Opinion
No. 07-14-00265-CR
01-12-2016
CHRISTINA ROCHA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 187th District Court Bexar County, Texas
Trial Court No. 2013CR3565, Honorable Raymond Angelini II, Presiding
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Christina Rocha appeals her conviction by jury of the offense of aggravated assault with a deadly weapon and the resulting sentence of five years of imprisonment. Through one issue, she contends the trial court erred in giving the jury an instruction regarding the failure of counsel to produce a witness's written statement. Finding it was not preserved for appellate review, we will overrule the issue and affirm the judgment of the trial court.
TEX. PENAL CODE ANN. § 22.02 (West 2014).
Background
Because appellant does not challenge the sufficiency of the evidence to support her conviction, we will relate only those facts necessary to the disposition of her appellate issue. TEX. R. APP. P. 47.1.
In October 2012, Nancy Rodriguez drove to pick up her husband at his work. Not finding him there, she drove to the home of appellant, her husband's mistress. When she arrived, appellant came out of her home and the two women argued. The argument escalated into a physical fight. After Rodriguez's husband separated the two women, Rodriguez walked toward her car. Appellant went inside, then came back outside with a kitchen knife. She approached Rodriguez. Rodriguez put her hands up "like she was going to block her" and appellant stabbed Rodriguez in the side. Appellant went back in her house, and witnesses came to aid Rodriguez. The State's witnesses presented testimony consistent with Rodriguez's version of the events. Appellant's neighbor, Lilian Sifuentes, testified to a version that differed somewhat from that presented by the State's witnesses. Her testimony included the assertion she heard Rodriguez repeatedly threaten appellant.
The jury found appellant guilty of aggravated assault with a deadly weapon and punishment was assessed as noted. This appeal followed.
Analysis
In her sole issue on appeal, appellant contends the trial court abused its discretion by submitting to the jury an oral instruction regarding Rule of Evidence 615. The rule provides a sanction for the failure of a party to produce the written statement of a testifying witness. See TEX. R. EVID. 615.
At the time of trial, Rule 615 provided:
(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified. ....
(e) Sanction for Failure to Produce Statement.If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.
(f) Definition.As used in this rule, a "statement" of a witness means:
(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness. . . .
Appellant's witness Sifuentes told the jury Rodriguez pulled up to appellant's house, got out of her car, and began screaming threats at appellant. Sifuentes stated that after the fight, appellant went back inside her house and Rodriguez ran toward the house and began banging on the door, threatening appellant's life. Sifuentes said Rodriguez opened the door to appellant's home. Sifuentes stated she went inside her own home, so she did not see appellant stab Rodriguez.
During cross-examination by the prosecutor, Sifuentes made mention of a statement, "my statement that I wanted to turn in." The following exchange then took place:
Prosecutor: What statement? You have a written statement?
Sifuentes: I gave one to [appellant's first attorney].
THE COURT: All right. Time out. Ladies and gentlemen, step outside.
(Jury excused.)
THE COURT: Do you have a copy of her statement?
(No Response.)
THE COURT: Do you have a copy of her statement?
Counsel: No, Your Honor.
THE COURT: How come?
Counsel: Until just now, I didn't know there was one ever taken. I knew there was conversation. I didn't know that one was taken.
THE COURT: Well, she says there is, so we're going to take a recess and your job is to get a copy of that statement and give it to them immediately.
Counsel: Absolutely, Your Honor.
When trial resumed the next day, counsel told the court he was unable to locate a written statement by Sifuentes. After clarifying with the witness that she had indeed given appellant's first attorney a written statement, the State continued to cross-examine Sifuentes. Defense counsel also conducted a re-examination of Sifuentes. At the conclusion of her testimony, the prosecutor moved the court to exclude Sifuentes' testimony under rule 615.
After some discussion with counsel outside the presence of the jury, during which defense counsel told the court he did not want the court to strike Sifuentes' testimony, the court told counsel it would instruct the jury regarding the law, and that appellant did not have Sifuentes' statement to produce to the State. Defense counsel replied in part, "No problem with that, Judge. . . ." The court then said, "Okay. Then, I'm going to bring in the jury and I'm going to charge them and tell them that this law exist[s], that either the statement exist[s] and you didn't comply with it or it does not exist, and they can take that into consideration as far as her testimony is concerned. It's one of the two?" Defense counsel replied, "That would be perfectly fine."
When the jury reconvened in the courtroom, the trial court judge instructed the jury:
Please have a seat, everyone. Ladies and gentlemen, a situation has occurred concerning the last witness. The last witness testified she made a written statement. Anytime a witness makes a written statement or report, the other side has to turn it over to them; as you noted what the prosecution did to the Defense. The Defense attorneys have said that there is no written statement. You're to take that into consideration concerning this last witness' testimony. Okay? There you go.
Counsel did not object to the court's instruction. Thereafter, both parties closed their evidence and began discussing unrelated aspects of the court's charge on guilt-innocence.
On appeal, appellant argues the instruction was given under an incorrect theory of law because appellant's counsel was not in possession of any written statement by the witness and appellant was not subject to the sanction provided under rule 615.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. 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). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). See also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (discussing preservation of error). Even constitutional errors may be waived by failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). The purpose of a timely objection is to "give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection." Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).
Appellant did not object when the trial court ruled it would instruct the jury regarding the absence of Sifuentes' statement, nor did she object when the instruction was given to the jury. She did not provide the trial court or the State an opportunity to correct any error with regard to the instruction. Appellant's counsel merely told the court he did not want Sifuentes' testimony stricken, which is the remedy set forth in rule 615(e). See TEX. R. EVID. 615(e). No issue concerning the propriety of the court's oral instruction was preserved for our review. We resolve appellant's sole issue against her, and affirm the trial court's judgment.
James T. Campbell
Justice Do not publish.