ANGEL DANIEL CARDONA v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Murphy

After a jury found Angel Daniel Cardona guilty of driving while intoxicated, the trial court sentenced him to confinement in the county jail for 120 days, probated for twenty-four months, and assessed a $750 fine.   In a single issue, Cardona contends the State engaged in prosecutorial misconduct by eliciting inadmissible evidence related to a bar receipt ¹ in violation of a pretrial order.   We affirm the trial court's judgment.

Background

Prior to trial, Cardona filed a pretrial motion that included a request for a sub rosa hearing as to any physical evidence to be offered.

Defendant requests a hearing outside the presence and hearing of the jury to determine the admissibility of any physical evidence recovered during the investigation of this case which the District Attorney intends to offer as evidence herein, and would request the Court to suppress this evidence if the Court determines that the evidence was obtained in violation of [Cardona's constitutional rights].

The record shows the following exchange during the pretrial hearing regarding this request.

THE COURT:  Okay. And number eight is physical evidence.   Is there any physical evidence in this case from the State?

[STATE]:  Yes, Judge.

THE COURT:  Has that been provided to the Defense already?

[STATE]:  No, Your Honor.   The prosecutor just received this physical evidence in this case.

THE COURT:  Okay.

[STATE]:  I'll tender to defense counselor for review.

THE COURT:  Is that a receipt?

[STATE]:  It is, Judge.

THE COURT:  Okay. And that's all the physical evidence you intend to introduce?

[STATE]:  Other than an in-car videotape that I understand defense counsel has watched if not received a copy of.

THE COURT:  An in-car videotape.   Okay. The Defense has received a copy of that.

[STATE]:  Yes, your Honor.

THE COURT:  Okay. That is granted.

If there is any other physical evidence, I need you to let me know that at the time.

[DEFENSE]:  It's granted, Your Honor, that there will be a hearing before physical evidence is admitted?

THE COURT:  Well, and that's what I was going to say.   If something else comes up, I'd like you to ask to approach, so we can address that outside the presence of the jury.   I don't suspect it will.

Trial began after the pretrial hearing and the State called arresting officer Mike Bryan as its first witness.   Bryan testified to the conduct leading to Cardona's arrest.   At approximately 2:00 a.m. on May 13, 2007, Bryan made a traffic stop of Cardona's vehicle, which had run a red light and was traveling at a high rate of speed.   When Cardona rolled down his window, Bryan smelled alcohol coming from the driver's side window and observed that Cardona's eyes were bloodshot when he looked up at Bryan.   Cardona denied drinking and Bryan had him step out of his car for field sobriety testing.   Cardona exhibited the maximum clues on the horizontal gaze nystagmus test (HGN) and was unable to recite the alphabet correctly.   Cardona declined the “walk and turn” test and the “one leg stand” test.   At that point Bryan started to handcuff Cardona, and he began resisting arrest and using profanity.   Once Bryan got Cardona into the back seat of the police car, he activated the rear seat camera and read Cardona his statutory warning before requesting a specimen of breath or blood.   Cardona declined to give a specimen.   At that point in Bryan's testimony, the following exchange occurred:

Q [BY STATE]:  May I approach the witness?

THE COURT:  You may approach.

Q: I'm showing you what is State's Exhibit No. 1 and State's Exhibit No. 1A. Do you recognize these items?

A: Yes, I do.   This is his bar tab I pulled out of his front pocket.

[DEFENSE]:  Objection, Your Honor.

THE COURT:  What's the basis of your objection?

[DEFENSE]:  My objection is to the description of the document and that this document has not been authenticated.

THE COURT:  Well, you can't testify to what's in the document until it's been admitted.   You can identify what the document is.   You can't read from the document.

A: Okay. This is a bar tab, and then, this is the envelope I put the bar tab in as evidence that I retrieved from his pocket.

[DEFENSE]:  Objection, Your Honor.   I'll continue my objection -

THE COURT:  Let me see the attorneys for just a moment.

(At the bench, off the record.)

THE COURT:  Okay. I will sustain the State's objection-I'm sorry-the Defense's objection.

[DEFENSE]:  Your Honor, at this point, I'm sorry.   The Defense ask-moves for a mistrial.

THE COURT:  I will-I will overrule a mistrial.   I will ask the jury to disregard the last response from the officer.

The State then continued to ask predicate questions related to the exhibit and offered it into evidence.   Cardona's objection at that point was, “This document has not been authenticated.   And, again, it's an item that we requested a hearing on outside the presence of the jury prior to its admissibility.”   When the court asked if there was any other basis, Cardona responded, “There is no business record affidavit to support authenticity of-,” at which point the court stated that it was sustaining a “hearsay” objection and the exhibit was never admitted.

After the jury found appellant guilty, Cardona filed a motion for new trial, alleging prosecutorial misconduct.   Attached to the motion was an affidavit by Cardona's counsel, in which she stated the unrecorded objection made during the bench conference was “that the Prosecutor violated the Court's pre-trial ruling and that amounted to prosecutorial misconduct.”   She further stated that she was “forced” to make the objection off the record because she “was instructed by the Court to approach the bench.”   Although Cardona's motion for new trial contained a request to supplement the record, the record contains no evidence of any hearing or order on the motion for new trial or the request to supplement the record.

Standard of Review and Applicable Law

Cardona complains on appeal about prosecutorial misconduct based solely on the officer's reference to the bar receipt.   Because the trial court never ruled on the motion for new trial and the bar receipt was never admitted, Cardona's challenge by implication is to the trial court's denial of a mistrial.   An appellate court reviews a trial court's denial of a motion for mistrial under the abuse of discretion standard.   See Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009).   In applying that standard, we do not substitute our judgment for that of the trial court;  rather, we decide whether the trial court's decision was arbitrary or unreasonable.  Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006).

Claims of prosecutorial misconduct are reviewed by appellate courts on a case-by-case basis.   See Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App.1988).   We consider not only the facts of the case, but the probable effect of such conduct on the jurors' minds.   See Hodge v. State, 488 S.W.2d 779, 781-82 (Tex.Crim.App.1972).   Texas courts have found prosecutorial misconduct when the prosecutor's actions deliberately violated an express court order and where the conduct was so blatant as to border on being contumacious.  Stahl, 749 S.W.2d at 831.   To preserve a prosecutorial misconduct complaint, a defendant generally must (1) timely and specifically object, (2) request an instruction to disregard the matter improperly placed before the jury, and (3) move for mistrial.  Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993);  see also Tex.R.App. P. 33.1(a)(1)(A) (appellant must show a “complaint was made to the trial court by a timely request, objection, or motion” and the grounds were stated with “sufficient specificity to make the trial court aware of the complaint”).   As to timing and specificity, the objection must be made at the earliest possible opportunity, and the point of error on appeal must comport with the objection made at trial.   See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002).

Discussion

Cardona claims the State committed prosecutorial misconduct when it invited Bryan to testify concerning the contents of an “unadmitted and inadmissible piece of physical evidence without first approaching the bench.”   The State responds that Cardona failed to preserve his complaint for appellate review, the State did not violate the pretrial order by asking if the officer recognized the exhibit, and any reference to the bar tab receipt did not constitute harmful error.   We agree with the State.

Cardona's stated objection at the time the State asked the officer if he recognized the exhibit was “to the description of the document and that this document has not been authenticated.”   When the trial court instructed the officer he could only identify what the document was, but could not read from it until admitted, the officer started to identify the bar receipt.   Cardona said he would “continue” his objection, at which time an unrecorded bench conference occurred.   Cardona then requested a mistrial without stating a basis, which the trial court overruled.   The officer's testimony continued.   At the point the State tendered the exhibit as evidence, Cardona objected because the document had not been authenticated and “it's an item that we requested a hearing on outside the presence of the jury prior to its admissibility.”   The trial court sustained a hearsay objection and excluded the exhibit.

Cardona never made an objection on the record based on prosecutorial misconduct and never requested an instruction, although the trial court sua sponte directed the jury to disregard the officer's statement.   See Cook, 858 S.W.2d at 473.   His objection was to authentication, and the trial court sustained an unstated hearsay objection.   Neither an authentication nor a hearsay objection comports with a prosecutorial misconduct objection as urged on appeal, and both are insufficient to raise an appellate complaint about misconduct.   See Tex.R.App. P. 33.1(a)(1)(A).

Additionally, Cardona's objection made during the unrecorded bench conference did not preserve error.   See Hullaby v. State, 911 S.W.2d 921, 926 (Tex.App.-Fort Worth 1995, pet. ref'd) (off-the-record objection does not preserve anything for review);  Wallace v. State, 822 S.W.2d 290, 293 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (off-the-record objection did not preserve error).   The trial court never ruled on Cardona's post-trial request to supplement the record.   Accordingly, even assuming without deciding Cardona did not waive his complaint by failing to make a timely and specific objection on the record at the time of the challenged conduct, Cardona has failed to preserve his complaint for appellate review.   See Tex.R.App. P. 33.1(a)(1) (record must show complaint);  see also Cook, 858 S.W.2d at 473 (record must show timely and specific objection).

If Cardona had preserved his complaint for appeal, the State's conduct does not equate to prosecutorial misconduct.   At the time the trial court ruled on Cardona's pretrial request for a sub rosa hearing to determine the “admissibility of any physical evidence,” the court's instruction was limited to evidence other than the bar tab receipt and the in-car videotape.   The court's statement was, “If something else comes up [other than the receipt and videotape], I'd like you to ask to approach, so we can address that outside the presence of the jury.   I don't suspect it will.”   The bar tab receipt and videotape, which had been delivered to Cardona's counsel, appear to be exempted from the ruling, especially in light of the trial court's further statement:  “If that becomes an issue,² once they offer it and introduce it, assuming they are going to get some objections, you can make them at that time.”   At a minimum, the court's ruling is unclear as to whether the State was required to approach the bench prior to offering the exhibits into evidence.   Thereafter, the State also continued to examine the officer about the receipt, without objection, until the prosecutor officially tendered the document as evidence.   On this record, the State did not violate the court's ruling by asking Bryan to identify the bar receipt, and Cardona did not preserve claimed error based on prosecutorial misconduct.

Even if the State violated the trial court's ruling, the trial court sua sponte instructed the jury to disregard the officer's identification of the receipt.   Any error in asking an improper question or in admitting improper testimony in a criminal proceeding generally may be cured or rendered harmless by its withdrawal or an instruction to disregard.   See Carter v. State, 614 S.W.2d 821, 824-25 (Tex.Crim.App.1981).   The exception is extreme cases-where it appears the question or evidence is clearly calculated to inflame the minds of the jury and is of such a character that it is impossible to withdraw the impression produced on the jurors' minds.  Id;  see also Walker v. State, 610 S.W.2d 481, 482-84 (Tex.Crim.App.1980) (error not curable by instruction to disregard the prosecutor's question, which included statement that defendant had committed prior incest with daughter).   Here, the record contained ample evidence supporting the conclusion that Cardona was not being truthful when he denied drinking.   Cardona committed at least two serious traffic violations during the early morning hour of 2:00 a.m. when bars are known to close, he smelled of alcohol, he had bloodshot eyes, he failed all six clues of the HGN test, he could not recite the alphabet, and he declined any further testing, including a breath or blood test.   See Yarbrough v. State, 617 S.W.2d 221, 225 (Tex.Crim.App.1981) (conviction not solely based on one piece of inadmissible evidence where “properly admitted evidence of appellant's guilt was overwhelming”).   Accordingly, any error was harmless, see Tex.R.App. P. 44.2(b), and the trial court did not abuse its discretion in denying Cardona's motion for mistrial.

Conclusion

For the reasons stated, we overrule Cardona's sole issue and affirm the trial court's judgment.

FOOTNOTES

FN1. For purposes of this analysis, we assume without deciding the information was inadmissible..  FN1. For purposes of this analysis, we assume without deciding the information was inadmissible.

FN2. “That” as referenced by the court referred to the failure of the police department to produce the receipt and video until the day of trial..  FN2. “That” as referenced by the court referred to the failure of the police department to produce the receipt and video until the day of trial.

MARY MURPHY JUSTICE