Mark Anthony Flores v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00283-CR
Mark Anthony FLORES,
Appellant
v.
pp
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CR-8783
Honorable Sid L. Harle, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: February 26, 2014
AFFIRMED
Appellant, Mark Anthony Flores, pled guilty to theft over $200,000, and a jury assessed
punishment at twenty years’ confinement. In a single issue on appeal, appellant asserts the trial
court erred by denying his motion for mistrial after it was shown the prosecutor unnecessarily
injected himself into the case as a prosecution witness. Because we conclude appellant did not
properly preserve his complaint for our review on appeal, we affirm.
04-13-00283-CR
DISCUSSION
During the punishment hearing, appellant admitted he stole $525,912.46 and “blew [the
money] on drinking and strippers,” and he took women out to dinner and to other places, such as
Fredericks’s of Hollywood. One of the State’s witnesses, Bob Sills, testified about the
investigation he conducted for the State. Sills, a criminal investigator for the Bexar County District
Attorney’s Office, testified during direct examination by the assistant district attorney, Stephen
Patrick Ballantyne, that he accompanied Ballantyne to various establishments in San Antonio at
Ballantyne’s request:
Q. What kind of establishments did I ask you to accompany me to?
A. Those were gentlemen’s clubs.
Q. And why did I - - if you know, why did I ask you to accompany me to those?
[defense speculation objection overruled]
A. We wanted to verify where charges were made by the Defendant, because they
did not necessarily have the gentlemen’s club’s names on the receipts. 1
Ballantyne then showed Sills various bank account statements belonging to appellant, and
Sills identified the entities listed on the statements as businesses that offer topless or partially nude
entertainment. On cross-examination, Sills admitted he did not view any document posted at the
establishments stating the name of the entity, which is why Ballantyne used his personal credit
card to purchase soda and they were then able to identify from his receipt the actual name of the
establishment. On re-direct examination, Ballantyne showed Sills two exhibits that were copies
of his [Ballantyne’s] receipts, and he asked Sills whether each exhibit was the receipt Sills
witnessed him receiving upon purchase of a soda. After Sills identified the exhibits, Ballantyne
1
Prior to Sills testifying, Ballantyne explained he needed Sills’s testimony because charges on appellant’s bank
account records were so-called “alias charges” and did not indicate the name of the gentlemen’s club. For example,
one of the bank account charges showed “35 Bar and Grille, San Antonio, Texas.” The State used Ballantyne’s receipt
to identify this entity as “San Antonio Gentlemen’s Club.”
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04-13-00283-CR
moved to admit them into evidence. At this point, defense counsel objected that Ballantyne “ha[d]
just [injected] himself as a witness in this case,” moved to strike the testimony, and asked for a
mistrial. The trial court sustained the objection to the exhibits, but denied the request for a mistrial.
The trial court did not rule on defense counsel’s request to strike the testimony.
On appeal, appellant complains the trial court should have granted a mistrial because
Ballantyne personally injected himself into the case. However, defense counsel did not object on
this basis to Sills’s testimony, and in fact, defense counsel cross-examined Sills about his and
Ballantyne’s visits to the clubs. Therefore, any complaint about the trial court’s denying the
motion for mistrial on this basis is waived. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.
2002) (in order to preserve error in the admission of testimony, defendant must make a timely and
specific objection at trial, and failure to object waives error); Jimenez v. State, 307 S.W.3d 325,
332 (Tex. App.—San Antonio 2009, pet. ref’d) (same); see also Lane v. State, 151 S.W.3d 188,
192-93 (Tex. Crim. App. 2004) (when same testimony is admitted without objection elsewhere
during trial, defendant waives any complaint he may have had regarding admissibility of the
testimony).
To the extent appellant’s complaint on appeal encompasses Sills’s testimony about
Ballantyne’s receipts, we note defense counsel did not object when Sills identified the State’s
exhibits as the receipts, but instead, objected only when the State attempted to offer the receipts
into evidence. Therefore, any complaint about the trial court’s denying the motion for mistrial on
this basis is also waived.
CONCLUSION
We overrule appellant’s issue on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
Do not publish
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