Soto, Nicky Lee v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed August 2, 2005

Affirmedand Memorandum Opinion filed August 2, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00298-CR

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NICKY LEE SOTO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 920,816

M E M O R A N D U M O P I N I O N

Nicky Lee Soto appeals from a conviction for indecency with a child. Appellant raises five issues for our review: first, he alleges that the trial court erred by allowing evidence of his post-arrest silence; second, that reversal is appropriate due to the prosecution=s alleged attempt during voir dire to commit jurors to a particular outcome based on a hypothetical situation; third and fourth, that the prosecutor improperly argued outside of the trial record in closing argument; and, finally, that he was improperly cross-examined about the factual details of a prior conviction. We affirm.

I. Factual and Procedural Background

On July 19, 2002, the complainant was walking back to the home of a family friend, with whom she was staying, when appellant offered her a ride. She accepted the ride and got into appellant=s car. According to the complainant, appellant then climbed into the backseat and masturbated in front of her.

Appellant was arrested and charged with indecency with a child, a third-degree felony. See Tex. Penal Code '21.11(a)(2)(A). Both the guilt/innocence and the punishment phases of the trial were tried before a jury. The jury convicted appellant, assessed punishment at four years= imprisonment, and imposed a fine of $5,000.

II. Analysis

Issue OneCAlleged Improper Comment Concerning Appellant=s Silence

In appellant=s first issue, he claims the State improperly commented on his post-arrest silence.[1] See Doyle v. Ohio, 426 U.S. 610, 619 (1976) (holding that due process does not allow prosecutors to introduce evidence of a defendant=s silence at trial when Miranda warnings have instructed the defendant that he need not speak); Sanchez v. State, 707 S.W.2d 575, 579B80 (Tex. Crim. App. 1986) (en banc) (holding that, in Texas, the right to remain silent arises at the moment an arrest is effectuated, rather than when Miranda warnings are given). Appellant, however, has not preserved this issue for appeal.

To preserve error in the admission of evidence, a party must object each time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (en banc); Turner v. State, 719 S.W.2d 190, 194 (Tex. Crim. App. 1986) (en banc); Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); see Tex. R. App. P. 33.1. A trial court=s erroneous admission of evidence will not require reversal when other such evidence was received without an objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (en banc). By the time his counsel objected, appellant already had been questioned several times about his failure to explain to officers the source of the semen found in his vehicle. Because appellant failed to timely object to the prosecutor=s questions, he has not preserved error for our review. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (en banc) (holding appellant failed to preserve error when he failed to object to admission of evidence of post-arrest silence); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (en banc) (holding that, if a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, an objection is untimely and error is not preserved); Jasso, 112 S.W.3d at 813 (holding appellant failed to preserve error when he did not timely object to admission of testimony concerning polygraph examination). We overrule appellant=s first issue.

Issue TwoCAlleged Improper Hypothetical Question at Voir Dire

In his second issue, appellant contends the prosecutor posed an improper hypothetical question containing facts Aexactly and precisely@ the same as those at issue in this case, and then attempted to commit prospective jurors to an opinion based on those facts. See Lydia v. State, 109 S.W.3d 495, 497 (Tex. Crim. App. 2003) (stating that it is improper to inquire how a venire person would respond to particular circumstances presented in a hypothetical question); Drew v. State, 76 S.W.3d 436, 459 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (stating that a trial court may limit voir dire when a question commits a venire member to a specific set of facts). However, this issue was not properly preserved for appeal either.

To properly preserve an error for appeal, the error objected to in the trial court must correspond with the issue raised on appeal. See, e.g., Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995); Allridge v. State, 850 S.W.2d 471, 479 (Tex. Crim. App. 1991) (en banc); see also Tex. R. App. P. 33.1. Appellant objected at trial on the grounds that the hypothetical was Aargumentative.@ On appeal, however, appellant claims that the hypothetical was improper, not because it was argumentative, but because it allegedly was being used to commit venire members to a verdict based on facts that were analogous to the facts of the actual case. Because the error claimed on appeal differs from the error claimed at trial, this issue is not properly before this court. We overrule appellant=s second issue.

Issues Three and FourCAlleged Prosecutorial Argument Outside the Record During Closing Arguments

In issues three and four, appellant complains that, in two separate instances, the State impermissibly argued outside of the record during its closing arguments in the punishment phase of the trial. See, e.g., Jackson v. State, 529 S.W.2d 544, 546 (Tex. Crim. App. 1975) (stating that the prosecutor cannot use closing argument to get evidence before the jury that is outside the record and prejudicial to the accused). In the first instance, appellant objected to the prosecutor=s statement to the effect that, if appellant were to receive probation, and if probation were ever revoked, in all likelihood it would be for another sexual offense involving a child. In the second instance, appellant objected to the prosecutor=s statement that the jury should sentence appellant to eighteen years in jail to protect his unborn child from Abeing preyed upon sexually by his own father.@ The trial court sustained appellant=s objection in both instances.

To preserve error committed during a jury argument, the defendant must object until receiving an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc); Campos v. State, 946 S.W.2d 414, 417 (Tex. App.CHouston [14th Dist.] 1997, no pet.); see Tex. R. App. P. 33.1. The proper method of pursuing an objection to an adverse ruling is to (1) object, and, if the objection is sustained, (2) request an instruction to disregard, and (3) move for a mistrial. Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. [Panel Op.] 1982). When appellant objected to the allegedly improper statements, his objections were both sustained. Appellant failed to pursue the objection by asking for an instruction to disregard or for a mistrial. Because appellant did not pursue the objection to an adverse ruling, the error is waived. See Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985) (en banc). We overrule appellant=s third and fourth issues.

Issue FiveCAlleged Improper Introduction of Details of Prior Conviction

In his final issue, appellant complains that the prosecutor improperly introduced into evidence the details of a prior conviction. The general rule in Texas is that even though a prior conviction may be admissible, the details of that conviction are not. Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986) (en banc); Lape v. State, 893 S.W.2d 949, 958 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). This issue also is not preserved for appeal because appellant never objected to any of the testimony regarding the prior conviction. See Tex. R. App. P. 33.1 (stating that as a prerequisite for appellate review, the record must show that the complaint was made to the trial court by timely request, objection or motion). Moreover, during direct examination in the punishment phase, appellant testified to many of the same details of that conviction. We therefore overrule appellant=s fifth issue.

III. Holding

Appellant failed to properly preserve any of his issues for review by this court. Accordingly, we overrule each issue and affirm the trial court=s judgment.

/s/ Paul C. Murphy

Senior Chief Justice

Judgment rendered and Memorandum Opinion filed August 2, 2005.

Panel consists of Chief Justice Hedges and Justices Frost and Murphy.*

Do Not Publish C Tex. R. App. P. 47.2(b).

*Senior Chief Justice Paul C. Murphy sitting by assignment.

[1] The questioning that forms the basis of this complaint was as follows:

[State:] So you told them about having sex with your girlfriend?

[Appellant:] I told them that the wipes were from other people or from another person.

[State:] Did you tell the police about having sex with your girlfriend?

[Appellant:] I did not have sex with her.

[State:] Did you tell them about having any sexual encounter with your girlfriend?

[Appellant:] No.

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[State:] And you didn=t think to say, hey, hey, hey, hey, that=s not what happened. I was with a girl. Her name is Jody Tamez. You can verify with her. I was at the Starbucks not thirty or forty minutes ago, and that=s where I ejaculated and that=s what that is. You never told them that?

[Defense Attorney:] Your honor, I object because that=s a comment to his right to remain silent under these circumstances.