Harry Vega Cruzado v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00049-CR
No. 02-19-00050-CR
___________________________
HARRY VEGA CRUZADO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court Nos. CR17-00565, CR17-00567
Before Gabriel, Kerr, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
The jury convicted Appellant Harry Vega Cruzado of continuous family
violence and assault on a family member by impeding breath or circulation. Tex.
Penal Code Ann. §§ 22.01(b)(2)(B), 25.11(e). In two points, Cruzado complains of
(1) the trial court’s failure to grant a mistrial after the complainant testified that
Cruzado had been at “TDC” and (2) the State’s commenting during closing argument
on his failure to testify. We affirm.
Background
The State indicted Cruzado for continuous family violence against his then-wife
C.C. and for assaulting her by impeding her breath or circulation. C.C., who by the
time of trial had divorced Cruzado, testified at trial about physical abuse directed at
her by Cruzado. During her testimony, in response to a question from the State, C.C.
stated that Cruzado was living at “TDC.” The trial court sustained Cruzado’s
objection and instructed the jury to disregard the testimony, but it denied Cruzado’s
request for a mistrial.
The jury found Cruzado guilty of both offenses and assessed punishment at
five years’ confinement and a $2,500 fine for the assault offense and twelve years’
confinement and a $5,000 fine for the continuous family violence offense. The trial
court sentenced him accordingly, with the sentences to run concurrently.
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Discussion
I. The trial court’s denial of a mistrial was not error.
In his first point, Cruzado argues that the trial court erred by failing to grant his
motion for mistrial after the complainant testified that when she met Cruzado, he was
living at TDC. The complainant, at the request of her stepsister, had written to
Cruzado while he was in prison. During the complainant’s testimony, the State asked
her,
[Prosecutor:] Okay. How did you meet [Cruzado]?
A. My ex-stepsister, who was a really good friend, had told me I
should write to him, and I said okay.
Q. Okay. Where was he living at the time?
A. TDC.
MR. TATUM: Objection, Your Honor, may we approach?
THE COURT: Yes.
The trial court then excused the jury. Cruzado’s attorney objected that the testimony
“was prejudicial to [his] client,” and he requested a mistrial. After argument from
both sides, the trial court sustained Cruzado’s objection, stating, “I’m not going to
admit the fact that he was incarcerated in the penitentiary.” The trial court instructed
the jury to disregard the witness’s statement but denied Cruzado’s request for a
mistrial. When the prosecutor resumed questioning the complainant, he asked in
what city Cruzado was living at the beginning of their relationship, and the
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complainant replied, “White Settlement.” Cruzado argues on appeal that the trial
court erred by denying his motion for mistrial because the testimony that he was
living at TDC was “highly inflammatory,” was irrelevant and prejudicial, and
prevented him from receiving a fair trial.
“We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard and must uphold the trial court’s ruling if it was within the zone of
reasonable disagreement.” Marchbanks v. State, 341 S.W.3d 559, 561 (Tex. App.—Fort
Worth 2011, no pet.). A mistrial is required “[o]nly in extreme circumstances where
the prejudice is incurable,” that is, when “the error is ‘so prejudicial that expenditure
of further time and expense would be wasteful and futile.’” Orr v. State, 306 S.W.3d
380, 403 (Tex. App.—Fort Worth 2010, no pet.) (quoting Hawkins v. State, 135 S.W.3d
72, 77 (Tex. Crim. App. 2004)).
The Court of Criminal Appeals has held that “reference by a witness to a
defendant’s prior incarceration in the penitentiary, formerly known as the Texas
Department of Corrections and oftentimes colloquially referred to as ‘TDC,’ is
improper because it violates the longstanding general rule [that] prohibits the
introduction of collateral offenses and transactions.” Fuller v. State, 827 S.W.2d 919,
926 (Tex. Crim. App. 1992). However, “[w]hen objectionable testimony is elicited,
inadvertently or deliberately, an appellate court presumes the jury will follow
instructions to disregard the evidence.” Drake v. State, 123 S.W.3d 596, 604 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d); see also Gardner v. State, 730 S.W.2d 675,
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696 (Tex. Crim. App. 1987) (stating that “[i]n the vast majority of cases” in which
irrelevant testimony comes in, “deliberately or inadvertently,” and “carries with it
some definite potential for prejudice to the accused, this Court has relied upon what
amounts to an appellate presumption that an instruction to disregard the evidence will
be obeyed by the jury”). Thus, a trial court’s instruction to disregard renders harmless
testimony referring to the defendant’s extraneous offenses “unless it appears the
evidence was so clearly calculated to inflame the minds of the jury or is of such
damning character as to suggest it would be impossible to remove the harmful
impression from the jury’s mind.” Drake, 123 S.W.3d at 604 (quoting Kemp v. State,
846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see also Fuller, 827 S.W.2d at 926 (stating
that generally, when a witness references a defendant’s prior incarceration, “a prompt
instruction to disregard cures the error”). Unrepeated, undeveloped testimony
referencing a defendant’s connection to TDC is generally not “so clearly calculated to
inflame the minds of the jury or . . . of such damning character as to suggest it would
be impossible to remove the harmful impression from the jury’s mind.” Dozal v. State,
No. 02-13-00478-CR, 2015 WL 120491, at *4 (Tex. App.—Fort Worth Jan. 8, 2015,
no pet.) (mem. op., not designated for publication) (citing Drake, 123 S.W.3d at 603–
04); see Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (“We find the
uninvited and unembellished reference to appellant’s prior incarceration—although
inadmissible—was no[t] so inflammatory as to undermine the efficacy of the trial
court’s instruction to disregard.”); Gardner, 730 S.W.2d at 696 (holding that a witness’s
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statement that the appellant had been in prison “was undoubtedly inadmissible and
prejudicial testimony, having no relevance to any issue at the guilt stage of trial” but
that “that bare fact, unembellished, was not so inflammatory as to undermine the
efficacy of the trial court’s instruction to disregard it”).
In this case, the complainant testified in response to the State’s questioning that
Cruzado was living at “TDC” when she met him. However, “TDC” was not
explained to be the Texas Department of Corrections, the jury was not told any
details of why Cruzado was in TDC, and the trial court instructed the jury to disregard
the statement. Under these circumstances, we cannot conclude that any harmful
impression resulting from the statement was incurable by an instruction to disregard.
See Drake, 123 S.W.3d at 604.
Cruzado cites to Enriquez v. State, 56 S.W.3d 596, 600 (Tex. App.—Corpus
Christi 2001, pet. ref’d), for the proposition that the complainant’s TDC reference
was prejudicial. In Enriquez, the State wanted to prove up the defendant’s three prior
convictions for the purpose of impeaching the appellant’s statements to police, which
had been brought in through the testimony of a police officer. Id. The court of
appeals in that case noted that “[e]vidence of these convictions was inflammatory
because they portrayed appellant as a drug dealer in a region where narcotics
trafficking is a serious problem.” Id. at 602. Unlike in this case, there was no curative
instruction—to the contrary, the trial court had admitted the evidence—and the jury
was told the specifics of the prior convictions rather than hearing only an unrepeated
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and undeveloped reference to TDC. See id. at 600. Here, on the other hand, the jury
was instructed to disregard the testimony, and the singular reference to TDC was not
“so clearly calculated to inflame the minds of the jury or . . . of such damning
character as to suggest it would be impossible to remove the harmful impression from
the jury’s mind.” See Drake, 123 S.W.3d at 604 (quoting Kemp, 846 S.W.2d at 308, and
citing comparable cases in which courts had held that a curative instruction was
sufficient to render objectionable testimony harmless). We overrule Cruzado’s first
point.
II. Appellant did not preserve error on his second point.
In his second point, Cruzado complains that during closing argument, the State
indirectly commented on his failure to testify in violation of his constitutional and
statutory right to remain silent. Cruzado’s argument arises from the following
statements by the prosecutor:
So this case is about control that he exhibited over [the complainant].
That’s why it’s such a horrendous case. It’s because for 22 months, . . .
he held her basically at his will. He held her down and he put her
through that for 22 months. That’s why it’s such a bad case. That’s why
it’s a felony and that’s why it’s over here. It’s because it is that bad.
And like I said, you have—you have a mountain of evidence that
[the complainant] gave you. And a lot of it was corroborated. And I’ll
tell you this: None of it was challenged. We don’t have anything to
challenge any of that evidence.
The prosecutor then discussed the evidence that corroborated the complainant’s
testimony.
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A complaint about a prosecutor’s comment on the defendant’s failure to testify,
like most other complaints, is forfeited by a failure to comply with the requirements
for error preservation under Texas Rule of Appellate Procedure 33.1. Tex. R. App.
Proc. 33.1; Hopper v. State, 483 S.W.3d 235, 236–37 (Tex. App.—Fort Worth 2016,
pet. ref’d); see also Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (stating
that most types of complaints are forfeited by the failure to present a timely, specific
objection, request, or motion to the trial court for a ruling). Cruzado did not object to
the prosecutor’s argument and, accordingly, assuming that the prosecutor’s statement
was a comment on Cruzado’s failure to testify, he forfeited any error arising from the
prosecutor’s argument. See Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App.
1994), abrogated in part on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim.
App. 2001); Hopper, 483 S.W.3d at 237.
Cruzado acknowledges that he did not object but argues that “the argument
was in bad faith” and that the “bad faith shown by the prosecutor in conjunction with
the language of [Texas Code of Criminal Procedure Article] 38.08 is [a] basis for
reversal even though there was no objection.” See Tex. Code Crim. Pro. Ann. art.
38.08 (“[T]he failure of any defendant to so testify shall not be taken as a
circumstance against him, nor shall the same be alluded to or commented on by
counsel in the cause.”). However, while a prosecutor’s bad faith is relevant to
evaluating the harm from the prosecutor’s comment on the defendant’s failure to
testify, see Washington v. State, 881 S.W.2d 187, 192 (Tex. App.—Houston [1st Dist.]
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1994, no pet.); Crocker v. State, 248 S.W.3d 299, 305–06 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d), it does not relieve the defendant of his or her obligation to
object to such a comment. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.
2007) (“To preserve error in prosecutorial argument, a defendant must pursue to an
adverse ruling his objections to jury argument.”). We overrule Cruzado’s second
point.
Conclusion
Having overruled Cruzado’s two points, we affirm the trial court’s judgments.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 12, 2020
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