Samuel Reynosa v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00810-CR

Samuel REYNOSA,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-4331

Honorable Pat Priest, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 6, 2005

AFFIRMED

Samuel Reynosa appeals his conviction for aggravated robbery. After a jury found him guilty, the trial court sentenced Reynosa, a repeat offender, to twenty years confinement in the Texas Department of Criminal Justice Institutional Division. Reynosa raises two issues on appeal. He contends the trial court abused its discretion by denying his motion for mistrial after the State was permitted to impeach Reynosa with an inadmissible juvenile adjudication. He also contends the trial court abused its discretion in overruling his objection to the prosecutor s personal opinion during closing arguments. We affirm the trial court s judgment.

Background

Norma Tavitas was using a pay phone outside Susie Gonzalez s family-owned flower shop when she noticed a male individual using the pay phone next to hers. The man continued to pick up and hang up the pay phone and appeared to be observing the area. Tavitas went inside the flower shop and warned Gonzalez that a suspicious man was lurking outside. The man walked into the flower shop and asked them for the time, then walked out. A couple minutes later, the man re-entered the shop, pulled out a black and silver handgun, pointed it at Tavitas and Gonzalez, and demanded money. When the robber realized the women did not have cash, he ran out the front door.

Gonzalez immediately phoned the police and gave them a description of the robber. Reynosa was apprehended for the robbery minutes later when the police located him hiding in the restroom of a nearby residence. The police were alerted to the residence by a neighbor, Yvette Eichman, who heard the police sirens before witnessing a man run through an alley and enter a home on her street. The police entered the residence with permission and located Reynosa hiding in a restroom. The police observed a black and silver handgun lying in plain view under the sink. Reynosa was transported to a nearby gas station where Tavitas and Gonzalez positively identified him as the robber.

Reynosa testified in his own defense at trial. Reynosa denied robbing the flower shop or possessing the black and silver handgun. He claimed he ran to his friend s home to escape a group of men who were trying to beat him up. Reynosa stated he initially refused to open the restroom door for the police because he feared they had a warrant for his arrest for failure to pay child support. During cross-examination, the State impeached Reynosa s credibility with his previous felony convictions for burglary and assault on a public servant, and one juvenile adjudication for theft of an automobile, which the trial judge instructed the jury to disregard.

Impeachment with a Juvenile Conviction

In his first issue, Reynosa contends the trial court abused its discretion when it denied his motion for mistrial. Moments after the State was permitted over defense counsel s objection to impeach Reynosa with a prior juvenile adjudication for theft, the trial court interrupted:

Excuse me. I made a wrong ruling a while ago. A juvenile adjudication is not admissible to impeach a witness testimony. It was error for her to ask the question. It was error for me to allow the question to be answered. I instruct you that you must disregard that testimony.

The trial court denied Reynosa s subsequent motion for mistrial. Reynosa s juvenile adjudication was not mentioned again. In the jury charge, the trial court again instructed the jury, If there is evidence before you of an adjudication of delinquency of the defendant as a juvenile, such evidence was improperly received, is without probative value, and is to be entirely disregarded by you.

A defendant may not be cross-examined regarding prior juvenile adjudications for general impeachment purposes. Tex. R. Evid. 609(d); Carmona v. State, 670 S.W.2d 695, 698 (Tex. App. Texarkana 1984), aff d 698 S.W.2d 100 (Tex. Crim. App. 1985). Therefore, we must determine whether the trial court erred in denying Reynosa s motion for mistrial.

The denial of a motion for mistrial is reviewed under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Generally, any error associated with improper questioning will be cured by an instruction to disregard. Id. at 84. A mistrial should be granted only when an objectionable event is so emotionally inflammatory that a curative instruction is unlikely to prevent the jury from being unfairly prejudicial against the defendant. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).

Though the State s impeachment question was improper, the trial court issued an instruction to disregard, and we presume the jury followed the trial court s admonishment to disregard the improper evidence. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). The trial court made it clear to the jury that it was error for the State to question Reynosa about his juvenile adjudication, and that they could not consider that evidence. The State did nothing to emphasize the error, and the trial court again admonished the jury to disregard the evidence in the jury charge. Under these circumstances, we conclude the trial court did not abuse its discretion in denying Reynosa s motion for mistrial. Reynosa s first issue is overruled.

Jury Argument

In his second issue, Reynosa argues the trial court erred when it overruled his objection to the State s argument during closing argument. Reynosa contends the prosecutor injected an improper personal opinion that prejudiced the jury.

The general areas of proper jury argument are summation of the evidence, reasonable deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). It is improper for a prosecutor to inject personal opinion in statements to the jury if he implies a special expertise coupled with an implied appeal to the jury to rely on that expertise in deciding the contested issues. Boyd v. State, 643 S.W.2d 700, 706 (Tex. Crim. App. 1983). A prosecutor may, however, argue his opinion concerning issues in the case so long as the opinion is based on the evidence in the record and does not constitute unsworn testimony. Bui v. State, 964 S.W.2d 335, 345 (Tex. App. Texarkana 1998, pet. ref d). In evaluating whether the prosecutor injected his personal opinion into the argument, we must consider the challenged remark in the context in which it appears. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). When we evaluate the prosecutor s statement in the appropriate context, it is evident his comment was not improper:

In this case, nobody presented any evidence to contradict any of the State s evidence that proved beyond a reasonable doubt that Susie Gonzalez and Norma Tavitas were the victims of an aggravated robbery with a deadly weapon. As we go through the Charge, the defense never denied that this crime occurred on May 5, 2003, nor that it occurred in Bexar County. They never denied that the victims were Susie Gonzalez and Norma Tavitas. They never denied that there was a robbery, that there was an attempt to commit theft.

And please remember, the theft did not have to be successful. They never denied that the robber tried to obtain or maintain control over certain property, namely money, nor that the robber had the intent to deprive the owners of that property. And please understand, as the Judge has instructed, owner means anyone with a greater right to possession of that property other than the robber. In this case, Susie Gonzalez and Norma Tavitas were watching over the property of Birdy s Flower Cottage, as well as their own purses and property. They never denied that there was no consent, nor that it was done intentionally or knowingly. In other words, it was not an accident.

And finally, they never denied that the robbery was aggravated, since it did involve a deadly weapon, namely a firearm, nor that Susie Gonzalez and Norma Tavitas were in fear or had the belief of imminent bodily injury or death.

The only element at issue in this trial is the identity of the robber. We believe beyond a reasonable doubt, based on the evidence presented

Here, the prosecutor stated he believed the State s evidence proved Reynosa was the perpetrator of the offense. His comment did not constitute unsworn testimony, and did not suggest he had a special expertise or knowledge of the case not available to the jury. Because no error has been shown, the trial court did not err in overruling Reynosa s objection. Reynosa s second issue is overruled.

The trial court s judgment is affirmed.

Catherine Stone, Justice

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