Raul Hernandez v. State

NUMBER 13-11-00230-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RAUL HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 175th District Court
of Bexar County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Rose Vela
A jury convicted appellant, Raul Hernandez, of abuse of official capacity, a Class A
misdemeanor. See TEX. PENAL CODE ANN. § 39.02(a), (b) (West 2011). The trial court
assessed punishment at two years' community supervision, plus a $1,500 fine. In three
issues, appellant argues the trial court erred by: (1) failing to give the jury an
accomplice-witness instruction; (2) denying him the right to confront and cross-examine
witnesses; and (3) admitting testimony alleging he had a predisposition to accept a bribe.
We affirm.1
I. DISCUSSION
A. State's Evidence
In late March or early April 2008, Jose Luis Aguilar, a Mexican national, was paid
$350 for installing lights at Monarch Motors, a San Antonio used-car dealership. About
the time he got paid, appellant, a Bexar County Sheriff's deputy, was shopping there for a
BMW. Aguilar approached appellant, who was in uniform, asking where to pay the fine
for a speeding ticket he received. Appellant asked to see the ticket, and when Aguilar
gave it to him, appellant said he knew the officer who issued the ticket and said "he could
speak to his friend so that the friend could take away that ticket before it would reach the
Court." When the prosecutor asked Aguilar, "Did Deputy Hernandez [appellant] ask you
for anything in exchange for this service?", he said, "Well, it was the money." Regarding
the $350, the following colloquy occurred between the prosecutor and Aguilar:
Prosecutor: Did Deputy Hernandez tell you to do anything with your $350
in exchange for fixing your ticket?
Aguilar: They told me that I could give that money that I was going to
receive as an exchange to cancel the ticket.
Prosecutor: To whom were you to give the money?
1
This appeal was transferred from the Fourth Court of Appeals pursuant to a docket-equalization
order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2
Aguilar: To the officer.
Prosecutor: Did you give the money to the officer?
Aguilar: I gave the money to the officer.
Aguilar also testified appellant gave him his telephone number. He stated appellant did
not do anything about the speeding ticket "because later I received an order for my
arrest."
On cross-examination, when defense counsel asked Aguilar, "Did you tell us
earlier during direct testimony that you gave $350 in cash to the deputy?", he said, "That's
what I recall." When defense counsel asked him, "Do you recall in the past telling people
that you didn't give any money to the deputy, but that you gave $350 to the owner's[ 2]
son?", he said, "What I do recall is that that money stayed there [at Monarch Motors]. I
don't recall exactly if I gave him the money but the money stayed there."
Damian Carrillo, whose brother owned Monarch Motors, was at the dealership the
day appellant came there to buy the BMW. Damian remembered that appellant and
Aguilar had a discussion about a traffic ticket. When the prosecutor asked Damian,
"[W]hat was your impression of the deal between the Defendant and Jose Aguilar?", he
said, "My impression was that they were negotiating the ticket." By "negotiating the
ticket," Damian meant that "[f]or somebody to pay some money and that they take the
ticket away." When the prosecutor asked him, "How much money?", he said, "Three
hundred and something."
2
By "owner's," defense counsel is referring to the owner of Monarch Motors.
3
Rene Carrillo, the owner of Monarch Motors, identified State's exhibit 4 as a sales
contract3 for a BMW, which he sold to appellant. When the prosecutor asked Rene,
"Was there ever a $350 payment made to hold this vehicle until payment was made?", he
said, "It was just like a down payment for work from Jose Luis [Aguilar]." When asked
"[w]as it Jose Luis [Aguilar] who paid the $350?", he said, "Yes. He had to pay it to me."
On cross-examination, when defense counsel asked Rene, "[W]hat you are telling us is
that there was a $350 cash down payment made; is that correct?", he said, "It was a
deposit, but it wasn't done in cash."
Emanuel Carrillo worked at Monarch Motors in 2008 when Aguilar installed the
lighting. He was responsible for paying Aguilar for the work, and he paid him $350 in
cash. Regarding appellant's purchase of the BMW, when the prosecutor asked
Emanuel, "[Y]ou took a deposit and then later he [appellant] paid for the vehicle?", he
said, "Correct." When asked "[h]ow much was paid [for the deposit]?", he said, "$350" in
"cash." When the prosecutor asked him, "Did you receive that from the Defendant or did
you receive that from someone else?", he said he received it from Aguilar. Emanuel
stated that after the deduction for the $350, the purchase price for the BMW was $3,800.
He testified that when somebody makes a deposit on a vehicle, the deposit is applied to
the vehicle's purchase price.
On cross-examination, Emanuel testified he took the $350 but did not "write a
receipt" for the money. He did not remember the date he received the $350.
Sergeant Salvador Marin, the lead investigator in this case, testified he interviewed
Aguilar after the incident and that Aguilar told him:
3
The trial court admitted State's exhibit 4 into evidence without objection.
4
that there was a deputy or an officer, or a policeman he called him, policia, a
policeman, that he approached to ask him where is a particular court
located because Aguilar had been issued three traffic citations by one of the
Bexar County Sheriff's patrol officers, and he wanted to know where he had
to go to court on this. So when saw [sic] this policeman, as he called him,
at a car lot, or a sales car lot there on 35 South and Brunswick, on the south
side, he approached him and asked him, where is this court located so I can
go. And he told me that the officer asked to give him the ticket so he could
view it, which he did, and that the officer told Aguilar, you know what, I
personally know the Judge, I personally know the deputy that gave you the
tickets, and I can make them go away. And from that point on, Aguilar says
that there was some other person in the office of this car sales lot that made
a suggestion to the deputy, well, he can probably repay you back in doing
some electrical work or some other kind of jobs, but that the officer didn't
agree to that. The officer told Aguilar, why don't you make a down
payment for a car that I want to buy. I want to buy a BMW, why don't you
do that, and I'll take care of the tickets.
And Aguilar tells me that that's exactly what he did. Aguilar said that
he had $350 cash money on him because he had done some work there at
Monarch Auto Sales for the owner, which consisted of some insulation and
electrical work, and made 350 bucks cash.
So Aguilar used that $350 as a down payment for the officer, which
was Hernandez. So that was the down payment for the car and the means
of repaying him back for doing him the favor of taking care of the tickets,
making them disappear. . . .
On cross-examination, when defense counsel asked Sergeant Marin, "[W]ere you
ever able to determine whether there was any documentation or record indicating that
$350 in cash had been paid to Monarch Motors?", he said, "No, sir." He found no written
evidence showing someone had made a down payment on the BMW bought by
appellant.
Detective David Davila met with Aguilar after the incident. He testified Aguilar told
him that:
he [Aguilar] had gotten a ticket from a county officer when he was going to
Pick and Pull to get a light bulb for his car. . . . He said, anyway, he didn't
5
know where to go to take care of this ticket. And he told me he does work
for the car lots, he does mechanical work. While going by Monarch or
Monarcho, car lot, he saw an officer that he recognized the uniform as being
a county officer, and being he has done work there, he stopped and asked
the officer—showed the officer the ticket and told him, hey, where do I need
to go to take care of this ticket, and that the officer told him, hey, I know the
officer that gave you the ticket and I know the Judge there. If you pay what
the down payment that they are asking for this car, I'll take care of it.
B. Defense Evidence
Kathleen Jasinski, a Bexar County deputy sheriff, testified that in early April 2008,
she took appellant to pick up a vehicle "along 35 South from our office." When defense
counsel asked her, "When you . . . gave him a ride to pick up the car, did you know
whether or not he had just found and purchased a car that very day?", she said, "Yes. . . .
[H]e . . . said he just found and purchased a car and needed a ride to pick it up." She did
not know the exact date this happened, but said it happened during "the spring time of
'08." She just dropped him off at the car dealership but did not "stick around."
Martin Marin, a custodian of records for Generation Federal Credit Union, testified
that up to March or April 2008, Generation Federal was known as San Antonio City
Employees Federal Credit Union (SACEFCU). He identified Defendant's exhibit 44 as a
copy of a check from SACEFCU. The check, dated April 4, 2008, was made out to
Monarch Motors for $3,947.50. When defense counsel asked Marin, "And does it have
on there that it's for a BMW?", he said, "Yes, sir."
Appellant's daughter, Stephanie Hernandez, testified that in April 2008, appellant
bought her a red BMW. When she was driving the car to church, she noticed the radio
speakers were "blown out," and nothing on the radio "really worked at all." The next day,
4
The trial court admitted Defendant's exhibit 4 into evidence without objection.
6
appellant had the radio fixed. She was not present when appellant bought the BMW.
II. DISCUSSION
A. Accomplice-Witness Instruction
In issue one, appellant argues the trial court erred when it refused his request for
an article 38.14 accomplice-witness instruction regarding Aguilar. See TEX. CODE CRIM
PROC. ANN. art. 38.14 (West 2005). Appellant contends Aguilar was an accomplice as a
matter of law, and alternatively, at least an accomplice as a matter of fact.
1. Standard of Review
We review a claim of jury-charge error using the procedure announced in Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether error
exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing
Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists, and the
appellant objected to the error at trial, reversal is required if the error "is calculated to
injure the rights of the defendant," which is defined to mean that there is "some harm."
Almanza, 686 S.W.2d at 171. If the appellant did not object to the error, error must be
"fundamental" and will require reversal only if it was so egregious and created such harm
that the defendant "has not had a fair and impartial trial." Id.
2. Applicable Law
"[U]nder Texas Code of Criminal Procedure article 38.14, a conviction cannot
stand on an accomplice witness's testimony unless the testimony is corroborated by
other, non-accomplice evidence that tends to connect the accused to the offense."
Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (citing TEX. CODE CRIM.
7
PROC. ANN. art. 38.14). "An accomplice is a person who participates in the offense
before, during, or after its commission with the requisite mental state." Id. (citing Druery
v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (citing Paredes v. State, 129
S.W.3d 530, 536 (Tex. Crim. App. 2004); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.
Crim. App. 1986)); see Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2005)
(stating that an accomplice is an individual who participates with a defendant in the
commission of a crime by doing some affirmative act with the requisite culpable mental
state that promotes the commission of that offense). "Presence at the crime scene does
not make a person an accomplice[5]; an accomplice must have engaged in an affirmative
act that promotes the commission of the offense that the accused committed." Smith,
332 S.W.3d at 439 (citing Druery, 225 S.W.3d at 498). "A person is not an accomplice if
the person knew about the offense and failed to disclose it or helped the accused conceal
it." Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987)).
"A State's witness may be an accomplice as a matter of law or as a matter of fact."
Id. (citing Cocke, 201 S.W.3d at 747). "The evidence in each case will dictate whether
an accomplice as a matter of law or fact instruction is required." Id. (citing Cocke, 201
S.W.3d at 747; Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)). "When the
evidence clearly shows (i.e., there is no doubt) that a witness is an accomplice as a matter
of law, the trial judge must instruct the jury accordingly." Id. (citing Gamez, 737 S.W.2d
at 322). "A witness who is indicted for the same offense or a lesser-included offense as
the accused is an accomplice as a matter of law." Id. (citing Cocke, 201 S.W.2d at 748;
Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991); Solis v. State, 792
5
Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986).
8
S.W.2d 95, 97 (Tex. Crim. App. 1990); Herrera v. State, 115 Tex. Crim. 526, 27 S.W.2d
211, 212 (1930); Chastain v. State, 97 Tex. Crim. 182, 260 S.W.172, 172 (1924)). "But if
the State dismisses the indictment before the witness testifies, the witness is no longer
deemed an accomplice as a matter of law." Id. (citing Garza v. State, 164 Tex. Crim. 9,
296 S.W.2d 267, 268–69 (1956) (citing Herrera, 27 S.W.2d at 212; Crissman v. State, 93
Tex. Crim. 15, 245 S.W. 438, 438 (1922); Jones v. State, 85 Tex. Crim. 538, 214 S.W. 322,
329 (1919)). "A witness continues to be regarded as an accomplice, however, if the
witness agrees to testify against the accused in exchange for the dismissal of the charge."
Id. (citing Oates v. State, 48 Tex. Crim. 131, 86 S.W. 769, 772 (1905); Barrara v. State, 42
Tex. 260, 264 (1874)). "When there is doubt as to whether a witness is an accomplice
(i.e., the evidence is conflicting), then the trial judge may instruct the jury to determine a
witness's status as a fact issue." Id. at 439–40 (citing Druery, 225 S.W.3d at 498-99;
Gamez, 737 S.W.2d at 322). "Finally, when the evidence clearly shows that a witness is
not an accomplice, the trial judge is not obligated to instruct the jury on the accomplice
witness rule—as a matter of law or fact." Id. at 440 (citing Gamez, 737 S.W.2d at 322).
3. Aguilar's Status As An Accomplice Witness
Concerning the offense of abuse of official capacity, the Texas Penal Code
provides: "(a) A public servant commits an offense if, with intent to obtain a benefit or
with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law
relating to the public servant's office or employment; . . . ." TEX. PENAL CODE ANN. §
39.02(a)(1) (West 2011). "'Law relating to a public servant's office or employment'
means a law that specifically applies to a person acting in the capacity of a public servant
9
and that directly or indirectly: (A) imposes a duty on the public servant; or (B) governs
the conduct of the public servant." Id. § 39.01(1)(A), (B). A "[p]ublic servant' means a
person elected, selected, appointed, employed, or otherwise designated as one of the
following, even if he has not yet qualified for office or assumed his duties: (A) an officer,
employee, or agent of government: . . . ." Id. § 1.07(a)(41)(A) (West 2011).
Under the law of parties, "[a] person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both." Id. § 7.01(a). A person is criminally
responsible for the offense committed by another if, acting with intent to promote or assist
the commission of the offense, the person solicits, encourages, directs, aids, or attempts
to aid the other person's commission of the offense. See id. § 7.02(a)(2).
In the present case, even though Aguilar did not propose to give appellant $350 to
take care of his speeding ticket, he testified appellant told him, "he knew that officer that
had given it [the ticket] to me. And he said that he could speak to his friend so that the
friend could take away that ticket before it would reach the Court." When the prosecutor
asked Aguilar if appellant asked him for anything in exchange for this service, he said,
"Well, it was the money," referring to the $350 that Monarch Motors had just paid him.
Knowing what appellant offered to do for him, Aguilar willingly gave the $350 to appellant
in exchange for this service. Thus, Aguilar participated in the offense either before,
during, or after its commission with the requisite mental state. See Smith, 332 S.W.3d at
439. By giving appellant the $350, he engaged in an affirmative act that promoted the
appellant's commission of the offense. See id. Accordingly, the State could have
10
prosecuted Aguilar for the offense of abuse of official capacity under the law of parties.
See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a) (defining a "party" as a person criminally
responsible for an offense committed by another). Therefore, we hold Aguilar was an
accomplice witness as a matter of law. See Cocke, 201 S.W.3d at 747–48 (stating a
witness is an accomplice as a matter of law if the evidence clearly shows that he, like the
defendant, could be prosecuted for the offense or a lesser-included offense).
At the charge conference, defense counsel asked the trial court to include an
instruction on Aguilar's status as an accomplice witness as a matter of law. However,
the trial court did not instruct the jury that, under Texas law, accomplice-witness testimony
must be corroborated. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).6 The
Texas Court of Criminal Appeals has held that "[w]hen the evidence clearly shows (i.e.,
there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must
instruct the jury accordingly." Smith, 322 S.W.3d at 439. Because Aguilar was an
accomplice as a matter of law, we hold the trial court erred by failing to provide the jury
with an accomplice-witness instruction.
4. Harm Analysis
Considering whether the error was harmful "requires us to examine the effect an
accomplice-witness instruction has on the trial." Herron v. State, 86 S.W.3d 621,
631–32 (Tex. Crim. App. 2002). The instruction, set out in article 38.14, provides:
A conviction cannot be had upon the testimony of an accomplice
unless corroborated by other evidence tending to connect the defendant
6
Article 38.14 states: "A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC.
ANN. art. 38.14 (West 2005).
11
with the offense committed; and the corroboration is not sufficient if it merely
shows the commission of the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).
"The instruction does not say that the jury should be skeptical of accomplice
witness testimony." Herron, 86 S.W.3d at 632. "Nor does it provide for the jury to give
less weight to such testimony than to other evidence." Id. "The instruction merely
informs the jury that it cannot use the accomplice witness testimony unless there is also
some non-accomplice evidence connecting the defendant to the offense." Id. "Once it
is determined that such non-accomplice evidence exists, the purpose of the instruction is
fulfilled, and the instruction plays no further role in the factfinder's decision-making." Id.
Accordingly, "non-accomplice evidence can render harmless a failure to submit an
accomplice witness instruction by fulfilling the purpose an accomplice witness instruction
is designed to serve." Id.
"In determining the strength of a particular item of non-accomplice evidence, we
examine (1) its reliability or believability and (2) the strength of its tendency to connect the
defendant to the crime." Id. "[T]he reliability inquiry may be satisfied if: (1) there is
non-accomplice evidence, and (2) there is no rational and articulable basis for
disregarding the non-accomplice evidence or finding that it fails to connect the defendant
to the offense." Id. at 633.
In the present case, Aguilar testified appellant solicited money from him in
exchange for fixing his speeding ticket. According to Aguilar, the money Monarch
Motors paid him for his labor was used as a deposit towards the purchase of the BMW
that appellant bought from the dealership. Damian Carrillo placed appellant at the
12
dealership and remembered that appellant and Aguilar had a discussion about a traffic
ticket. When the prosecutor asked Damian, "[W]hat was your impression of the deal
between" appellant and Aguilar?, he said, "My impression was that they were negotiating
the ticket." By "negotiating the ticket," he meant that "[f]or somebody to pay some
money and that they take the ticket away." When the prosecutor asked him, "How much
money?", he said, "Three hundred and something."
Rene Carrillo, the owner of Monarch Motors, identified the sales contract for a
BMW, which he sold to appellant. Rene testified the $350, which Aguilar paid to him,
"was just like a down payment" or "a deposit."
Emanuel Carrillo, who worked at Monarch Motors in 2008, paid Aguilar $350 for
installing the lighting. Emanuel explained that when somebody makes a deposit on a
vehicle, the deposit is applied to the vehicle's purchase price. Regarding appellant's
purchase of the BMW, when the prosecutor asked Emanuel, "[Y]ou took a deposit and
then later he [appellant] paid for the vehicle?", he said, "Correct." When asked "[h]ow
much was paid [for the deposit]?", he said, "$350" in "cash." When the prosecutor asked
him, "Did you receive that from the Defendant or did you receive that from someone
else?", he said he received it from Aguilar. Emanuel stated that after the deduction for
the $350, the purchase price for the BMW was $3,800.
Appellant gave a video-taped statement 7 to Sergeant Marin in which he
acknowledged that while he was in uniform, he met a Mexican national at Monarch
Motors the day he bought the BMW. He could not remember the Mexican national's
7
This video-taped statement was admitted into evidence and played to the jury during the
guilt-innocence stage of appellant's trial.
13
name but stated the Mexican national asked him where he could pay for a traffic ticket.
He told him where to pay for the ticket and then gave his phone number to the Mexican
national. He denied accepting $350 in exchange for handling the ticket.
The aforementioned evidence provided independent corroboration of the offense,
and there is no basis in the record for doubting the reliability of this non-accomplice
evidence. Moreover, the non-accomplice evidence tends to connect appellant to the
offense. We hold the omission of the accomplice-witness instruction was harmless.
See id. at 632–33. Issue one is overruled.
B. Confrontation and Cross-Examination Of Witnesses
In issue two, appellant contends the trial court abused its discretion by denying him
the right to cross-examine and confront witnesses. During the State's guilt-innocence
stage case-in-chief, the prosecutor called Sergeant Salvador Marin, the lead investigator
in this case. When the prosecutor asked him, "Can you tell the jury what initiated, what
first prompted you to initiate an investigation [against appellant]?", he said, "I was actually
assigned the case by my Captain, Captain Ray Lujan, from C.I.D." At this point, defense
counsel objected "to this as being irrelevant and an attempt to bolster these witnesses."
The trial court overruled the objection. Later, the prosecutor asked him, "Why, . . . were
you assigned this particular investigation, if you know?" Defense counsel objected to the
question as "irrelevant in this case," but the trial court overruled the objection.
Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of
error, and states, in part:
(a) In General.-As a prerequisite to presenting a complaint for appellate
review, the record must show that:
14
(1) the complaint was made to the trial court by a timely request, objection,
or motion that:
(A) stated the grounds for the ruling that the complaining party sought from
the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context;
TEX. R. APP. P. 33.1.
"This Rule encompasses the concept of 'party responsibility.'" Pena v. State, 285
S.W.3d 459, 463 (Tex. Crim. App. 2009) (quoting Reyna v. State, 168 S.W.3d 173, 176
(Tex. Crim. App. 2005)). "The complaining party bears the responsibility of clearly
conveying to the trial judge the particular complaint, including the precise and proper
application of the law as well as the underlying rationale." Id. at 463–64. "To avoid
forfeiting a complaint on appeal, the party must 'let the trial judge know what he wants,
why he thinks he is entitled to it, and to do so clearly enough for the judge to understand
him at a time when the judge is in the proper position to do something about it.'" Id. at
464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). "This
gives the trial judge and the opposing party an opportunity to correct the error." Id.
"Whether a party's particular complaint is preserved depends on whether the complaint
on appeal comports with the complaint made at trial. In making this determination, we
consider the context in which the complaint was made and the parties' shared
understanding at that time." Id. (footnote omitted).
In this case, considering the context in which the objections were made, we find
that the complaint on appeal does not comport with the complaints made at trial. Thus,
the complaints are not preserved for appellate review. See id. (citing Reyna, 168 S.W.3d
15
at 177); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating,
"the point of error on appeal must comport with the objection made at trial.").
Later, during Sergeant Marin's direct-examination, the prosecutor asked him,
"What were the initial facts as you learned them, as you started your investigation in this
case?" Before he could answer the question, defense counsel objected to the question
"as being hearsay and a denial of confrontation. He has no personal knowledge of the
facts in this case." The trial court overruled the objection; however, Sergeant Marin did
not respond to the question. Instead, the prosecutor asked him a different question.
Even assuming the trial court erred by overruling the objection, no harm occurred
because the question did not elicit any harmful testimony. See TEX. R. APP. P. 44.2(b).
When the prosecutor asked Sergeant Marin, "Where did you start [your
investigation]?", he said, "I started when I was given some facts or a briefing, if you will, by
investigator David Davila and my captain, telling me that we had an issue with one of our
deputies possibly involved in a criminal activity." At this point, defense counsel stated, "I
object to their statement. It's hearsay, they are denying us the right to confront those
witnesses under Melendez-Diaz." Without ruling on the objection, the trial judge stated,
"You may proceed," and defense counsel did not ask the trial court for a ruling.
It is unnecessary to decide whether this testimony is inadmissible because
defense counsel did not preserve error. "To preserve error for review a defendant must
receive an adverse ruling on his objection." Ramirez v. State, 815 S.W.2d 636, 643
(Tex. Crim. App. 1991). "The ruling must be conclusory; that is, it must be clear from the
record the trial judge in fact overruled the defendant's objection or otherwise error is
16
waived." Id.
In Murillo v. State, 839 S.W.2d 485, 493 (Tex. App.—El Paso 1992, no pet.),
Murillo objected to certain testimony, and the trial court responded to the objection by
saying, "You may proceed." The Murillo Court, relying on the law stated in Ramirez, held
this response "did not constitute a conclusory or definite ruling adverse to the objection."
Id. We likewise find the trial court's response in the present case was insufficient to
constitute either a conclusory or definite ruling adverse to the objection. See Ramirez,
815 S.W.2d at 643; Murillo, 839 S.W.2d at 493. We hold this complaint is not preserved
for appellate review. In addition, even assuming the trial court's response meant the
court overruled the objection and error was properly preserved, we discern no harmful
error. See TEX. R. APP. P. 44.2(b). In his answer to the question, Sergeant Marin did
not say appellant was one of the deputies possibly involved in any criminal activity.
Later, in Sergeant Marin's direct-examination, the prosecutor asked him, "Now,
this, . . . phone number[8] that was passed along to you, what was your understanding of
how . . . Deputy Davila came by this phone number?" Sergeant Marin replied, "Judge
Zaragoza[9] gave that phone number and a name to Investigator Davila, so that's how that
came about." At this point, defense counsel asked for and received a "running
objection." Defense counsel did not specify the nature of the running objection.
However, after receiving the running objection, defense counsel objected that "[u]nder
Crawford v. Washington and Melendez-Diaz . . . this is hearsay and denial of
8
This is a reference to the phone number appellant gave to Jose Luis Aguilar.
9
Judge Zaragoza is a Bexar County Justice of the Peace, who presided over the court where
Aguilar was supposed to pay the fine for his speeding ticket. When Aguilar appeared in Judge Zaragoza's
court, he gave the phone number, which appellant gave him, to Judge Zaragoza. Judge Zaragoza, in turn,
gave the phone number to Deputy David Davila.
17
confrontation of witnesses who made these statements." The trial court overruled the
objection.
Sergeant Marin's testimony did not constitute hearsay. Hearsay is defined as "a
statement, other than one made by the declarent while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." TEX. R. EVID. 801(d).
Here, the witness, Sergeant Marin, did not give Judge Zaragoza's out-of-court statement,
nor did he offer the contents of Judge Zaragoza's statement—the phone number and the
name of the person to whom the phone number belonged—for the truth of the matter
asserted. Thus, the trial court did not err by overruling the objection.
Furthermore, the objection is not timely. "An objection is timely if it is made as
soon as the ground for the objection becomes apparent, i.e., as soon as the defense
knows or should know that an error has occurred." Grant v. State, 345 S.W.3d 509, 512
(Tex. App.—Waco 2011, pet. ref'd) (citing Neal v. State, 256 S.W.3d 264, 269 (Tex. Crim.
App. 2008)). "If a party fails to object until after an objectionable question has been
asked and answered, and he can show no legitimate reason to justify the delay, his
objection is untimely, and error is waived." Id. Here, defense counsel did not specify
the grounds for his objection until after the question had been asked and answered.
Appellant offers no reason, legitimate or otherwise, to justify the delay. Therefore, error,
if any, is waived. Issue two is overruled.
C. Appellant's Predisposition to Accepting A Bribe
In issue three, appellant contends the trial court abused its discretion by
"permitting testimony that implied because [he] is Hispanic, that he would be more likely
18
as a law enforcement [officer] to accept a bribe, because that is culturally acceptable in
Mexico." During the State's redirect-examination of Aguilar, the prosecutor asked him,
"Were you ever concerned about making an accusation against a sheriff's deputy?"
Before he could answer, defense counsel objected that "[t]his is just an attempt to bolster
the witness and it's highly prejudicial." After the trial court overruled the objection, the
prosecutor re-asked the question, 10 and defense counsel made no objection to this
question.
"As a prerequisite to presenting a complaint on appeal, a party must have made a
timely and specific request, objection, or motion to the trial court." Grant, 345 S.W.3d at
512 (citing TEX. R. APP. P. 33.1(a)(1)(A)). "It is also necessary that the objecting party
must continue to object each time the objectionable question or evidence is offered,
obtain a running objection, or request a hearing outside the jury's presence in order to
preserve a complaint for appellate review." Id.; see Martinez v. State, 93 S.W.3d 189,
193 (Tex. Crim. App. 2003); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.
1999). In the present case, defense counsel did not object when the prosecutor asked
the question a second time, and he did not obtain a running objection, nor did he request
a hearing outside the jury's presence. In addition, "a party's 'point of error on appeal
must comport with the objection made at trial.'" Grant, 345 S.W.3d at 512 (quoting
Wilson, 71 S.W.3d at 349). Here, defense counsel's objection does not correspond to
the point of error raised on appeal. Thus, we conclude this complaint was not preserved
for our review.
10
The prosecutor asked Aguilar, "Were you ever concerned about making an accusation against a
sheriff's deputy?"
19
Later, the prosecutor asked Aguilar, "Where you are from in Mexico, is it common
for law enforcement officers to take money from citizens?" Defense counsel objected
that the question is "completely irrelevant, it's highly prejudicial, the inflammatory nature
far outweighs the probative value in this case." The trial court overruled the objection.
Because defense counsel's objection does not correspond to the point of error raised on
appeal, the complaint is not preserved for appellate review. See Pena, 285 S.W.3d at
464 (citing Reyna, 168 S.W.3d at 177). Issue three is overruled.
III. CONCLUSION
We affirm the trial court's judgment.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of April, 2012.
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