CAUSE NO. 03-13-00852-CR

IN THE COURT OF APPEALS FOR THE

THIRD JUDICIAL DISTRICT OF TEXAS

AT AUSTIN, TEXAS

_____________________________________________________________

GREGORY LOPEZ, 

Appellant

VS.

THE STATE OF TEXAS,

Appellee

________________________________________________________________ 

FROM CAUSE NUMBER CR2012-396

IN THE 207TH JUDICIAL DISTRICT COURT OF

COMAL COUNTY, TEXAS

HONORABLE GARY L. STEEL, JUDGE PRESIDING

________________________________________________________________

APPELLEE’S (STATE’S) BRIEF

_________________________________________________________________

ATTORNEY FOR THE STATE: 

SAMMY M. McCRARY

CHIEF FELONY PROSECUTOR

COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

150 N. SEGUIN AVENUE, SUITE 307

NEW BRAUNFELS, TEXAS 78130

mccras@co.comal.tx.us (email)

(830) 221-1300 (office)

(830) 608-2008 (fax)

SBN: 90001990

__________________________________________________________________ 

ORAL ARGUMENT IS REQUESTED 

ACCEPTED

03-13-00852-CR

4852722

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/10/2015 5:23:27 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/16/2015 10:45:00 AM JEFFREY D. KYLE Clerk
CAUSE NO. 03-13-00852-CR

IN THE COURT OF APPEALS FOR THE

THIRD JUDICIAL DISTRICT OF TEXAS

AT AUSTIN, TEXAS

_____________________________________________________________

GREGORY LOPEZ,

Appellant

VS.

THE STATE OF TEXAS,

Appellee

_____________________________________________________________

FROM CAUSE NUMBER CR2012-396

IN THE 207TH JUDICIAL DISTRICT COURT OF

COMAL COUNTY, TEXAS

HONORABLE GARY L. STEEL, JUDGE PRESIDING

_____________________________________________________________

APPELLEE’S (STATE’S) BRIEF

_____________________________________________________________

To the Court of Appeals:

Comes now the State of Texas, hereinafter referred to as the State, in 

response to Appellant’s brief and requests this Court to overrule Appellant’s two

points of error and affirm the judgment of the trial court below. In support thereof, 

the State would show the Court the following:
i

IDENTITY OF PARTIES AND COUNSEL

APPELLANT – Gregory Lopez

APPELLEE – The State of Texas

ATTORNEY FOR APPELLANT 

AT TRIAL AND ON APPEAL

David K. Sergi

David K. Sergi & Associates, P.C.

P.O. Box 887

San Marcos, TX 78666

ATTORNEY FOR THE APPELLEE (STATE) 

AT TRIAL AND ON APPEAL

Sammy M. McCrary

Chief Felony Prosecutor

Comal County Criminal District Attorney’s Office

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130
ii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iii-v

STATEMENT OF THE CASE 1-2

ISSUES PRESENTED 2

STATEMENT OF FACTS 3-19

STATE’S RESPONSE TO APPELLANT’S 

FIRST POINT OF ERROR 19-33

Summary of the Argument 19-20

Authorities 20-26

Arguments 27-33

STATE’S RESPONSE TO APPELLANT’S 

SECOND POINT OF ERROR 33-44

Summary of the Argument 33-34

Authorities 34-37

Arguments 37-44

PRAYER FOR RELIEF 44

CERTIFICATE OF SERVICE 45

CERTIFICATE OF COMPLIANCE 46
iii

INDEX OF AUTHORITIES

CASE PAGE

Archie v. State, 340 S.W.3d 734 (Tex.Crim.App. 2011)..................32, 34, 36

Bouchillon v. State, 540 S.W.2d 319 (Tex.Crim.App. 1976).............22, 28-29

Bullard v. State, 706 S.W.2d 329 (Tex.App.—

Houston [14th Dist.] 1986)..................................................... 25, 28, 29

Busby v. State, 253 S.W.3d 661 (Tex.Crim.App. 2008)................... 21

Bustamante v. State, 48 S.W.3d 761 (Tex.Crim.App. 2001)..............20, 21

Chimney v. State, 6 S.W.3d 681 (Tex.App.—Waco 1999, pet. ref’d)....32

Clark v. State, 558 S.W.2d 887 (Tex.Crim.App. 1977)....................41

Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App. 1996)..................31

Cruz v. State, 225 S.W.3d 546 (Tex.Crim.App. 2007).....................20, 31

Davis v. State, 645 S.W.2d 817 (Tex.Crim.App. 1983)................... 37, 40

Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App. 1995)..................37

Espinoza v. State, 843 S.W.2d 729 (Tex.App.—

Austin 1992, pet. ref’d).........................................................37, 40

Ex parte Lane, 303 S.W.3d 702 (Tex.Crim.App. 2009)...................20

Freeman v. State, 340 S.W.3d 717 (Tex.Crim.App. 2011)............... 20

Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999)...............22-23, 28, 

29

Garcia v. State; 513 S.W.2d 559 (Tex.Crim.App. 1974).................. 29

Garcia v. State, 126 S.W.3d 921 (Tex.Crim.App. 2004)..................31
iv

Griffin v. California, 380 U.S. 609 (1965).................................. 21

Guilder v. State, 794 S.W.2d 765 (Tex.App.—Dallas 1990)............. 32

Harris v. State, 684 S.W.2d 687 (Tex.Crim.App. 1984)..................31

Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App. 2004)................ 35, 36

Jimenez v. State, 240 S.W.3d 384 (Tex.App.—

Austin 2007, pet. ref’d)........................................................ 20

Jimenez v. State, 953 S.W.2d 293 (Tex.App.—

Austin 1997, pet. ref’d).........................................................41

Michaelwicz v. State, 186 S.W.3d 601 (Tex.App.—

Austin 2006, pet. ref’d).......................................................31-32

Montgomery v State, 810 S.W.2d 372 (Tex.Crim.App. 1990)............35

Moore v. State, 999 S.W.2d 385 (Tex.Crim.App. 1999)..................37

Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998)..................36

Nilsson v. State, 477 S.W.2d 592 (Tex.Crim.App. 1972)..................41

O’Hara v. State, 837 S.W.2d 139 (Tex.App.—

Austin 1992, pet. ref’d).........................................................41

Randolph v. State, 353 S.W.3d 887 (Tex.Crim.App. 2011)...............21, 22

Short v. State, 511 S.W.2d 288 (Tex. Crim.App. 1974)................... 23, 28, 29

Simpson v. State, 119 S.W.3d 262 (Tex.Crim.App. 2003)................ 35, 36

Vivanco v. State, 2004 WL 1746706, (Tex.App.—Fort Worth

2004, no pet.)(mem. op. not designated for publication)..................25-27, 28, 

29

Waldo v. State, 746 S.W.2d 750 (Tex.Crim.App.1988)................... 37
v

Weems v. State, 382 S.W.3d 172 (Tex.App.—Eastland 2010).......... 23-24, 28, 

29

Wood v. State, 18 S.W.3d 642 (TexCrim.App. 2000)......................35

STATUTE PAGE

Tex.Code Crim. Proc. Ann. Art. 38.07.......................................41

Tex.Code Crim. Proc. Ann. Art. 38.08...................................... 21, 37

Tex. Const. Art. I, § 10.........................................................21

Tex.R.App.P. 33.1(a)(1)........................................................30-31

U.S. Const. Amend. V......................................................... 21
1

STATEMENT OF THE CASE

On August 15, 2012, in Cause Number CR2012-396 in the 207th Judicial 

District Court of Comal County, Texas, the grand jury returned an indictment 

against Appellant, Gregory Lopez, for the offense of Continuous Sexual Abuse of 

a Young Child. The indictment alleged that Appellant had committed two or more 

acts of sexual abuse against A.M., a child younger than 14 years of age. The acts 

of sexual abuse alleged in the indictment consisted of aggravated sexual assault 

committed by causing the penetration of A.M.’s female sexual organ with 

Appellant’s finger, aggravated sexual assault committed by causing A.M.’s anus to 

contact Appellant’s male sexual organ, indecency with a child committed by 

touching the genitals or part of the genitals of A.M. with Appellant’s hands or 

fingers, and indecency with a child which was committed by touching a part of the 

body of A.M. with Appellant’s genitals or part of his genitals. The indictment 

further alleged that the acts of sexual abuse had been committed on or about 

February 24, 2010 through on or about February 1, 2012, during a period that was 

30 days or more in duration. (CR Vol. I at 7-8). 

Prior to trial, Appellant elected for the jury to assess his punishment in the 

event he was convicted. (CR Vol. I at 29). On October 18, 2013, a jury found 

Appellant guilty of the felony offense of Continuous Sexual Abuse of a Young

Child as alleged in the indictment. (RR Vol. VI at 54, CR Vol. I at 76). As a result
2

of Appellant’s election, both parties then presented punishment evidence before the 

jury. (RR Vol. VII). On October 21, 2013, after hearing evidence and arguments 

of counsel on punishment, the jury assessed Appellant’s punishment at a term of 

50 years in the Institutional Division of the Texas Department of Criminal Justice. 

(RR Vol. VII at 95, CR Vol. I at 79). 

Appellant filed his notice of appeal on December 20, 2013. (CR Vol. II at 

185). In two points of error, based upon a claim that the prosecutor’s closing 

argument improperly commented on his failure to testify, Appellant now seeks 

reversal of his criminal conviction for Continuous Sexual Abuse of a Young Child. 

(Appellant’s Brief at 22 & 23). 

ISSUES PRESENTED

1. Did the prosecuting attorney’s closing argument improperly comment on 

Appellant’s failure to testify?

2. Did the trial court abuse its discretion by denying Appellant’s motion for 

mistrial?

a. What was the magnitude of the prejudicial effect of the prosecutor’s 

remarks?

b. What measures were adopted by the trial court to cure the misconduct?

c. What was the strength of the evidence supporting Appellant’s 

conviction?
3

STATEMENT OF FACTS

A.M, the child victim in the instant case, was born in Texas on Xxxxxxxxx 

Xth, XXXX. She was the daughter of Valerie Lee Moreno and Luis Medina. (RR 

Vol. IV at 111-112, 189; State’s Exhibit 5). A.M. had two siblings, a brother 

named Xxxxxxxxxxx who was two years younger than her and a little sister named 

Xxxxxx who was four years younger. (RR Vol. IV at 112, 190-191). At the time of 

trial, A.M. was still only 13 years old. (RR Vol. IV at 110; RR Vol. V at 27-28).

A.M.’s mother met Appellant through her cousin, Crystal Varella, and they 

subsequently began dating. (RR Vol. IV at 113, 195-196). Eventually, Appellant 

began living with A.M., A.M.’s mother, and A.M.’s two younger siblings in a 

trailer on Dollar Drive. (RR Vol. IV at 114; RR Vol. V at 27-28). At times, A.M.’s 

mother would work late and Appellant would be left alone with the three children. 

(RR Vol. IV at 116; RR Vol. V at 37). The first time Appellant touched A.M. 

occurred at Dollar Drive on such an occasion. (Vol. IV at 114).

When the first occasion of sexual abuse occurred, A.M. was in the bedroom 

that Appellant shared with her mother. She and her little sister were lying on the 

bed and Appellant squeezed in between them. (RR Vol. IV at 114). At the time, 

A.M. was wearing shorts and a t-shirt. (Id. at 115). A.M. then felt Appellant 

rubbing her leg and up to her private part with his hand. His hand was inside of her 

clothes. (Id. at 114). Appellant then touched the outside of her private part. As he
4

pulled her closer to him, Appellant was also trying to put his finger into A.M.’s 

butt. (Id. at 115). At one point, he tried to put his “thing” in her butt. (Id. at 135). In 

addition, Appellant grabbed A.M.’s hand and tried to pull it towards his private 

part. (Id. at 119). A.M. was scared and did not know what to do. She got up and 

went to the restroom for a while. When she returned to the bedroom, Appellant 

was gone. (Id. at 115). 

After living at the trailer at Dollar Drive, A.M. went to live with her 

grandfather on Richter Lane. (RR Vol. IV at 116; RR Vol. V at 34). She lived with 

her grandfather for approximately a year. However, she eventually started living 

with her mother again at the Solms Apartments. (RR Vol. IV at 116). While at the 

Solms Apartments, A.M. was again living with Appellant, her mother, and her two 

younger siblings. (RR Vol. IV at 116; RR Vol. V at 37).

On one occasion while residing at the Solms Apartments, A.M.’s mother had 

gone to the game room with A.M.’s grandfather and A.M. was sleeping on a couch 

in the living room. (RR Vol. IV at 117, 179). A.M. felt Appellant come sit down 

on the couch beside her and start feeling up her leg again. On this occasion, 

Appellant again touched A.M. on her private part (She testified that this was the 

part she used to go to the restroom.) with his hand. (RR Vol. IV at 117). As he did 

so, A.M. would move around. However, Appellant continued to touch her. 

Appellant then went inside of her shorts and underwear and put his finger inside of 
5

A.M.’s private part. A.M. continued to move around and eventually got up and 

went to the restroom. When she came out, Appellant was in his room on his 

phone. (Id. at 118).

A.M. eventually made an outcry to her mother about the sexual abuse. 

However, Valerie didn’t believe her, called her a liar, and made no effort to report 

the abuse to the authorities. (RR Vol. IV at 125, 154). A.M. also made an outcry to 

her aunt, Alicia, who reported the abuse to CPS. (RR Vol. IV at 132, RR Vol. V at 

86, 90, 101). In addition, A.M. told a friend in her fifth grade class at Goodwin 

Frazier Elementary that she was being molested by her mother’s boyfriend. That 

friend told her mother about A.M.’s outcry and the friend’s mother also made a 

report to CPS. (State’s Exhibit 3). After A.M. made several outcries of sexual 

abuse by Appellant, a criminal investigation was eventually initiated. 

Janie Mott was a registered nurse and a certified sexual assault nurse 

examiner who was employed by both the Central Texas Medical Center and the 

SART Foundation of Comal County, Texas. (RR Vol. IV at 83-84). On March 1, 

2012, A.M. was examined by Nurse Mott at Christus Santa Rosa Hospital in New 

Braunfels. (RR Vol. IV at 85, 101; State’s Exhibit 4). A.M. was 11 years old at the 

time of the exam. (RR Vol. IV at 94).

As part of her examination, Nurse Mott obtained a medical history from 

A.M. To do so, she asked A.M. if anyone had ever made her feel weird or 
6

uncomfortable. In response, A.M. stated, “Yes, Greg, my mom’s boyfriend.” 

Mott then asked A.M. to tell her about that. A.M. then stated:

Well, I was sleeping on the couch at my mom’s house; my mom was 

not at home. I felt something touch my leg under the blanket. I did not 

know what it was at first. It was Greg, first he was touching my leg, 

then he put his hand under my shorts, but on top of my underwear like 

this and touched my privates like this. I did not like him touching me, 

so I got up and went to the bathroom. When I came out of the 

bathroom he was in his room, messing with his phone. I went back to 

sleep on the couch. I did not tell at first. 

As A.M. described what had happened, she also showed Nurse Mott how 

Appellant had put his hand under her short’s leg and touched her female sexual 

organ. (RR Vol. IV at 88, State’s Exhibit 4 at page 7). Nurse Mott asked A.M. if 

she felt safe and A.M. indicated that she did not feel comfortable around Greg. (RR 

Vol. IV at 89, State’s Exhibit 4 at page 7). 

After she had completed her physical examination of A.M., Nurse Mott 

asked A.M. if she had thought of anything else she would like to discuss with her. 

A.M. then stated: 

Well it happened one other time, while my mom was at the game 

room in Austin. We were lying in his bed, me, my sister and my 

brother, and him. Greg tried to kiss me on my face and lips. Then he 

was like trying to put his thing in my bottom. He was scooting me 

back towards his private and I felt it on my bottom. I did not like it so 

I got up and went to the bathroom. When I came out of the bathroom, 

Greg was in the living room.

(RR Vol. IV at 93-94, State’s Exhibit 4 at page 7). 
7

David Schroeder, a detective who had been employed by the New Braunfels 

Police Department for 15 years, was assigned investigate the continuous sexual 

abuse of a child case involving A.M. on February 24, 2012. (RR Vol. III at 36-37). 

As a certified peace officer for the State of Texas, Schroeder held the Intermediate, 

Advanced, and Masters peace officer certificates. (Id.). 

After being assigned to the case, Detective Schroeder received a phone call 

from Leah Amescua, an investigator with CPS. (RR Vol. III at 37-38). During that 

call, Detective Schroeder was informed that a forensic interview had been 

scheduled for A.M. at the Children’s Advocacy Center on March 1, 2012. (Id. at 

38). As part of his investigation, Detective Schroeder attended the forensic 

interview and watched on a closed circuit TV as A.M. was interviewed. (Id. at 39). 

During her interview, A.M. made an outcry of sexual abuse and identified the 

perpetrator. (Id. at 40).

Based on his observations during A.M.’s interview, Detective Schroeder 

then began a criminal investigation. As part of his investigation, Schroeder

obtained a copy of the report from the SANE nurse. (RR Vol. III at 40). 

Detective Schroeder also made arrangements to interview the suspect, 

Gregory Lopez. (RR Vol. III at 41). Schroeder’s interview of Appellant took place 

on April 20, 2012 at the New Braunfels Police Department. (Id. at 42). Before the 

interview was conducted, Appellant filled out an information sheet. According to 
8

the information provided by Appellant, he was born on May 29, 1981 and was 30 

years of age at the time of the interview. (RR Vol. IV at 7-8, State’ Exhibit 2). 

Appellant, who had traveled to the police department on his own, was told that he 

was free to leave at any time. However, Appellant agreed to talk to Detective 

Schroeder and provided a four hour interview which was recorded on video. (Id. at 

42-43).

During the first two and a half hours of his interview, Appellant denied 

touching A.M. (State’s Exhibit 2, Disc 1). When Detective Schroeder asked 

Appellant about the night that Valerie had gone to the game room with her father 

and left him alone with the kids, Appellant explained that A.M. would sleep on the 

couch. (Id. at 14:31:181

). However, Appellant specifically denied that he had sat 

on the end of the couch where A.M. was sleeping. Instead, he claimed that he was 

inside his room watching his little portable T.V. (Id. at 15:24:38).

As the interview progressed, Appellant began corroborating the details of 

A.M.’s outcry and eventually admitted that he was sitting on the couch with A.M.

(State’s Exhibit 2, Disc 2 at 16:01:45). However, he continued to specifically deny 

touching A.M. and stated that his hand never went under the blanket. (Id. at 

16:02:30). When Detective Schroeder confronted him with A.M.’s statement that 

she felt him touching her vaginal area, Appellant replied, “No, no, no. There was 

 1 The video of Appellant’s statement contains an internal clock which appears on the screen as the video is played. 

Because different video software displays elapsed time differently, all references to time are based on the clock 

displayed within the video itself and not the counter on the video player. 
9

nothing like that sir.” (Id. at 16:02:50). Appellant claimed that he didn’t even 

remember his hands touching A.M.’s leg. (Id. at 16:08:54). However, he then 

admitted that A.M. might have felt his hand touch her feet as he was attempting to 

get comfortable. (Id. at 16:09:35). He tried to explain that A.M. might have taken it 

the wrong way. (Id. at 16:10:15). Less than a minute later, Appellant told 

Detective Schroeder that he might have accidentally touched A.M.’s leg. (Id. at 

16:11:07).

As Detective Schroeder continued to press Appellant about A.M.’s statement

that he had rubbed her vaginal area, Appellant continued to deny that he had 

touched A.M. (State’s Exhibit 2, Disc 2 at 16:11:32). Appellant explained that, to 

admit he had touched A.M.’s vagina would be throwing himself out there and 

saying he was a child molester. (Id. at 16:14:05). When specifically asked how far 

up A.M.’s leg he had touched, Appellant then used Detective Schroeder’s leg to 

demonstrate. While demonstrating how far his hand had gone, he indicated that his 

hand had never gone beyond A.M.’s knee. (Id. at 16:16:50). 

However, as the interview continued, Appellant admitted that he would 

massage the thigh area of A.M.’s leg at times and claimed that he was just showing 

her love. (State’s Exhibit 2, Disc 2 at 16:16:50). Appellant also admitted that he 

had rubbed A.M.’s belly on one occasion. (Id. at 16:22:30). Appellant then 

explained that, while he was on the couch with A.M., he was just showing her love 
10

and that she might have taken it the wrong way. (Id. at 16:22:50). Then, as the 

interview continued, Appellant admitted that he had been rubbing A.M.’s upper leg 

and that she might have just felt his hand going over her vaginal area. However, 

he continued to claim that A.M. had just taken it the wrong way. (Id. at 16:26:24). 

During the interview, Appellant also confirmed that there were occasions 

while they were living at Dollar Drive when he would sleep in the bed with A.M. 

and her little brother and sister. (State’s Exhibit 2, Disc 2 at 16:28:35). He claimed 

that A.M. would wrap her legs around him. (Id. at 16:28:44). Appellant again 

explained that he was just rubbing A.M. and that he was just showing her love. (Id. 

at 16:29:05). According to Appellant, he was rubbing A.M.’s belly and she might 

have thought he was rubbing her private. (Id. at 16:31:20). Appellant then 

claimed that his hand had probably slipped and accidentally touched A.M.’s 

private. He also tried to claim that he was asleep and “didn’t know what the hell” 

he was doing when he touched A.M.’s private. (Id. at 16:33:03)(emphasis added). 

When questioned further, Appellant indicated that he had touched A.M. with his 

left hand. (Id. at 16:36:50). Appellant also described an occasion during which he 

claimed that A.M. had “accidentally” touched his male sexual organ. (Id. at 

16:41:00). Additionally, he admitted that he had kissed A.M. on the lips on at least 

one occasion. (Id. at 16:55:40). 
11

When Detective Schroeder asked Appellant what he would say to A.M. if 

she asked him why he had touched her private, Appellant replied, “I was just 

showing you love.” (State’s Exhibit 2, Disc 2 at 16:58:22). Appellant also 

apologized to Detective Schroeder for lying to him. (Id. at 17:01:35). He stated that 

he wouldn’t mind if he had to take classes or got probation. (Id. at 17:01:45). 

Appellant also conceded that he knew it was a mistake to touch A.M.’s vagina. (Id. 

at 17:05:25). Finally, when Detective Schroeder asked Appellant if he had touched 

Xxxxxx the way he had touched A.M., Appellant replied, “Hell no, that’s my 

baby.” (Id. at 17:13:28). 

The criminal case arising from Appellant’s sexual abuse of A.M. was tried 

before a Comal County jury on October 14 through October 21, 2013. (RR Vol. I 

at 1).

During voir dire, the prosecuting attorney questioned the venire members on 

their ability to follow the law in regards to the Defendant’s 5th Amendment right to 

remain silent. In explaining that right, the prosecutor stated: 

All right. How many of you ever heard somebody say that there’s two 

sides to every story? All of you because all of you have mothers. 

Every mother tells their kid that at some point I’m pretty sure. My 

mother used to tell me that mostly when she wanted to hear my little 

sister’s side of the story I found.

How many of you think, to be fair, you should hear both sides? A lot 

of people do. What I will tell you in a criminal case is that that’s not 

necessarily the right thing. And the reason for that is there is a right 
12

not to testify. It is called the Fifth Amendment. You have a right not 

to incriminate yourself. You have a right not to testify in a case.

And Mr. Sergi may spend a lot of time talking to you about all of the 

reasons why a defendant would choose not to. It really doesn’t 

matter. It could be that his lawyer tells him not to. It could be he’s 

scared. It could be he thinks I’m really mean. It doesn’t really matter 

because the law is such it’s a right we all have. And that right would 

be worthless if a jury could then hold it against you if you exercised it. 

Does everybody understand that?

The moment that: I’m just going to – if he doesn’t tell his side, I’m 

going to find him guilty. Well, that right doesn’t mean a lot, does it? 

And that’s why you can’t do that if you are going to be on a jury. And 

the Court’s charge will tell you that you cannot only not hold it 

against the defendant, but you can’t refer to it or allude to it in any 

way. It cannot be considered. Does everybody understand that? Does 

everybody understand why it’s that way? Can everybody here follow 

that law?

This voir dire was conducted without objection from the defense. (RR Vol. II at 

84-86). 

Immediately after discussing the defendant’s right not to testify, the 

prosecutor began explaining the one witness rule as set out by Article 38.07 of the 

Code of Criminal Procedure. That explanation was as follows:

Mr. McCrary: Anybody here have any idea how many witnesses I 

have to call in a case? Is there a rule? There’s actually a law in 

Texas, it’s 38.07 of the Code of Criminal Procedure, that says a 

conviction for continuous sexual abuse of a young child, aggravated 

sexual assault or indecency with a child, is supportable on the 

uncorroborated testimony of a victim if the victim was younger than 

17 years of age at the time of offense. What does that mean? 

Anybody?

Venireperson Williams: One witness?
13

Mr. McCrary: I can call one witness. If I call the victim in here and 

she comes in here and she testifies that this happened on two or more 

occasions and she’s under 14 and the defendant is over 17 and there’s 

more than 30 days of dates in between it and the jury believes her 

beyond a reasonable doubt, that’s it.

I don’t have to call anybody else. I don’t have to call her momma. I 

don’t have to call a doctor. I don’t have to call anybody. Does 

everybody understand that? Why do you think that is the law? 

Anybody?

Venireperson Diggles: It only takes one person.

Mr. McCrary: It only takes one person. How many people do you 

think are usually around when this kind of thing is going on?

Venireperson Garcia: Two.

Mr. McCrary: Two. And I’ve already talked to you about one 

having a right not to testify, right? So that one I can’t call that and 

you can’t hold that against him if you’re on the jury. Where does that 

leave me?

Venireperson Diggles: One.

Mr. McCrary: So if a guy can get – or a girl, whichever. If a person 

can get a child alone and do something like this to them and the only 

other person there is a child who can be called as a witness, does that 

mean that they get by with it? That’s why the law is written that way.

The legislature wanted to make it clear that it doesn’t have to take 

anything other than just if you bring the child in and the jury believes 

them, that’s it. Now that – if – belief is an important part, because 

you do have to believe it. And if you don’t, then so be it. But that’s –

that’s how that works. Does anybody here disagree with that law?

As with the prosecutor’s explanation of the defendant’s right to remain silent, 

defense counsel did not object to the prosecutor’s voir dire concerning Article 

38.07. (RR Vol. II at 86-87).
14

Later, during his own voir dire, defense counsel also discussed the 

defendant’s right to remain silent and the reasons why a person might choose not 

to testify in a criminal case. During this discussion, several members of the panel 

provided reasons why a person might choose to remain silent. (RR Vol. II at 131-

133).

After the close of evidence, the Court’s charge was read to the jury members 

by the Court. Part of the charge given to the jury specifically stated:

Our law provides that a defendant may testify in his own behalf if he 

elects to do so. This, however, is a privilege accorded to a defendant 

and, in the event he elects not to testify, that fact cannot be taken as a 

circumstance against him. In this case, the defendant, Gregory Lopez, 

has elected not to testify and you are instructed that you cannot and 

must not refer to or allude to that fact throughout your deliberations or 

take it into consideration for any purpose whatsoever as a 

circumstance against the defendant.

(RR Vol. VI at 18).

After the charge was read to the jury, during his final closing argument, the 

prosecutor returned the theme from his voir dire and stated: 

And that brings you down to the case. I told you in the beginning 

there’s usually two people present when this occurs that can testify 

about it. One of them has a right not to. You can’t hold it against 

him. But you get to hear both sides –

However, before the prosecutor could complete his statement, defense counsel 

objected and asked to approach the bench. (RR Vol. VI at 45). At the bench, 

defense counsel complained, “Your Honor, he’s commenting on my client’s failure 
15

to testify. And I object.” In response, the prosecutor explained, “It’s in the charge. 

I said they couldn’t hold it against him.” Defense counsel then responded: 

That may be, Your Honor. But he’s commenting in his argument on 

the failure to testify and that violates my client’s Fifth Amendment 

rights, it violates his Texas Constitution due course of law provision, 

the Fourteenth Amendment, Your Honor.

His—his comment that he didn’t testify, Your Honor, is a clear 

violation of the Fifth Amendment. He has a right not to testify. It’s in 

the Court’s charge. They can consider it, but he sure can’t argue 

about it.

The prosecutor then replied, “I can talk about anything that’s in the charge. That’s 

--” Upon prompting from the Court, defense counsel then objected and asked the 

Court to instruct the jury to disregard the prosecutor’s last comment. The Court 

sustained the objection. Defense counsel then requested a mistrial. (Id. at 46) 

However, that request was denied. (Id. at 47).

After the discussion at the bench, the Court instructed the jury as follows:

Ladies and gentlemen, I’m going to ask you to disregard anything that 

may violate the following paragraph.

Our law provides that a defendant may testify in his own behalf if he 

elects to do so. This, however, is a privilege accorded to a defendant 

and, in the event he elects not to testify, that fact cannot be taken as a 

circumstance against him. 

In this case, the defendant, Gregory Lopez, has elected not to testify 

and you are instructed that you cannot and must not refer to or allude 

to that fact throughout your deliberations or take it into consideration 

for any purpose whatsoever as a circumstance against the defendant.
16

I will instruct the State not to refer to the defendant’s right to remain 

silent for any purpose.

(RR Vol. VI at 47).

After the Court instructed the jury, the prosecutor continued his argument by 

stating, “You still get to hear from the defendant because he talked to the police. 

It’s in evidence. Counsel wants to talk about that videotape.” (RR Vol. VI at 47). 

The state’s attorney then spent the remainder of his closing argument pointing out 

the numerous incriminating statements made by the defendant during his 

videotaped interview with Detective Schroeder. (Id. at 48-50). Notably, defense 

counsel made no additional objections during the prosecutor’s closing argument. 

(Id. at 47-53).

The jury subsequently returned a verdict of guilty. (RR Vol. VI at 54). At the 

request of defense counsel, the jury members were polled and affirmed that their 

verdict was unanimous. (Id. at 54-56). The trial court then excused the jury until 

9:00 a.m. on Monday morning. (Id. at 58). After the jury was excused, the trial 

court specifically asked, “On this case is there anything else we need to talk 

about?” At that time, defense counsel made no objections or motions. (Id. at 60).

The following Monday, defense counsel again moved for a mistrial. The 

following exchange then took place:

Court: Let the record reflect that counsel and defendant are present 

in the courtroom. The jury is not.
17

Mr. Sergi, you had an issue you wanted to –

Mr. Sergi: Yes, Your Honor.

I’m going to renew my motion for mistrial. As the Court will recall, 

during final arguments Mr. McCrary said some word to the effect of: 

There were only two people there. We only heard from one of them. 

And you sustained my objection and – and gave an instruction to 

disregard.

Your Honor, I believe that falls squarely—squarely into the Norton

case out of Dallas that was as recently as August 29th in an 

unpublished opinion cited as precedent by the Austin Court of 

Appeals in a case in which – the appellant’s name is not actually on –

it’s Briscoe v. State, Your Honor. And I would ask and renew my 

motion for mistrial in light of that.

And very, very particularly, Your honor, in Norton the Court says that 

when – “When an objection is sustained and the trial court instructs 

the jury but denies the Defendant’s motion for a new trial, the 

question is whether the trial court erred in denying a mistrial.”

“To determine whether error is reversible, we consider whether the 

argument was extreme, manifestly improper, injects new and harmful 

facts into the case or violates a mandatory (inaudible)

The Reporter: Violates? I’m sorry.

Mr. Sergi: A mandatory or statutory provision.

In that case, Your Honor, as I recall – and I do not have a copy of the 

exact wording. But as I recall, the wording Mr. McCrary used was: 

There were only two people in the room and you only heard from one 

of them. And –

The Court: That is part of what he said.

Mr. Sergi: Yes, sir. And then you – you sustained my objection. 

And then we – I asked to disregard. You read the entire instruction. 

At that point, Your Honor, I did ask for a mistrial.
18

And this is not a situation, as in other cases, with Mr. – which Mr. 

McCrary has been involved, where there was comparative – where 

there – you can argue by inference he may not have testified. This is a 

direct comment, Your Honor.

And I believe that Norton would require and I believe, as I said, the 

Austin Court of Appeals in the Briscoe case as recently as August of 

this year has recognized the continued validity of the Briscoe case. 

And therefore, Your Honor, I would ask you grant the mistrial at this 

point.

Mr. McCrary: My response, Your Honor, is my argument isn’t what 

he says it is. My argument was, as I talked to them in voir dire, that 

there are only usually two people present when this kind of case 

occurs: One of them I can call and one of them I can’t because they 

have a Fifth Amendment right. And you cannot hold that against him. 

I specifically said: That cannot be held against him. And my – the 

rest of my argument as I started into it was: But you did hear from the 

defendant because you got to see his video.

At some point in there he objected and the Court called me up here 

and instructed the jury. But my instruction, my argument was in no 

way were they to consider it in any way. The fact is my argument was 

exactly what your charge said, that they could not hold that against 

him.

It is not an improper argument in the first place. But the Court, out of 

an abundance of caution, gave him a very detailed instruction and I 

moved away from it and never went back to that area of argument. I 

have briefed this issue and I’ve argued it before to the Courts of 

Appeals. It is not an improper argument. Motion for mistrial should 

be denied.

Mr. Sergi: Your Honor, there – that’s the exact wording he used – or 

close to the exact wording as I recall. And that’s exactly what was 

objectionable in the Nort – in that case, Your Honor.

Mr. McCrary is an experienced prosecutor. He’s a first district –

assistant district attorney. There are several cases in which this issue 
19

– the issue of improper jury argument has been resolved in his favor, 

but I have not found any case that is on point as that, Your Honor.

And, Your Honor, here’s a copy of—

The Court: Is there a confession in that case?

Mr. Sergi: In Briscoe? I don’t believe there was, Your Honor. But I 

–

The Court: Motion denied.

(RR Vol. VII at 7-10).

STATE’S RESPONSE TO APPELLANT’S

FIRST POINT OF ERROR

SUMMARY OF THE ARGUMENT

In his first point of error, Appellant asserts that the prosecutor made an 

impermissible comment alluding to his failure to testify. (Appellant’s Brief at 11). 

However, when reviewed in context, the prosecutor’s argument in the instant case 

did not negatively comment on Appellant’s failure to testify. Instead, tracking the 

court’s charge, the prosecuting attorney correctly told the jury that they could not 

hold Appellant’s silence against him. Therefore, the prosecutor’s statements did 

not amount to an improper comment on Appellant’s failure to testify. 

In addition, as part of his argument that the prosecutor’s comment was 

improper, Appellant correctly states that an argument, when combined with 

physical actions, can be of such a character that the jury would naturally and 

necessarily take it to be a comment on a defendant’s failure to testify. (Appellant’s 
20

Brief at 13). Then, in an attempt to strengthen his argument that the prosecutor’s 

argument in the instant case was improper, Appellant asserts that the prosecutor 

engaged in the “physical action of looking and pointing to the defense table” while 

making his closing argument. (Id. at 15, 16). However, this assertion is simply not 

supported by the record.

AUTHORITIES

The law provides for, and presumes, a fair trial free from improper argument 

by the State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex.Crim.App.2009). Proper 

jury argument must generally fall within one of four categories: (1) summation of 

the evidence; (2) reasonable deductions from the evidence; (3) responses to 

argument of opposing counsel; and (4) pleas for law enforcement. Freeman v. 

State, 340 S.W.3d 717, 727 (Tex.Crim.App. 2011); Jimenez v. State, 240 S.W.3d 

384, 407 (Tex.App.—Austin 2007, pet. ref’d). The fact that a defendant did not 

testify does not fall into any of those categories and may not be the subject of 

comment by the prosecutor. Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App.

2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001).

A comment on a defendant’s failure to testify violates both the state and 

federal constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 

887, 891 (Tex.Crim.App. 2011); see U.S. Const. Amend. V; Tex. Const. Art. I, § 

10; Tex.Code Crim. Proc. Ann. Art. 38.08; see also Griffin v. California, 380 U.S. 
21

609, 615 (1965). However, the implication that the prosecutor’s comment referred 

to the defendant’s failure to testify must be a clear and necessary one. Randolph,

353 S.W.3d at 891; Bustamante, 48 S.W.3d at 767. If the language might 

reasonably be construed as merely an implied or indirect allusion, there is no 

violation. Randolph, 353 S.W.3d at 891; Busby v. State, 253 S.W.3d 661, 666 

(Tex.Crim.App. 2008). The test is whether the language used was manifestly 

intended or was of such a character that the jury would necessarily and naturally 

take it as a comment on the defendant’s failure to testify. Randolph, 353 S.W.3d at 

891; Cruz, 225 S .W.3d at 48; see Bustamante, 48 S.W.3d at 765 (collecting cases). 

In applying this standard, the context in which the comment was made must be 

analyzed to determine whether the language used was of such character. 

Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d at 548; Bustamante, 48 S.W.3d at 

765. Courts are not to find that the prosecutor manifestly intended to comment on 

the defendant’s failure to testify if some other explanation for the remark is equally 

plausible. Randolph, 353 S.W.3d at 891. In assessing whether the defendant’s 

rights have been violated, courts must view the prosecutor’s argument from the 

jury’s standpoint and resolve any ambiguities in the language in favor of its being a 

permissible argument. Id.

In Bouchillon v. State, the State’s attorney made the following argument:

Now the law also instructs that the failure of the defendants to testify 

should not be taken as a circumstance against him and, of course, in 
22

this case they did not testify and you should follow this court’s 

instruction and you should not consider that as any evidence540 S.W.2d 319, 321 (Tex.Crim.App. 1976). In response, defense counsel 

objected that the prosecutor’s argument was improper because it constituted a 

comment on the defendant’s failure to testify. Id.

On appeal, the defendant contended that the State’s argument had 

constituted an improper comment on his failure to testify. Id. Addressing that 

contention, the Court noted that, although the prosecutor had specifically referred 

to the defendant’s failure to testify, he had done so in the context of explaining the 

court’s charge. The Court also stated, “He did not ask the jury to consider the 

appellant’s failure to testify against them, but rather cautioned the jury not to do 

so.” As a result, the Court of Criminal Appeals overruled the defendant’s 

contention that the prosecutor’s argument had constituted an improper comment on 

his failure to testify. Id. at 322; see also Fuentes v. State, 991 S.W.2d 267, 275 

(Tex. Crim. App. 1999) (finding that the comment complained of was a 

recognition that the defendant possessed a right not to testify and holding that such 

a comment is distinguishable from cases in which the State comments negatively 

on the defendant’s failure to testify); Short v. State, 511 S.W.2d 288, 291 (Tex. 

Crim.App. 1974) (prosecutor’s argument cautioning jury not to consider 

defendant’s failure to testify because “we wouldn’t want this all to be for naught” 
23

held to be “no more than paraphrasing the charge” and “not in derogation of 

appellant’s rights, but ... in full harmony with them”).

In Weems v. State, the Eastland Court of Appeals also addressed an 

argument that was substantially similar to the argument in the instant case. 382 

S.W.3d 172 (Tex.App.—Eastland 2010). In Weems, the prosecutor argued as 

follows:

Sometimes the only person who is an eye-witness is the person who 

committed the crime, and we’re not allowed to call them as the State, 

and they have a right not to testify and the State—and you can’t hold 

that against them, but we can still as a State prosecute them and prove 

that they committed a crime, and we can do that by looking at 

circumstantial evidence.

The only one who can testify to it directly, the law doesn’t allow us to 

even consider whether or not he testifies.

Id. at 178-79.

On appeal, the defendant argued that the trial court had erred in denying his 

motion for mistrial because the prosecutor had commented on his failure to testify. 

Weems at 178. Specifically, he complained about the prosecutor’s statement that 

“we’re not allowed to call them as the State, and they have a right not to testify and 

the State—and you can’t hold that against them.” Id. at 179. The defendant also 

complained about the prosecutor’s statement that “[t]he only one who can testify to 

it directly, the law doesn’t allow us to even consider whether or not he testifies.” 

Id. at180. Addressing those complaints, the Eastland Court noted that the 
24

prosecutor had made the first statement in the context of explaining that the State 

may use circumstantial evidence and was not required to present eyewitness 

testimony to prove that an individual committed a crime. Id. at 179-80. The court 

also noted that the trial court’s jury charge contained the following instruction 

regarding the defendant’s election not to testify:

Our law provides that a defendant may testify in his own behalf if he 

elects to do so. This, however, is a privilege afforded to a defendant, 

and, in the event he elects not to testify, that fact cannot be taken as a 

circumstance against him. In this case, the Defendant has elected not 

to testify, and you are instructed that you cannot and must not refer or 

allude to that fact throughout your deliberations or take it into 

consideration for any purpose whatsoever as a circumstance against 

the defendant.

The Court then explained that, in the complained-of comments, the prosecutor 

essentially restated the trial court’s instructions to the jury and had reminded the 

jury that it could not consider the defendant’s election not to testify. The Court 

stated that, “[t]he prosecutor recognized appellant’s right not to testify; she did not 

comment negatively on appellant’s failure to testify.” As a result, the Court held 

that the prosecutor’s statements did not amount to improper comments on the 

defendant’s failure to testify. Id. at 180.

In Bullard v. State, the following exchange took place during the State’s 

closing argument:

MR. McCLELLAN [THE PROSECUTOR]: During this trial you 

know that the defendant has been given all those protections. He has 

been given the presumption of innocence, the right to trial by jury. He 
25

has been given the right to be represented by competent counsel. He 

has been given the right not to testify and not to have that held against 

him.

MR. PATTERSON [DEFENSE COUNSEL]: Object to the comments 

of this defendant’s right not to testify.

THE COURT: That will be overruled.

706 S.W.2d 329, 331 (Tex.App.—Houston [14th Dist.] 1986).

On appeal, the defendant complained that the trial court had erred by

allowing the prosecutor to comment on his failure to testify. In response the court 

noted that it is axiomatic that the state may not comment on the defendant’s failure 

to testify. However, the Court found the prosecutor’s argument in that case was 

merely a recitation of some of a defendant’s rights at trial, not a comment on the 

defendant’s failure to testify. As a result, the Court held that the state’s argument 

was not improper and overruled the defendant’s point of error. Bullard at 331. 

In Vivanco v. State, the following exchange took place during the State’s 

closing argument on punishment:

[State]: This is the punishment phase. This is the time for you to learn 

the good, the bad, and the ugly about a defendant. He doesn't testify. 

You know that already. That’s in the charge.

[Defense Counsel]: Objection, Your Honor. She’s commenting on 

theTHE COURT: Sustained.

[Defense Counsel]: Ask for a[n] instruction to disregard.
26

THE COURT: Jury will so disregard.

[Defense Counsel]: Pursuant to a mistrial, Your Honor.

THE COURT: Denied.

[State]: I ask you to look over the charge, and in this charge, it will 

tell you that you cannot hold it against him, and I ask you to not hold 

it against him if he doesn’t testify, whether it's at guilt/innocence or 

here. That’s what makes our country great.

Vivanco v. State, 2004 WL 1746706, at *2-3 (Tex.App.—Fort Worth 2004) (mem. 

op. not designated for publication).

On appeal, the defendant argued that the trial court had erred by failing to 

declare a mistrial after the prosecutor made an argument referencing his failure to 

testify. Addressing that argument, the Fort Worth Court noted that the trial court

had already instructed the jury that the defendant’s election not to testify could not 

be used against him and that the jury could not allude to, comment on, or discuss 

the defendant’s election not to testify. The Court recognized that the State’s 

remark was made in the context of discussing the court’s jury charge and simply 

restated what the jury was already told. The Court found that the prosecutor had 

not asked the jury to consider the defendant’s failure to testify in their deliberations

or to draw a negative inference from his failure to testify. To the contrary, the 

Court found that the State had reminded the jurors not to consider the defendant’s

failure to testify. As a result, the Court held that prosecutor’s remarks did not 

amount to an improper comment on the defendant’s failure to testify. Id. at *4.
27

ARGUMENTS

In the instant case, as set out above, the only portion of the prosecutor’s 

argument which was objected to at trial was the following:

I told you in the beginning there’s usually two people present when

this occurs that can testify about it. One of them has a right not to.

You can’t hold it against him. But you get to hear both sides –

(RR Vol. VI at 45). 

When considered in the context of the entire trial, it is clear from the 

statement “I told you in the beginning...” that the prosecutor was referring to his 

voir dire explaining the one witness rule as set out by Article 38.07 of the Code of 

Criminal Procedure. (RR Vol. II at 86-87). Then, as he had done during voir dire, 

the prosecutor reminded the jury that Appellant’s choice not to testify could not be 

held against him. In addition, before he was interrupted by defense counsel’s 

objection, the prosecutor attempted to explain that the jury got to hear both sides of 

the story in the instant case. (See Appellee’s Brief at 13). This was clearly an 

attempt to direct the jury’s attention to the many incriminating admissions made by 

Appellant during his interview with Detective Schroeder. 

From the precedent cited above, there can be no doubt that a prosecutor is 

not allowed to argue that a defendant’s silence should be held against them. 

However, it is also clear that an argument recognizing that a defendant has a right 

to remain silent and that the exercise of such right cannot be held against the 
28

defendant is distinguishable from an argument in which the State comments 

negatively on the defendant’s failure to testify. See Fuentes v. State, 991 S.W.2d 

267, 275 (Tex. Crim. App. 1999) (finding that the comment complained of was a 

recognition that the defendant possessed a right not to testify and holding that such 

a comment is distinguishable from cases in which the State comments negatively 

on the defendant’s failure to testify). As a result, numerous Texas appellate courts 

have reviewed closing arguments similar to the one made by the prosecutor in the 

instant case and found that they did not improperly comment on the defendant’s 

failure to testify. See Bouchillon, 540 S.W.2d at 321; Fuentes, 991 S.W.2d at 275; 

Short, 511 S.W.2d at 291; Weems, 382 S.W.3d at 178; Bullard, 706 S.W.2d at 331; 

Vivanco, 2004 WL 1746706, at *2-3.

The prosecutor in the instant case never even suggested to the jury that 

Appellant’s choice to remain silent should be held against him. To the contrary, he 

carefully voir dired the venire and committed its members to follow the law 

concerning Appellant’s right to remain silent. (RR Vol. II at 84-86). Furthermore, 

in the argument now complained of (tracking the court’s charge), he again 

cautioned the jury that Appellant’s silence could not be held against him. Thus, it 

is clear that the prosecutor never negatively commented on Appellant’s failure to 

testify and his argument was not improper. See Bouchillon, 540 S.W.2d at 321; 
29

Fuentes, 991 S.W.2d at 275; Short, 511 S.W.2d at 291; Weems, 382 S.W.3d at 178; 

Bullard, 706 S.W.2d at 331; Vivanco, 2004 WL 1746706, at *2-3.

Additionally, as noted above, in an attempt to strengthen his argument that 

the prosecutor’s argument in the instant case was improper, Appellant asserts that 

the prosecutor engaged in the “physical action of looking and pointing to the 

defense table” while making his closing argument. (Appellant’s Brief at 15, 16). 

However, Appellant fails to cite any evidence in the record showing that the 

prosecutor looked or pointed at the defense table as suggested. Notably, he instead 

cleverly places the footnote citing the record before the phrase “while turning and 

pointing at the defense table.” (Appellant’s Brief at 16). More notably, during 

Appellant’s trial, defense counsel made no mention of such acts by the prosecutor 

during his initial objection to the prosecutor’s argument nor did he assert such acts 

had occurred when he again urged his motion for mistrial several days later. (RR 

Vol. VI at 45-46, RR Vol. VII at 7-10). Thus, it is clear that Appellant’s belated 

claim the prosecutor engaged in the “physical action of looking and pointing to the 

defense table” while making his closing argument, made for the first time on 

appeal, is without merit or proof. See Garcia v. State; 513 S.W.2d 559, 562 

(Tex.Crim.App. 1974) (holding that the record did not support the claim that the 

assistant district attorney stood behind appellant and thus directed his remarks to 

his failure to take the stand.)
30

In his brief, Appellant also asserts, “...even after the court instructed ‘the 

State not to refer to the Appellant’s right to remain silent for any purpose,’ the 

State blatantly disregarded the courts (sic) instruction and continued its jury 

argument directly indicating Lopez confessed to the crime and gave a specific time 

on the video, 17:35:55, along with a narration of what Lopez said, claiming it was 

Lopez confessing.” (Appellant’s Brief at 16). However, although he makes the bold 

assertion that the prosecutor blatantly violated the court’s instruction, Appellant 

wholly fails to explain how citing his incriminating statements to Detective 

Schroeder was in any way a comment on Appellant’s right to remain silent. Thus, 

by using the phrase “the State blatantly disregarded the courts (sic) instruction,” it 

would appear that Appellant is deliberately attempting to mislead this Court. 

Appellant’s argument also begs the question, if such an argument so 

blatantly violated the trial court’s instruction, where exactly was defense counsel’s 

objection to this argument? As set out above, after the trial court sustained defense 

counsel’s initial objection and instructed the jury, the prosecutor completed his 

closing argument without any further objections. (RR Vol. VI at 47-51). Therefore, 

even if the remainder of the prosecutor’s argument was improper, it is clear that 

any complaint concerning that portion of the argument was not preserved for 

appellate review and has been waived. See Tex.R.App.P. 33.1(a)(1) (“As a 

prerequisite to presenting a complaint for appellate review, the record must show 
31

that the complaint was made to the trial court by a timely objection....”), see also

Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (holding Appellant 

waived complaint that prosecutor commented on his failure to testify during 

closing argument by failing to object). 

However, even if defense counsel had objected the remainder of the 

prosecutor’s argument in the instant case, it is clear that the prosecutor’s references 

to the statement given by Appellant to Detective Schroeder, which was admitted 

into evidence, was in no way a comment on Appellant’s right to remain silent. See 

Harris v. State, 684 S.W.2d 687, 690 (Tex.Crim.App. 1984) (holding that 

prosecutor’s argument, which sought to remind the jury of the defendant’s 

statements to a police officer at the scene of the arrest and at the police station, did 

not violate Article 38.08); Garcia v. State, 126 S.W.3d 921, 924 (Tex.Crim.App. 

2004) (holding that, when a defendant makes a statement which is admitted into 

evidence, the prosecutor’s reference to that statement is not a comment on the 

defendant’s failure to testify); Cruz v. State, 225 S.W.3d 546, 549-550 

(Tex.Crim.App. 2007) (holding that prosecutor’s statements to the jury referred to 

the defendant’s own written statement which had been admitted into evidence and 

were therefore not a comment on the defendant’s failure to testify). 

Finally, it is well established that only the trial court can commit error. See

Michaelwicz v. State, 186 S.W.3d 601, 610 (Tex.App.—Austin 2006, pet. ref’d)
32

(holding that only the trial judge can commit error and that, as a general matter, 

error can only be committed only when the trial judge refuses a request for action 

or takes action over objection.); see also Chimney v. State, 6 S.W.3d 681, 703 

(Tex.App.—Waco 1999, pet. ref’d) (in improper jury argument situations, any 

error can only arise from trial court’s actions—overruling an objection, denying an 

instruction to disregard, or denying a mistrial); Guilder v. State, 794 S.W.2d 765, 

770 (Tex.App.—Dallas 1990) (noting that the appellant’s fourth and fifth points of 

error, directing the Court to the prosecutor’s commission of error, was clearly a 

misstatement since only the trial court could commit error which could be the basis 

of a reversal). 

In the instant case, the trial court sustained defense counsel’s objection and 

instructed the jury to disregard. Therefore, the only adverse ruling in the instant 

case was the trial court’s denial of Appellant’s motion for mistrial and that is the 

only possible occasion where the trial court could have made a mistake. Thus, 

even if the prosecutor’s argument was improper, this is not a proper point of error. 

Instead, the proper point of error is whether or not the trial court abused its 

discretion in denying Appellant’s motion for mistrial. see Archie v. State, 340 

S.W.3d 734, 738-39 (Tex.Crim.App. 2011). That issue is addressed below in 

response to Appellant’s second point of error. 
33

For all of these reasons, Appellant’s first point of error is without merit and 

should be denied.

STATE’S RESPONSE TO APPELLANT’S

SECOND POINT OF ERROR

SUMMARY OF THE ARGUMENT

In his second point of error, Appellant asserts that the trial court abused its 

discretion by denying his motion for directed verdict after the prosecutor had made 

an improper argument resulting in Constitutional error. (Appellant’s Brief at 18). 

In his brief, Appellant correctly sets out the three-part analysis for 

determining whether or not a trial court abused its discretion in denying a motion 

for a mistrial. (Appellant’s Brief at 19). However, he then fails to properly apply 

those factors. For example, he asserts that “the prosecutor’s comment, taking the 

prosecutor’s final jury argument as a whole, the improper comment was directed at 

the fact the Appellant had not testified.” (Id. at 19). Based on this fact alone, he 

then concludes that the severity of the misconduct (the magnitude of the prejudicial 

effect of the prosecutor’s remarks) weighs in favor of reversal. (Id. at 20). Then, in 

analyzing the “efficacy of any cautionary instruction by the judge,” Appellant 

completely ignores the instruction given by the trial court and instead asserts that 

“there could hardly be a more ‘blatant example’ of a prosecutor’s comment 

alluding to an accused’s failure to testify.” (Id. at 20). Finally, in analyzing the 
34

third factor, which looks at the strength of the evidence supporting the conviction, 

Appellant recognizes that a conviction for Continuous Sexual Abuse is supportable 

upon the testimony of the complainant alone. He then states, “However, without a 

confession from the Appellant, it is very unlikely that the jury would have 

convicted based off that testimony alone.” (Id. at 21). Thus, Appellant wholly 

ignores his confession in his analysis of the strength of the State’s evidence of his 

guilt and concludes that his conviction was unlikely absent the prosecutor’s 

improper argument. (Id. at 21-22).

Contrary to Appellant’s arguments, when the three-part analysis for 

determining whether or not a trial court abused its discretion in denying a motion 

for a mistrial is properly applied to the facts of the instant case, it is clear that the 

trial court did not abuse its discretion in denying Appellant’s motion for a mistrial.

AUTHORITIES

When a trial court sustains a defendant’s objection to a prosecutor’s 

argument and instructs the jury to disregard the argument, the only adverse ruling

is the trial court’s denial of the defendant’s motion for mistrial. Therefore, that is 

the only possible occasion where the trial court could have made a mistake. Archie 

v. State, 340 S.W.3d 734, 738-39 (Tex.Crim.App. 2011). Thus, the proper issue on 

appeal is whether the trial court’s refusal to grant the defendant’s motion for 
35

mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 

(Tex.Crim.App. 2004); Archie at 738-39. 

In Montgomery v. State, the Court of Criminal Appeals adopted the test for 

abuse of discretion from the Texas Supreme Court as:

The test for abuse of discretion is not whether, in the opinion of the 

reviewing court, the facts present an appropriate case for the trial 

court’s action. Rather, it is a question of whether the court acted 

without any reference to any guiding rules and principals. Another 

way of stating the test is whether the act was arbitrary or 

unreasonable. The mere fact that a trial judge may decide a matter 

within his discretionary authority in a different manner than an 

appellate judge in a similar circumstance does not demonstrate that an 

abuse of discretion has occurred.

Therefore, a trial court’s ruling should be affirmed if the court followed the proper 

analysis and balancing factors, even if the appellate court disagrees with the weight 

placed on the individual factors. As explained by the Court of Criminal Appeals, a 

trial judge has a limited right to be wrong as long as the result is not reached in an 

arbitrary or capricious manner. See Montgomery v State, 810 S.W.2d 372, 380

(Tex.Crim.App. 1990). 

Furthermore, a mistrial is only the appropriate remedy for “highly 

prejudicial and incurable errors.” Wood v. State, 18 S.W.3d 642, 648 

(TexCrim.App. 2000); Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 

2003). Only in extreme circumstances, when the prejudice caused by an improper 

jury argument is incurable, i.e. “so prejudicial that expenditure of further time and 
36

expense would be wasteful and futile,” will a mistrial be required. Hawkins, 135 

S.W.3d at 77; see also Simpson, 119 S.W.3d at 272.

To evaluate whether a trial court abused its discretion in denying a mistrial 

for improper jury argument, the Court of Criminal Appeals has adopted the three 

factors from Mosley v. State. That test balances the following three factors: (1) the 

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

prosecutor’s remarks), (2) the measures adopted to cure the misconduct (the 

efficacy of any cautionary instruction by the judge), and (3) the certainty of 

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

conviction). Hawkins, 135 S.W.3d at 77; Archie, 340 S.W.3d at 738-39.

Prejudice is clearly the touchstone of the first factor in the test adopted by 

the Court of Criminal Appeals. Although the “severity of the misconduct” can be 

considered in assessing an argument’s prejudicial effect, an appellate court errs if it 

assesses “the severity of the misconduct” in isolation from the resulting prejudice. 

Furthermore, the prosecutorial misconduct should not be characterized as “severe” 

simply because it violates a “mandatory statute.” As the Court of Criminal 

Appeals has explained, a prohibition’s source—whether it be statute, rule, or 

common law—is not particularly relevant to how prejudicial an argument is or 

whether an instruction to disregard can cure the argument’s prejudicial effects. 

Hawkins, 135 S.W.3d at 77-78.
37

The Court of Criminal Appeals has also stated that the “presumption that an 

instruction [to disregard] generally will not cure comment on failure of the accused 

to testify ... has been eroded to the point that it applies only to the most blatant 

examples.” Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App.1995) (quoting 

Waldo v. State, 746 S.W.2d 750, 753 (Tex.Crim.App.1988)). Otherwise, the Court 

has tended to find instructions to disregard to have force. Id.; Moore v. State, 999 

S.W.2d 385, 405-406 (Tex.Crim.App. 1999). Furthermore, the Court of Criminal 

Appeals has found that an especially severe and attention-grabbing instruction to 

disregard can cure the harm from even repeated comments on a defendant’s failure 

to testify in violation of Article 38.08. See Davis v. State, 645 S.W.2d 817, 819 

(Tex.Crim.App. 1983); see also Espinoza v. State, 843 S.W.2d 729, 731 

(Tex.App.—Austin 1992, pet. ref’d).

ARGUMENTS

MAGNITUDE OF THE PREJUDICIAL EFFECT

OF THE PROSECUTOR’S REMARKS

In the instant case, as set out above, the only portion of the prosecutor’s 

argument which was objected to at trial was the following:

I told you in the beginning there’s usually two people present when

this occurs that can testify about it. One of them has a right not to. 

You can’t hold it against him. But you get to hear both sides –

(RR Vol. VI at 45). 
38

When considered in the context of the entire trial, it is clear that the 

prosecutor’s argument did not even suggest that Appellant’s exercise of his right to 

remain silent should be held against him. Instead, in keeping with the court’s 

charge, the prosecutor’s reference to Appellant’s right to remain silent expressly 

stated, “One of them has a right not to. You can’t hold it against him.” Thus, as 

was fully discussed in the response to Appellant’s first point of error, it is evident 

that this argument did not negatively comment on Appellant’s right to remain 

silent and was not improper. See Fuentes, 991 S.W.2d at 275 (finding that the 

comment complained of was a recognition that the defendant possessed a right not 

to testify and the State respected that right). 

However, even if the prosecutor’s comments were deemed to be improper, it 

is difficult to fathom how Appellant could have possibly been prejudiced by the 

prosecutor reminding the jury of their obligation to respect Appellant’s choice to 

remain silent. Thus, it is clear that the magnitude of the prejudicial effect, if any, of 

the prosecutor’s remarks would have been slight. As a result, this factor should be 

heavily weighted in favor of the trial court’s denial of Appellant’s motion for a 

mistrial.
39

THE EFFICACY OF ANY CAUTIONARY

INSTRUCTION BY THE JUDGE

After the close of evidence and prior to the prosecutor’s argument, the 

Court’s charge was read to the jury members by the Court. Part of the 

charge given to the jury specifically stated:

Our law provides that a defendant may testify in his own behalf if he 

elects to do so. This, however, is a privilege accorded to a defendant 

and, in the event he elects not to testify, that fact cannot be taken as a 

circumstance against him. In this case, the defendant, Gregory Lopez, 

has elected not to testify and you are instructed that you cannot and 

must not refer to or allude to that fact throughout your deliberations or 

take it into consideration for any purpose whatsoever as a 

circumstance against the defendant.

(RR Vol. VI at 18).

Additionally, after sustaining defense counsel’s objection to the 

prosecutor’s closing argument, the trial court instructed the jury:

Ladies and gentlemen, I’m going to ask you to disregard anything that 

may violate the following paragraph.

Our law provides that a defendant may testify in his own behalf if he 

elects to do so. This, however, is a privilege accorded to a defendant 

and, in the event he elects not to testify, that fact cannot be taken as a 

circumstance against him. 

In this case, the defendant, Gregory Lopez, has elected not to testify 

and you are instructed that you cannot and must not refer to or allude 

to that fact throughout your deliberations or take it into consideration 

for any purpose whatsoever as a circumstance against the defendant.

I will instruct the State not to refer to the defendant’s right to remain 

silent for any purpose.
40

(RR Vol. VI at 47). 

When reviewing the trial court’s instructions to the jury in the instant case, 

particularly those given after sustaining defense counsel’s objection to the 

prosecutor’s argument, it is clear that the trial court went far beyond simply 

instructing the jury to disregard the prosecutor’s argument. Instead, the trial court 

re-read the entire paragraph from the court’s charge concerning Appellant’s right 

to remain silent to the jury and instructed the jury to disregard anything that might 

violate the Court’s instructions. Additionally, in front of the jury, the court 

specifically instructed the prosecutor, “I will instruct the State not to refer to the 

defendant’s right to remain silent for any purpose.” Thus, this somewhat severe 

and attention-grabbing instruction to disregard was more than sufficient to cure any 

harm that might have resulted from the prosecutor’s comments reminding the jury 

that they couldn’t hold Appellant’s decision to remain silent against him. See 

Davis v. State, 645 S.W.2d 817, 819 (Tex.Crim.App. 1983; see also Espinoza v. 

State, 843 S.W.2d 729, 731 (Tex.App.—Austin 1992, pet. ref’d). As a result, this 

factor should also be heavily weighted in favor of the trial court’s denial of 

Appellant’s motion for a mistrial.

STRENGTH OF THE EVIDENCE 

SUPPORTING THE CONVICTION

Under Texas law, it is clear that a conviction for continuous sexual abuse of 

a young child, aggravated sexual assault or indecency with a child is supportable 
41

on the uncorroborated testimony of a victim if the victim was younger than 17 

years of age at the time of offense. Tex.Code Crim. Proc. Ann. Art. 38.07.

Additionally, in a prosecution for sexual assault, penetration may be proved by 

circumstantial evidence. Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App. 

1972). Similarly, in a prosecution for sexual assault by contact, contact may be 

proved by circumstantial evidence. See Jimenez v. State, 953 S.W.2d 293, 297 

(Tex.App.—Austin 1997, pet. ref’d). Texas courts have also long recognized that 

children often lack the technical knowledge to accurately describe certain parts of 

their bodies. See Clark v. State, 558 S.W.2d 887 (Tex.Crim.App. 1977). As a 

result, when examining the testimony of a child, appellate courts are ever mindful 

of a child’s lack of technical knowledge in accurately describing the parts of the 

body. O’Hara v. State, 837 S.W.2d 139, 142 (Tex.App.—Austin 1992, pet. ref'd).

In the instant case, A.M. testified about several acts of sexual abuse 

committed by Appellant on two separate occasions and at two separate locations. 

A.M. described how, when the first occasion of sexual abuse occurred at the 

trailer on Dollar Drive, she and her little sister were lying on the bed and Appellant 

squeezed in between them. (RR Vol. IV at 114). A.M. testified that she then felt 

Appellant rubbing her leg and up to her private part with his hand. She also 

explained that his hand was inside of her clothes. (Id. 114). A.M. described how 

Appellant had then touched the outside of her private part. Her testimony also 
42

indicated that, as he pulled her closer to him, Appellant was trying to put his finger 

into her butt. (Id. at 115). A.M. also testified that Appellant had tried to put his 

“thing” in her butt at one point. (Id. at 135). Finally, A.M. described how 

Appellant had grabbed her hand and tried to pull it towards his “private part.” (Id. 

at 119). 

During her testimony, A.M. also described a second instance of sexual abuse 

which occurred after she went to live with her mother at the Solms Apartment. She 

explained that her mother had gone to the game room in Austin with her 

grandfather and that she was sleeping on a couch in the living room. (RR Vol. IV 

at 117, 179). A.M. testified that she felt Appellant come sit down on the couch 

beside her and start feeling up her leg again. She described how, on this occasion, 

Appellant had again touched her on her private part (the part she used to go to the 

restroom) with his hand. (RR Vol. IV at 117). A.M. also expressly testified that 

Appellant went inside of her shorts and underwear and put his finger inside of her 

“private part.” (Id. at 118).

As Appellant seems to recognize in his brief, A.M.’s testimony alone would 

be legally sufficient to sustain his conviction in the instant case. However, the jury 

was not left to decide the instant case based only on A.M.’s testimony. As the 

prosecutor was attempting to explain in his closing argument, the jury also got to 
43

hear Appellant’s side of the story through a four-hour interview with Detective 

Schroeder. 

The video of the interview shows Appellant confirming many of the details 

found in A.M.’s testimony. He places himself alone with the children on the two 

occasions when the acts of sexual abuse were committed against A.M. He also 

admitted to being in the bed with A.M. at the trailer on Dollar Drive and on the 

couch where she was sleeping at the Solms Apartment exactly as she described. 

(State’s Exhibit 2, Disc 2 at 16:01:45 &16:28:35). Furthermore, Appellant 

described how that he had rubbed A.M.’s belly and legs and he admitted that his 

hand had probably slipped and “accidentally” touched A.M.’s private. (Id. at

16:22:30, 16:22:50, 16:26:24, 16:29:05, 16:31:20, &16:33:03). By the end of the 

interview, Appellant had apologized to Detective Schroeder for lying to him. (Id. at 

17:01:35). He also indicated that he would not mind if he had to take classes or 

got probation. (Id. at 17:01:45). Finally, Appellant admitted that he knew it was a 

mistake to touch A.M.’s vagina. (Id. at 17:05:25). 

From the evidence presented in the instant case, including A.M.’s testimony 

and Appellant’s own admissions, it is clear that the State had an extremely strong 

case against Appellant. Furthermore, it is equally clear that Appellant was not 

convicted for exercising his right to remain silent or any argument concerning his 

exercise of such right. To the contrary, Appellant was convicted because he did 
44

not remain silent and, after lying to Detective Schroeder for several hours, 

eventually admitted to committing the very acts of sexual abuse described by A.M. 

For this reason, this factor should also be heavily weighted in favor of the trial 

court’s denial of Appellant’s motion for a mistrial.

CONCLUSION

As set out above, when the facts and circumstances of the instant case are 

properly analyzed utilizing the three factors mandated by the Court of Criminal 

Appeals, it is evident that each of the three factors weigh in favor of the trial 

court’s denial of Appellant’s motion for mistrial. Thus, it is clear that the trial 

court did not abuse its discretion in denying Appellant’s motion for mistrial. For 

these reasons, based on the facts and authorities cited above, Appellant’s second 

point of error is without merit and should be denied.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the State respectfully requests 

that this Court deny Appellant’s two points of error and affirm Appellant’s 

criminal conviction for Continuous Sexual Abuse of a Young Child as charged in 

the indictment.

 Respectfully submitted,

/s/ Sammy M. McCrary

Sammy M. McCrary

Chief Felony Prosecutor

SBN: 90001990
45

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

(830) 221-1300

Fax: (830) 608-2008

ATTORNEY FOR STATE

CERTIFICATE OF SERVICE

I, Sammy M. McCrary, attorney for the State of Texas, Appellee, hereby 

certify that a true and correct copy of this brief has been delivered to Gregory 

Lopez’s attorney of record:

David K. Sergi

david@sergilaw.com

David K. Sergi & Associates, P.C.

P.O. Box 887

San Marcos, TX 78666

Phone: 1-512-392-5010

Fax: 1-512-392-5042

Attorney for Appellant on Appeal

By electronically sending it to the above-listed email address through 

efile.txcourts.gov, this 10th day of April, 2015.

 /s/ Sammy M. McCrary

 Sammy M. McCrary
46

CERTIFICATE OF COMPLIANCE

I, Sammy M. McCrary, hereby certify that this document was prepared in 

MS Word and it does not exceed the allowable length for an appellate brief 

pursuant to Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012, 

by Order of the Texas Court of Criminal Appeals. The approximate total of words 

in this document, as calculated by the word processing software, is 11,528 words.

/s/ Sammy M. McCrary

 Sammy M. McCrary