ISY LEE ZAYAS v. THE STATE OF TEXAS--Appeal from 138th District Court of Cameron County

 NUMBER 13-04-532-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

ISY LEE ZAYAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 357th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Garza

A jury convicted appellant, Isy Lee Zayas, of possession of marijuana in an amount of fifty pounds or less, but more than five pounds. See Tex. Health & Safety Code Ann. ' 481.121(b)(4) (Vernon 2003). Appellant was sentenced to seven years= confinement and now appeals her conviction, arguing that the trial court erred in failing to grant a mistrial because (1) the State improperly offered testimony of an extraneous offense by appellant, and (2) evidence was introduced by the State that appellant did not make a statement to officers after her arrest. For the reasons that follow, we affirm the judgment of the trial court.

Standard of Review

We review a trial court's denial of a motion for mistrial for abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is only required if the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).

Preservation of Error

To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). Generally, a party's failure to timely and specifically object at trial forfeits any error. See Blue, 41 S.W.3d at 131. The proper method to preserve error regarding inadmissible evidence is to (1) object timely, (2) request that the trial court instruct the jury to disregard the objectionable evidence, and (3) move for a mistrial. Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).

Extraneous Offense

In her first issue, appellant contends the trial court erred by denying her motion for mistrial after the State improperly offered testimony of an extraneous offense.

During the State=s direct examination of Officer Johnson, Johnson testified that he recognized appellant because he had previously stopped her for a traffic violation. Appellant complains of the following testimony provided by Johnson in response to the State=s inquiry into why Johnson remembered the previous traffic stop:

A. [By Johnson]: She was southbound on the expressway. I stopped her, I don=t remember what the violation was. She was with two other females. They were coming from Kingsville. They stated that they had court in Kingsville on a possession of marijuana charge.

Appellant=s counsel objected to the form of the manner in which the statement was elicited, and objected to the testimony on grounds that it was immaterial and prejudicial. Counsel also moved for mistrial. The trial court overruled the objection.

The record reflects that the same evidence was introduced a second time, during defense counsel=s cross-examination of Officer Bayreaux. The following exchange occurred:

Q. [Appellant=s counsel]: And at what point, isn=t it at that point that you talk to Mrs. Zayas that you then call Officer Johnson to comeBor not Officer Johnson to comeBbut asked for a back up, or assistance?

A. [Officer Bayreaux]: No. After I asked them for their identification card, their driver=s license, I ran a check on both of them, of their driver=s license. Mrs. Cedillo was clear, and it came back on Mrs. Zayas, had a possession of marijuana charge.

[Appellant=s Counsel]: Your Honor, I object. That=s unresponsive. I move for a mistrial and ask the jury to be instructed to disregard the last statement.

THE COURT: All right. Mistrial is denied. Only answer the question, please.

Immediately after the above exchange, appellant=s counsel proceeded to ask Officer Bayreaux the following question:

Q. [Appellant=s Counsel]: [I]sn=t it a fact sir that the only reason that you stopped these people is because you ran a NCIC and a TCIC and you found out that Mrs. Zayas had a previous arrest for possession of marijuana, isn=t that correct?

On appeal, appellant argues that the trial court erred in admitting evidence of the extraneous offense because its probative value was outweighed by its prejudicial effect. She cites Texas Rules of Evidence 401, 403, and 404(b) in support of her contention.

The State responds that appellant has not preserved this complaint for review because (1) appellant did not object under rule 404, (2) the objections raised did not specify that the testimony was not relevant or involved extraneous offenses, and (3) appellant did not object every time the same evidence was offered. We agree.

At trial, appellant=s objection to the first mention of the extraneous offense complained of (1) form, (2) prejudice, and (3) immateriality. The second objection was solely made on grounds that the answer was non-responsive. An objection under both rules 404(b) and 403 is required to preserve error regarding the admission of evidence of an extraneous offense. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh'g). Appellant did not object on these grounds. If a complaint on appeal does not comport with an objection made at trial, the issue is not preserved for appellate review. See Tex. R. App. P. 33.1; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996). Thus, appellant has failed to preserve the error for review.

Moreover, even if the issue had been preserved, and assuming there was an actual error in the admission of the testimony, appellant forfeited her right to complain of any error because the same evidence came in, without objection, through testimony solicited by appellant=s counsel. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (stating that an appellant waives any error regarding improperly admitted evidence if that same evidence is brought in later by the defendant or by the State without objection); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

Thus, even if it were properly before this Court, we would overrule appellant's first issue.

Post-Arrest Silence

In her second issue, appellant contends that the trial court erred by denying her motion for mistrial after an improper comment was made regarding her post arrest silence. Specifically, when the State asked Officer Bayreaux if appellant gave any statements after her arrest, Bayreaux answered that she did not. Appellant's counsel objected and requested a mistrial. The court did not rule on the objection, but it denied the request for a mistrial. Appellant=s counsel did not ask the court to give the jury an instruction to disregard the statement. The State contends appellant therefore failed to preserve error. We agree.

A comment on a defendant's post arrest silence violates the prohibition against self incrimination provided by the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. Doyle v. Ohio, 426 U.S. 610, 618 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Sanchez v. State, 707 S.W.2d 575, 580 (Tex. Crim. App. 1986); see U.S. Const. amend. V; Tex. Const. art. I, ' 10. A comment on a defendant's post arrest silence is akin to a comment on his failure to testify at trial in that it attempts to raise an inference of guilt arising from the invocation of a constitutional right. Dinkins, 894 S.W.2d at 356.

However, the asking of an improper question about post-arrest silence will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.1999). Generally, an instruction to disregard may be sufficient to cure error in cases of isolated comments on a defendant's post arrest silence. See Dinkins, 894 S.W.2d at 356 (stating witness's comment on defendant's lack of remorse was improper comment on post arrest silence, but error was cured by instruction to jury); see also Garza v. State, 878 S.W.2d 213, 221 (Tex. App.BCorpus Christi 1994, pet. ref'd) (stating that even if comment on lack of written statement by defendant were improper comment on post arrest silence, error cured by instruction to jury); but see Veteto v. State, 8 S.W.3d 805 (Tex. App.BWaco 2000, pet. ref'd) (repeated and flagrant comments on defendant's post arrest silence warranted new trial despite instructions to disregard). An instruction to disregard is considered effective unless the facts of the particular case suggest the impossibility of withdrawing the impression produced on the minds of the jury. Franklin v. State, 693 S.W.2d 420, 428 (Tex. Crim. App. 1985). The failure to request an instruction to disregard forfeits error if the error could have been cured by the instruction, even if an objection and a motion for a mistrial have been made. Mills v. State, 747 S.W.2d 818, 821 22 (Tex. App.BDallas 1987, no pet.).

The record reflects that appellant=s counsel did not object until after the question was asked and answered, and although he objected, counsel did not secure a ruling on the objection. See Polk v. State, 729 S.W.2d 749, 752 53 (Tex. Crim. App. 1987) (holding that objections made after questions are answered do not preserve error for appeal); see also Tex. R. App. P. 33.1; Moore v. State, 999 S.W.2d 385, 403 (Tex. Crim. App. 1999) (stating that to preserve error for appeal, appellant must show that she both timely objected and obtained a ruling from the trial court, otherwise any error is waived). The record also reflects that the trial court only ruled on appellant=s request for a mistrial and that appellant did not ask the court to instruct the jury to disregard. See Mills, 747 S.W.2d at 821 22.

In the instant case, there was only an isolated reference to appellant's post arrest silence. Although it was objectionable, the remark was not so inflammatory that it could not have been cured by an instruction to disregard. See Dinkins, 894 S.W.2d at 356; see also Garza, 878 S.W.2d at 221. We therefore conclude that, even if this issue were properly before this Court, appellant has not shown reversible error. We overrule appellant=s second issue.

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 17th day of November, 2005.