NUMBER 13-12-00306-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

JESUS CERVANDO LOPEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 103rd District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Jesus Cervando Lopez appeals his conviction of capital murder which 

was committed during the course of kidnapping or attempted kidnapping. See TEX.

PENAL CODE ANN. § 19.03(a)(2) (West 2011). Appellant pleaded “not guilty” to murder 

and kidnapping, but the jury found him guilty of capital murder. The trial court sentenced 

appellant to life imprisonment with the possibility of parole. See TEX. CRIM. PROC. CODE 
2

ANN. art. 37.071, § 1 (West Supp. 1995). By seven issues, appellant argues: (1) the 

evidence is insufficient to support his conviction; (2) the trial court misled the jury to think 

that the jury would assess punishment; (3) the statute mandating a life sentence is 

unconstitutional; (4) the prosecutor asked an improper cross-examination question that 

denied appellant due process; (5) the trial court erred by allowing the State to ask 

appellant whether he had used false names while in Mexico; (6) the State understated its 

burden of proof during jury argument; and (7) the cumulative effect of the six issues 

warrants reversal. We affirm. 

I. BACKGROUND

Reynaldo Martinez was found shot to death in a vacant lot of a housing subdivision

at around 2:00 a.m. on Saturday, October 24, 1999. Eneyda Montelongo, who had been 

asleep in a house adjacent to the vacant lot, called 911 because she heard gunshots. 

Police officers found Martinez’s black Mitsubishi Montero about a block away. The 

driver’s and passenger’s doors were open and the engine was running, but no one was 

inside the car. There was blood was on the driver’s seat, some .45 caliber shell casings 

on the street near the passenger’s side, and a trail of blood drops from Martinez’s car to 

the vacant lot.

Before the shooting, Martinez was at his cousin’s house drinking beer with some 

family and friends. Servando Martinez, Renalto Garcia Jr., and Francisco Lara, three

witnesses who were at that house with Martinez, testified that Martinez was taken after

two men, Jesus Camacho and a young man (appellant),

1

arrived in a small sports car. 

 

1

 None of these three witnesses identified appellant as the young man who accompanied 

Camacho; appellant, however, claimed that he was, and the evidence connected him to the sports car. 
3

According to the witnesses, Camacho had already come to the house alone at least once 

that evening.2 When Camacho came alone, he drove his white Dodge Ram Charger. 

He talked to Martinez and left. Servando Martinez, Martinez’s brother, testified, “I heard 

. . . that [Camacho] was there to charge my brother for kilo of cocaine.” Investigator 

Santiago Manrique confirmed that his investigation indicated Camacho was holding 

Martinez responsible for a “kilo” of cocaine. 

Camacho arrived with appellant in a Mitsubishi GT-3000. Lara, at whose house 

Martinez and the others gathered, recounted Martinez greeting the two men near the 

driveway. Lara testified that Camacho hit Martinez in the face with a gun and “[t]hey 

forced [Martinez] towards the street.” Servando explained that the men got on either 

side of Martinez. Appellant “hugged”3 Martinez, and Camacho hit Martinez with a gun, 

causing Martinez to bleed. Lara described how appellant and Camacho then pushed 

and pulled Martinez towards the GT-3000 and tried to force Martinez into the car. 

Renalto Garcia Jr., who was also present at Lara’s house, testified that he was 

very intoxicated that evening, and he did not clearly recall many details. He remembered

Camacho hitting Martinez in the head with a gun and both men trying to force Martinez 

into a small car, but clarified that he did not “recall the other guy touching” Martinez. 

Garcia remembered that one of the men pointed a gun at him and the other bystanders 

2

 Servando Martinez testified that Camacho came once before returning with the young man. 

Renalto Garcia Jr. said Camacho came to the house a total of three times, and Francisco Lara claimed 

Camacho came four times. 

3

 It should be noted that Servando testified through an interpreter. He later clarified that it was 

not a hug, and he demonstrated to the court appellant’s alleged conduct at the moment Camacho hit 

Martinez in the face with a gun. 
4

and “kept them at bay.” He testified that he could not remember which man pointed the 

gun, but then stated that it was the “big guy” (Camacho).4 

Servando testified that appellant, not Camacho, pointed the gun at him and the 

others; Servando explained that appellant picked up the gun, Martinez’s .380-caliber 

pistol, after Camacho ordered Martinez to toss it aside. “He pointed the gun and he told 

me to go back, and he told me it wasn’t just anything that he, that your brother took.” 

Servando testified that appellant, while pointing a gun at them, took Lara’s cordless 

house phone and Servando’s keys. Lara said appellant pointed Martinez’s pistol at him 

and demanded, “Give me the damn phone.”

Servando recounted that Martinez resisted entering the GT-3000 and asked to 

take his black Mitsubishi Montero instead. Camacho forced Martinez into the Montero, 

and they left in the Montero at the same time appellant left in the GT-3000. Servando 

said the Montero went toward one street and the GT-3000 toward another; Lara testified 

that appellant turned his car around and followed Martinez and Camacho. Minutes later, 

Lara allegedly heard gunshots in the distance.

Montelongo testified that after she heard the gunshots outside her house, she 

heard three voices nearby. One voice said “I’m going to kill you,” and another voice said

“‘We’re going to kill you. We’re going to kill you.’” Montelongo then heard the victim’s

pained voice. Montelongo next heard vehicle doors closing and a vehicle leave. She 

testified that she did not look outside, but upon reviewing her previously-given statement, 

she noted she had looked out the window and seen “[a] white vehicle, a white truck.”

 

4

 Garcia previously described Camacho as a “tall, big guy.” 
5

Later that morning, the police officers found the GT-3000 abandoned in the

government-housing parking lot near where Martinez died. The officers observed blood 

spatter on the back of the vehicle. They searched the vehicle and found .45 caliber 

bullets in the center console and a pin pusher5in the glove box.6 Alejandro Madrigal Jr. 

from the Texas Department of Public Safety Crime Laboratories testified as a DNA 

expert. Madrigal testified about several swabs that were taken from the exterior of the 

GT-3000. He concluded that “[t]o a reasonable degree of scientific certainty, the victim 

[Martinez] is the source for this DNA profile” from two locations on the GT-3000.7 

Appellant testified that he barely knew Camacho. Appellant said that he met 

Camacho at appellant’s twentieth birthday party after appellant’s brother-in-law borrowed 

Camacho’s grill for the party. Other than returning Camacho’s grill, appellant denied any 

further contact with Camacho until October 23, 1999. 

Appellant testified that he contacted Camacho on October 23 and offered to sell 

him the GT-3000 because Camacho bought and sold cars. Later that night, appellant 

visited a friend, Tony, at Tony’s house and drank beer with friends. Camacho arrived, 

approached appellant, and asked appellant to give him a ride “to a friend of his that I didn’t 

know . . . .” Appellant summarized, “[Camacho] just suddenly arrived. He just got there, 

and he got there by walking.” When asked how Camacho knew appellant was at Tony’s

house, appellant speculated that Camacho had seen the GT-3000 parked on the street

 

5 Detective Wayne Infante of the Brownsville Police Department explained that a pin pusher is a 

tool used to push a firearm’s firing pin into place. 

6

 Detective Infante did not know where in the GT-3000 the pin pusher was found, but Investigator 

Ray Pineda of the Brownsville Police Department later testified it was found in the vehicle’s glove box. 

7

 Madrigal explained that the other swabs yielded no interpretable results, no recordable results, 

or no DNA profile. 
6

outside the house. Appellant acknowledged that he had not yet shown Camacho the 

GT-3000, but appellant noted that the GT-3000 is “not a very common car.” 

According to appellant, he gave Camacho a ride so Camacho could appraise the 

vehicle; appellant stated that they were negotiating prices for the vehicle while he drove. 

Appellant denied knowing Camacho was armed and claimed he never saw a pin pusher. 

Appellant denied helping or intending to help Camacho in kidnapping or killing Martinez

and denied touching Martinez or threatening anyone. Appellant disclaimed any 

knowledge of a drug deal between Camacho and Martinez. 

Appellant affirmed that he and Camacho arrived at the house and approached it on 

foot. Martinez came out to meet Camacho. Camacho and Martinez began talking and

walking back toward the GT-3000. Appellant thought their tone was normal. Appellant 

said he and the other two men were going to leave in the GT-3000, so appellant held the 

driver’s door open for them. Appellant testified that a third person then grabbed him, 

pushed him against the car, put a gun in his face, and said, “My brother! They’re not 

going to take my brother!” Appellant claimed Camacho produced a pistol and hit the 

third person with it, allowing appellant to grab the third person’s gun and a cordless 

phone, which the person held in his other hand. Appellant threw the firearm and the 

phone into a nearby lot while Camacho hit Martinez in the face with Camacho’s pistol. 

Camacho saw a pistol in Martinez’s waistband, grabbed it, and threw it at appellant’s feet. 

Appellant said he grabbed the gun, got in the GT-3000, and left. 

Appellant testified that while stopped at a traffic light, he released the pistol’s 

magazine, threw the gun out of his window, took the bullets out of the magazine, and 
7

tossed the magazine out of the window. Appellant then returned to Tony’s house, but

parked at a government-housing parking lot, which was about one block away, because 

he feared the “people that were fighting with guns” might “come and get me.” He testified 

that the music at Tony’s house “was really loud” but that he and the other guests soon 

heard gunshots. At that point, appellant got a ride to his sister’s house, which was a

“considerable . . . distance” from Tony’s house. He never returned to the GT-3000. 

Appellant related that later that morning, he took a Greyhound bus to Houston. 

He testified his mother informed him that the police were looking for him and that if they 

caught him that they would “give me the needle.” So, appellant relocated to Mexico, 

where he lived until he was arrested and brought back to the United States some thirteen 

years later. 

II. SUFFICIENCY OF THE EVIDENCE

By his second issue, appellant argues the evidence is legally insufficient to support 

a conviction for capital murder or the implied finding of kidnapping. We disagree. 

A. Standard of Review

“The standard for determining whether the evidence is legally sufficient to support 

a conviction is ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); 

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). 

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be 
8

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the 

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) 

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).

We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997)). Such a charge is one that accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily 

restrict the State’s theories of liability, and adequately describes the particular offense for 

which the defendant was tried. Id. 

A person commits capital murder by intentionally or knowingly causing the death of 

an individual in the course of committing or attempting to commit kidnapping. TEX.

PENAL CODE ANN. § 19.03(a)(2) (West 2011); see id. § 19.02(b)(1) (West 2011)

(establishing murder elements incorporated by section 19.03(a)). Kidnapping is the 

intentional or knowing abduction of another person. Id. § 20.03(a) (West 2011). A 

person acts intentionally when it is his conscious objective or desire to cause the result. 

Id. § 6.03(a) (West 2011). A person acts knowingly, or with knowledge, with respect to 

the nature of his conduct or to circumstances surrounding his conduct when he is aware 

of the nature of his conduct or that the circumstances exist. Id. § 6.03(b) (West 2011). 

A person is criminally responsible for an offense committed by the conduct of another if, 

acting with intent to promote or assist the commission of the offense, he solicits, 
9

encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. 

§ 7.02(a)(2) (West 2011). 

B. Analysis

Appellant’s sufficiency challenge presumes his version of events is correct and 

disregards much of the State’s witnesses’ testimony. Appellant discredits the three 

witnesses who were at Lara’s house, arguing that they were drunk on the night in 

question, and repeatedly challenges Montelongo’s testimony as heavily impeached and

lacking in credibility. We defer to the jury as the exclusive judge of the credibility of the 

witnesses and of the weight to be given their testimony; we further defer to the jury’s role 

in reconciling conflicts in the evidence. See Wesbrook, 29 S.W.3d at 111. The jury was 

entitled to believe the State’s witnesses and disbelieve appellant’s testimony. See 

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).

Servando’s and Lara’s testimony portrayed appellant as actively helping Camacho 

kidnap Martinez. They testified that appellant assisted Camacho in forcing Martinez 

toward the GT-3000, pointing a handgun at them, and taking Lara’s phone, which

hampered their immediate ability to call 911. Servando stated that appellant remarked, 

“[I]t wasn’t just anything . . . that your brother took.” Viewing the evidence in the light 

most favorable to the prosecution, Johnson, 364 S.W.3d at 293–94, we hold a rational 

trier of fact could have found appellant assisted or attempted to assist Camacho in 

kidnapping Martinez. See TEX. PENAL CODE ANN. § 7.02(a)(2). 

The evidence connecting appellant to the murder included: a pin pusher and 

some .45 caliber bullets found in the GT-3000; Martinez’s DNA on the GT-3000; Lara’s 
10

testimony that appellant, in the GT-3000, followed Camacho and Martinez when they left 

in Martinez’s Montero; Lara’s testimony that he heard gunshots a few minutes after 

appellant, Camacho, and Martinez left in the same direction; Montelongo’s testimony that 

she heard three voices, two of which expressed threats and one of which appeared to be

the victim’s voice; Montelongo’s testimony that she heard more than one vehicle door 

closing after the shooting; and the fact that the police found the GT-3000 not far from 

where Martinez was killed. Although appellant gave an alternative explanation for the 

presence of some of the evidence, the jury was free to disbelieve his testimony. See 

Lancon, 253 S.W.3d at 707. For example, appellant claimed the .45-caliber bullets 

came from Martinez’s gun, which appellant allegedly unloaded at a stoplight while 

escaping from an unexpected altercation. Servando, however, testified that Martinez 

owned a .380-caliber gun. 

The jury was free to disbelieve appellant’s explanation that the police informed his 

mother that they planned to give him “the needle,” and instead infer appellant’s flight 

suggested guilt. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) 

(“We have recognized that a factfinder may draw an inference of guilt from the 

circumstance of flight.”). “A ‘consciousness of guilt’ is perhaps one of the strongest kinds 

of evidence of guilt.” Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi 

1993, pet. ref’d) (quoting Torres v. State, 794 S.W.2d 596, 598–600 (Tex. App.—Austin 

1990, no pet.)). “It is consequently a well accepted principle that any conduct on the part 

of a person accused of a crime subsequent to its commission, which indicates a 

‘consciousness of guilt’ may be received as a circumstance tending to prove that he 
11

committed the act with which he is charged.” Torres, 794 S.W.2d at 598 (quotations 

omitted). Here, appellant’s flight from Texas and the United States and his use of false 

names in Mexico support an inference that appellant sought to evade arrest because he 

was guilty of the charged offense. See Yost v. State, 222 S.W.3d 865, 875 (Tex. 

App.—Houston [14th Dist.] 2007, pet. ref’d); see also Matthews v. State, Nos. 

13-12-00051-CR, 13-12-00052-CR, 13-12-000560-CR, 2013 WL 3894005, at *18 (Tex. 

App.—Corpus Christi July 25, 2013, no pet.) (mem. op., not designated for publication). 

Appellant argues “that the evidence of intent on the part of [appellant] to murder 

Rey Martinez is extraordinarily tenuous.” The State has the burden of proving appellant 

possessed intent or knowledge to kill, but direct evidence of intent or knowledge is not 

necessary; a jury may infer intent or knowledge from a defendant’s acts, words, conduct, 

and the method of committing the crime and the nature of the wounds inflicted on the 

victim. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (en banc) (quoting 

Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)); Linden v. State, 347 

S.W.3d 819, 822 (Tex. App.—Corpus Christi 2011, pet. ref’d). After reviewing the 

evidence, we hold a rational jury could have inferred appellant intentionally or knowingly 

killed or aided or attempted to aid Camacho in killing Martinez. See TEX. PENAL CODE 

ANN. § 7.02(a)(2); Hart, 89 S.W.3d at 64. 

We conclude that a rational jury could have found the essential elements of capital 

murder committed during the course of a kidnapping beyond a reasonable doubt. See 

Johnson, 364 S.W.3d at 293–94. We overrule appellant’s second issue. 
12

III. JURY’S SENSE OF RESPONSIBILITY

By his first issue, appellant argues that his conviction must be reversed because 

the trial court misled the jury during its pretrial comments regarding whether there would 

be a punishment phase where the jury could exercise its discretion in determining the 

severity of punishment. Appellant relatedly contends that the trial court erred in refusing 

to submit two requested jury instructions that would have informed the jury that a guilty 

verdict on capital murder would automatically result in life imprisonment. Appellant 

further contends that the State and trial court misled the jury with improper comments 

during appellant’s closing argument. 

Appellant’s first issue is multifarious and therefore subject to being overruled. 

See Smith v. State, 316 S.W.3d 688, 694 (Tex. App.—Fort Worth 2010, pet. ref’d). A 

multifarious issue is one that embraces more than one specific ground. Id. (citing Stults 

v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)). 

Nevertheless, in the interest of justice, appellate courts may address a multifarious issue 

that is sufficiently developed in the brief. Id. (citing Foster v. State, 101 S.W.3d 490, 499 

(Tex. App.—Houston [1st Dist.] 2002, no pet.)). Because we are able to discern 

appellant’s contentions, we will address appellant’s issues. See id. (citing Newby v. 

State, 169 S.W.3d 413, 414 (Tex. App.—Texarkana 2005, pet. ref’d)). 

A. Trial Court’s Pretrial Comment 

Appellant complains that the following pretrial comment made by the trial court

allegedly caused the misinformation: 
13

If you’re not part of the actual guilt/innocence, you’re not part of the 

sentencing; all right? The actual twelve that did the guilt/innocence have to 

do the punishment . . . . 

Appellant notes that because the State did not seek the death penalty and the jury 

convicted him for capital murder, he was automatically sentenced to life imprisonment

without a separate punishment phase. See TEX. CRIM. PROC. CODE ANN. art. 37.071, § 1

(West Supp. 1995).

8

 Appellant claims that the trial court thereby misled the jury and 

diminished its sense of responsibility. 

The trial court made the complained-of statement after the jury was empanelled 

and sworn but before the guilt/innocence phase began. In context, the trial court was 

discussing the alternate jurors’ role. Immediately preceding the extracted statement, the 

trial court informed the alternate jurors that the court would excuse them when the jury 

began deliberations. The comment was a response to one of the alternate juror’s 

questions: “Would that [excusing the alternate jurors at commencement of deliberations] 

also carry over into the sentencing, if someone gets to that point?” The court’s full 

statement in response was:

No. No. If you’re not part of the actual guilt/innocence, you’re not part of 

the sentencing; all right? The actual twelve that did the guilt/innocence 

have to do the punishment, and that’s why I’m saying that you will—once 

they start deliberating and I tell them, “Okay, you’ve heard everything. 

You’re going to go deliberate,” and they get in there and they pick their 

foreman and they begin deliberating, I will then excuse you two.

 

Viewed in context, the statement was not misleading; it accurately explained the 

procedure relating to excusing alternate jurors. Although the jury subsequently 

convicted appellant of capital murder, the conviction on that count was not a foregone 

 

8

 We cite to the statute under which appellant was sentenced because the statute has since 

changed. See infra note10. 
14

conclusion when the trial court made the statement. The State charged appellant with 

two counts; one was capital murder, but the other was kidnapping. Even assuming the 

statement implied there would be a punishment phase, the statement would not have 

been misleading because a punishment phase was not foreclosed for a non-capital 

murder conviction. 

Regardless, we do not read the statement to imply the inevitability of a punishment 

phase. The statement hardly parallels the statements discussed in Caldwell v. 

Mississippi, 472 U.S. 341 (1985), a case on which appellant relies.9 In Caldwell, the 

prosecutor informed the jury, during jury argument and in response to the defense 

attorney’s argument on the gravity of sentencing the defendant to death, that their verdict 

was automatically reviewable. 472 U.S. at 325–26. The prosecutor failed to mention 

that the state’s appellate courts applied a presumption of correctness in reviewing a jury’s 

sentence. See id. at 331. The Supreme Court concluded “that it is constitutionally 

impermissible to rest a death sentence on a determination made by a sentencer who has 

been led to believe that the responsibility for determining the appropriateness of the 

defendant’s death rests elsewhere.” Id. at 328–29. Here, the trial court accurately 

responded to an alternate juror’s question asking whether alternate jurors would need to 

be available for punishment “if someone gets to that point?” Additionally, the court’s 

statement was much less indicative of a impending punishment phase as the comment 

made by appellant’s attorney at voir dire: “[I]f . . . found guilty, the jury will be making a 

decision on punishment.” We overrule appellant’s sub-issue. 

 

9

 Appellant also cites Ramano v. Oklahoma, but only for the general, well-established principle

that the jury must not be misled regarding its role in sentencing. See 512 U.S. 1, 8 (1994). 
15

B. Denial of Appellant’s Requested Jury Instructions

During the jury charge conference, appellant objected to the jury charge and 

requested the addition of an instruction to the verdict form informing the jury that a finding 

of guilt would automatically result in life imprisonment. In the alternative, appellant 

asked the court to include the instruction in the jury charge. The trial court denied 

appellant’s requests.

We review the trial court’s decision on both requests together. See Jennings v. 

State, 302 S.W.3d 306, 310 (Tex. Crim. App. 2010) (noting verdict forms become part of a 

jury charge). When presented with an argument that a trial court committed jury charge 

error, we conduct a two-step inquiry: “First, the reviewing court must determine whether 

the jury charge contains error. Second, the court must determine whether sufficient 

harm resulted from the error to require reversal.” Mann v. State, 964 S.W.2d 639, 641 

(Tex. Crim. App. 1998) (en banc); see Benn v. State, 110 S.W.3d 645, 648 (Tex. 

App.—Corpus Christi 2003, no pet.).

Appellant characterizes the trial court’s denial as a failure to “cure” the trial court’s 

“deception” of the jury by implying there would be a punishment phase. Appellant does 

not otherwise contend the jury charge failed to reflect applicable law. As discussed, we 

do not agree that the trial court’s statement in response to an alternate juror’s question 

about excusal misled the jury. We therefore see no need for the trial court to have 

corrected it. Appellant cites no authority, and we find none, requiring a trial court to 

inform a jury, either in a charge or verdict form, of the gravity of punishment

correspondent with a guilty verdict. On the contrary, “[t]he court properly reserved the 
16

punishment issues for the punishment stage, as is required under the express terms of 

[Texas Code of Criminal Procedure] Article 37.071 . . . .” Morales v. State, 571 S.W.2d 3, 

4 (Tex. Crim. App. 1978) (en banc); see Staggs v. State, 503 S.W.2d 587, 588 (Tex. Crim. 

App. 1974) (“[I]nformation regarding punishment in the charge at the guilt-innocence 

stage is improper . . . .”); see also Cook v. State, 488 S.W.2d 822, 823 (Tex. Crim. App. 

1972) (“[T]he court . . . should not instruct the jury on the penalty to be assessed in the 

charge submitted to the jury following the guilt or innocence stage of the trial.”); Wilson v. 

State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.). We hold that the jury 

charge was not erroneous for not including appellant’s requested instructions. 

C. Trial Court’s Comment During Closing Argument

Appellant argues that the comments made by the State and the trial court in the 

following excerpt further misled the jury regarding its punishment role:

[Defense]: On the first question, if the answer is yes, there is no 

jury consideration—

[State]: And I’m going to object to this being improper 

argument at this stage.

THE COURT: It will be overruled.

[Defense]: There is no consideration by the jury or anyone of what 

the proper punishment is. It’s life; okay? “Yes” to 

number one, guilty to number one, and it’s life.

The others, we talked on voir dire about the range of 

punishment and what it would be.

THE COURT: All right. Ladies and Gentlemen, I am going to instruct 

you, however, that at this stage you are not to consider 

punishment, just the guilt/innocence; all right?
17

Appellant did not object to the court’s comment, perhaps because the trial court had 

already informed him that it would make the statement if appellant mentioned mandatory 

life imprisonment during closing argument. At the jury charge conference, appellant 

asked to discuss the fact that a guilty verdict would result in a mandatory life sentence. 

The State objected, noting that voir dire was the proper time to consider whether the jury 

could apply the full range of punishment. The trial court noted the State’s objection, and 

it informed appellant that he could make the comment, “[y]ou [the State] can object, and 

then what I’ll do is, I’ll tell them, ‘Ladies and Gentlemen, you’re not to consider 

punishment at this time.’” Appellant did not object to the trial court’s proposal.

“Trial courts have significant discretion to control the arguments offered on a 

party’s behalf, and a trial court’s rulings controlling argument are subject to reversal only 

when that discretion is abused.” Gloede v. State, 328 S.W.3d 668, 673 (Tex. 

App.—Beaumont 2010, no pet.) (citing Hall v. State, 126 S.W. 573, 573 (1910)). As a 

general rule, punishment should not be discussed by either side at the guilt-innocence 

phase of the trial because the issue during that phase is the defendant’s guilt, not the 

effect of the conviction. Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App. 1994) (en 

banc), overruled on other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. 

App. 2001); McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1976); see Haynes 

v. State, 05-03-01092-CR, 2004 WL 1173403, at *2 (Tex. App.—Dallas May 27, 2004, no 

pet.) (not designated for publication). Allowing discussion of punishment during the 

guilt-innocence phase serves as an invitation to the jury to consider the effect of 

conviction rather than the facts themselves in determining the defendant’s guilt. 
18

McClure, 544 S.W.2d at 393; Bruton v. State, 921 S.W.2d 531, 536 (Tex. App.—Fort 

Worth 1996, pet. re’fd); see Freeman v. State, 985 S.W.2d 588, 589 (Tex. 

App.—Beaumont 1999, pet. ref’d). Moreover, discussion of punishment does not fall 

into one of the four permissible areas of jury argument: (1) summation of the evidence; 

(2) reasonable deductions from the evidence; (3) answers to the argument of opposing 

counsel; and (4) pleas for law enforcement. See Freeman v. State, 340 S.W.3d 717, 727 

(Tex. Crim. App. 2011); Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). 

Accordingly, the trial court would not have abused its discretion by disallowing appellant 

any discussion of punishment, and it did not abuse its discretion by allowing appellant to 

mention it subject to the trial court’s advisement that it was not part of the jury’s 

guilt/innocence calculus. See Gloede, 328 S.W.3d at 673.

In conclusion, we overrule appellant’s first issue. 

IV. TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 37.071 

Appellant’s third issue is that article 37.071 section 1 of the Texas Code of Criminal 

Procedure is unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012). Because 

appellant did not challenge the constitutionality of article 37.071 in the trial court, we focus 

our review on whether Miller, which was decided after appellant’s trial, somehow 

invalidates the statute. See Turner v. State, No. 01-11-00839-CR, 2013 WL 4520897, at 

*7 (Tex. App.—Houston [1st Dist.] Aug. 27, 2013, no pet. h.) (applying Miller in review of 

pre-Miller trial). 

A. Standard of Review

The constitutionality of a criminal statute is a question of law which we 

review de novo. Owens v. State, 19 S.W.3d 480, 483 (Tex. App.—Amarillo 
19

2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10–11 (Tex. App.—Houston 

[1st Dist.] 1997, pet. ref’d). When reviewing the constitutionality of a 

statute, we presume the statute is valid and the legislature has not acted 

unreasonably or arbitrarily in enacting the statute. Rodriguez v. State, 93 

S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex parte Granviel, 561 S.W.2d 503, 

511 (Tex. Crim. App. 1978). The burden rests on the party challenging the 

statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69. 

We are obligated to uphold a statute if we determine a reasonable 

construction which will render it constitutional. See Ely v. State, 582 

S.W.2d 416, 419 (Tex. Crim. App. 1979). 

Render v. State, 316 S.W.3d 846, 856 (Tex. App.—Dallas 2010, pet. ref’d); see McMillian 

v. State, 388 S.W.3d 866, 870–71 (Tex. App.—Houston [14th Dist.] 2012, no pet.); 

Lawson v. State, 283 S.W.3d 438, 440 (Tex. App.—Fort Worth 2009, pet. ref’d). 

B. Analysis

Miller established that mandatory life imprisonment without parole of a juvenile 

violates the Eighth Amendment. See 132 S.Ct. at 2460, 2469. Miller did not invalidate 

life imprisonment for adults, whatever their age; the Supreme Court premised its holding 

on the distinction between juveniles and adults. See id. at 2463–469. Miller left intact, 

excepting juveniles, the Supreme Court’s prior holding in Harmelin v. Michigan, which 

stated in relevant part: “Petitioner asks us to extend this so-called ‘individualized capital 

sentencing doctrine’ . . . to an ‘individualized mandatory life in prison without parole 

sentencing doctrine.’ We refuse to do so.” 501 U.S. 957, 995 (1991). In distinguishing

Harmelin, the Miller court explained:

Harmelin had nothing to do with children and did not purport to apply its 

holding to the sentencing of juvenile offenders. We have now held on 

multiple occasions that a sentencing rule permissible for adults may not be 

so for children. Capital punishment, our decisions hold, generally 

comports with the Eighth Amendment—except it cannot be imposed on 

children. . . . So too, life without parole is permissible for nonhomicide 

offenses—except, once again, for children.
20

132 S.Ct. at 2470. 

Appellant was twenty at the time of Martinez’s killing; he was not a juvenile. See

TEX. FAM. CODE ANN. § 51.02(2) (West 2008). His case falls under Harmelin, not Miller. 

Appellant nevertheless asks us to extend Miller to an area explicitly excluded in Miller. 

We decline the invitation. Moreover, appellant’s requested application would extend the 

Surpeme Court’s caution regarding life imprisonment without the possibility of parole to a 

case in which appellant is eligible for parole. See TEX. CRIM. PROC. CODE ANN. art. 

37.071, § 1 (West Supp. 1995).

10

 We overrule appellant’s third issue. 

V. PROPRIETY OF PROSECUTOR’S CROSS-EXAMINATION QUESTION

By his fourth issue, appellant asserts his conviction must be reversed because the 

prosecutor engaged in misconduct by asking appellant whether he held a position in the 

Mexican drug cartel. Appellant contends that there was no evidence appellant held such 

a position and that the question was calculated to inflame the jurors’ minds.

Appellant did not object to the question at trial. Appellant thus failed to preserve 

the issue for review. See TEX. R. APP. P. 33.1; Penry v. State, 903 S.W.2d 715, 764 

(Tex. Crim. App. 1995) (holding that to preserve complaint of prosecutorial misconduct, 

appellant must (1) object on specific grounds; (2) request an instruction that the jury 

disregard the comment; and (3) move for mistrial); Wilson v. State, 819 S.W.2d 662, 664 

(Tex. App.—Corpus Christi 1991, pet. ref’d) (same). Appellant acknowledges he did not 

preserve error, but he relies on the preservation exception established in Rogers v. State, 

 

10

 The law in existence at the time of appellant’s conduct, unlike today, allowed for the possibility 

of parole when a defendant was convicted of a capital felony but the State did not seek the death penalty. 
21

a case in which our sister court concluded that a prosecutor’s unobjected-to but pervasive 

misconduct warranted reversal. See 725 S.W.2d 350, 358–61 (Tex. App.—Houston [1st 

Dist.] 1987, no pet.). 

The misconduct covered in Rogers was ubiquitous in the trial, and the appellate 

court concluded, “Though the appellant failed to properly preserve many errors resulting 

from the prosecutor’s misconduct, the facts of the present case, in which impermissible 

prejudice permeates the entire record, indicate that even frequent instructions to 

disregard would not have sufficed to remove the prejudice.” Id. at 360–61 (emphasis in 

original). Appellant reasons that the challenged question was of such “nuclear nature” 

that it, like the misconduct in Rogers, vitiated fundamental fairness and was clearly 

calculated to inflame the jurors’ minds. 

“Generally, the mere asking of an improper question will not constitute reversible 

error.” Wilson, 819 S.W.2d at 664. We nevertheless do not discount the possibility that 

“[i]n extreme cases,” a single question, “when obviously harmful to the defendant” or 

lacking evidentiary foundation and clearly calculated to inflame the jurors’ minds, may be 

reversible. See id. (emphasis in original). The kind of question that is exempt from 

preservation requirements is “of such character that it is practically impossible to withdraw 

the impression produced in the minds of the jurors . . . .” Id.; see Rogers, 725 S.W.2d at 

360–61 (“[I]nstructions to disregard would not have sufficed to remove the prejudice.”). 

Even assuming the question was improper, it does not rise to the level of prejudice

contemplated by Rogers. See 725 S.W.2d at 351–58, 360–61. We are not persuaded 

the question was unfounded: witnesses testified that underlying Martinez’s murder was 
22

a botched drug transaction in which Martinez provided someone a substantial amount of 

cocaine on credit and Camacho expected Martinez to pay for the cocaine, that appellant 

explained Martinez’s abduction by telling Martinez’s family and friends, while pointing a 

gun at them, “[I]t wasn’t just anything . . . that your brother took,” and that both appellant 

and Camacho fled to Mexico after Martinez was killed. Neither are we convinced that an 

instruction to disregard would have been insufficient to cure any impression produced in 

the jurors’ minds. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (holding 

that in most cases, an instruction to disregard will cure harm caused by an improper 

question). 

We overrule appellant’s fourth issue as unpreserved. See TEX. R. APP. P. 33.1; 

cf. Rogers, 725 S.W.2d at 351–58, 360–61. 

VI. RULING ON TRIAL OBJECTION

Appellant asserts in his fifth issue that the judgment must be reversed because the 

trial court, after instructing the defense to refrain from presenting testimony about 

appellant’s activities in Mexico after Martinez’s murder, allowed the State to elicit 

testimony, over appellant’s objection, that appellant used false names during that time. 

The limitation on the defense that appellant alludes to is reflected in the trial court’s 

pretrial instruction that the defense not present character evidence of appellant’s truthful 

character while he was in Mexico. In context, the trial court and the defense attorney 

were discussing whether the defense could solicit character evidence absent any 

impeachment by the State. The trial court explained that such evidence would be 

bolstering and irrelevant to appellant’s character at the time he committed the offense. 
23

Nevertheless, defense counsel remarked, “[A]ssuming we still decide to call him [a 

character witness], we’ll wait and call him and you can see what issues are raised, and 

then we’ll address you before we call him, anyway.” The court agreed: “Okay. That’s 

fine. We’ll do it like that. We’ll do it like a limine.” Defense counsel then requested, “If 

you’d just give us an opportunity, if you exclude him, to go ahead and make a bill.” The 

trial court responded that it would.

The following excerpt contains the trial court’s ruling that appellant challenges on 

appeal:

[State]: And in the last twelve years, have you had to use a 

false name?

[Defense]: Your Honor, we’ll object to the relevance on this. We’ve 

been excluded from discussing the last twelve years. 

We think it should apply to the State. 

THE COURT: Overruled.

Appellant neither presented a witness to testify on appellant’s character for truthfulness 

nor filed a bill of exception. 

On appeal, appellant claims the prejudicial effect of the fact that appellant used

false identities greatly outweighed the probative value. See TEX. R. EVID. 403. The 

State claims appellant failed to preserve that ground for appellate review. We agree with 

the State. To preserve error, an appellant must submit a timely objection into the 

trial-court record. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1). The error 

alleged on appeal must comport with the objection submitted to the trial court. See TEX.

R. APP. P. 33.1(a); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) 

(“The legal basis of a complaint raised on appeal cannot vary from that raised at trial”). 
24

At trial, appellant objected on grounds that the solicited testimony was irrelevant, see TEX.

R. EVID. 401, not that its prejudicial effect greatly outweighed the probative value. 

In his reply brief, appellant contends that his trial objection implicated rule 403 

because defense counsel referenced the pretrial “oral order in limine” in the objection. 

Appellant asserts that motions in limine serve only to exclude prejudicial evidence, and 

thus appellant’s objection covered relevance and rule 403. We disagree. The pretrial 

discussion makes clear that the trial court proscribed appellant’s use of character 

evidence absent impeachment by the State because it would be irrelevant. The court did 

not discuss a rule 403 balancing test. See TEX. R. EVID. 403. At defense counsel’s 

insistence on presenting the character witness, the court agreed to treat the matter “like a 

limine” and allow defense counsel to consult the court before presenting the witness. 

The record reflects that appellant neither presented nor requested to present the 

character witness. In reviewing appellant’s articulated objection at trial, we conclude he

did not apprise the trial court of the rule 403 complaint presented on appeal. 

We overrule appellant’s fifth issue as unpreserved. See TEX. R. APP. P. 33.1; 

Heidelberg, 144 S.W.3d at 537. 

VII. RULING ON OBJECTION DURING CLOSING ARGUMENT

By his sixth issue, appellant argues the judgment must be reversed because the 

trial court erroneously overruled an objection to the State’s final jury argument that grossly 

understated the State’s burden of proof. The following excerpt is the relevant portion of 

the record:

[State]: There are a lot of things that the defendant said, and I 

will say at this point that in this case, the defendant has 
25

given you a theory, a detailed theory. So this is not a 

matter of you saying, well, you know, looking at the 

elements, and what do I think? He’s given you a 

theory that you need to believe in order for you to 

believe that he did not commit this crime. 

[Defense]: I’ll object to that. That’s a misstatement of the law, 

Your Honor.

THE COURT: Ladies and Gentlemen, you will get the law from the 

jury instruction that I have given you. Thank you.

[State]: He has given you his side of the story.

[Defense]: Let me further object that it—or request that the jury 

failed to comply with In [r]e[] Winship requiring that 

every element of the offense be proved beyond a 

reasonable doubt.

THE COURT: All right. Ladies and Gentlemen, you are instructed 

that the state has the burden of proving each and every 

element of the allegations in the indictment beyond a

reasonable doubt.

[Defense]: Is that overruled, Your Honor?

THE COURT: That will be overruled.

[State]: And the state does still have the same burden of 

proving all the elements beyond a reasonable doubt, 

but in this case, the defendant’s given you a story, and 

you’re going to have to choose whether or not you 

believe that story. There’s two versions of the story.

[Defense]: I renew my—

[State]: You can believe the state’s version or you can believe 

the defendant’s version.

[Defense]: I renew my objection, Your Honor. The state still has 

the burden of proof, whether or not I have on opening 

statement given the theory of what happened. They 

continue with that burden of proof, and this argument is 

contrary to that.
26

THE COURT: That will be overruled.

 

A. Standard of Review and Applicable Law

We review a trial court’s ruling on an objection for improper jury argument for 

abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); 

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Proper jury argument 

generally falls within one of four areas: (1) summation of the evidence; (2) reasonable 

deductions from the evidence; (3) answers to the argument of opposing counsel; and 

(4) pleas for law enforcement. Freeman, 340 S.W.3d at 727; Brown, 270 S.W.3d at 570. 

In examining challenges to a jury argument, we consider the remark in the context in 

which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); 

Gonzalez v. State, 115 S.W.3d 278, 284 (Tex. App.—Corpus Christi 2003, pet. ref’d).

It is the State’s burden to prove each element of the offense beyond a reasonable 

doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). “The law on 

burden of proof is constitutional: The Due Process Clause of the Fourteenth 

Amendment to the United States Constitution requires that every state criminal conviction 

be supported by evidence that a rational factfinder could find as sufficient to prove all the 

elements of the offense beyond a reasonable doubt.” Abbott v. State, 196 S.W.3d 334, 

344 (Tex. App.—Waco 2006, pet. denied) (citing In re Winship, 397 U.S. 358, 362–64; 

Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991)); see Sotelo v. State, No. 

13-09-00024-CR, 2009 WL 4695387, at *3 (Tex. App.—Corpus Christi Dec. 10, 2009, no 

pet.) (mem. op., not designated for publication). It is therefore constitutional error for the 

State to understate its burden. See Abbott, 196 S.W.3d at 344; see also Sotelo, 2009 
27

WL 4695387, at *3. If an appellate court finds constitutional error, it must reverse the 

conviction unless it determines beyond a reasonable doubt that the error did not 

contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a); Abbott, 196 S.W.3d 

at 344; Sotelo, 2009 WL 4695387, at *3. 

B. Analysis

In essence, the State’s argument asked the jury to decide whether the State or the 

appellant was more believable. Although credibility is important, the standard for 

criminal conviction is not which side is more believable, which basically describes a 

preponderance of the evidence standard. See Allen v. State, 841 S.W.2d 7, 11 (Tex. 

Crim. App. 1992) (en banc) (“By definition, preponderance of the evidence means the 

greater weight of credible testimony.”) (citations omitted); see also Hulbert v. State, No. 

13-02-00110-CR, 2003 WL 21981934, at *1 (Tex. App.—Corpus Christi Aug. 21, 2003, 

no pet.) (not designated for publication) (stating same). The State’s burden is proof 

beyond a reasonable doubt. Merritt, 368 S.W.3d at 525. It is imaginable that a jury 

could find a particular defendant is being dishonest but the State nevertheless failed to 

meet its burden. 

The State defends the jury argument as a reasonable deduction from the evidence 

and a response to appellant’s argument that challenged the credibility of the State’s 

witnesses. See Freeman, 340 S.W.3d at 727; Brown, 270 S.W.3d at 570. That may be 

true, but it does not allow the State to misstate the law. See Abbott, 196 S.W.3d at 343 

(citing Withing v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990) (en banc)) (“But even 

when answering opposing counsel or making a plea for law enforcement, a prosecutor 
28

cannot misstate the law.”). We hold that the State’s argument was error for misstating its 

burden to prove the elements of the offense beyond a reasonable doubt. See Merritt, 

368 S.W.3d at 525; Abbott, 196 S.W.3d at 343; cf. Gore v. State, 719 So. 2d 1197, 1200 

(Fla. 1998) (holding that the following prosecutor’s argument misstated the burden of 

proof and was error: “It’s simple and it comes down to this in simplicity: If you believe 

his story, he’s not guilty. If you believe he’s lying to you, he’s guilty. It’s that simple.”).

C. Harm Analysis

Having found error, we must reverse the conviction unless we determine beyond a 

reasonable doubt that the error did not contribute to the conviction or punishment. TEX.

R. APP. P. 44.2(a). In our review, we do not focus on the propriety of the trial’s outcome; 

instead, we should try to calculate as much as possible the probable impact on the jury in 

light of the existence of other evidence. Wesbrook, 29 S.W.3d 103, 119 (Tex. Crim. App. 

2000) (en banc). In reaching this decision, we consider the following factors: the nature 

of the error, the extent it was emphasized by the State, its probable collateral implications, 

and the weight a juror would probably have placed on the error. Snowden v. State, 353 

S.W.3d 815, 822 (Tex. Crim. App. 2011). These factors are not exclusive, and not every 

factor will necessarily apply. Id. “[A]n analysis for whether a particular constitutional 

error is harmless should take into account any and every circumstance apparent in the 

record that logically informs an appellate determination whether ‘beyond a reasonable 

doubt [that particular] error did not contribute to the conviction or punishment.’” Id. 

(quoting TEX. R. APP. P. 44.2(a)). 
29

In finding error, we already touched on the implication of the State’s comments. 

Appellant objected three times to the State’s invitation for the jury to choose a side, but, 

because appellant’s objections appear to interrupt the State’s thought, the invitation 

seems to have been extended only twice; once before objection and once after the trial 

court overruled the objection. Regardless, the State was able to repeat the error, 

emphasizing it to some extent. The State even characterized its argument as consistent 

with its burden of proof. These observations lend some support to a finding of harm. 

On the other hand, although the trial court overruled appellant’s objection, it 

immediately instructed the jury to consult the jury charge for the controlling statement of 

the law. The jury charge contained the correct burden of proof. We presume the jury 

followed the jury charge absent evidence to the contrary, which appellant has not 

provided. See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011); Wesbrook, 

29 S.W.2d at 116. When appellant again objected, the trial court told the jury, “Ladies 

and Gentlemen, you are instructed that the state has the burden of proving each and 

every element of the allegations in the indictment beyond a reasonable doubt.” Thus, 

both in the context of the improper comment as well as in the charge, the trial court 

instructed the jury regarding the proper burden of proof. These observations suggest 

that the jury likely placed little weight on the misstatement. 

As an additional consideration, as in Snowden, “the evidence against appellant 

was substantial, if not overwhelming.” See Snowden, 353 S.W.3d at 825. We 

discussed the strength of the evidence at length in the section addressing the evidentiary 

sufficiency to convict. Incorporating that discussion here, we are further “persuaded to a 
30

level of confidence beyond a reasonable doubt” that the State’s fleeting misstatement 

during jury argument “made no contribution to the jury’s determination that the appellant 

was guilty . . . .” See id. 

We overrule appellant’s sixth issue. See TEX. R. APP. P. 44.2(a).

VIII. CUMULATIVE ERROR

By his seventh issue, appellant argues the cumulative impact of the errors alleged 

in his first six issues is so great that reversal is required. We need not decide this issue, 

however, because appellant’s conclusory statement that the “cumulative effect of all [his 

alleged errors] warrants reversal” is insufficient to maintain his burden to adequately brief 

the point of error. See TEX. R. APP. P. 38.1(i); Linney v. State, 401 S.W.3d 764, 782-83

(Tex. App.—Houston [14th Dist.] 2013, no pet.)(overruling as inadequately briefed 

appellant’s conclusory contention that cumulative harm affected his substantial rights). 

Appellant’s seventh issue is overruled.

IX. CONCLUSION

We affirm the trial court’s judgment. 

GREGORY T. PERKES

Justice

Do not publish.

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

Delivered and filed the 

30th day of December, 2013.