Jessie Martin Pena v. the State of Texas, 14-19-00805-CR

Background

On Aug. 18, 2018, Midland police responded to a 9-1-1 call; Jessie Martin Pena was seen on the porch, fled into the backyard, and began climbing a back fence.
Officers Callie Ives and Hailee Pepper chased Pena; shots were fired, nobody was struck. Ives fired two rounds from her service weapon; investigators later found a .380 Bersa handgun on the opposite side of the fence and a shell casing in the backyard near where Pena surrendered.
Pena was indicted on two counts of aggravated assault on public servants, alleged to have used/exhibited a deadly weapon (a firearm) and threatened Ives and Pepper.
At trial, both officers testified and their body-cam videos were admitted. Pepper testified she saw a firearm in Pena’s left hand and heard him fire first; Ives testified she saw a gun and perceived a motion toward the officers but did not hear Pena fire before she shot.
Defense presented limited testimony (mother and additional officers) challenging aspects of evidence collection and Pena’s handedness; defense repeatedly objected to speculative testimony during Pepper’s testimony (sustained), and objected to several prosecution closing remarks (overruled).
The jury convicted Pena on both counts and sentenced him to 35 years on each; Pena appealed raising sufficiency, denial of mistrial, and improper closing-argument claims. The court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pena)	Held
Sufficiency of the evidence to prove aggravated assault on public servants	Evidence (officers’ testimony, body‑cam audio/video, Bersa found where Pena said, shell casing) supports that Pena pointed and/or fired a gun and threatened officers	Conflicting officer testimony about whether Pena pointed/fired precludes a rational finding of guilt beyond a reasonable doubt	Affirmed — viewing evidence in the light most favorable to verdict, rational juror could find elements proven beyond a reasonable doubt
Denial of mistrial after Pepper’s testimony about hearing the first shot	Pepper’s sensory perception testimony about hearing the first shot was admissible and the jury was instructed to disregard the speculative portion	Sustained objections and requested mistrial; trial court refused mistrial, asserting instruction to disregard cured error	Affirmed — trial court did not abuse discretion; prompt instruction and context cured any error
Prosecutor’s rhetorical question “What reason do [Ives and Pepper] have to lie?” (alleged improper bolstering/vouching)	Argument invited jurors to consider witness credibility and reasonable inferences from evidence	Argued it impermissibly bolstered witness credibility	Affirmed — permissible as summation and reasonable deduction tied to evidence
Prosecutor’s statement: “That is guilt beyond a reasonable doubt” (alleged vouching for strength of case)	Statement was a conclusion tied to the prosecutor’s summary of evidence	Argued prosecutor improperly vouched for case strength	Affirmed — statement was woven into evidence summary and permissible in context
Prosecutor’s “moon and back” remark (striking at defendant over counsel’s shoulder)	Characterized as a rhetorical flourish criticizing defense counsel’s dissatisfaction with evidence, within permissible bounds	Argued it improperly attacked defendant by attacking counsel	Affirmed — court reasonably construed remark; even if improper, not so prejudicial to require reversal

Key Cases Cited

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (standard for reviewing sufficiency: view evidence in the light most favorable to the verdict)
Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008) (jury is sole judge of witness credibility and may accept or reject testimony)
Mitchell v. State, 546 S.W.3d 780 (Tex. App.—Houston [1st Dist.] 2018) (pointing a loaded gun at someone can support aggravated assault)
McGowan v. State, 664 S.W.2d 355 (Tex. Crim. App. 1984) (threat may be communicated by conduct, words, or action)
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) (intent may be inferred from circumstantial evidence, acts, words, conduct)
Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017) (conflicting evidence does not render verdict unsupported where rational juror could resolve credibility)
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993) (presumption that jury resolved conflicts in favor of prevailing party)
Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (abuse-of-discretion standard for denial of mistrial)
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) (factors for determining whether prejudicial event warrants mistrial: prejudice, curative measures, certainty of conviction absent event)
Kemp v. State, 846 S.W.2d 289 (Tex. Crim. App. 1992) (prompt instruction to disregard ordinarily cures testimony referring to extraneous offenses)
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (review particular facts to determine if error requires mistrial)
Ramos v. State, 419 S.W.2d 359 (Tex. Crim. App. 1967) (prosecutor may argue truthfulness of witnesses based on evidence and reasonable deductions)
Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) (permissible jury argument categories and prohibition on striking at defendant over counsel’s shoulders)
Sennett v. State, 406 S.W.3d 661 (Tex. App.—Eastland 2013) (prosecutor’s statement of guilt proper when tied to evidence summary)
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) (not every isolated improper remark in closing requires reversal)