Ivan Burgos Santiago v. the State of Texas ( 2023 )

Opinion issued August 8, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00284-CR
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IVAN BURGOS SANTIAGO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 264th District Court
Bell County, Texas
Trial Court Case No. 82101
MEMORANDUM OPINION
A jury found appellant Ivan Burgos Santiago guilty of the offense of
aggravated assault with a deadly weapon.1 The trial court assessed his punishment
1
See TEX. PENAL CODE § 22.02(a)(2).
at eight years’ confinement.2 In two issues on appeal, Santiago argues that (1) the
trial court abused its discretion in allowing the State to introduce police body
camera footage during rebuttal because it was cumulative and harmed Santiago by
its admission, and (2) the State injected “new harmful facts” during closing
argument.
We affirm.
Background
The complainant, Jerry Davis, stopped at a convenience store and observed
Santiago’s vehicle blocking “an old man trying to back out.” Davis told Santiago
to move his car. According to Davis, Santiago “[s]tarted talking crazy” and
“cussing.” Davis was offended by the things Santiago was saying, so Davis told
Santiago he was “not the one to mess with” and walked on his way. As Davis
continued to walk down the street, Santiago followed in his vehicle, pulled up next
to Davis, and used a racial slur. Santiago got out of his vehicle, Davis saw that he
had “a knife.”3 Davis and Santiago fought, and Davis was cut on his hands and
neck. Davis was concerned with protecting himself because he was worried he
would be killed.
2
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal to this Court from the Third Court of Appeals. See TEX.
GOV’T CODE § 73.001 (authorizing transfer of cases).
3
There were varying descriptions of this weapon. Davis called it a knife, but
another witness called it a box cutter. The only weapon recovered at the scene was
a box cutter that Santiago confirmed belonged to him.
2
Davis testified that another man was passing by and helped him subdue
Santiago. Davis testified that, “while [he] was holding [Santiago’s] hand keeping
the knife from getting out, [Santiago] kept twisting, twisting, twisting.” Davis “told
him to stop, your arm is going to break and he just kept twisting and it broke.”
When the police arrived, they stopped fighting.
Johnny Wilson was the bystander who helped Davis subdue Santiago. He
testified that he witnessed Santiago stop his vehicle in the middle of the road.
Wilson saw that Santiago had a box cutter in his hand and was arguing with Davis.
Wilson testified that he saw Santiago cut Davis a couple of times before Davis
“was able to grab [Santiago’s] hand and bring him down.” When Wilson saw this,
he got out of his vehicle and ran up to help Davis. Wilson told Santiago to let go of
the blade, but Santiago “wouldn’t let it go” and “was trying to get that blade out so
he could throw some more swings and try to cut people.”
Officer T. Lundt responded to 9-1-1 calls reporting a fight with a weapon.
When he arrived at the scene, “[t]here was a lot of chaos going on.” He saw that
there were a lot of bystanders, two men sitting down and “covered in blood,” a
vehicle stopped in the middle of the road, and “someone holding a small knife.” He
detained and cuffed both Santiago and Davis to secure the scene until police could
determine what had happened. Officer Lundt also “secured the weapon that was on
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the ground,” describing it as “a small box cutter like knife.” Santiago was
eventually charged with the aggravated assault of Davis.
Santiago testified on his own behalf. He testified that after Davis told him to
move his car, he decided to drive home to get some tools. He denied calling Davis
any names. He testified that Davis crossed into the street in front of his vehicle,
forcing him to stop in the middle of the street. Santiago testified that, when he got
out of his car, Davis had a knife in his hand that Davis used to attack him. When
they fell to the ground during the fight, Davis dropped the knife and Santiago
picked it up. Santiago testified that he received a cut and a broken arm during the
altercation.
Santiago identified the box cutter that was collected from the scene as
belonging to him. When asked how the box cutter ended up on the sidewalk at the
scene of the assault, he testified, “I suppose that when we were fighting it fell from
my side pocket where I keep it and somebody must have grabbed it.” Santiago
testified that the assault happened with a knife that Davis had in his hand. Santiago
did not know what happened to that knife. When the State pointed out that no other
witness mentioned seeing Davis with a knife, Santiago disagreed. He testified that
Davis or Wilson “did something with it.”
On rebuttal, Officer J. Leach testified that he also responded to the call about
Santiago’s altercation. When he arrived, he observed Santiago and Davis
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“fighting” and “struggling” with each other. They quickly separated, and Officer
Leach noticed that both men had injuries. Officer Leach believed that Santiago’s
arm was already broken when the fight stopped, and he also noted in his report that
Santiago wanted to press charges against Davis for assaulting him with a knife.
The State sought to admit a 30-minute recording from Officer Leach’s body
camera depicting the scene after the police arrived. Santiago objected that the
video was “improper rebuttal to the defense case,” which consisted of Santiago’s
testimony. The State argued that Santiago made statements during his testimony
about what had happened, where certain people were located, the number of
weapons involved and other matters that created a conflict between his testimony
and that of other witnesses. The State argued that it “would be helpful to the jury to
understand what happened at that moment shortly after [the fight] occurred.” The
trial court overruled the objection and granted Santiago a running objection. The
State played the video to the jury, accompanied by Officer Leach’s testimony
explaining portions of the footage. The video showed the end of the fight between
Santiago and Davis, the collection of evidence, and statements made by Santiago
and Davis to Officer Leach, among other things.
During closing argument, the State was summarizing the efforts police took
during the investigation of the scene. The following exchange occurred:
[State]: These officers did their job, they did a good job. It’s just
very obvious what happened. They talked to witnesses on
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the scene that told them what happened. They found this
box cutter. Right there. Right there where the guys were.
[Court]: Time to wrap up. . . .
[State]: Thank you, your Honor. This box cutter which still to
this day has the victim’s blood on it.
[Santiago]: Objection, Your Honor. There’s no—
[Court]: Ladies and gentlemen, the lawyer comments are not
evidence. You heard the evidence from the witness stand.
You’ll remember the evidence.
[State]: Thank you. It was all there all contained in this one
location. The officers investigated. They found out what
happened, and now everyone has told you. . . .
The State concluded its closing argument, and the trial court sent the jury to
deliberate. Santiago made no further objections or requests regarding the State’s
argument.
The jury found Santiago guilty of aggravated assault, and it made an
affirmative finding that he used a deadly weapon. The trial court assessed
Santiago’s punishment at eight years’ confinement. This appeal followed.
Admission of Body Camera Footage
In his first issue, Santiago argues that the trial court abused its discretion in
allowing the State to present the video from Officer Leach’s body camera in
rebuttal to Santiago’s testimony.
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A. Standard of Review
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). We
will not reverse a trial court’s decision to admit or exclude evidence, and there is
no abuse of discretion, unless that decision lies outside the zone of reasonable
disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).
For a complaint to be properly preserved for appellate review, a party must
present a specific, timely objection to the trial court that articulates and makes the
trial court aware of the specific grounds for the ruling that the complaining party
seeks. See TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. EVID. 103(a); Burg v. State, 592
S.W.3d 444, 448–49 (Tex. Crim. App. 2020). Further, the complaint raised on
appeal must correspond to and comport with the objection made at trial. See
Hallmark v. State, 541 S.W.3d 167, 171 (Tex. Crim. App. 2017); Lovill v. State,
319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (noting that issue is not
preserved “if the legal basis of the complaint raised on appeal varies from the
complaint made at trial”).
B. Analysis
Santiago objected at trial to the admission of the video from Officer Leach’s
body camera on the ground that it was not proper rebuttal evidence. Now on
appeal, he argues that the evidence “was cumulative and could have been presented
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during the State’s case-in-chief,” citing to Rules of Evidence 401 through 403. He
argues that the video was duplicative and a needless presentation of cumulative
evidence. Because his objection on appeal does not comport with his objection at
trial, he has not preserved this complaint for review on appeal. See Hallmark, 541
S.W.3d at 171; see also, e.g., Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d) (holding that “a specific Rule 403 objection
must be raised to preserve error” because Rule 403 complaint is not implicitly
contained in general objection to relevancy or objection under some other rule of
evidence).
To the extent that Santiago is attempting to reassert his objection at trial that
the video of body camera footage was not proper rebuttal evidence and, thus, the
trial court erred in overruling his objection and admitting the video, we disagree.
Santiago argues that “the State could have called Leach to testify in its case-in-
chief” but instead, the State “waited until after [Santiago] testified to call Leach
and introduce duplicative and cumulative evidence which had already been
presented, presumably so the last witness the jury would hear from was a State’s
witness.”
In general, “[t]he prosecution is entitled on rebuttal to present any evidence
that tends to refute the defensive theory of the accused and the evidence introduced
in support of it.” Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977); see
8
TEX. CODE CRIM. PROC. art. 36.01(a) (setting order of proceeding in trial, including
that “[r]ebutting testimony may be offered on the part of each party” following
defendant’s presentation of evidence); id. art. 36.02 (“The court shall allow
testimony to be introduced at any time before the argument of a cause is
concluded, if it appears that it is necessary to a due administration of justice.”);
Lackey v. State, 638 S.W.2d 439, 457 (Tex. Crim. App. 1982) (en banc) (“This
Court has often held that [Texas Code of Criminal Procedure article 36.02] and its
predecessors mean that testimony may be introduced in the rebuttal portion of a
trial whether it specifically rebuts other testimony or not.”).
Santiago’s testimony challenged factual details set out by the State’s
witnesses. Santiago testified that Davis instigated the fight, that Davis had a knife
of his own, that Davis or Wilson “did something” with Davis’s knife immediately
following the fight, and that his own box cutter must have fallen from his pocket
during the fight. On rebuttal, the State sought to admit the body camera footage to
show the immediate aftermath of the altercation and the investigation and
collection of evidence by police. We cannot say that the trial court abused its
discretion in determining that this evidence was generally admissible as rebuttal
evidence. See Laws, 549 S.W.2d at 741; Lackey, 638 S.W.2d at 457.
We overrule Santiago’s first issue.
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Statement During Closing Argument
In his second issue, Santiago argues that the State “injected new, harmful
facts during jury argument that were not supported by the record.”
A. Standard of Review
“The purpose of closing argument is to facilitate the jury in properly
analyzing the evidence presented at trial so that it may ‘arrive at a just and
reasonable conclusion based on the evidence alone, and not on any fact not
admitted in evidence.’” Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App.
2019) (quoting Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980)
(panel op.)). “[T]he bounds of proper closing argument are left to the sound
discretion of the trial court.” Id. at 240.
As stated above, for a complaint to be properly preserved for appellate
review, a party must present a specific, timely objection to the trial court that
articulates and makes the trial court aware of the specific grounds for the ruling
that the complaining party seeks. See TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. EVID.
103(a); Burg, 592 S.W.3d at 448–49. A defendant’s failure to pursue an adverse
ruling on his objection to a jury argument forfeits his right to complain about the
argument on appeal. Hernandez v. State, 538 S.W.3d 619, 622–23 (Tex. Crim.
App. 2018) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)).
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B. Analysis.
During closing argument, the State commented that Davis’s blood was “still
to this day” on Santiago’s box cutter. Santiago’s counsel objected, but before he
could state the specific grounds of the objection, the trial court stated, “Ladies and
gentlemen, the lawyer comments are not evidence. You heard the evidence from
the witness stand. You’ll remember the evidence.” Santiago did not make any
further objections or requests regarding the State’s argument that the box cutter
still had Davis’s blood on it.
Thus, Santiago failed to pursue his objection to an adverse ruling and,
therefore, forfeits his right to complain on appeal about the argument. See id. at
622 (holding that defendant “must object and pursue his objection to an adverse
ruling” or he “forfeits his right to complain on appeal about the argument”).
Assuming without deciding that the State’s comment was improper,4 the trial court
here essentially instructed the jury to disregard the lawyer’s comments and
consider only the evidence that was admitted at trial. “In order to claim on appeal
that an instruction to disregard was inadequate to cure erroneous jury argument, the
defendant must object and pursue his objection to an adverse ruling.” Id.; see also
4
When Officer Lundt testified about collecting the box cutter as evidence, he
testified that the blade was open, he observed that both men were bleeding and
there were cuts to Davis’s neck and arm, and the blade “appear[ed] to have a
substance on it that look[ed] like blood.” The State also introduced photographs of
the box cutter as Officer Lundt described it.
11
Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (even assuming
prosecutor’s argument was so egregious that instruction to disregard would be
ineffectual, defendant “should have moved for a mistrial to preserve this error”).
Santiago failed to pursue his objection to an adverse ruling or to move for mistrial,
so he has forfeited review of this issue.
We overrule Santiago’s second issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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