Opinion filed August 30 , 2018



### In The 

# Eleventh Court of Appeals

_____ ______ 

### No. 11

- 1 6

- 00 262

- C R

______ _ ____ 

### RANDY TREVINO VIALPA NDO , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 350 th District Court

Taylor County , Texas Trial Court Cause No . 11457

- D

M E M O R A N D U M O P I N I O N Randy Trevino Vialpando entered an open plea of guilty to the offense of
murder by committing an act clearly dangerous to human life

. See T EX

. P ENAL C ODE
A NN

. § 19.02( b)(2) (West 2011 ). The trial court sentenced him to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of eighteen years. In a single issue, Appellant contends that the trial court erred in overruling his objection to the prosecutor’s closing argument at the concl usion of the punishment phase. We affirm. Appellant executed a stipulation of ev idence wherein he stated that he shot the victim in the head with a handgun with the intent t o cause serious bodily injury. Appellant testified at the punishment hearing that he believed that his wife was using2

methamphetamine and that she was involved in affairs with othe r men to acqui re drugs. On an afternoon when his wife did not come home at the time that he expected her to arrive, Appe llant decided to look for her. He drove around in an area of town
where he believe d the victim lived. Appellant did not know the victim
, but he

sus pected that the victim was having an affair with Appellant’s wife. Appellant testified that he observed his wife’s vehicle parked in the driveway
of a hous e on Portland Avenue. He suspected that the house belonged to the victim. Appellant testified that he approached the door of the house and observed that t he front door was partly open. Appellant attempted to open the door
, but he
encountered resistance. Appellant testified that he also heard “ a lot of commotion”
and then heard a male voice say
, “I’ve got the gun.” Appellant believe d that his wife was in danger. Appellant testifie d that he then returned to his pickup and retrieved his pistol. Appellan t then busted through the front door whereupon he observed “the
barre l of a gun pointing at [h im].” Appellant testified that he reacted by firing randomly while backing out the front door of the house
, not ai ming at any particular

person. The forensic evidence indicated that the victim was shot at least three times, including being shot in the le ft ear. The State offered into evidence a recording of a visit between Appellant and his wife that occurred at the Taylor County Jail approximatel y two days after the shooting. During the prosecutor’s closing argument, he made referen ce to the
recorded jail visit. The prosecutor summarized the matters that Appellant and his
wi fe had discussed on the recording. The prosecutor then noted that Appellant and his wife did not discuss that the victim pulled a gun on Ap pellant or that Appellant
was in fear of either his life or his wife’s lif e at the time of the shooting. Specifically
, the prosecutor argued:

What ’ s amazing about it is, if this was such a tremendously emotional event, his wife was in danger, his life was in danger, he didn’ t mention it one time. The whole 19 or so minute s of that, he did not3

mention, “ I thought it was him or m e; I thought it was him or you. ” He talks about his commissary on the video. You think if someone had put a gun in your face, that’ s the first thing you talk about. Not one mention of that on the video. And that’s two days, and that’s before this whole idea of self

- defense has been crafted. That’ s before that

-- the trial was set and they had to think of something else. He had to think of somethin g else. Defense counsel objected to this argument on the basis that the prosecutor was attempting to “strike

. . . over [defense counsel’ s] head” by attacking def ense counsel’s trial strategy. The trial court responded to defense counsel’s objection by stating that the trial court viewed the prosecutor’s argument as being directed at Appellant’s actions and not those of defense counsel. The prosecutor then clarified that he was addressing App ellant’s actions and not those of defense counsel. In his sole issue on appeal, Appellant asserts that the trial court erred in overruling Appellant’s objection to the prosecutor’s closing argument. We review challenges to rulings on objections to impro per closing argument for an abuse of
discretion. Garcia v. State , 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). In examining challenges to a jury argument, a court considers the remark in the context in which it appears. Gaddis v. State
, 753 S.W.2d 396, 3 98 (Tex. Crim. App. 1988). “[P]roper jury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable d eduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.”
Brown v. State , 270 S.W.3d 564, 570 (Tex. Crim. App. 2008)

. Arguments that “ strike [] at a defendant over the shoulders of defense counsel ” are improper. Davis v. State , 329 S.W.3d 798 , 821 (Tex. Crim. App. 2010).

“ ‘Although it is impossible to articul ate a precise rule re garding these kinds of
argument [s], it is fair to say that a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argume nt exp licitly impugns defense4

counsel’s character.’ ” Brown , 270 S.W.3d at 572 (alteration in original) (quoting Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998))

. However, arguments directed at defense counsel’s argument s and theories in the c ase are not improper. Garcia
, 126 S.W.3d at 925

. We agree with the trial court’s interpretation that the argument was directed at Appellant’s conduct and theories in the case rather than at defense counsel. Furthermore, even if the argument is construed as an attack on defense counsel’s theories in the case, the argument wa s not improper because it was not an attack on defense counsel’s “personal morals and integrity. ” Id

. Accordingly, t he trial court did not abuse its discretion in overruling Appellant’s objection to the prosecutor’s closing argument. We overrule Appellant’s sole issue on appeal. This Court’s Ruling
We affirm th e judgment of the trial court

.

JOHN M. BAILEY
JUSTICE August 30, 2018 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Bailey, J.; Gray, C.J., 10th Court of Appeals 1 ; and Wright, S.C.J. 2
Willson, J., not participating.

1 Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment to the 11th Court of Appeals.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.