AFFIRMED; Opinion Filed January 28, 2013.

In The 

## !tnnrt uf iuahi LYiftl! Jitrirt 01 Iixa at Oatta No. 05-1 2-00025-CR
ELISANDRO GRANADOS ARAGONEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204 th Judicial District Court Dallas County, Texas Trial Court Cause No. F08-13169-Q 

### MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion By Justice Lang Elisandro Granados Aragonez pleaded guiltyto aggravated assaultwith a deadly weapon. In four issues on appeal, Aragonez claims the trial court erred in overruling his objections to allegedly improper statements madebytheprosecutorduring closing argumentathis punishmenthearing. We decide against Aragonez on all issues on appeal. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEx. R. APP. P. 47.4. 1. FACTUAL AND PROCEDURAL BACKGROUND 

### A grand jury charged Aragonez by indictment with the first-degree felony offense of aggravated robbery. The trial court granted the State’s motion to reduce the charge to aggravatedassault with a deadly weapon, a secon°ree felony. Aragonez executed ajudicial confession, entered an open plea of guilty to the reduced charge, and elected to have a jury determine his punishment. The jury assessed punishment at 10 years’ imprisonment. II. STANDARD OF REVIEW & APPLICABLE LAW “The standard ofreview for improperjury argument is abuse ofdiscretion.” Walker v. State, No, 05-0801 l34CR, 2009 WL 3353627, *2 (Tex. App.—Dalias Oct. 20, 2009, no pet.) (mem. op., not designated forpublication) (citing

### Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). Further, the Texas Court of Criminal Appeals has concluded, “It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (quoting 4lejandto State, 493 SW 2d230 231 (Tcx Crim App 1973)) Thus,properjury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument ofopposing counsel; and (4) plea for law enforcement.” Id. (citing Alejandro, 493 S.W.2d at 231; Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999)). “A prosecutor may not use closing arguments to present evidence that is outside the record.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1099. “Improper references to facts that are neither in evidence nor inferable from the evidence are generally designed to arouse the passion and prejudice ofthejury, and as such, are inappropriate.” Id. (citing Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990)). ilL APPLICATION OF LAW TO FACTS In his first issue, Aragonez argues “the prosecutor injected her personal opinion about [a witness’s] credibility during her closing argument to thejury” by referring to the complainant as “a credible witness.” In her closing argument, the prosecutor made the following statements:

### STATE:..

. 

### Theybroughtyou—theywanttotalk

### about,theywantto shiftyourfbcus on poor [complainanti. He’s the victim here; he’s noton trial. Theybroughtyou no evidence ofthis alleged affairbetween the Defendant 

### and his wife. The only thing you heard about is rumors. Have you heard anything else beyond that 

### besides rumors? And even ifthat

### were to betrue—and I submitto 

### you, ladies 

### and gentlemen, that you 

### can believe [the complainanti. He’s a credible—he was a credible witness
DEFENSE: I object to 

### the— STATE: -and heDEFENSE: -bolstering testimony. THE COURT: Overruled. 

### The record shows the complainanttestified there wereuntrue rumors thatthe complainant had an inappropriate relationship 

### with Aragonez’s wife. Defense counsel called Aragonez’s 

### two sisters to testifythat complainant

### had an inappropriate

### relationshipwith Aragonez’s wife. The

### two sisters also disputedthecomplainant’stestimonythat

### theythreatenedtodivorcetheirhusbands, the complainant’s brothers, ifthe complainant did not drop the charges against Aragonez. In fact, on cross-examination, oneof Aragonez’ssisters statedthatthecomplainant’stestimonyastothethreats 

### was alie. Indefensecounsel’sjuryargumentsubsequentto

### theprosecutor’s 

### statementregardingthe complainant’s credibility, he characterized Aragonez’s attempts to shoot the complainant as protecting the honor ofhis family. Considering theprosecutor’s argumentinthe context ofwhere itappears, we conclude theprosecutor’s statementas to the complainant’s credibilityto

### havebeen made as partofa summaryofthe evidencethatthe defendantbadpresented andwas apermissible argument based on a summation of, and a reasonable deduction from, the evidence at trial. See Richard, v. State, 912 S.W.2d 374, 379-80 rex. App.—Houston [14th Dist.] 1995, pet. refd) 

### (prosecutor’s statementthat “the onlyperson who testified completelytruthtbllyin my 

### opinion in this caseanddidnotmakeasinglemistakewas [thecomplainant]”was areasonabledeductionfrom

-3-the evidence and a summation ofevidence in light ofthe defense strategy to attack the credibility of the complainant). In his second, third, and fourth issues Aragonez argues “the prosecutor made multiple statements during closing argument that injected 

### new facts from outside the record: (1) that Appellant could have killed [the complainant] or somebody else; (2) that 

### the offense committedwas really much closer to the next range ofpunishment; and 

### (3) that [the complainant] was very close to death as a result ofthe shooting.” The specific statements by the prosecutor ofwhich Aragonez complains are as follows: STATE: And what happened to that otherbullet that didn’t hit [the complainant]? It could have hit anybody that was over there. This is broad daylight, ladies and gentlemen. You can’tjust go into broad daylight, shooting guns in the middle ofa busy street. I mean, look atwhen you go back there, look at State’s Exhibit 10. Look at the cars that are on the road. Look at the people that are just walking on the sidewalk. What ifthis little boy hadjust been there 

### 30 minutes earlier when there’s [sic] bullets flying around? DEFENSE: Thatjust calls for speculation on their part, Your Honor. THE COURT: Overruled.

STATE: That is a reasonable inference, ladies and gentlemen. He was reckless. He was intentional withrespectto [the complainant], but hejust goes outthere, shooting people. Being reckless about where he’s shooting. Could have hit somebody else. Could have killed jthe complainanti or somebody else. And we are so close that that’s what— DEFENSE: I’m going to object. She’s arguing extraneous offenses thatjust never happened. STATE: Judge, that’s a reasonable inference— THE COURT: I’m not asking for argument, [prosecutor]. STATE: Okay.

-4-THE COURT: Let me read. (Brief

### pause in proceedings.) THE COURT: Overruled.

THE STATE: And as 

### [the other prosecutor] was trying to explain to you, this is so close to that next range of punishment, right? Because what would have happened ifhe had died? We’d be into that next range ofpunishment 

### DEFENSE: I’m going to have to object, Your Honor. That didn’thappen. And that’s 

### arguing an extraneous offense that did not occur. THE COURT: [Defense counsel], you’ve had an opportunity to argue. Your objection is overruled.

STATE: And as much as you may not want to believe it, ladies and gentlemen, this was very close to death. What I’m trying to explain to you, somebody could have died. That is a realistic, reasonable inference. DEFENSE: I’m going to object to that one more time. No one died. Didn’t get close either. THE COURT: I don’t want argument, [defense counsel]. if 

### you have a legal objection, then make it. 

### DEFENSE: Object to her arguing extraneous offense that did not occur. THE COURT: Overruled. The record reflects that while a passenger in the complainant’s vehicle, Aragonez drew a handgun, ordered the complainant to drive to a park, and shot the complainant in the arm 

### after he refused Aragonez’s order. When the complainant fled his vehicle, Aragonez got out and fired two
more shots at the complainant as he 

### ran towards a nearby apartment complex. The complainant testified one ofthe two subsequent shots hit him in the leg and that he feared Aragonez was going to kill him. The State contends, in essence, that had the complainant or any person in the apartment

—5—complex died as a result ofthe offense, Aragonez could have been charged with murder, a firstdegree felony offense punishable by imprisonment for life or for a term from five to ninety-nine years. See TEx. PENAL CODE ANN. 

### § I2.32(a); 19.02(c) (West 2011). Based on the evidence in the record, we conclude the prosecutor made a reasonable deduction from the record to say that Aragonez could have killed someone, “this is so close to that next range of punishment,” and
someone could have died. See Porter v. State, 601 S.W.2d 721, 723 (Tex. Crim. App. [Panel 

## Op.] 1980) (upholding prosecutor’s statement “people can be killed in armed robberies” as a reasonable deduction from the evidence ofthe appellant’s use ofa firearm, even though no one was killed in the incident); Parks v. State, 843 S.W.2d 693, 694-95 (Tex. App.—Corpus Christi 1992, pet. refd) (concludingprosecutor’s statementthat “[t]his is the type ofperson, had not the police shot this guy, that we would have pictures ofa dead police officer and we would be trying a death sentence case”
was proper as a reasonable deduction from the evidence that the appellant ran towards the officer with a knife screaming to “get [him]” and “let’s end it now!”). We conclude the trial court did not
err in overruling appellant’s objections. IV. CONCLUSION We decide Aragonez’s four issues against 

### him. The trial court’sjudgment is affirmed.

LSSLAN Do Not Publish TEx.R.APP.P.47 120025F.U05



### —6—

# n
Qnitrt nf \pp1aIEi fiftIi Htrict uf Irxai at 1a11ai JUDGMENT ELISANDRO ARAGONEZ, Appellant Appeal from the 204 th Judicial District Court ofDallas County, Texas. (Tr.CLNo. F08- No. O5l2OOO25CR V. 13169-Q). Opinion delivered by Justice Lang, Justices THE STATE OF TEXAS, Appellee Moseley and Francis participating.
Based on the Court’s opinion ofthis date, thejudgment ofthe trial court is AFFIRMED.
Judgment entered January 28, 2013.

DOUGLA$’. LANG JUSTIC7