Rosa Maria Ortega v. State ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00039-CR
___________________________
ROSA MARIA ORTEGA, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 3
Tarrant County, Texas
Trial Court No. 1434155D
Before Gabriel, Kerr, and Pittman, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
A Tarrant County jury convicted Appellant Rosa Maria Ortega of two counts
of illegal voting in Dallas County and assessed her punishment at eight years’
confinement and a $5,000 fine for each count. See Tex. Elec. Code Ann.
§ 64.012 (West Supp. 2018) (providing that a person commits a second-degree felony
if he votes in an election in which he knows he is not eligible to vote), §§ 273.021(a),
273.024 (West 2010) (together allowing the Texas Attorney General (AG) to
prosecute election offenses in “an adjoining county” to the county of the offense);
Tex. Penal Code Ann. § 12.33 (West 2011) (providing range of punishment for
second-degree felonies). The trial court sentenced Appellant accordingly, ordering the
sentences to run concurrently. In two issues, Appellant contends that the trial court
abused its discretion by denying her motion to suppress her statements and erred by
overruling her objections to the State’s closing argument at punishment. Because
Appellant forfeited both issues by failing to preserve them in the trial court, we affirm
the trial court’s judgments.
BACKGROUND FACTS
Appellant came to the United States as a baby and obtained a “green” card as a
child. At all pertinent times, she was a lawful permanent resident, not a United States
citizen. On October 21, 2014, Appellant sent a completed voter registration
application indicating she was not a United States citizen to the Tarrant County
Elections Administration. On December 6, 2014, that office responded by sending
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her a letter informing her that she was ineligible to vote because she was not a citizen.
After receiving this letter, Appellant called the Elections Administration office and
asked why she received the rejection letter. Appellant was then told that her voter
registration application was rejected because she checked the “no” box for citizenship.
In March 2015, Appellant filled in and mailed a second voter registration application,
but this time Appellant checked the “yes” box regarding United States citizenship.
This second application ultimately landed on the desk of Delores Stevens, the
employee at the Elections Administration who had both written Appellant’s rejection
letter and spoken with her by telephone. Despite the Election Administration’s
concerns with the discrepancies in Appellant’s two applications, it registered her to
vote.
After the AG’s office received allegations that Appellant had voted illegally in
two elections in Dallas County, Sergeant Joseph Boone Cadwell, an investigator with
the AG’s office, began investigating her. He asked an analyst with his office to obtain
Appellant’s voting records from the Dallas County Elections Administrator, her Texas
Department of Public Safety records, and her customs and immigration records. His
investigation revealed that Appellant had registered to vote four times in Dallas
County and twice in Tarrant County. The Dallas County voting records reflected that
Appellant had voted in Dallas County in 2012 and 2014. Her certified Texas
identification card application from September 2008 indicated that she presented her
resident alien card and social security card as identification. But the application also
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showed that she both denied being a United States citizen and wanted to complete a
voter registration card. A then unconfirmed database result stated that Appellant was
a lawful permanent resident.
On October 8, 2015, at approximately 9:45 a.m., Sergeant Cadwell and Sergeant
Wayne Rubio visited Appellant’s house to discuss the discrepancies in her voting
history. They had not yet confirmed whether she was still a lawful permanent resident
or had become a United States citizen. At the investigators’ request, Appellant
stepped outside onto her front porch to talk to them, and the conversation lasted
about nine minutes. In that conversation, which the investigators audio-recorded
without Appellant’s knowledge, she said that she was not a United States citizen and
that she checked “yes” in the citizenship box on her second Tarrant County voter
registration application because Dallas County, where she had previously lived for
several years, never had a problem with her voting. She also admitted that she
indicated that she was a citizen on the forms the investigators showed her so that she
could vote. After the conversation ended, the investigators left. An arrest warrant
against Appellant was issued approximately three months later in January 2016.
After a jury convicted her of two counts of illegal voting and the trial court
sentenced her in accordance with the jury’s punishment verdict, Appellant brought
this appeal.
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DISCUSSION
I. Appellant Forfeited Any Error Preserved by the Unfavorable Ruling on
Her Motion to Suppress.
In her first issue, Appellant contends that the trial court abused its discretion by
denying her motion to suppress her oral statements to the AG’s investigators. The
State responds that Appellant forfeited her complaint when her defense counsel
stated, “No objection” in response to the prosecutor’s proffer for all purposes of the
written transcript of the audio-recording of Appellant’s conversation with the AG’s
investigators. We agree with the State.
Usually, the denial of a motion to suppress preserves error without any further
objection needed when the evidence is later admitted at trial. Thomas v. State,
408 S.W.3d 877, 881 & n.14 (Tex. Crim. App. 2013) (listing cases). Traditionally,
though, defense counsel’s stating “No objection” would forfeit error that had been
previously preserved by an unfavorable ruling on a motion to suppress. See id. at 881–
82 & n.15 (listing cases). In Thomas, the Texas Court of Criminal Appeals held that
defense counsel’s stating “No objection” no longer automatically results in forfeiture
of error preserved by a ruling on a motion to suppress, but the Court has also made
clear:
[I]f from the record as a whole the appellate court simply cannot tell
whether an abandonment was intended or understood, then, consistent
with prior case law, it should regard the “no objection” statement to be a
waiver of the earlier-preserved error. Under the latter circumstances, the
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affirmative “no objection” statement will, by itself, serve as an
unequivocal indication that a waiver was both intended and understood.
Id. at 885–86.
In her written, pretrial motion to suppress, Appellant sought to suppress “[a]ll
written and oral statements” she made “to any law enforcement officers or others in
connection with this case” as well as “[t]estimony of law enforcement officers or
others concerning the . . . statements.” The trial court denied the suppression motion
outside the jury’s presence after the trial began. Appellant’s defense counsel also
objected unsuccessfully during trial to the admission of the audio-recording of the
conversation into evidence but acquiesced in the limited admission of the written
transcript of it as a demonstrative aid for the jury.
Later, however, when the prosecutor was cross-examining a defense witness
during Appellant’s case-in-chief, he offered the transcript for all purposes.
Appellant’s defense counsel stated, “[N]o objection. No objection[,]” and the trial
court admitted the transcript for all purposes. Appellant did not allude to the alleged
illegality of the conversation again and did not request that an article 38.23 instruction
be included in the jury charge. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2018).
Accordingly, we hold that when her defense counsel affirmatively stated “[No]
objection. No objection” to the unqualified admission into evidence of the written
transcript of the audio-recorded conversation, Appellant forfeited her complaints
about the admission of her statements challenged in the motion to suppress. See
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Henderson v. State, No. 02-15-00397-CR, 2017 WL 4172591, at *16 (Tex. App.—Fort
Worth Sept. 21, 2017, pet. ref’d) (mem. op., not designated for publication) (holding
defendant forfeited any suppression complaints challenging the contents of two small
safes by stating “We don’t object” and “No objection” when the record did “not
plainly indicate an intention not to abandon” the complaints). We therefore overrule
Appellant’s first issue.
II. Appellant’s General Objection to the Prosecutor’s Closing Argument
Failed to Preserve Error.
In her second point, Appellant contends that the trial court erred by allowing
improper and inflammatory jury argument outside the record. In the State’s initial
closing argument after the punishment phase, the prosecutor argued,
And I just want to throw out one thought to you. You came back
with the right verdict, that if you hadn’t, if you’d come back with a not
guilty, can you imagine the floodgates that would be open to illegal
voting in this county?
Appellant’s defense counsel objected that “that’s an improper argument here at
sentencing,” and the trial court overruled the objection. Appellant’s defense counsel
did not object that the prosecutor’s argument was outside the record.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds for the
desired ruling if they are not apparent from the context of the request, objection, or
motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim.
App. 2015), cert. denied, 136 S. Ct. 1461 (2016). “The two main purposes of requiring a
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specific objection are to inform the trial judge of the basis of the objection so that he
has an opportunity to rule on it and to allow opposing counsel to remedy the error.”
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Resendez v. State,
306 S.W.3d 308, 312 (Tex. Crim. App. 2009). Unless the legal basis for a general
objection is obvious to the trial court and opposing counsel, it preserves nothing for
review. Resendez, 306 S.W.3d at 313; Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim.
App. 2006). Further, the complaint made on appeal must comport with the
complaint made in the trial court or the error is forfeited. Clark, 365 S.W.3d at 339;
Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009).
Appellant did not raise her “outside the record” ground in the trial court. She
therefore did not preserve that part of her complaint, see Clark, 365 S.W.3d at 339;
Lovill, 319 S.W.3d at 691–92, and the general objection her defense counsel did
make—“improper argument”—did nothing to preserve the rest of her complaint. See
Hougham v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. [Panel Op.] 1983) (holding
objection to “this line of argument” not specific enough to preserve error); Vasquez v.
State, 501 S.W.3d 691, 705 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(holding defendant’s general objection of “improper argument” insufficient to
preserve error). We therefore overrule Appellant’s second issue.
CONCLUSION
Having overruled Appellant’s two issues, we affirm the trial court’s judgments.
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/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 21, 2018
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