COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00201-CR

LOUIS GERARDO NIEVES APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

----------

MEMORANDUM OPINION1

----------

Appellant Louis Gerardo Nieves, who was charged with intoxication 

manslaughter, pled guilty to a jury that assessed his punishment at twenty years’

confinement. Although Appellant stood mute as to the deadly weapon allegation, 

the jury found that he did, indeed, use a deadly weapon in the commission of the 

offense. The trial court sentenced him in accordance with the jury verdict.

 1

See Tex. R. App. P. 47.4.
2

In two issues, Appellant contends that (1) the trial court abused its 

discretion by admitting evidence at punishment without proper authentication in 

violation of the Confrontation Clause and (2) the trial court erred by allowing, over 

objection, the prosecutor’s improper jury argument injecting facts not proven at 

trial. Because we hold that the trial court did not reversibly err, we affirm the trial 

court’s judgment.

Summary of the Facts

On the night in question, Appellant, who worked at a local Mexican 

restaurant, had celebrated a friend’s birthday at a downtown club in Fort Worth. 

In the early morning hours, he had left the club and was headed eastbound in the 

westbound lanes of the I-30 freeway. Alejandro Raya, driving a tanker truck

carrying 7,780 gallons of gasoline, was headed westbound in the westbound 

lanes of the same freeway. Appellant’s vehicle collided with Raya’s truck, 

causing an explosion and fire that burned so intensely that it compromised the 

structural integrity of the bridge where the collision occurred. A witness stated 

that it appeared that “[t]he entire freeway was on fire.” Flames rose 200 to 300 

feet above the freeway. The investigator for the medical examiner’s office 

reported that the fire was so hot and had burned so intensely that large portions 

of Raya’s truck had melted into pools of metal. Raya was killed by the fire, and 

his body was so badly destroyed that his identity had to be determined by DNA 

testing.
3

Appellant’s blood-alcohol concentration (BAC) was between .16 and .23

when tested after the collision. Extrapolation suggested that his BAC was 

between .19 and .24 at the time of the collision. A coworker who had been at the 

birthday party with Appellant corroborated his extreme intoxication and testified 

that he had prevented Appellant from taking another friend with him to an 

afterparty. Although Appellant admitted his guilt by pleading guilty at trial, an 

eyewitness to the collision testified that, immediately after the wreck, Appellant 

had claimed that his uncle had been driving.

The State offered evidence of Appellant’s criminal history, which included 

three federal immigration offenses and a poor driving record from Washington 

State. The jury also viewed an in-car video lasting five and a half minutes that 

depicted the fire caused by the collision.

Social Security Number

In his first issue, Appellant argues that the trial court abused its discretion 

by admitting evidence without proper authentication, violating the Confrontation 

Clause. Specifically, he contends that the trial court abused its discretion by 

admitting evidence that he had used someone else’s social security number on 

an employment application because the State failed to show that he, rather than 

the employer or another person, actually provided the number and because the 

admission of the extraneous act violated his Sixth Amendment right to confront 

his accuser.
4

A special agent with the Social Security Administration Office of the 

Inspector General testified that Appellant had used the social security number of 

another person when applying for employment at a Mi Cocina restaurant a few 

weeks before the collision. The special agent relied on an application for 

employment form provided by the restaurant. The State filed its notice of intent 

to offer the business record before trial. At trial, the document in question was 

offered as a business record and relied on by the special agent. The 

employment application before us contains no social security number because it 

has been redacted. The handwriting on the application is markedly different from 

the handwriting on the W-4 form. Nothing suggests that the employment 

application was prepared for purposes of trial or even after the commission of the 

offense, and Appellant likewise raises no such challenge.

In Burch v. State,

2 the Texas Court of Criminal Appeals held that the lab 

report identifying the substance seized as cocaine and providing the quantity 

seized was testimonial and that its admission absent the testimony of the analyst 

who prepared it violated Burch’s rights under the Confrontation Clause.3

 In that 

opinion, however, the Texas Court of Criminal Appeals distinguished Williams v. 

Illinois, a case in which a majority of the United States Supreme Court upheld the 

admission of testimony by a prosecution witness that the defendant’s DNA profile 

 2

401 S.W.3d 634 (Tex. Crim. App. 2013).

3

Id. at 637–38, 640.
5

came from semen within the complainant, even though that witness had gleaned 

that information solely from reading an independent lab report.4

 The Texas Court 

of Criminal Appeals explained:

Justice Alito delivered the judgment of the court and an 

opinion that garnered four votes. In the view of the plurality, the 

petitioner’s rights were not violated because the out-of-court 

statement (that the DNA profile came from semen within the victim) 

was not offered to prove the truth of the matter asserted. Instead, it 

was merely alluded to in order to explain the basis of the witness’s 

independent conclusions (that the profile matched the petitioner’s 

DNA). Alternatively, as a second and independent basis for the 

decision, Justice Alito stated that the report was not testimonial 

because it was created before there was a specific suspect. 

Consequently, it was not inherently inculpatory or created for use 

against the petitioner.5

Here, the application for employment was not offered for the truth of the 

matter asserted, nor was it prepared as an accusation against Appellant. We 

therefore hold that the application for employment was not testimonial and not 

hearsay; its admission was therefore not a violation of the right of confrontation.

Appellant also argues that the trial court abused its discretion when it 

admitted evidence that he had used the social security number of another 

because the State did not prove beyond a reasonable doubt that Appellant 

committed the extraneous offense. He bases his argument on the fact that no 

one who testified saw him fill out the form purporting to contain the social security 

 4

Williams v. Illinois, 132 S. Ct. 2221, 2227–28 (2012).

5

Burch, 401 S.W.3d at 638–39 (citations omitted).
6

number or interviewed anyone who saw Appellant fill out the form. Nor did the 

special agent for the Social Security Administration who testified regarding the 

unlawful use of another’s social security number verify Appellant’s signature.

Appellant’s signature was on other documents available for comparison. 

Additionally, although it is clear from comparing the handwriting that someone 

other than Appellant filled out the form in question, Appellant is the person who 

worked under that social security number. While providing the number may be 

one manner of using the number, it is not the only manner. Appellant held his job 

under that number and received payment for his work under that number, and 

that number is reflected on his W-4 form. The evidence is sufficient to show that 

Appellant used that number.6

Additionally, although Appellant discusses the requirement that the trial 

court instruct the jury that they are not to consider extraneous acts of misconduct 

unless they find the evidence of the extraneous acts to have been proved beyond 

a reasonable doubt, Appellant does not point to any specific failure of the trial 

court to provide such instruction. He argues only that the State failed to provide 

sufficient evidence to prove the extraneous acts beyond a reasonable doubt. We 

hold the evidence sufficient to support a rational trier of fact’s determination 

 6

See, e.g., United States v. Buchanan, No. 11-20918, 506 Fed. App’x 314,

315 (5th Cir. Jan. 8, 2013) (not designated for publication in federal reporter); 

U.S. v. Oliver, 630 F.3d 397, 415–16 (5th Cir.), cert. denied, 132 S. Ct. 758 

(2011).
7

beyond a reasonable doubt that Appellant used another’s social security number. 

The trial court therefore did not abuse its discretion by admitting the evidence. 

We overrule Appellant’s first issue.

Jury Argument

In his second issue, Appellant complains about the State’s improper 

argument at punishment. To be permissible, the State’s jury argument must fall 

within one of the following four general areas: (1) summation of the evidence; 

(2) reasonable deduction from the evidence; (3) answer to argument of opposing 

counsel; or (4) plea for law enforcement.7

If a jury argument exceeds the bounds of proper argument, a trial court’s 

erroneous overruling of a defendant’s objection is not reversible error unless it 

affected the appellant’s substantial rights.8

 In determining whether the 

appellant’s substantial rights were affected, we consider (1) the severity of the 

misconduct (that is, the prejudicial effect of the prosecutor’s remarks); 

(2) curative measures; and (3) the certainty of the punishment assessed absent 

the misconduct.9

 7

Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. 

denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. 

Crim. App. 1973).

8

Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. 

Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) 

(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

9

Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259.
8

Appellant argues that, in the State’s closing argument, the prosecutor 

improperly stated to the jury, “And I know you’re not going to consider probation 

because I know you know that based on the evidence you’ve heard, that he’s 

illegally in this country, and he will be deported. He will never serve a day on that 

probation.”

On appeal, Appellant does not point to any specific objections he made to 

that argument; he merely disputes the accuracy of the argument. At trial, the 

objection was that the prosecutor was asking the jury to disregard the court’s 

instructions. The prosecutor’s closing argument continued with no further 

objection until Appellant finally objected that the argument was outside the 

record. At that point, the prosecutor was instructed to rephrase his argument.

Appellant also argues in this issue that the prosecutor falsely claimed that 

Appellant had lied about being born in this country. Rather than pointing to a 

specific objection, Appellant merely disputes the truthfulness of this argument.

When the prosecutor argued, “You know, unfortunately, for [defense 

counsel at trial], the proof that [Appellant] lied is the fact that we have two 

documents that his name is on that he swore to,” Appellant objected that the 

prosecutor was misstating the evidence and that there was no evidence that any 

document was ever sworn to. The trial court overruled his objection. While this 

was probably technically error, in that the employment application was not a 

verified document, the evidence was before the jury. They had the opportunity to 

take the documents into the jury room and to see for themselves that the 
9

prosecutor had misstated the record. We therefore hold that this error did not 

affect Appellant’s substantial rights, and we overrule his second issue.

We note with concern that the State’s punishment evidence and argument 

dwelt to a large extent on Appellant’s being from Mexico and in this country 

illegally. The prosecutor’s argument included the following:

And there’s no doubt he lied on those documents. So it has to make 

you wonder. What is it that he thought about our state that made 

him start his lies when he got here? Because when he answered 

questions—when he got his license, he told the truth. What does 

that tell us about his attitude about the way things work in Texas?

The prosecutor discussed the impact of the complainant’s death on his family, 

the facts of the offense, and Appellant’s conduct in lying about who was driving 

and his irresponsible conduct that night. Then the prosecutor argued,

And that is why he deserves the maximum punishment so that no 

one else from Washington, Vancouver, Idaho, wherever else they’re 

traveling from, will have any doubts about what is the wrong place to 

come to a community, engage in this conduct, lie about your 

responsibility, lie about whether you were born in this country, 

destroy a family, destroy a bridge—

Our sister court in Houston has addressed referencing a defendant’s 

nationality in jury argument. The prosecutor in that case argued, “I am going to 

ask you to find this man guilty of three counts of aggravated sexual assault of a 

child because he did this to these children. It wasn’t right, and in this country we 

don’t allow foreigners to rape little girls.”

10 The appellate court held that the 

 10Zakkizadeh v. State, 920 S.W.2d 337, 340 (Tex. App.—Houston [1st 

Dist.] 1995, no pet.).
10

objection,—“improper argument”—was sufficient to preserve Appellant’s 

complaint and held the argument was improper, albeit harmless.

11

Conclusion

While we are greatly disturbed by the tenor of the State’s punishment 

evidence and the jury argument, we are constrained to hold that the trial court did 

not reversibly err by allowing the arguments actually complained of or by 

admitting the evidence complained of. Having overruled Appellant’s two issues, 

we must therefore affirm the trial court’s judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 12, 2014

 11Id. at 340–41.