. , and Bailey, J.