No. 13-06-308-CR
Opinion delivered and filed August 9, 2007. Do not publish. Tex. R. App. P. 47.2(b).
On appeal from the 331st District Court of Travis County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA. Memorandum Opinion by Justice GARZA.
DORI CONTRERAS GARZA, Justice.
Appellant, Gabriel Rodriguez Pena, was convicted by a jury of aggravated assault with a deadly weapon and assessed punishment at fifteen years' imprisonment. Tex. Pen. Code Ann. §§ 22.01, 22.02(a)(2) (Vernon Supp. 2006). By two issues, appellant challenges his conviction. Appellant contends the trial court erred in: (1) refusing to submit an instruction on mistake of fact, and (2) allowing the State to cross-examine a defense witness regarding appellant's decision to not plead guilty. For the reasons set forth below, we affirm.
Appellant refused to enter a plea. Accordingly, pursuant to article 26.12 of the Texas Code of Criminal Procedure, the trial court entered a plea of "not guilty" for him. See Tex. Code Crim. Proc. Ann. art. 26.12 (Vernon 1989).
I. Factual and Procedural Background
On Thanksgiving Day, November 24, 2005, forty-five-year-old Dean Reigel was working as a courier when he stopped to pump gas at the "Best Stop Food Market" convenience store. Reigel went inside the store to pre-pay for the gas. When he returned to his truck, he had to move it because it was too far from the pump. Twenty-four-year-old appellant was also pumping gas. However, appellant parked his car perpendicular to the pumps apparently blocking Reigel's truck. Appellant rudely told Reigel that he should have pulled up to the first pump when he got there. Reigel responded by explaining that a car was there at the time. Appellant then approached Reigel, placed his hands on Reigel's chest, and then shoved Reigel about three feet back. Although Reigel did not threaten appellant, the two continued to exchange profanities. Reigel admitted he told appellant "crank up your ignorant rap music and get out of here you coward." Ali Barkat, the owner of the store, testified he was sitting in his car, parked in front of the store, reading the newspaper when the incident occurred. He looked up from his paper when he heard arguing, and although he could not hear all that was said, he did hear appellant say, "you don't know who you are fucking with." Barkat saw appellant approach Reigel and push him. He testified that Reigel did not do anything in response, but just stood there. Barkat then witnessed appellant walk over to his vehicle, and thought appellant was going to leave. However, instead of leaving, appellant popped open his car trunk and retrieved a baseball bat. Appellant then approached Reigel, who was still pumping gas, and "audibly" hit Reigel on his head with the baseball bat. Reigel fell and hit the ground. Appellant then returned to his car and left. Barkat phoned 911, gave the operator a description of appellant's car and proceeded to help Reigel, who was bleeding and apparently in shock. Victor Silva, a "Best Stop" employee who was working at the time of the incident, testified he observed appellant push Reigel. After appellant pushed Reigel, Reigel returned to his truck and continued pumping gas. Silva testified that Reigel was not acting in a threatening manner and had his hands down by his side. Silva heard appellant tell Reigel, "you're lucky there is [sic] witnesses because I would beat you up. I could really mess you up." He heard appellant and Reigel arguing while pumping gas. He testified that when appellant finished pumping gas, appellant got in his car and was leaving, when Reigel walked in front of his truck and called out to appellant something like "run away little girl or something." Appellant then exited his car, retrieved a baseball bat from his trunk, approached Reigel and struck him in the face with the bat. Reigel fell to the ground. Silva testified before getting out of his car, appellant removed his license plate from view (which was located on the inside of the back window). Silva did not recall hearing Reigel make any threats or act aggressively toward appellant. Silva was able to identify appellant in a photo line-up at the police station. Rosalinda Rivera was with appellant at the time of the incident. Detective Deborah Acosta of the Austin Police Department testified that she spoke with Rosalinda about the incident. Rosalinda did not want to cooperate, but later informed Acosta when appellant was at her home. Acosta went to Rosalinda's home and questioned appellant about the incident. Appellant told her that Reigel called him a name and "kind of brushed alongside" him. Appellant claimed Reigel pushed him and he responded by pushing him off. Appellant claimed they started arguing back and forth and that he punched Reigel three times "hard" in the face. Appellant again denied using a bat. Reigel was hospitalized overnight as a result of his injuries. His skull was fractured in three places and he suffered a broken jaw. Doctors had to wait one week for the swelling to subside before repairing the fractures with three steel plates. The treating physician testified that a bat used in the manner described by Reigel was an instrument capable of causing death or serious bodily injury. The jury was charged on both aggravated assault and the lesser-included offense of assault. At the jury's request, the trial court ordered a read-back of testimony as to whether Barkat and Silva had an "unobstructed view" of the incident. The jury then notified the court that it was dead-locked 11 to 1. The trial court gave a supplemental "Allen" charge. The jury then returned a verdict finding appellant guilty of aggravated assault with a deadly weapon. At the punishment phase, the State introduced evidence of appellant's prior convictions: one class B misdemeanor for theft, two state jail felonies for unauthorized use of a motor vehicle, and another state jail felony for possession of a controlled substance. In addition, the State introduced live testimony regarding appellant's two prior assault convictions. One of the incidents involved a situation where appellant grabbed a man's neck, threw him on a sofa, and hit his knee. The other incident involved a situation where appellant tried to hit the fifty-nine-year-old mother of a girl he dated, with, of all things, a baseball bat. Appellant's father testified that appellant attended special classes and had been diagnosed with Attention Deficit Disorder ("ADD"). He also testified that appellant visited with a psychiatrist for his bipolar disorder. Appellant's father explained that, as appellant got older, he started making bad choices but had nonetheless taken responsibility for his choices. After hearing evidence, the jury sentenced appellant to fifteen years' imprisonment. This appeal ensued. II. Mistake of Fact Instruction
By his first issue, appellant maintains that the evidence justified an instruction on mistake of fact. We do not agree. The Texas Penal Code provides that a person commits the offense of aggravated assault if a person intentionally, knowingly, or recklessly commits an assault, which either causes serious bodily injury, or is effected by the use of a deadly weapon. See Tex. Pen. Code Ann. §§ 22.01, 22.02. To raise the defense of mistake of fact, appellant must have shown that through mistake, he formed a reasonable belief about a matter which negated the culpability required to commit aggravated assault. See Tex. Pen. Code Ann. § 8.02 (Vernon 2003); see also Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1999); Thomas v. State, 855 S.W.2d 212, 214 (Tex.App.-Corpus Christi 1993, no pet.) (indicating that mistake of fact applies only if a defendant's mistake affects the mens rea for the offense charged). Appellant contends that through mistake, he formed a reasonable belief that Reigel consented to the assaultive conduct. Under Texas Penal Code section 22.06, "The victim's effective consent or the actor's reasonable belief that the victim consented to the actor's conduct is a defense to prosecution under section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if: (1) the conduct did not threaten or inflict serious bodily injury. . . ." Tex. Pen. Code Ann. § 22.06 (Vernon 2003). However, "[a] mistake about the existence of a fact which would establish an affirmative defense to an offense, rather than negating an element of the offense, does not raise the mistake of fact defense." Lugo v. State, 923 S.W.2d 598, 601 (Tex.App.-Houston [1st Dist.] 1995, writ ref'd). Appellant's assertion that he was mistaken about Reigel's consent to the assaultive conduct does not raise the defense of mistake of fact because such evidence would not negate the fact that appellant possessed the mental state required to commit aggravated assault. See id. Accordingly, appellant's first issue is overruled. III. Cross-Examination
By his second issue, appellant contends the trial court erred in permitting the State to cross-examine a witness regarding appellant's decision to not plead guilty. The State claims appellant failed to preserve the issue for appeal because he did not renew his objection when the complained-of evidence was subsequently introduced. We agree. Appellant's complaint stems from the direct and cross-examination of his father regarding appellant's acceptance of responsibility for his actions. On direct examination, defense counsel questioned appellant's father as follows: Q: [Appellant] has been in trouble with the law on a number of occasions, and he has basically accepted responsibility; is that right? A: Ever since he has been, like I said, maybe since he's been in school, first or second grade on up. He has never-he has tooken [sic] the responsibility a lot of times; he's made choices to say, you know what, just lock me up. He has never come to me to ask me for money for a lawyer or anything. Just says, you know what, let me just do my time and we'll let it go. So, yeah, he has tooken [sic] responsibility for his deal and he is going to take it again. On cross-examination, the State questioned appellant's father as follows: Q: Sir, I just have one question for you. You mentioned earlier that ever since first or second grade [appellant] has. . . taken responsibility when he has done something bad, right? A: That's what I said. Q: And you said that every time he has been in trouble, all of those convictions, that he took responsibility? A: As far as I know, the ones that I have been-had any knowledge of, he is just, go ahead, whatever. Q: And you also said he is taking responsibility now? A: He has no choice. Q: Which leads me to my next question. He is not really taking responsibility, is he, because he never admitted to it? [Defense Counsel]: Judge, I'm going to object to the question. It is a comment on the failure of [appellant] to testify at punishment, and as such- [The Court]: I think he is referring to the plea. [State]: That is what I'm referring to. [The Court]: I will overrule the objection. I think he is referring to the defendant's plea. [Defense Counsel]: Well, for the record, [appellant] did not enter a plea. [The Court]: Did not enter a plea, exactly. That's exactly correct. Q [State]: In other words, he didn't plead guilty to this offense, correct.? A: No, he didn't. . . I am not saying taking responsibility for what happened out there, as far as I am the one that initiated or caused this to happen. I'm not saying that. I am saying that if this Court deems whatever it deems, then we have no choice. But I am not saying that I am responsible for what happened. I am not saying that [appellant] is responsible for what happened. It is a well-settled principle that to preserve error for review on appeal, a defendant must object timely, specifically, and receive an adverse ruling at trial. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991); Jaynes v. State, 216 S.W.3d 839, 850 (Tex. App-Corpus Christi 2006, no pet.). The objecting party must continue to object each time the objectionable evidence is offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003); Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App. 1999); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991); Jaynes, 216 S.W.3d at 850. A trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Jaynes, 216 S.W.3d at 850 (citing Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)). This rule applies whether the other evidence was introduced by the defendant or the State. Id. There are two exceptions to the contemporaneous objection requirement: an appellant may preserve error without lodging an objection every time objectionable testimony is offered if the appellant (1) requests a running objection to the testimony, or (2) objects outside the presence of the jury in accordance with Texas Rule of Evidence 103(a)(1). Geuder, 115 S.W.3d at 13-14; Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); see Tex. R. Evid. 103(a)(1). Appellant did neither. We conclude that appellant has not properly preserved error because he did not renew his objection when the State resumed questioning and explicitly asked appellant's father if appellant had pleaded guilty. Therefore, we overrule appellant's second issue. IV. Conclusion