Johnny Rocha Soto v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-01-00738-CR
Johnny Rocha SOTO,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-2979
Honorable James E. Barlow, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: April 23, 2003

AFFIRMED

Johnny Rocha Soto ("Soto") appeals his conviction for aggravated sexual assault. In two issues, Soto alleges the trial court erred by not granting a mistrial after the prosecuting attorney made various prejudicial remarks during trial and during jury argument which introduced new evidence and denied his right to a fair trial. We affirm the trial court's judgment.

Background

Soto was convicted by a jury on three counts of aggravated sexual assault. During cross-examination of the victim by defense counsel, the witness became upset and began shouting. Spectators in the courtroom also became vocal. The prosecuting attorney said something that is not contained in the record to which defense counsel objected. The prosecutor responded to the objection with "fuck you" directed at defense counsel. During jury argument, the prosecutor referred to the victim's lengthy cross-examination by defense counsel and suggested that defense counsel was unfair to the victim by taking "the balance of an entire day" to cross-examine her. The prosecutor also remarked that defense counsel had badgered the victim during cross-examination and stated that defense counsel would not have remembered all of the details if he had been "abducted and raped for twenty-four hours and he knows it." Finally, in response to defense counsel's argument regarding the absence of medical records to support the victim's testimony, the prosecutor reminded the jury that the jury had heard that the medical records were entered into evidence but were later withdrawn because the nurse could not be present to testify.

Discussion

In his first point of error, Soto claims the trial court erred by not granting a mistrial after the prosecuting attorney's outburst. He also contends that jury arguments in which the prosecutor referred to defense counsel constituted striking at Soto over the shoulder of his counsel and thus denied him a fair trial.

We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

In this case, the remark was directed at defense counsel once during a general hubbub which prevented the judge from hearing it. Based on a subsequent offer of proof, it is possible, but not certain, that the jury heard the remark. The court reporter, bailiff, and counsel heard it, but a shouting, hysterical witness seated between judge and jury may have screened the comment from the jury's hearing. See Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. 1980) (distinguishing remarks directed at appellant from sidebars between opposing attorneys during trial).

No limiting instruction was requested after the offending remark. Normally, a limiting instruction will be sufficient to cure any prejudice to the accused. Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982). Failure to request a limiting instruction generally will not preserve error for appellate review. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because the remark in this case was curable by an instruction that Soto failed to request, the impropriety of the remark does not constitute reversible error. See Brooks, 642 S.W.2d at 798 (holding that appellant failed to preserve error by not requesting relief).

With regard to closing argument, Soto initially complains of the following statement by the prosecuting attorney.

And you saw her reaction, you saw her tremble, you saw her cry, you saw her sobbing, you saw her finally get upset about it not being fair that after she has been tortured and raped and abducted by this man, she then has to come up here and go through what she went through so that she can prove to you that it happened to her, so that he can sit there and make her go through that. That isn't fair.

No objection was made to this argument. Therefore, no error has been preserved. Tex. R. App. P. 33.1(a).

Next, Soto complains that the prosecutor said,

[The victim] said it best when she was on the stand about the third time she was breaking down crying to this defense counsel right there, said it's not fair, how would you do if this would have happened to you and he knows. He couldn't remember anything if he had been abducted and raped for 24 hours and he knows it.

The statement may be interpreted as a criticism of defense counsel's cross-examination of the complaining witness, but it can also be interpreted as an attempt to explain the witness's confusion in human terms. The statement does not cast aspersions on defense counsel's integrity, morals, or competence. See Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984) (stating that the State may not accuse a defendant's counsel of bad faith or insincerity). The statement merely puts defense counsel, and by implication the jury, in the shoes of the witness. The statement was meant as a rhetorical device, and is sufficiently ambiguous that the trial court did not err in overruling the objection.

Finally, Soto contends that the prosecuting attorney attacked him over the shoulder of his counsel when he said, "I apologize if you think I was unprofessional, but I hope if the day comes I can look at that and not be upset about it and not be upset that defense counsel badgers her, and badgers her and not get angry about it, then I don't think I should do this anymore." Because no objection was raised as to this statement, error, if any, is not preserved. Tex. R. App. P. 33.1(a).

In his second point of error, Soto complains that the State brought matters not in evidence before the jury during closing argument. He also contends that during the ensuing colloquy after his objection, the prosecutor accused defense counsel of dishonesty before the court and jury, violating Soto's Sixth Amendment right to a fair trial. The State contends that if the prosecution introduced matters not in evidence by explaining the withdrawal of the medical records to the jury, the introduction was invited by Soto when his counsel argued about their absence before the jury.

Generally, a defense argument that goes outside the evidence will invite a like response from the prosecution. Bush v. State, 773 S.W.2d 297 (Tex. Crim. App. 1989); Kincaid v. State, 534 S.W.2d 340, 342 (Tex. Crim. App. 1976). A reply to such an open door is permitted. Kincaid, 534 S.W.2d at 342. In this case, defense counsel based at least part of his closing argument on the lack of medical records, creating the suggestion that such records did not exist. This argument opened the door to the State's explanation regarding the records. Prosecuting counsel did not extend the explanation to include what may have been in the record. Furthermore, the trial court sustained the objection made by Soto. Soto did not request an instruction to disregard. Failing to request a limiting instruction generally will not preserve error for appellate review. Cockrell, 933 S.W.2d at 89.

The trial court's judgment is affirmed.

Paul W. Green, Justice

DO NOT PUBLISH