David Alberto Dozal v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00478-CR
DAVID ALBERTO DOZAL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR12-0232
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MEMORANDUM OPINION 1
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In six points, appellant David Alberto Dozal appeals his convictions for two
counts of aggravated robbery. He contends that the trial court abused its
discretion by denying his motion for mistrial, by sustaining two of the State’s
evidentiary objections, and by overruling his objections during jury arguments.
We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
Doris Geer and her husband Joe Geer live at a home in Weatherford. One
evening in March 2012, Doris was watching television there when a doorbell
rang. When Joe answered the door, two men who were displaying guns,
including Daniel Anderson, entered the home by force and commanded Joe to lie
on the floor while threatening to “blow [his] . . . head off.” The other robber,
identified by Doris and Joe at trial as appellant, saw Doris, held a gun to her
head, took her iPhone, and asked, “Where is your money?”
Doris gave appellant her wallet. Joe gave Anderson his wallet, which
contained credit cards and about $100. Eventually, the men instructed Doris to
lie on the floor close to Joe as they retrieved items (including jewelry and guns)
from a safe that Doris had opened. After the men also took Doris’s purse and
Joe’s cell phone and appellant loaded items into a car, Jacki Martin, with whom
appellant had a romantic relationship, drove the robbers away from the Geers’
home. Doris got up and called 911. Later that night, a gas station’s surveillance
system recorded the presence of appellant, Anderson, and Martin together.
The police received “pings” from Doris’s cell phone that indicated that the
phone was taken to the block where appellant lived. Other evidence linked
Anderson to the robberies, and while talking to the police, he admitted his
participation and implicated appellant in committing them. The police found
items from the robberies in appellant’s house. During a custodial interview, when
an officer told appellant that the police had “nailed [him] down” on the robberies,
2
he nodded. Stemming from the incident at the Geers’ home, Anderson pled
guilty to two counts of aggravated robbery, was convicted, and was sentenced to
thirty years’ confinement for each count.
A grand jury indicted appellant with two counts of aggravated robbery. 2
After he pled not guilty and the parties presented the case to a jury, 3 for each
count, the jury convicted him and assessed his punishment at seventy years’
confinement. The trial court sentenced appellant in accordance with the verdicts
and ordered the sentences to run concurrently. Appellant brought this appeal.
Exclusion of Evidence
In his second and third points, appellant argues that the trial court erred by
sustaining the State’s objections to two of his questions to Martin. Concerning
appellant’s second point, during his guilt-phase cross-examination of Martin, she
testified that she was a recovering drug addict. Appellant asked her how long
she had been addicted, and the State objected to the question on the ground that
2
For trial, the court consolidated these counts with a burglary charge from
another cause number. The jury found that appellant was not guilty of burglary
but convicted him of theft in that case. Appellant filed a notice of appeal in both
cases but later sought to withdraw the notice of appeal as to the theft conviction.
We granted appellant’s request and dismissed his appeal of the theft conviction.
See Dozal v. State, No. 02-13-00477-CR, 2013 WL 5674990, at *1 (Tex. App.—
Fort Worth Oct. 17, 2013, no pet.) (mem. op., not designated for publication).
Therefore, this appeal concerns only appellant’s convictions for aggravated
robbery. Accordingly, we focus our brief summary of the facts on evidence
related to appellant’s aggravated robbery convictions.
3
Anderson and Martin testified at trial about appellant’s involvement in the
robberies. Martin was confined and was awaiting trial for the Geers’ robberies at
the time of her testimony.
3
it was irrelevant and was an improper form of impeachment. The trial court
overruled the State’s objection, and Martin testified that she had been addicted
“[a]bout five years.” When appellant asked Martin whether she had ever
requested treatment for her addiction, she answered, “No, sir.” Immediately
afterwards, the State again objected as to relevance. Appellant argued that the
question was relevant because an untreated drug addiction could have impacted
Martin’s ability to perceive and recollect facts. 4 The trial court sustained the
State’s objection but did not instruct the jury to disregard the answer to the
question.
Assuming, without deciding, that the trial court erred by sustaining the
State’s objection, such an error is not reversible unless it harmed appellant by
affecting his substantial rights. See Tex. R. App. P. 44.2(b); Walters v. State,
247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (“The erroneous exclusion of
evidence offered under the rules of evidence generally constitutes non-
constitutional error and is reviewed under Rule 44.2(b).”); Elmore v. State, 116
S.W.3d 809, 815 (Tex. App.—Fort Worth 2003, pets. ref’d) (explaining that we
review the exclusion of evidence under rule 44.2(b)’s nonconstitutional harm
standard where the exclusion “is the result of misapplication of the rules of
evidence and its admission is not claimed to be required by the United States or
4
Martin had already testified without objection that she had not received
treatment for her drug addiction in “any kind of a psychiatric or medical . . .
location.”
4
state constitutions”). 5 A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict. King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
When a witness answers a question and the trial court later sustains an
objection to the question but does not instruct the jury to disregard the answer,
the answer remains “before the jury” to be freely considered. See Estrada v.
State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905
(2011); Hicks v. State, Nos. 02-10-00075-CR, 02-10-00076-CR, 2011 WL
2436818, at *1–2 (Tex. App.—Fort Worth June 16, 2011, pet. ref’d) (mem. op.,
not designated for publication) (citing Wills v. State, 867 S.W.2d 852, 855 (Tex.
App.—Houston [14th Dist.] 1993, pet. ref’d)). Thus, because the jury could have
considered Martin’s answer that she had not requested treatment for her
addiction despite the trial court’s sustaining of an objection to the question
leading to that answer, we cannot conclude that the record establishes harm
under rule 44.2(b). See Tex. R. App. P. 44.2(b); Hicks, 2011 WL 2436818, at *1–
2; see also Smith v. State, 355 S.W.3d 138, 152 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d) (“Generally, no harm results when a jury is not instructed to
disregard a witness’s answer after an objection is sustained.”); Rodriguez v.
State, 903 S.W.2d 405, 410 (Tex. App.—Texarkana 1995, pet. ref’d) (“Where an
5
Appellant does not expressly argue that we should review harm on this
point under rule 44.2(a)’s standard for constitutional error. See Tex. R. App. P.
44.2(a).
5
objection is made and sustained, but no motion is made to strike the answer or to
instruct the jury not to consider, the testimony is before the jury for whatever it is
worth. Because this portion of the evidence was not excluded from the jury’s
consideration, Rodriguez was not damaged by the court’s ruling.” (footnote
omitted)). We therefore overrule appellant’s second point.
Relating to appellant’s third point, during the punishment phase of the trial,
the State recalled Martin to testify. In appellant’s cross-examination of her, he
asked about the offense for which she was previously confined in jail. The State
objected on the ground that the question sought improper impeachment under
rule of evidence 609. Appellant argued that the State had opened the door for
such testimony. The trial court did not rule on the objection; instead, appellant
withdrew the question. Then appellant asked Martin, “What had you been
convicted of?” The State again objected, and the trial court sustained the
objection.
Appellant contends on appeal that Martin’s answer to the question would
have been material and relevant because it would have affected her credibility.
He also argues that the exclusion of the answer “contributed to the near
maximum punishment assessed” against him. But the State contends that
appellant failed to preserve this point because he did not prove what Martin’s
answer would have been through a bill of exception or an offer of proof.
To preserve error when evidence is excluded, the substance of the
excluded evidence must be shown unless it is apparent from the context of the
6
questions asked. Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Holmes v. State,
323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (“The primary purpose of the offer
of proof is to enable an appellate court to determine whether the exclusion was
erroneous and harmful.”); Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim.
App. 2009). Error may be preserved by an offer of proof in question and answer
form or in the form of a concise statement by counsel. Tex. R. Evid. 103(b);
Holmes, 323 S.W.3d at 168. Error is not preserved if the offer of proof is
inadequate. Holmes, 323 S.W.3d at 171; see also Mays, 285 S.W.3d at 890–91
(holding that error was not preserved when a defendant failed to proffer, with
some degree of specificity, the substantive evidence he intended to present).
Here, the record does not disclose what Martin’s answer to appellant’s
question about her previous confinement would have been, nor does the context
of the question disclose the answer. Thus, we conclude that appellant failed to
preserve error as to this point, and we overrule it. See Tex. R. Evid. 103(a)(2);
Mays, 285 S.W.3d at 890–91; Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim.
App.), cert. denied, 552 U.S. 920 (2007); Bundy v. State, 280 S.W.3d 425, 428–
29 (Tex. App.—Fort Worth 2009, pet. ref’d).
Denial of Motion for Mistrial
In his first point, appellant argues that the trial court erred by denying his
motion for mistrial. We review a trial court’s denial of a motion for mistrial under
an abuse of discretion standard and uphold the trial court’s ruling if it is within the
zone of reasonable disagreement. Marchbanks v. State, 341 S.W.3d 559, 561
7
(Tex. App.—Fort Worth 2011, no pet.). “Only in extreme circumstances, where
the prejudice is incurable, will a mistrial be required.” Id. A mistrial is appropriate
only for a narrow class of highly prejudicial and incurable errors and may be used
to end trial proceedings when the error is so prejudicial that expenditure of further
time and expense would be wasteful and futile. Id. at 561–62; see Whitney v.
State, 396 S.W.3d 696, 703–04 (Tex. App.—Fort Worth 2013, pet. ref’d) (mem.
op.).
In the guilt phase of the trial, the State’s direct examination of Martin
included questions concerning her and appellant’s activities on the day of the
robberies. During her testimony, while responding to an open-ended question by
the State, she began to explain that appellant knew a friend “from TDC.”
Appellant interrupted the testimony by objecting under rules of evidence 401
through 404. He argued that the testimony violated a motion in limine and that it
was unresponsive. The trial court sustained the objection to the extent that the
testimony was unresponsive, denied appellant’s motion for mistrial, and
instructed the jury to disregard Martin’s answer. 6 On appeal, appellant argues
that Martin’s “TDC” reference violated his motion in limine and that “evidence
showing [he] was a criminal could not help but [have impacted] the jury’s verdict.”
An instruction to disregard testimony regarding extraneous offenses is
sufficient to cure an alleged harm “unless it appears the evidence was so clearly
6
Appellant appears to be mistaken in arguing that a “request for an
instruction to disregard . . . [was] denied.”
8
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 v. State, 123 S.W.3d 596, 603–04 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d) (quoting Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.
1992), cert. denied, 508 U.S. 918 (1993)); see Ovalle v. State, 13 S.W.3d 774,
783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt instruction to disregard will
cure error associated with an improper question and answer, even one regarding
extraneous offenses.”). We will generally presume that a jury has followed an
instruction to disregard testimony that should not have been presented. Gardner
v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.), cert. denied, 484 U.S. 905
(1987); see also Kemp, 846 S.W.2d at 308 (holding that a State’s witness’s
reference to the defendant’s prior incarceration was rendered harmless by a
curative instruction); Barney v. State, 698 S.W.2d 114, 124–25 (Tex. Crim. App.
1985) (holding that a witness’s answer that a victim did not like the defendant
because “he was an ex-con,” which violated the defendant’s motion in limine,
was improper but was cured by a jury instruction).
We have applied this principle. In Hill v. State, we held that a trial court did
not abuse its discretion by denying Hill’s motion for mistrial because an
instruction to disregard was sufficient to cure the harm caused by an officer’s
testimony about extraneous offenses. No. 02-06-00357-CR, 2007 WL 2792863,
at *6 (Tex. App.—Fort Worth Sept. 27, 2007, pet. ref’d) (mem. op., not
designated for publication). There, the officer gave an unresponsive answer
9
about “previous burglaries” when the State asked about the officer’s actions after
seeing a car in the driveway of a house. Id. Hill, who had filed a motion in limine
concerning extraneous offenses, immediately objected. Id. This objection
stopped the testimony, and the trial court promptly instructed the jury to disregard
the officer’s statement and denied Hill’s motion for mistrial. Id. Hill claimed that
the evidence was not relevant and was prejudicial, but we concluded that the
instruction to disregard cured any harm or prejudice caused by the testimony. Id.
Similarly, the unrepeated, undeveloped testimony here 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 603–04. Therefore, the trial court successfully
cured any harm caused by Martin’s unresponsive statement regarding
appellant’s connection to “TDC” by instructing the jury to disregard the statement.
See Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992) (“[R]eference
by a witness to a defendant’s prior incarceration in the penitentiary, . . .
oftentimes colloquially referred to as ‘TDC,’ is improper . . . . Nevertheless, this
Court has held that generally a prompt instruction to disregard cures the error.”);
see also Molina v. State, No. 14-96-00197-CR, 1998 WL 208812, at *2 (Tex.
App.—Houston [14th Dist.] Apr. 30, 1998, pet. ref’d) (not designated for
publication) (“[T]he unembellished and uninvited reference to appellant’s TDC
card, although inadmissible, was not so inflammatory as to undermine the
efficacy of an instruction to disregard . . . .”). We hold that the trial court did not
10
abuse its discretion by denying appellant’s motion for mistrial on this basis. See
Marchbanks, 341 S.W.3d at 561. Thus, we overrule appellant’s first point.
Alleged Improprieties During Jury Arguments
Appellant’s fourth through sixth points concern alleged improprieties during
closing arguments. 7 We review a trial court’s decision to overrule an objection to
a closing argument for an abuse of discretion. See Montgomery v. State, 198
S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). To be permissible, the
State’s jury argument must generally fall within one of the following areas:
(1) summation of the evidence, (2) reasonable deduction from the evidence,
(3) answer to argument of opposing counsel, or (4) plea for law enforcement.
Whitney, 396 S.W.3d at 704. Even when an argument exceeds these approved
areas, “such will not constitute reversible error unless, in light of the record as a
whole, the argument is extreme or manifestly improper, violative of a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding.”
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (plurality op.),
cert. denied, 532 U.S. 944 (2001).
In his fourth point, appellant contends that the State’s jury argument on his
guilt improperly referred to his decision to not testify. While the State was
7
Although appellant alleges in these points that the trial court erred by
overruling motions for mistrial, appellant did not request a mistrial concerning the
facts of these points.
11
making its initial closing argument on appellant’s guilt, the following exchange
occurred:
[THE STATE:] When we talked about aggravated robbery, we
had to prove to you some certain things, and I want to go through
some elements. The first one’s going to be on or about March 9th,
2012. That’s what you’re going to see in the charge. I would submit
to you that with respect . . . to the testimony of Joe Geer and Ann
Geer and all the cops and the 911 call, nobody questions we’re
talking about March 9th, 2012.
The second one’s going to be in Parker County, Texas.
Again, I know it seems repetitive to y’all to some extent. We asked
multiple witnesses, you know what, is your home . . . in Parker
County, Texas? Yes, sir, it is. . . . I’d submit to you there is zero
evidence to the contrary, okay? So we’re past one and two.
[DEFENSE COUNSEL]: Your Honor, we’re going to object to
the zero evidence to the contrary as being a comment on our client’s
failure to testify, and we object.
THE COURT: Overruled.
The State cannot “comment on the failure of an accused to testify. Such a
comment violates the privilege against self-incrimination and the freedom from
being compelled to testify contained in the Fifth Amendment of the United States
Constitution and Article I, § 10, of the Texas Constitution.” Bustamante v. State,
48 S.W.3d 761, 764 (Tex. Crim. App. 2001) (footnote omitted); see Tex. Code
Crim. Proc. Ann. art. 38.08 (West 2005). To violate the defendant’s right against
compelled self-incrimination, however, the
offending language must be viewed from the jury’s standpoint and
the implication that the comment referred to the defendant’s failure
to testify must be clear. It is not sufficient that the language might be
construed as an implied or indirect allusion. The test is whether the
language used was manifestly intended or was of such a character
12
that the jury would necessarily and naturally take it as a comment on
the defendant’s failure to testify.
Bustamante, 48 S.W.3d at 765 (footnotes omitted). A mere indirect or implied
allusion to the accused’s failure to testify does not violate the accused’s right to
remain silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004).
From appellant’s opening statement forward, his defensive theory was not
that the robberies had not occurred on the date and in the place alleged by the
State but that he was not involved in them to the extent alleged. Thus, viewing
the State’s argument in the specific context it was made and within the record as
a whole, we conclude that a reasonable jury would not likely consider it as a
comment on appellant’s decision to not testify but would instead tend to view it
only as a statement that the date and place of the offenses were uncontested
issues.
Moreover, the place and date of the robberies were not facts exclusively
within the knowledge of appellant; other witnesses could have offered testimony
on these issues that contradicted the allegations in the indictment. See Myers v.
State, 573 S.W.2d 19, 20–21 (Tex. Crim. App. [Panel Op.] 1978) (“[A]n indirect
comment that labels certain evidence as uncontroverted, unrefuted, or
uncontradicted is impermissible if only the defendant could offer the rebutting
evidence.”); Pollard v. State, 552 S.W.2d 475, 477 (Tex. Crim. App. 1977) (“A
statement that certain evidence is uncontroverted or unrefuted or uncontradicted
does not constitute a comment on the accused’s failure to testify where the
13
record indicates that persons other than the accused could have offered
contradictory testimony.”); see also Fuentes v. State, 991 S.W.2d 267, 275 (Tex.
Crim. App.) (“Calling attention to the absence of evidence which only the
defendant could produce will result in reversal only if the remark can only be
construed to refer to appellant’s failure testify and not the defense’s failure to
produce evidence.”), cert. denied, 528 U.S. 1026 (1999). The most reasonable
view of the State’s comment is simply that those witnesses did not do so.
Therefore, we cannot conclude that the trial court abused its discretion by
overruling appellant’s objection, and we overrule his fourth point. See
Montgomery, 198 S.W.3d at 95; see also Goff v. State, 931 S.W.2d 537, 548
(Tex. Crim. App. 1996) (“Where the statement does not refer to evidence which
can only come from the defendant, then it is not a direct comment on a
defendant’s failure to testify.”), cert. denied, 520 U.S. 1171 (1997).
Concerning appellant’s fifth point, during his closing argument on guilt, the
following colloquy occurred:
[DEFENSE COUNSEL:] The evidence is clear, as I told you in
opening statement, that property from that burglary was at his home,
that he is in receipt of stolen property, and therefore he is guilty of
theft. Theft and burglary are different offenses. Theft is not charged
in the indictment against him in this case. So we’re going to --
[THE STATE]: Judge, I’m going to object that his statement is
a misstatement of the law in that sudden, unexplained possession of
property alone is enough to prove burglary of a habitation.
[DEFENSE COUNSEL]: Your Honor, I object. That is
contrary to the Court’s instructions. It is not in the Court’s Charge, it
14
is not a rule of evidence before a jury, and there’s no reference to
that in this record.
THE COURT: Objection overruled.
Assuming that the State’s comment was improper, we cannot conclude
that it was harmful. The comment concerned only appellant’s burglary charge.
As explained above, he was not convicted of that charge and has not appealed
the theft conviction related to that charge. Appellant does not explain how the
comment harmed him with respect to the aggravated robbery convictions at
issue. Therefore, we overrule his fifth point. See Tex. R. App. P. 44.2(b);
Wesbrook, 29 S.W.3d at 115; Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.
Crim. App. 2000).
Finally, regarding appellant’s sixth point, during the State’s rebuttal
argument on appellant’s guilt, the following exchange occurred:
[THE STATE:] If you will watch [the gas station surveillance] video,
who’s there? Three people; the female, a guy in a hoodie, same
hoodie that you see right here in the defendant’s bedroom. You can
look at it.
[DEFENSE COUNSEL]: Your Honor, object. I object. There
is no evidence that the hoodie on the video is the hoodie in the
photograph.
[THE STATE]: They can see it for themselves, Judge.
THE COURT: Overruled.
[THE STATE]: Watch the video. Three people. It
corroborates a whole lot of evidence here.
15
On appeal, appellant argues that the State’s statement about the hoodie was
“wholly outside the record and was an attempt by the [State] to inject new, and
harmful, evidence before the jury.”
Directing us to testimony and exhibits admitted at trial, the State contends
that its argument about the hoodie from the surveillance video matching the
hoodie from appellant’s bedroom was a reasonable deduction from the evidence.
See Whitney, 396 S.W.3d at 704. We need not decide that issue, however,
because we conclude that even if the State’s argument was improper, it was not
harmful. See Tex. R. App. P. 44.2(b); Wesbrook, 29 S.W.3d at 115; see also
Logan v. State, 698 S.W.2d 680, 681–82 (Tex. Crim. App. 1985) (“[N]ot every
improper argument by a prosecuting attorney will cause a conviction to be
reversed.”); Ortiz v. State, 999 S.W.2d 600, 605–06 (Tex. App.—Houston [14th
Dist.] 1999, no pet.) (stating that an argument inviting speculation about matters
not in evidence is reviewed under the harm analysis for nonconstitutional error).
In determining whether the argument above affected appellant’s
substantial rights, we consider, in context of the entire record, the prejudicial
effect of the prosecutor’s remarks and the certainty of the conviction absent the
argument. Martinez, 17 S.W.3d at 692–93. Here, the prejudicial effect was low
and the certainty of conviction was high; appellant’s convictions did not hinge on
whether the hoodie in the surveillance video matched the hoodie from his
bedroom. Instead, to acquit appellant, the jury would have had to reject the
testimony of the Geers, Anderson, and Martin, all who directly linked appellant to
16
the robberies. 8 We conclude that it is unlikely that the jury was inclined to reject
(or was unsure about accepting) the testimony of these four witnesses but
decided to believe them only when hearing the State’s argument about the
hoodie. Also, when confronted with the allegation that he had committed the
robberies during a custodial interview, appellant appeared to admit his guilt by
nodding and asking for a “guarantee” if he cooperated with the police.
Because we conclude that the State’s argument did not harm appellant
when viewed in context with the entire record, we overrule his sixth point. See
Tex. R. App. P. 44.2(b); Martinez, 17 S.W.3d at 692–93.
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgments.
PER CURIAM
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 8, 2015
8
As mentioned above, circumstantial evidence, including stolen property in
his possession, also linked appellant to the robberies.
17