No. 08-01-00103-CR.
February 10, 2004. DO NOT PUBLISH.
Appeal from the 243rd Judicial District Court of El Paso County, Texas, (TC# 20000D04677).
Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ.
RICHARD BARAJAS, Chief Justice.
Appellant was charged with three counts of indecency with a child. One count was indecency with a child by contact, and the other two were indecency with a child by exposure. Appellant plead not guilty to all three counts. The jury found Appellant guilty of indecency with a child on all counts and assessed a $10,000 fine and punishment of ten years' imprisonment on each count, to run concurrently. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
The record shows that Appellant's wife, Veronica, and Maria de la Luz Munoz, the child victim's mother, were raised together and had been close friends almost all of their lives, and thought of each other as sisters. The Munoz's treated the Appellant and his wife as in-laws, and they were almost like family. It was customary for Appellant and Veronica to spend the night at the Munoz's home on several occasions. Appellant was charged with three separate counts of indecency with a child, alleging that on three different occasions while staying overnight at the Munoz home, he either exposed himself or improperly touched Maria Munoz, a thirteen year old child. On February 6, 1999, Appellant and his wife were sleeping at the Munoz home watching the Munoz children since Mr. and Mrs. Munoz had taken another one of their daughters to the hospital for unrelated medical reasons. Appellant and his wife pulled two of the beds together in the same bedroom where the Munoz children slept, so that they could sleep with the children. Appellant slept in the same bed with his wife and the victim, Maria Munoz. Sometime during the night, Appellant reached across the bed and put his hands down Maria's pants and started to touch her. Appellant put his finger inside the young girl's vagina and touched her breasts while lying in bed near her. In trying to get away and escape further touching, she got out of the bed, but Appellant followed her. He followed her outside, pulled his pants down in front of her and made her touch his penis. Appellant told her not to say anything and if she did, no one would believe her. She later returned to bed and fell back asleep. The next morning she found that the buttons on her shorts had been unfastened. The second incident occurred a few months later, on July 7, 1999. At that time, Appellant was once again staying with the Munoz family because his wife, Veronica, had been taken to the hospital by the Munoz's to have their second child. The Munoz's stayed at the hospital with Appellant's wife while she was having the baby while Appellant remained at the Munoz house to watch the children. That evening, he waited until everyone went to bed and once again tried to touch Maria. Sometime during the night, Appellant woke the child up, lowered his sweat pants, showed her his penis and tried to make her grab it. The victim ran outside to flee from his advances and once again, Appellant followed her. He pulled down his pants again to expose himself a second time. Maria went back inside later on and returned to bed, where she later fell asleep. She was later awakened that night by the Appellant, as he was trying to insert his finger into her vagina. Maria was not able to fall back asleep until her parents returned from the hospital. Maria Munoz testified that she did not reveal any information about these first two encounters in which the Appellant touched her vagina, exposed himself, and attempted to force her to grab his penis because she was afraid. However, on August 9, 2000, Appellant was caught in the act by the Munoz family. On this occasion, Appellant waited until he thought everyone had gone to sleep. Appellant began kicking Maria's bed to get her attention and asked her to touch his penis. After refusing, Appellant left the room for a short while and went outside. When he returned to the bedroom, he again made advances towards Maria. Alberto, the victim's 18 year old brother, who also slept and shared the room with Maria, and their two other siblings, was still awake and heard Appellant getting up. Alberto saw the Appellant kicking his sister's bed, as he was trying to get her to look at him. Alberto then watched Appellant approach his sister's bed and whisper something into her ear. Alberto saw Appellant remove his shorts and underwear and proceed to try and get into the bed with his sister. Appellant tried to make Maria touch his penis. Appellant was sitting on the edge of Maria's bed, when the victim's brother asked the Appellant what he was doing. Appellant immediately pulled his underwear back on after he realized that Alberto had observed his actions and jumped back into his bed. Alberto turned the lights on in the room and immediately went to wake up his parents in the other room. They all came running back into the room. When Maria's parents entered the room they found the Appellant in his bed underneath the blankets, laughing and they saw their daughter in her bed tangled up in the blankets crying. Maria's mother and father both saw Appellant's shorts, which he had worn to bed that night, lying on the floor next to the young girl's bed. Once Appellant was caught, Maria revealed to her parents what had previously been happening. After realizing what had occurred and listening to Alberto's story, Maria's father threw the Appellant out of his house. Mr. Munoz tried to calm Appellant's wife who was also staying at their home on this occasion. The police were called and Appellant was later charged with three counts of Indecency with a Child; one count involving contact with the child's genitals and two counts involving the Appellant exposing his genitals to the child. II. DISCUSSION
In Appellant's sole issue on review, he contends claims that the trial court erred in denying his motion for mistrial during the State's closing argument because the State engaged in prosecutorial misconduct. Specifically, Appellant asserts that the cumulative effect of the State mentioning the word "rape" during the trial was to inflame the minds of the jurors and to deny him a fair trial. The State counters by suggesting that Appellant has waived error by failing to properly object at trial. A. Standard of Review
The denial of a motion of mistrial is reviewed under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 850 (Tex.Crim.App. 1999), State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). To establish an abuse of discretion, the defendant must show he suffered actual prejudice from the denial of his motion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002); Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000). The decision to grant a mistrial is left to the discretion of the trial court. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487, 68 USLW (2000). The asking of an improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id.; (citing Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990)). We look at the facts of the case to determine whether a given error necessitates a mistrial. Id. A mistrial is required only when the improper question or statements are clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id.; Hardin v. State, 20 S.W.3d 84, 93-94 (Tex.App.-Texarkana 2000, pet. ref'd) (summarizing factors in determining cure). We presume the jury followed a trial court's prompt admonishment to disregard improper evidence. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). B. Prosecutorial Misconduct
We note once again that Appellant was charged with the offense of Indecency with a Child. While the young victim was thirteen years old at the time of the first incident, Appellant was never charged with sexual assault or aggravated sexual assault. The State suggests that while it did make reference to the offense as a "rape," Appellant has waived any error by lodging a general objection rather than an objection premised on prosecutorial misconduct. The State also asserts that while Appellant is not charged with sexual assault, the jury should be entitled to consider the term "rape" in a broader sense, since the term is not statutorily defined. Even if a narrow definition were to be applied, there would need to be penetration to constitute "rape." The State contends that the evidence satisfied the definition insofar as Appellant was found to have penetrated the child's vagina with his finger on multiple occasions. Thus we must determine whether use of the word "rape" constituted prosecutorial misconduct. Prosecutorial misconduct exists where (1) the prosecutor deliberately violated an express court order; (2) the misconduct was so blatant as to border on being insubordinate; or (3) a prosecutor's question was so clearly calculated to inflame the minds of the jury that an instruction to disregard cannot cure the harm. See Stahl v. State, 749 S.W.2d 826, 831 (Tex.Crim.App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.-El Paso 1995, pet. ref'd). Claims of prosecutorial misconduct are determined on a case by case basis. Stahl, 749 S.W.2d at 830, Perkins, 902 S.W.2d at 96. We not only look at the facts of each case, but also consider the probable effect on the jurors' minds. Haddad v. State, 860 S.W.2d 947, 954 (Tex.App.-Dallas 1993, writ ref'd), citing Hodge v. State, 488 S.W.2d 779, 781-82 (Tex.Crim.App. 1973)). During the duration of the trial in both cross examination and closing arguments the State, on five different occasions, made references to the Appellant as having "raped" the complainant. Each time Appellant objected, asked for a limiting instruction, and moved for mistrial. The court denied every motion for mistrial, but did instruct the jury, each time, to disregard the questions or statements made by the State involving the word "rape." There was no order restricting the State in that regard, nor do we find the conduct, as described, to be so blatant as to border on being insubordinate; we must determine whether the prosecutor's question was so clearly calculated to inflame the minds of the jury that an instruction to disregard cannot cure the harm. C. Preservation of Error
We first turn to the question whether error for review has been properly preserved. To preserve error for alleged prosecutorial misconduct, Appellant must have (1) objected on specific grounds, (2) requested an instruction that the jury disregard that comment, and (3) moved for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993); see Huffman v. State, 746 S.W.2d 212, 218 (Tex.Crim.App. 1988). The record must reflect that a complaint was made to the trial court by a timely request or objection which was ruled upon by the judge. TEX. R. APP. P. § 33.1(a) (Vernon Supp. 2002). An exception exists when prosecutorial argument is so prejudicial that an instruction to disregard the argument could not cure the harm. Harris v. State, 784 S.W.2d 5, 12 (Tex.Crim.App. 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 966 (1990). In such an instance, neither a timely objection nor an adverse ruling is required to preserve error for review. Id. The Court's have previously characterized this exception as applying to an argument as clearly calculated to inflame the minds of the jurors and of such character as to suggest the impossibility of withdrawing the impression produced on the juror's mind. Rodriguez v. State, 646 S.W.2d 539, 543 (Tex.App.-Houston [1st Dist.] 1982, no pet.). Appellant contends the question was out of line and that it was prejudicial. Appellant asserts that the question was clearly calculated to inflame the minds of the jury. In making this argument, however, he offers no authority to support his contention and fails to show that jury was prejudiced by these references. Generally, any error in asking an improper question is cured or rendered harmless by an instruction to disregard. Guzman v. State, 697 S.W.2d 404, 408 (Tex.Crim.App. 1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1479, 89 L.Ed.2d 734 (1986). Appellate courts rarely reverse a conviction due to an improper prosecutorial question. Gonzales v. State, 685 S.W.2d 47, 49 (Tex.Crim.App. 1985), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985). To trigger reversal, the question must be obviously harmful to the defendant. Ransom v. State, 789 S.W.2d 572, 585 (Tex.Crim.App. 1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). We note that only a few instances of improper argument by the State, with the trial court's curative instruction to disregard, does not amount to reversible error. See TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000) (court's instruction presumptively cures error); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999) (error not affecting substantial right is disregarded). In the vast majority of cases in which argument is made or testimony comes in, deliberately or inadvertently, which has no relevance to any material issue in the case and carries with it some definite potential for prejudice to the accused, the Texas Criminal Court of Appeals has relied upon what amounts to an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury. Waldo v. State, 746 S.W.2d 750, 753 (Tex.Crim.App. 1988, pet. denied), Thompson v. State, 612 S.W.2d 925 (Tex.Crim.App. 1981); see 1 R. Ray, Texas Practice, Law of Evidence, § 29 (3rd ed. 1980). The Criminal Court of Appeals found that, "[i]n essence this court puts its faith in the jury's ability, upon instruction, consciously to disregard the potential for prejudice, and then consciously to discount the prejudice, if any, in its deliberations." Waldo, 746 S.W.2d at 753. Although a general objection will preserve error when the error is obvious from the surrounding context, courts have consistently held that the point of error must correspond to the objection made at trial. Carmona v. State, 941 S.W.2d 949, 957 (Tex.Crim.App. 1997); see Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991) (to preserve an issue for appellate review, the point of error must at least minimally comport with the objection at trial.); Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App. 1990) (while a specific objection is usually required to preserve error, a general objection will suffice if the complaint is obvious from the surrounding context.); and, Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977) (a specific objection is required to preserve error in most cases, but a general objection will suffice when the objection is clear from surrounding context.). Regarding specificity, a party must "let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the court is in a proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992, pet. denied). In the instant case, the State indicates on appeal that Appellant never objected both to the fact that the State used the word "rape" and at the same time also claimed with any specificity that the State was engaging in prosecutorial misconduct. Nor did Appellant assert in any way that the State's acts were clearly calculated to inflame the minds of the jurors and was of such character so as to suggest the impossibility of withdrawing the impression produced. We agree. In Perkins v. State, this Court reviewed those portions of a record wherein the Appellant complained of conduct which occurred at trial, and found that, while Appellant occasionally objected on various other grounds, he did not specifically object on the basis of prosecutorial misconduct, except on three instances. Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.-El Paso 1995, pet. ref'd). In that case this Court concluded that Appellant's failure to object to the remainder waived the asserted error. Id. Similar to Perkins, here the Appellant does not point to any place in the record in which it is affirmatively shown that the court had instructed the prosecutor to not raise this matter before the jury. Id. Our review of the appellate record does not reveal that such an instruction had been given. Id. Here, as in Perkins, there is no evidence that the question or statement was clearly calculated to inflame the minds of the jury nor do we find, given the circumstances, that it was of such a character so as to suggest the impossibility of withdrawing the impression produced. Id. at 96-97. Here, as previously held in Perkins, we find that the Appellant waived his objection for review on appeal. However, our analysis does not end there. D. Did the Instruction Cure the Prejudice?
While Appellant wholly failed to properly object, but rather simply objected to the State's use of the word "rape", we note that the trial court did sustained Appellant's objection and further admonished jury, every time, to disregard the last statement or question by the State that referred to the inference of "rape". A prompt instruction to disregard will generally cure error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000) (even when a witness gives an improper answer regarding extraneous offenses.). An instruction to disregard will be presumed effective unless the facts of the case suggest the impossibility of removing the impression produced on the minds of the jury. The effectiveness of a curative instruction is determined on a case-by-case basis. See Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. ref'd); Fletcher v. State, 852 S.W.2d 271, 275 (Tex.App.-Dallas 1993, pet. ref'd). If the instruction given can be said to have removed the prejudicial effect of the improper comment, no error results from the overruling of a motion for mistrial. Washington v. State, 822 S.W.2d 110, 118 (Tex.App.-Waco 1991), rev'd on other grounds, 856 S.W.2d 184 (Tex.Crim.App. 1993); see Long, 823 S.W.2d at 267. Mistrials should be granted only when an objectionable event is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. See Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). Furthermore, because curative instructions are presumed efficacious to withdraw objectionable arguments or evidence from jury consideration, trial conditions must be extreme before a mistrial is warranted. See id. at 700; Waldo, 746 S.W.2d at 754. Even though the motion for mistrial was denied by the trial court, we must still examine the improper comment to determine if it represents harmful error. Reviewing error pursuant to the harmless error rule and efficacy of curative instructions, we look at the following factors: (1) the nature of the error; (2) the persistence of the prosecution in committing the error; (3) the flagrancy of the violation; (4) the particular instruction given; (5) the weight of incriminating evidence; and (6) the harm to the accused as measured by severity of the sentence. See Waldo, 746 S.W.2d at 754. Guided by the above factors, and any other considerations suggested by the facts of the case, the error and all its effects must be isolated. Harris, 790 S.W.2d at 588; Laca v. State, 893 S.W.2d 171, 184 (Tex.App.-El Paso 1995, pet. ref'd). The determination then is whether a rational trier of fact might have reached a different result if the error and its effects had not resulted. Id. Applying the factors to this case, we find that although the State's may have argued outside the record in making reference to the word "rape," the trial court immediately sustained Appellant's objections and admonished the jury to disregard. Further, we find that the State presented ample testimony from both the child victim and her brother Alberto Munoz sufficient to convict Appellant and that Appellant's testimony in his defense was at best self-serving. Further, while the jury had the option of sentencing defendant within the range of punishment of between two to twenty years' confinement, Appellant was sentenced to ten years confinement. Laca, 893 S.W.2d at 184. After weighing these factors, we cannot say trial conditions had become so extreme as to warrant a mistrial. Examined in light of this standard, we believe the error, even if not waived, would be harmless. Laca, 893 S.W.2d at 184. We find that there was no preservation of error, and that the trial court did not abuse its discretion in denying Appellant's request for a mistrial. Appellant's sole issue is overruled. Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.