Jose Ignacio Cerda a/k/a Jose Ignasio Cerda v. The State of Texas--Appeal from 213th District Court of Tarrant County

COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-04-331-CR

JOSE IGNACIO CERDA, A/K/A APPELLANT

JOSE IGNASIO CERDA

V.

THE STATE OF TEXAS STATE

------------

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

------------

MEMORANDUM OPINION1

------------

A jury convicted Appellant Jose Ignacio Cerda of two counts of indecency with a child by contact and one count of aggravated sexual assault of a child under fourteen years of age and assessed his punishment at seventy-five years confinement for the aggravated sexual assault conviction and twenty years confinement for each indecency with a child by contact conviction. The trial court sentenced Appellant accordingly, with all sentences to run concurrently. In one point, Appellant complains that the trial court erred by failing to declare a mistrial after the State engaged in improper jury argument at punishment. Because we hold that the trial court did not abuse its discretion by denying a mistrial, we affirm the trial court s judgment.

This case involves allegations of sexual abuse of a child at the hands of her stepfather. The complainant, D.R., whom Appellant allegedly sexually abused for about nine years, did not report the allegations to the police until she became an adult and was in counseling for relationship issues. D.R. testified about the abuse at trial. Appellant gave a written statement concerning D.R. s allegations, which was admitted at the guilt phase. In the statement, Appellant claimed that D.R. was the aggressor:

 
When [D.R.] was 6 years old we were in the bedroom[.] I was sitting on a bed watching t.v. D.R. was climbing on me[;] she started rub[bing] me with her body[.] I just tho[u]ght she was playing, but th[e]n she started with her hand touching me on my penis on top of my pants[,] w[h]ich I tho[u]ght it was a game. Next time I was on bed getting ready to sleep[.] [M]y wife was in other room[.] I was wearing underwear[ ] and ha[d] the sheet over me[.] D.R. climb[ed] into bed & lay down next to me. She went under the sheet & got close to me[.] She rub[bed] my penis on top of my underwear[.] [S]he sat up[,] and she put her hand under my underwear and touch[ed] my penis[.] [S]he ma[d]e my penis hard[.] [S]he stop[ped] right there because she was afraid that someone [was] com[ing] to the room. This went on for two months[;] during that time[,] she tried to be with me 100% of the time. I started sta[y]ing around other people. One time D.R. went with me to sell/buy a t.v. [W]hile I was driving she got close to m[e] and touch[ed] my penis. [S]he pulled my penis out and began kissin it.

One time she tried to put my penis in her vagina[;] I stop[ped] her because it was[n t] right.

During the punishment phase, Appellant s other written statement was admitted. This statement referred to extraneous conduct with other little girls, D.R. s sister, B.R., twenty-eight years old at the time of trial, and J.H., D.R. s cousin, twenty years old at the time of trial. Again, Appellant implied that he was not culpable,

 
When B.R. was around six or seven, I was watching t.v. [i]n the living room. She started touching m[e] with her foot on my penis, I - - thought she was pl[a]ying. So lat[e]r she touch[ed] my penis with her hands[.] [W]hile wearing clothes[,] I pressed my penis again[st] her bud, she grabbed my hand and put my hand in her panties is when my finger touch[ed] her between her lips . . . .

J.H. was prep[a]ring to move to the valley[.] I gave her a hug[;] th[e]n I pointed to her vagina and told her not to let nobody touch there.

He also wrote about touching another little girl on her stomach below her belly button. Contrary to Appellant s statement, B.R. and J.H. testified that Appellant had sexually assaulted them.

In his sole point, Appellant contends that the trial court erred by failing to declare a mistrial after the State engaged in improper jury argument by commenting on Appellant s failure to testify. One of the major themes of the prosecutor s closing argument at punishment appears to be Appellant s credibility; she called him an opportunist, a manipulator. The prosecutor stated in her opening portion of the closing argument at punishment,

 
He fooled a lot of people. He even fooled their mother. She won t even believe them when they came and told her what had happened. She slapped [D.R.] because he s got everybody wrapped around his finger. Sister, brother, he s fooled them all. Don t let him fool you. . . .

. . . . Since he s fooled a lot of people, don t let him fool you. He was cocky. When he would do this, he would laugh and it s because he knew he was getting away with it and nothing would be done. He almost got away with it until [D.R.] couldn t take it anymore and she sought out counseling.

. . . .

His family members told you he discussed it with them and even after being confronted with his word on paper, they still don t want to believe it.

. . . .

. . . . Don t let him fool you. . . .

In her final closing argument, the prosecutor argued in a similar vein,

 
How many victims are out there? How many are out there?

All you know about are the four he s volunteered to you or should I say the three . . . .

How many victims are there? You don t know. . . . This man has lived a lie for 18 years. He lied to his wife, he lied to his family, and most of all he lied to himself.

You know what? He tried to lie to y all. Let me tell you how. You know that statement you read? What is the first thing he does? He minimizes. Minimizes it. . . . He somehow convinced himself that at the age of 35, a six year old, a seven year old and eight-year old were coming on to him.

He tried to sell that to you. . . .

. . . .

When you are sentencing this man, you re punishing a man who started sleeping with his stepdaughters. You are punishing a man who decided at the age of 6, 7, 8 they were ripe for the picking. You are punishing the man who told you in his statement of things first of all, that he wanted you to know. Just think about it. These are things that he wanted you to know? Where are the things he s keeping to himself that he did? [Emphasis added]

Appellant objected at this point that the argument was a comment on his failure to testify, and the careful trial court properly sustained the objection and instructed the jury to disregard the comment. But the trial court denied Appellant s request for a mistrial.

The prosecutor then continued, Look specifically at the defendant s statement. You go back there and read it again. Let me ask you, what is it worth?

Specifically, Appellant complains that the trial court denied the mistrial after the prosecutor commented on Appellant s failure to testify. To determine if a prosecutor s comment violated article 38.08 of the Texas Code of Criminal Procedure and constituted an impermissible reference to an accused s failure to testify, we must consider whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily consider it to be a comment on the defendant s failure to testify.2 The offending language must be viewed from the jury s standpoint, and the implication that the comment referred to the accused s failure to testify must be clear.3 A mere indirect or implied allusion to the defendant s failure to testify does not violate the accused s right to remain silent.4

The jury had heard the complainant and two other women describe their childhood experiences at the hands of Appellant, and the jury was familiar with Appellant s written statements. While the complained-of argument taken alone could have been taken as an improper comment on Appellant s failure to testify, an examination of the complained-of argument in its context demonstrates that it could also reasonably be a comment on Appellant s failure to tell the truth in his written statements, that is, a proper comment on his credibility. Consequently, we hold that the comment was not a flagrant, blatant, or direct reference to Appellant s failure to testify, and the trial court properly denied Appellant s motion for a mistrial. We note for the sake of clarity that the prosecutor s argument, taken in context, was an improper plea for law enforcement, that is, an entreaty by the prosecutor that the jury . . . consider either the existence of other . . . victims of the appellant or . . . assess the appellant further punishment because other children have been victimized. 5 Appellant, however, did not object on this ground below.6 The trial court therefore did not abuse its discretion by denying Appellant s motion for mistrial. We overrule Appellant s sole point.

Having overruled Appellant s sole point, we affirm the trial court s judgment.

PER CURIAM

PANEL F: DAUPHINOT, J.; CAYCE, C.J.; and MCCOY, J.

CAYCE, C.J. concurs without opinion.

DO NOT PUBLISH

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

DELIVERED: June 23, 2005

NOTES

1. See Tex. R. App. P. 47.4.

2. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); see Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999).

3. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992).

4. Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996).

5. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).

6. See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh g), cert. denied, 526 U.S. 1070 (1999).