Edward Dean Gomez v. State ( 2018 )

Opinion issued November 13, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00114-CR
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EDWARD DEAN GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th Judicial District
Galveston County, Texas
Trial Court Case No. 17CR0158
MEMORANDUM OPINION
A jury found appellant, Edward Dean Gomez, guilty of evading arrest or
detention with a motor vehicle and assessed his punishment at seven years’
confinement in the Texas Department of Criminal Justice. In his sole point of error,
appellant contends that the trial court erred in allowing the prosecutor to make
improper arguments before the jury during closing arguments. We affirm.
Background
On the night of January 15, 2016, Sheriff’s Deputy Kelcie Miller attempted to
stop appellant for speeding southbound on FM 2004 in Galveston County, Texas.
At the time, appellant was driving a tow truck with an automobile in tow. When
appellant did not stop, Deputy Miller activated the emergency lights, and later, the
siren, on her patrol car and pursued appellant for more than sixteen minutes. As the
pursuit continued, Deputy Miller informed dispatch that she did not know her exact
location but that they were crossing into Brazoria County. Police in Brazoria County
set up a roadblock with multiple cars and laid down spike strips on the road.
Appellant crossed the spike strips but continued driving for another mile before
finally coming to a stop.
Once he was stopped, appellant got out of his truck and threw himself to the
ground. Officers approached appellant with their guns drawn, and appellant began
pointing and yelling at the officers. Appellant got up and tried to run away but the
officers tackled him and took him into custody. Officers subsequently discovered
that appellant had a female passenger in his tow truck, whom Deputy Miller
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described as very scared. The State offered into evidence, and the trial court
admitted without objection, Deputy Miller’s in-car video of the pursuit and officers’
subsequent apprehension of appellant.
Appellant testified that he owns a wrecker service in Hitchcock, Texas, and is
a licensed wrecker driver. He testified that he was sitting at a Valero gas station in
his truck when a woman came into the station with a flat tire. Although she had no
money, appellant offered to tow her car.
Appellant testified that on his way to Freeport he periodically checked his
mirrors and eventually saw a pair of headlights behind him. He testified that he did
not see any police lights until Deputy Miller turned on her emergency lights at the
Galveston/Brazoria county line, and that he did not hear a siren until he was
approximately one mile into Brazoria County. He testified that when he heard the
siren, he was not sure if he was being pulled over or if the officer was responding to
another call. Appellant testified that he never realized that Deputy Miller was trying
to pull him over. According to appellant, Deputy Miller was at least one and half
miles behind his tow truck.
Appellant testified that he pulled over because the spikes had flattened his
tires and his customer was in danger, not because he realized the deputy was trying
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to stop him. When asked why he got on the ground after he left his truck, he stated
that he had a previous incident with a Hitchcock police officer and that he believed
Hitchcock officers are corrupt. Appellant admitted that he had no history of hearing
problems. Appellant testified that he was previously diagnosed as paranoid
schizophrenic, although he did not take any medication for the condition.
Improper Jury Argument
In his sole point of error, appellant contends that the trial court erred in
allowing the State to make an improper jury argument. Specifically, appellant
alleges that the trial court allowed the prosecutor to give an opinion based on his
expertise, and that such opinion constituted improper jury argument.
A. Standard of Review and Applicable Law
“As a prerequisite to presenting a complaint for appellate review, the record
must show that . . . the trial court[] ruled on the request, objection, or motion[.]” TEX.
R. APP. P. 33.1(a). “A court’s ruling on a complaint or objection can be impliedly
rather than expressly made.” Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App.
1995) (en banc); see also TEX. R. APP. P. 33.1(a) (stating that trial court’s ruling may
be made “either expressly or implicitly”). A trial court is only deemed to have ruled
implicitly when “its actions or other statements otherwise unquestionably indicate a
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ruling.” Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006) (quoting
Rey, 897 S.W.2d at 336).
To preserve error with respect to an appellate claim of improper jury
argument, appellant must urge his objection until he obtains an adverse ruling. See
Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); see also TEX. R.
APP. P. 33.1(a); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In
pursuing its objection to an adverse ruling, counsel must (1) object to the
complained-of statements, (2) request a curative instruction, if the error can be cured
by an instruction to disregard, and (3) even if the error cannot be cured by an
instruction to disregard, make a motion for a new trial. See Cockrell v. State, 933
S.W.2d 73, 88–89 (Tex. Crim. App. 1996); see also Acosta v. State, 411 S.W.3d 76,
95 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Counsel “must object each time
an improper argument is made, or [appellant] waives [his] complaint, regardless of
how egregious the argument.” Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—
Houston [14th Dist.] 2010, pet. granted), aff’d on other grounds, 390 S.W.3d 341
(Tex. Crim. App. 2013).
A trial court’s ruling on an objection to improper jury argument is reviewed
for abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
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2004); Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d). “To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to the argument of opposing counsel; and
(4) plea for law enforcement.” Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim.
App. 2007); Dukes v. State, 486 S.W.3d 170, 183 (Tex. App.—Houston [1st Dist.]
2016, no pet.).
An argument which exceeds the permissible bounds of the four approved
areas of argument constitutes reversible error only if an analysis of the record as a
whole shows the argument is extreme or manifestly improper, violates a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding. See
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc). For
reversal to be warranted, the remarks must have constituted a willful and calculated
effort to deprive appellant of a fair and impartial trial. See id. A reviewing court
must consider a challenge to the State’s closing argument in the context of the entire
record, including the complete arguments of both parties, to determine whether the
contested statements fall within the scope of these four categories. See Klock v.
State, 177 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing
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Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet.
ref’d)). In most instances, an instruction to disregard the remarks will cure the error.
See id.
B. Discussion
At trial, appellant stated that he did not stop because he was unaware that
Deputy Miller was attempting to pull him over. Appellant’s trial counsel argued that
this was because appellant was mentally ill and interpreted the deputy’s actions
differently than others might. During closing arguments, the prosecutor made the
following remarks:
Here’s what happened. He thought that that was Hitchcock PD that was
behind him. He’s got some kind of beef with them and he wasn’t pulling
over. He said, “Huh-uh.” He said, “I’m just going to keep on going.”
He said, “There’s no way I’m pulling over.” That’s what happened. Had
no intention of pulling over. He thought -- in my opinion, he thought
that if he got to Brazoria County, they were going to stop pursuing
because he knows –
At that point, trial counsel objected in the following manner:
Judge, I’m going to object to the prosecution putting his opinion in
there. We’re not allowed to give our personal opinions on this case. It’s
just the facts of the case that matter.
The trial court responded:
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All right. The jury will be guided by your collective memory and the
evidence that is presented before you. It is closing arguments. You can
make reasonable interpretations from that.
Trial counsel did not object to the trial court’s response, request a ruling, or
request an instruction to disregard or make a motion for a new trial. The prosecutor
went on to argue:
So, he knew that – because you heard him. He’s worked with officers
before. He understands jurisdiction. He understands that once you get
into Brazoria County, unless you’re in an active pursuit, the Galveston
County Sheriffs don’t have jurisdiction in Brazoria County. He knew
that. And thought that if he could get to Brazoria County, they were
going to back off and they were going to go away.
Trial counsel made no further objection.
Appellant failed to preserve error, and the complaint is not properly before us.
Trial counsel failed to pursue its objection to an adverse ruling and failed to object
to further presentation of the complained-of argument. The trial court’s statement
did not constitute a ruling in response to counsel’s objection. See Diamond v. State,
496 S.W.3d 124, 147–48 (Tex. App.—Houston [14th Dist.] 2016, pet ref’d) (noting
appellant failed to obtain ruling when trial court said, “All right. Ladies and
gentlemen, you’re going to be the judges of what was presented by the evidence and
the testimony.”); see also Doremus v. State, 530 S.W.3d 277, 282 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d) (stating that there was no ruling when trial
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court responded, “All right. Bring the jury back.”); Mayberry v. State, 532 S.W.2d
80, 84 (Tex. Crim. App. 1975) (finding that trial court’s response—“Jury will recall
the evidence[.]”—was not ruling sufficient to preserve error). Neither the trial
court’s response to the objection, nor any action by the trial court, constituted a
ruling. See Montanez, 195 S.W.3d at 104.
Trial counsel did not object to the trial court’s failure to rule, did not request
a curative instruction, and did not make a motion for a new trial. See Cockrell, 933
S.W.2d at 88-89; see also Acosta, 411 S.W.3d at 95. Trial counsel also failed to
object again when the prosecutor continued—using substantially more detailed and
pointed language—along the same line of argument immediately after trial counsel
objected. See Temple, 342 S.W.3d at 603. Appellant has therefore waived his sole
point of error.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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