Opinion
No. 04-02-00219-CR
Delivered and Filed: September 10, 2003. DO NOT PUBLISH.
Appeal From the 216th Judicial District Court, Kendall County, Texas, Trial Court No. 3808, Honorable Stephen B. Ables, Judge Presiding. AFFIRMED
Sitting: Alma L. LOPEZ, Chief Justice, Catherine STONE, Justice, Paul W. GREEN, Justice.
OPINION
Appellant Noel Betancort Ramon was charged with the offense of enhanced aggravated sexual assault. Following a jury trial, Ramon was found guilty and sentenced to life imprisonment. He now appeals his conviction, citing nine issues.
Background
Noel Betancort Ramon was charged with the aggravated sexual assault of 74-year-old Marie McGraw. During his trial, the State called Texas Department of Safety Criminalist Chad Hainley. In addition to testifying as to the DNA evidence found at the scene, Hainley testified regarding a message he had received from the prosecutor. The message, taken by Hainley's secretary, said, "Noel Ramon case. The grandson and roommate had access to home, but [the State] only care[s] about suspect's DNA." At the time Ramon offered the memo into evidence the State did not offer any objection. Shortly after Hainley testified, the prosecutor conferred with the judge, expressing concern regarding the effect the message may have on the jury. She then asked if she could be allowed to testify in order to explain to the jury that the message was in response to a possible defense argument that Ramon was not present at the scene. The court denied the prosecutor's request, advising her that she could explain during closing if Ramon raised the issue of his presence. At a later point in the trial, the prosecutor again expressed her desire to testify. This time the court granted her request and allowed her to take the stand over the defense's objections. The prosecutor then proceeded to explain the message she had left, stating the only reason she had said the State "only care[d] about [the] suspect's DNA" was because she understood Ramon's pre-trial position to be that he was not present in the complainant's home, and the existence of his DNA at the scene would disprove this argument. Ramon's attorney objected and moved for a mistrial which was denied. He then requested the court instruct the jury to disregard any testimony regarding his trial strategy. This motion, too, was denied. Ramon's attorney moved for mistrial one more time, and the Court again denied the request. Ramon's attorney then began to cross examine the prosecutor and was stopped when she objected to the line of questioning. Following a sidebar discussion, the Court decided to strike the prosecutor's testimony and instruct the jury to disregard her statements as to the content of the message in question. Ramon once more requested a mistrial and was again denied his request. The jury subsequently convicted Ramon, sentencing him to life imprisonment. He now appeals this conviction, claiming he was prejudiced by the prosecutor's testimony.Prosecutor's Testimony
In his first two issues, Ramon complains the trial court erred in failing to grant his motion for mistrial upon the introduction of allegedly prejudicial testimony given by the prosecutor. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Brown v. State, 92 S.W.3d 655, 661 (Tex.App.-Dallas 2002, pet. granted). Mistrial is a device used to halt a trial proceeding only when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile and an impartial verdict cannot be reached. Ladd, 3 S.W.3d at 567. To determine whether a given error necessitates a mistrial, we must examine the particular facts of the case. See id. A mistrial is required when improper evidence or comment is clearly prejudicial to the defendant, making it almost impossible to erase the impression left on the jurors. Mathews v. State, 40 S.W.3d 179, 183 (Tex.App.-Texarkana 2001, pet. ref'd). The crux of Ramon's complaint lies in the testimony of the sole prosecutor assigned to his case. The prosecutor took the stand in order to explain the thought process behind a message she had left with the State's forensic expert. In the course of testifying, the prosecutor also disclosed part of Ramon's possible trial strategy, learned through a pre-trial conversation she had with his attorney. In conjunction with his first two issues, Ramon also contends, in his third, fourth, and fifth issues, that the prosecutor violated the Texas Rules of Professional Responsibility as well as the United States and Texas Constitutions by testifying as to these pre-trial conversations and then resuming her position as prosecutor, thereby violating his right to a fair trial. Rule 3.08 of the disciplinary rules of professional conduct provides that a lawyer generally shall not accept or continue employment in an adjudicatory proceeding if he believes that he may be a necessary witness to establish an essential fact on behalf of his client. Tex. Disciplinary R. Prof'l Conduct 3.08(a) (1989), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 1998). The violation of a disciplinary rule does not require a reversal unless a defendant can show the disciplinary rule violation affected his substantial rights or deprived him of a fair trial. House v. State, 947 S.W.2d 251, 252 (Tex.Crim.App. 1997); Brown v. State, 921 S.W.2d 227, 229-30 (Tex.Crim.App. 1996). Therefore, we need not determine whether the State's conduct violated a disciplinary rule, but only whether appellant has shown actual prejudice therefrom. See House, 947 S.W.2d at 252-253. When a lawyer's testimony relates solely to an uncontested issue or to a mere matter of formality, there is little concern for the possible confusion generated by undertaking the dual role of advocate-witness. Gonzalez v. State, 63 S.W.3d 865, 877-78 (Tex.App.-Houston [14th Dist.] 2001, pet. granted). However, when the testimony goes to a controversial or contested matter, combining the roles can unfairly prejudice the opposing party. Id. at 878. In a such a situation, the role of the testifying attorney could become blurred. The jury may not know whether statements made by the advocate-witness should be taken as proof or as an analysis of the proof. Id. In order to determine whether a mistrial should have been granted upon the prosecutor's testifying, we must examine whether Ramon's substantial rights were adversely affected and whether he has shown actual prejudice. In the present case, the prosecutor took the stand and began talking about the message she had left with criminalist Chad Hainley's secretary. She explained to the jury that her statement that the District Attorney's office "only care(d) about (the) suspect's DNA"was made when she assumed the defense's strategy would be to contend that Ramon was never present in the complainant's home. She also stated that, during a pre-trial conversation, Ramon's attorney had told her he was going to argue that Ramon was never in the complainant's house. Immediately following her testimony, the defense objected and moved for a mistrial. The motion was denied. The defense then asked for a limiting instruction and again moved for mistrial. Again, the motions were denied. Before the defense was able to cross examine the prosecutor, she objected, prompting a side bar discussion after which the court instructed the jury to disregard the testimony. Ramon again moved for a mistrial which was denied. The prosecutor then resumed her role as an advocate for the State and continued to try the case. Ramon claims the prosecutor's actions prejudiced him, depriving him of his right to a fair trial, and that the court erred in failing to grant a mistrial on these grounds. He fails, however, to explain how the prosecutor's testimony resulted in actual prejudice to him. In addition, the matter testified to, the reasoning behind the prosecutor's message, appears to have been inconsequential to the outcome of the trial. Under these circumstances, we are not persuaded that the testimony given by the prosecutor affected Ramon's substantial rights or deprived him of a fair trial. Accordingly, we find that the trial court did not abuse its discretion in denying the motion for mistrial. We overrule Ramon's first five issues. Ramon also contends, in his sixth and seventh issues, that the prosecutor's comments regarding a possible trial strategy, namely, the lack of his presence at the scene, were improper commentary going to his right to remain silent and his right against self-incrimination. We disagree with this reasoning. The prosecutor's explanation was not a comment on either Ramon's right to remain silent or his right against self-incrimination. Accordingly, we overrule his sixth and seventh issues.Production of Exculpatory Evidence
In his eighth and ninth issues, Ramon complains the trial court erred in denying the production of exculpatory scientific evidence. Specifically, Ramon contends that the trial court should have ordered the prosecution to provide a sample of the complainant's DNA for testing, as it may have provided exculpatory evidence. Courts have long held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment. U.S. Const. am. XIV; Brady v. Maryland, 373 U.S. 83, 87 (1963); Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Crim.App. 1989). The Supreme Court has set forth standards of materiality to assist in determining the import of potentially exculpatory evidence. If the defense makes a specific pretrial request for exculpatory evidence and the prosecution is thereby placed on notice, the failure to make any response is seldom, if ever, excusable. Reviewing courts must examine whether the omitted evidence may have affected the outcome of the trial. United States v. Agurs, 427 U.S. 97, 103-05 (1976); Ex parte Adams, 768 S.W.2d at 289. Although the identity of the complainant is an issue material to the case at hand, the record fails to show that the identity of the assault victim was ever in question. Additionally, had the State provided Ramon with a DNA sample, it is highly unlikely this evidence would have affected the outcome of the trial. Ramon fails to demonstrate exactly how this evidence would have been exculpatory and how the State's failure to provide a DNA sample from the complainant resulted in harm to his case. As such, we overrule Ramon's eighth and ninth issues. The judgment of the trial court is affirmed.I concur in the judgment of the majority. I write separately, however, because I believe that permitting the prosecutor to testify was error, and as to the prosecutor, a violation of Rule 3.08(a) of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary R. Prof'l Conduct. 3.08(a), reprinted in Tex. Gov't. Code Ann., tit. 2, subtit. G, app. A (Vernon 1998). The circumstances giving rise to the prosecutor's request to testify did not, in my opinion, present "extraordinary circumstances or . . . compelling reasons." See Riddle v. Cockrell, 288 F.3d 713, 721 (5th Cir. 2002) (holding that a prosecutor should be allowed to testify only in extraordinary circumstances). If the State perceived the introduction of Exhibit 11 as impeachment of the DPS laboratory analysis or the prosecutor's motive, the State could have easily discredited the attempted impeachment through its questioning of the State's forensic expert. Taking the "highly unusual and potentially prejudicial" route of allowing the sole prosecutor to take the witness stand was simply unnecessary. Under the standard of review governing this court's conduct, however, I agree that harmful error has not been established.