Opinion
No. 13-04-393-CR
Memorandum Opinion Delivered and Filed October 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(B).
On Appeal from the 117th District Court of Nueces County, Texas.
Before Justices YAZEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Appellant, Melissa Ortega, was indicted for unlawful possession of cocaine with intent to deliver. The indictment further alleged that she used or exhibited a deadly weapon during the commission of the offense. After a jury trial, appellant was acquitted of the deadly weapon charge and found guilty of the possession charge. The jury assessed her punishment at ten years' confinement and a $3,000 fine. The trial court has certified that this case is not a plea-bargain case and the defendant has the right of appeal. As this is a memorandum opinion and because all issues of law presented by this case are well-settled and the parties are familiar with the facts, we will not recite the law or facts, except as necessary to advise the parties of the Court's decision and the basic reasons for it. By two issues, appellant contends the trial court improperly (1) allowed testimony of two of the State's witnesses, Officer Gonzalez and Officer Loa, and (2) denied her motion for mistrial because of improper prosecutorial comments made during cross-examination of a defense witness. We affirm. Regarding appellant's first issue, she argues generally that the officers' testimony (1) was irrelevant, (2) amounted to speculation, (3) was highly prejudicial and inflammatory, (4) constituted a forbidden opinion on an ultimate jury issue, and (5) was improperly elicited by the State's leading questions. The admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Regarding appellant's first and second subissues, she argues generally that the officers' testimony regarding gangs and drug-dealing was irrelevant and based on speculation. The State sought to prove at trial that appellant was engaged in drug trafficking. In support of its theory, the officers testified regarding common patterns in drug and weapon trafficking schemes. The record shows that appellant's trial counsel objected during direct examination of Officer Gonzalez when the officer testified that drug dealers often invade homes of rival gangs because they know that drugs are present within the homes. The trial court sustained the objection and instructed the jury to disregard the comment regarding gangs. To preserve error for appellate review, a party must object each time the complained-of evidence is offered. When substantially similar evidence is subsequently admitted without objection, an appellate complaint is forfeited. In this case, although appellant's trial counsel objected to the testimony of the officers several times on the grounds of speculation and relevance, substantially similar evidence was later introduced without any objection based on speculation or relevance. Specifically, the record shows that after Gonzalez testified, Officer Loa testified without objection that drug rip-offs occurring within the city are common, that gangs distribute narcotics, and that individuals living with drug dealers are often trusted by such dealers. Officer Loa also stated, without any objection, that in drug-dealing it is common for several people to live in one drug house "because they're also in on the enterprise, whether it be in helping finance it or in the repackaging or the sale of it." Because counsel failed to object on the specific grounds of relevance and speculation each time the testimony was offered, and because similar evidence was subsequently introduced without objection, appellant has failed to preserve her complaint that the officers' testimony was irrelevant and based on speculation. Regarding appellant's third subissue, she contends generally that the officers' testimony was highly prejudicial and inflammatory. However, a defendant must raise a separate trial objection to the evidence based upon rule of evidence 403 in order to properly preserve the complaint for appeal. Here, appellant's trial counsel did not raise a rule 403 objection to the officers' testimony, or complain that the prejudicial effect of the testimony outweighed its probative value. Appellant thus failed to preserve error on this ground. In her fourth subissue, appellant complains generally that the officers' testimony was inadmissible because the testimony constituted a forbidden opinion on an ultimate issue that invaded the province of the jury. Appellant specifically references two instances: (1) Officer Gonzalez's statement that it is possible for a "home invader [to obtain only] a portion of . . . drugs in a home;" and (2) Officer Loa's testimony that (a) drug trafficking is a family business, and (b) it would be difficult to believe that any individual residing in a drug house would be completely innocent. The record reflects that appellant called 911 and claimed that someone was invading her home in an attempt to abduct her baby. Shortly after her call, police arrived at her residence and discovered her baby unharmed, sitting on the front porch of her residence. At trial, the State sought to disprove appellant's justification for the call by arguing that she actually called police because of a drug deal that had gone bad. In support of its argument, the State elicited the two complained-of statements from the officers. Regarding Officer Gonzalez's statement, the record reflects that after Gonzalez made the complained-of statement, without any objection, he further testified that in situations where drug traffickers invade a home, "[T]hey look quickly and find a bunch and they're happy and they're satisfied with that, take what [they] can and get out . . . while the getting is good. . . . Of course that might leave some behind." Regarding the complained-of statement made by Officer Loa, the record shows that after he made the statement, without any objection, he further stated that in drug trafficking, "several individuals get together from a rival drug dealer or a gang, and they'll just go in there and break the door down or do whatever they have to do, gain entry into the house, and steal whatever the drugs are inside the house." To preserve error for review, a party must object each time the complained-of evidence is offered. When substantially similar evidence is subsequently admitted without objection, an appellate complaint is not preserved for review. Because appellant's trial counsel failed to object to the testimony each time it was offered on the basis that it constituted a forbidden opinion on an ultimate jury issue, appellant failed to preserve this complaint for appellate review. Regarding appellant's fifth subissue, she argues that the trial court erred because it allowed the State to repeatedly ask leading questions on direct examination. Specifically, appellant complains that the leading questions "suggested harmful prejudicial answers which even though sustained, left their mark on the Jury." In appellant's brief, she references the following questions asked by the State:
(1) But will a drug dealer allow someone to live in a house that doesn't know about the drugs?
(2) Do they like sometimes to have more than one person living in the house to guard the drugs?
(3) So it's kind of a family business type thing?
(4) What is crack cocaine?
(5) And when these home invasions occur, do the people sometimes set up the targets so that the males, for whatever reason, will be gone when they intend to do the home invasion?
(6) Have you found, through your experience, that drug dealers like to even have other people living in the home with them that are also involved in the drug business?Texas Rule of Evidence 611(c) does not forbid the asking of leading questions; it states that leading questions "should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness." Although rule 611(c) permits leading questions, trial courts generally allow leading questions only in limited situations. For example, leading questions are sometimes allowed if a child or mentally challenged witness testifies, or in situations where leading questions are helpful in developing a witness's background. Nevertheless, asking leading questions is seldom a ground for reversal. Permitting leading questions on direct examination is a matter within the discretion of the trial court. Abuse of discretion cannot be shown unless an appellant can show that he was unduly prejudiced by virtue of such questions." We have examined the record regarding the complained-of leading questions. With regard to questions (1), (3), and (5), we note that although counsel for appellant's co-defendant, Edgardo Ortega, objected to questions (1), (3) and (5), appellant's counsel did not object to any of these three questions. Accordingly, appellant failed to preserve her complaints regarding these questions. Regarding question (4), appellant's counsel objected at trial to the line of questioning on grounds other than "leading." Because appellant's complaint on appeal differs from that made at trial, error as to question (4) is not preserved for appellate review. As to questions (2) and (6), appellant's counsel objected to the State's line of questioning on grounds of leading and speculation, and the trial court sustained the objection on the grounds of leading. Despite this objection, appellant failed to specifically complain that the State's questioning "suggested harmful prejudicial answers" and failed to pursue such complaint to an adverse ruling. With respect to questions (2) and (6), the following exchange occurred:
Q [State]: Do they like sometimes to have more than one person living in the house to guard the drugs? [Question 2]
A [Officer Loa]: It's common.
[Appellant's counsel]: Again, Your Honor, now we're getting way beyond the scope of whatever her direct examination.
[Court]: What is your legal objection?
[Appellant's counsel]: The legal objection is speculation, Judge, calling for speculation and leading.
[Court]: I'm going to sustain on leading.
Q [State]: Have you found, through your experience, that drug dealers like to even have other people living in the home with them that are also involved in the drug business? [Question 6]
[Counsel for Co-defendant]: Your Honor, I'm gonna object to the leading nature of the questions, and I'm gonna ask that the Court instruct the prosecutor because I think she's trying to get it in without — even over the objections that we're making, which she, I think, is very effectively doing.
[Court]: All right. I'm gonna sustain on leading.
Q [State]: Have you found, through your experience, that sometimes several people live in one drug house?
A [Officer Loa]: It's very common.
Q [State]: Can you explain why?
A: [Officer Loa]: Well, because they're also in on the enterprise, whether it be in helping finance it or in the repackaging or the sale of it.In order to preserve an issue for appeal, an objection must call the attention of the trial court to the particular complaint raised on appeal and afford the court an opportunity to rule on it. Regarding the specificity of an objection, "all a party has to do to avoid the forfeiture of a complaint on appeal is to 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." Here, even if we were to conclude from the context that appellant's counsel's "speculation and leading" objection was sufficiently specific to put the trial court on notice of appellant's complaint of "suggested harmful prejudicial answers," we would nonetheless conclude that appellant failed to preserve any error by failing to pursue her objection to an adverse ruling. Appellant's complaint that the State's questions "suggested harmful prejudicial answers" is, in effect, a complaint that the prosecutor engaged in improper argument and other misconduct. The proper method to preserve error regarding improper argument or prosecutorial misconduct is to (1) make a timely objection and secure a ruling; (2) if the objection is sustained, request the trial court to instruct the jury to disregard the statement; and (3) if the instruction is given, move for a mistrial. By failing to pursue her objection to an adverse ruling, appellant failed to preserve this issue for our review. Having considered all of appellant's subissues, we overrule her first issue. In appellant's second issue, she argues the trial court erred in its denial of her motion for mistrial because the State made improper comments during cross-examination of a defense witness. Appellant points specifically to the following exchange:
Q [State]: Okay. Now, isn't it true that you're a little bit afraid of these Defendants?
A [Witness]: Why would I be afraid of people that I don't know?
Q [State]: Because they're drug dealers.
[Counsel for Co-defendant]: I'm gonna object to that, Your Honor. I'm gonna object to that.
[Court]: It's not a question, and I will sustain the objection.
[Counsel for Co-defendant]: Your Honor, I —
[Court]: You are answering a question. I'm gonna sustain the question.
[Counsel for Co-defendant]: I would ask that the jury be instructed to disregard it.
[Court]: The jury, you are to disregard the statement made by the prosecutor.
[Counsel for Co-defendant]: Furthermore, Your Honor, we would move for mistrial.
[Court]: And that will be denied.
[Appellant's Counsel]: Judge, we move for a mistrial because there's been a total mischaracterization of our clients before this jury at this time and before —
[Court]: And I have —
[Appellant's Counsel]: — and it has invaded their province.
[Court]: [Appellant's counsel] —
[Appellant's Counsel]: The case has not gone to the jury yet, Your Honor —
[Court]: [Appellant's counsel], I've ruled.
[Appellant's Counsel]: — and it's highly prejudicial.
[Court]: Sit down, please. You may continue.A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Mistrial is appropriate only for "highly prejudicial and incurable errors." It may be used to end trial proceedings when faced with error so prejudicial that "expenditure of further time and expense would be wasteful and futile." A prompt instruction to disregard will cure error associated with an improper question and answer. When a trial court instructs the jury to disregard an improper comment, it is presumed that the jury will follow the court's instruction unless the remark or comment was so prejudicial or extreme that the instruction was incapable of removing the harm. The trial court is required to grant a motion for a mistrial only when the improper question is "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." Whether an argument is harmful enough to warrant reversal is ultimately determined on the basis of the argument's probable effect on the minds of the jury. We first note that appellant's counsel made no objection to the comment until after the trial court had instructed the jury to disregard the statement at the urging of counsel for appellant's co-defendant. Appellant's counsel's objection was limited to a request for a mistrial. Assuming, without deciding, that appellant's counsel's request for a mistrial preserved the issue for review, we proceed to address the merits of appellant's argument. The State's comment that appellant was a drug dealer was clearly prejudicial, clearly calculated to inflame the minds of the jury, and was highly improper. Essentially, the State was asserting as fact that appellant was guilty of the crime of which she was accused. The State also improperly commented that the witness had a reason to be fearful of appellant. We strongly discourage the State from soliciting or making any improper comments of this type in the future. We must determine, however, whether the prosecutor's comment was harmful enough to warrant reversal based on the argument's probable effect on the minds of the jury. We note that Officer Loa gave the following testimony, without objection:
[State]: Let me show you what has been marked as, I believe, State's Exhibit 6. Do you recognize — excuse me, would State [sic] State's Exhibit 6, which has already been admitted into evidence, can you please describe for the jury what you're seeing there, including its consistency?
[Loa]: Just by the smell that I'm receiving, I can detect that it's cocaine in big chunks, which is indicative that it came from what we call a brick which is usually a kilo which is compressed solid like a brick. And these are big chunks indicative that it came from a kilo.
. . .
[State]: Now, would that be considered a large or small amount of cocaine for someone to have?
[Loa]: No, it's a large amount.
[State]: Okay. Now, with that amount of cocaine, does somebody just leave it lying around a house?
[Loa]: No, ma'am. It's several thousand dollars worth right there.
. . .
[State]: As an experienced narcotics investigator, do you have an opinion as to whether or not that amount of cocaine was for personal use or was for selling cocaine?
[Loa]: For resale, for redistribution, and for repackaging.
[State]: Okay. As an experienced narcotics investigator, do you have an opinion regarding the scales that were found, including the triple beam scale?
[Loa]: Yes, ma'am.
[State]: What is your opinion regarding these scales?
[Loa]: That they are used to re-weigh narcotics after it's been what we call cut because this is very — probably a very high percentage, the purity in it, and that would probably be cut or stepped on with other fillers, different items that you put in there. And then it's weighed on any of these scales, and repackaged for resale.We conclude that even though the State's "drug dealer" comment was clearly prejudicial, in light of the other evidence, the trial court could have concluded that the jury would not place much weight on the improper comment. We conclude the trial court did not abuse its discretion in overruling appellant's motion for mistrial. Appellant's second issue is overruled. Because we have overruled all of appellant's issues, the judgment of the trial court is affirmed.
Appellant and her husband, Edgardo, were indicted for the same offenses and their cases were tried before the same jury. However, at trial, appellant and her husband were represented by separate trial counsel. Edgardo Ortega appeals separately in appellate cause number 13-04-394-CR.
See TEX. HEALTH SAFETY CODE ANN. § 481.112 (Vernon 2003).
See TEX. CODE CRIM. PROC. ANN. art. 42.12 3g(a)(2) (Vernon 2004).
See TEX. R. APP. P. 47.4.
Because appellant complains of improper testimony in issues one and two, we will address them in one issue.
See Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001).
See TEX. R. APP. P. 33.1; Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991).
See Mendoza v. State, 69 S.W.3d 628, 633 (Tex.App.-Corpus Christi 2002, pet. ref'd).
See TEX. R. APP. P. 33.1; Ethington, 819 S.W.2d at 858; Mendoza, 69 S.W.3d at 633.
See TEX. R. EVID. 403; TEX. R. APP. P. 33.1; Bell v. State, 938 S.W.2d 35, 49 (Tex.Crim.App. 1996).
See TEX. R. EVID. 403; Tex.R.App.P. 33.1; Bell, 938 S.W.2d at 49.
See TEX. R. APP. P. 33.1; Ethington, 819 S.W.2d at 858; Mendoza, 69 S.W.3d at 633.
See TEX. R. APP. P. 33.1; Ethington, 819 S.W.2d at 858; Mendoza, 69 S.W.3d at 633.
See TEX. R. APP. P. 33.1; Ethington, 819 S.W.2d at 858; Mendoza, 69 S.W.3d at 633.
See TEX. R. EVID. 611(c).
See Rodriguez v. State, 997 S.W.2d 640, 643 (Tex.App.-Corpus Christi 1999, no pet.).
See Cravens v. State, 687 S.W.2d 748, 753 (Tex.Crim.App. 1985) (en banc).
See Rodriguez, 997 S.W.2d at 643.
See Wyatt v. State, 23 S.W.3d 18, 28 (Tex.Crim.App. 2000).
See id.
See TEX. R. APP. P. 33.1; Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.-Dallas 1992, pet. ref'd) (holding that a defendant who has not voiced his own personal objection or adopted that of his co-defendant is foreclosed from relying on the objection of his co-defendant to preserve error).
As to question (4), appellant's trial counsel objected to the line of questioning on grounds of relevance; the trial court overruled the objection.
See TEX. R. APP. P. 33.1; Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990).
See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (holding failure to pursue an objection to a jury argument to an adverse ruling forfeits complaint on appeal).
See Alvarado v. State, 822 S.W.2d 236, 239 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (noting it is appellant's burden to make a specific and proper objection calling the trial court's attention to the specific complaint raised on appeal).
See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992) (en banc) (noting that "when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost.")
See Cockrell, 933 S.W.2d at 89 (holding to complain on appeal of improper jury argument, appellant must show he objected and pursued objection to adverse ruling); Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App. 1984) (noting that instruction to disregard cured any error in admission of improper testimony).
See Cockrell, 933 S.W.2d at 89; Coe, 683 S.W.2d at 436. We note that in support of her argument, appellant cites Dakin v. State, 632 S.W.2d 864, 864 (Tex.App.-Dallas 1982, pet. denied). In Dakin, the Dallas court found that the State had engaged in prosecutorial misconduct by using leading questions calculated to leave impressions on the minds of the jury, and had engaged in improper sidebar remarks and similar prejudicial conduct. See id. at 866-68. As noted, in the present case, appellant did not characterize her issues as "prosecutorial misconduct" and more significantly, failed to preserve any such claim. Nonetheless, we note that as in Dakin, the record before us contains "numerous attempts by the prosecutor to circumvent rulings made by the trial court," see id. at 865, and "numerous attempts by the prosecutor to present harmful facts, unsupported by the evidence, to the jury in the form of questions." See id. at 866.
See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000).
See id.
See id.
See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000) (en banc).
See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987) (en banc).
See Wood, 18 S.W.3d at 648.
See Morrow v. State, 757 S.W.2d 484, 494 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). In Morrow, a case involving possession with intent to deliver, the court found that error, if any, flowing from an improper argument characterizing the defendant as a "big drug dealer" was cured by the court's instruction to disregard. See id. at 493-94.
See Coe, 683 S.W.2d at 436.
See Gardner, 730 S.W.2d at 696.
See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) ("strongly discourag[ing] the State from soliciting or making any references to the wishes of the victim's family or friends about the punishment to which the defendant should be sentenced.").
See Morrow, 757 S.W.2d at 494.
See Simpson, 119 S.W.3d at 272-74 (concluding, after reviewing evidence against appellant, that trial court's prompt instruction cured any prejudice and that trial court did not abuse discretion in overruling motion for mistrial).
See id.