Euardo Cordova v. The State of Texas--Appeal from 81st Judicial District Court of Wilson County

MEMORANDUM OPINION
No. 04-07-00246-CR
Euardo CORDOVA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 06-03-041-CRW
Honorable Stella H. Saxon, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: December 5, 2007

 

AFFIRMED

Euardo Cordova was convicted of possession of less than one gram of heroin, a controlled substance. He was sentenced to two years imprisonment in a state jail. In one issue on appeal, Cordova contends the trial court erred by refusing to allow him to make a bill of exceptions by way of a "let the record reflect" assertion. We find no error and affirm the trial court's judgment.

Factual and Procedural Background

On February 3, 2006, Floresville Police Officers, Patrick Ramsey and Devin Keen, were

dispatched to a Mobil station where two men were causing a public disturbance. The two men, one of whom was Cordova, appeared to be intoxicated. According to the officers, Cordova consented to a pat-down search. While Officer Keen was conducting the pat-down search, Cordova placed his wallet on the police vehicle. Upon request, Cordova also gave his consent for Officer Keen to search his wallet. Inside the wallet, Officer Keen found a folded dollar bill. Inside that dollar bill was a small plastic bag with a brown powder in it, which field-tested positive for heroin. Cordova was then arrested and transported to jail.

At trial, Cordova represented himself. While Cordova was cross-examining Officer Keen, the following exchange took place:

Q. Well, I'm just going by the police report. Okay. After we are given identification [sic] to you or Mr. Ramsey - which was the officer in charge, right?

 

A. Yes.

 

Q. You ran our names in. Is that not proper police procedure, what y'all do?

 

A. Yes.

 

Q. Okay. What was the result of your finding, you know, through calling us in as we had warrants or did - were, you know, were we in any way charged for anything?

 

A. I don't know. That was Sgt. Ramsey. I don't know exactly what he did. That was his call.

 

Q. Okay. So actually after our IDs were presented, or what have you, and we came back clean, there was no reason for you to proceed with your investigation?

 

A. This wasn't my call. It was Sgt. Ramsey's. And I believe he arrested-

 

Q. Can you speak up, sir. I can't hear you.

 

A. Apparently after Sgt. Ramsey's investigation, he believed that y'all were public [sic] intoxicated and the second party was arrested for public intoxication.

 

Q. I'd like for the jury to note that-

 

STATE: Objection, Your Honor-

 

DEFENDANT: - Sgt. Ramsey -

 

STATE: Objection. Your Honor, I would be objecting to making any argument to the jury at this point.

 

COURT: Sustained.

 

Q: I'm sorry. Let me redirect this question. Was the defendant and myself given any kind of sobriety tests?

 

A: I can't recall.

 

Q: Can't recall. That's pretty convenient.

 

DEFENDANT: I'm sorry. I withdraw that statement.

Cordova made no objection to the trial court's failure to allow him to complete his "I'd like for the jury to note that -" statement.

Discussion

On appeal, Cordova's complaint relates only to the statement, "I'd like for the jury to note that," that he made while cross-examining Officer Keen. According to Cordova, this statement was the equivalent of a "let the record reflect" statement, and the trial court erred in refusing to allow him to complete the statement.

However, the cases Cordova cites in support of his argument are distinguishable. They relate to circumstances in which an attorney describes a non-verbal event that is happening in the courtroom for the purpose of having that non-verbal event reflected in the record. See Thieleman v. State, 187 S.W.3d 455, 458 (Tex. Crim. App. 2005) ("An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true."); Yarborough v. State, 947 S.W.2d 892, 895 (Tex. Crim. App. 1997) ("A counsel's statement about an occurrence in the courtroom, which was made for the purposes of the record, recorded by the court reporter, undisputed by the opposing counsel, and unquestioned and unqualified by the judge in whose presence the statement was made, establishes the occurrence for purposes of the appellate record.").

These cases upon which Cordova relies are not applicable to this case. As is apparent from the record, the prosecuting attorney objected to Cordova's statement, "I'd like for the jury to note that," because Cordova was "making [an] argument to the jury." After hearing this objection, the trial court sustained it. As the State points out on appeal, the trial court properly sustained the objection on the grounds that Cordova was making an improper jury argument during the cross-examination of Officer Keen. See Parker v. State, 51 S.W.3d 719, 724 (Tex. App.--Texarkana 2001, no pet.) (holding that the trial court by allowing jury argument at the end of the first day of testimony, before the State had closed its case and before a jury charge was given, violated the statute that restricts argument to a particular portion of the trial).

Moreover, it is clear from a review of the record that Cordova's statement, "I'd like for the jury to note that," is but one instance of a pattern that emerged in which Cordova attempted to either testify or argue to the jury during his questioning of witnesses. For example, during Cordova's cross-examination of Officer Ramsey, Cordova made the statement, "Well, I'd like to let the jury know that from the time-". The prosecution objected "to him testifying to the jury," and the court sustained the objection. Cordova then made another statement to the jury regarding some of the events leading up to his arrest, which was again objected to by the prosecution. At that point the court admonished Cordova that "there needs to be a question here." Again, during Cordova's cross-examination of Officer Ramsey, Cordova stated, in response to an answer from Officer Ramsey, "I disagree with [your testimony] because I was a little bit upset." And, once again, the prosecution objected "to the question that [is] disguised as testimony," and, again, the court sustained the objection and admonished Cordova to ask questions rather than testify. At another point in Officer Ramsey's cross-examination, when Cordova was asking the officer about the search, Cordova stated, "I never gave consent." The prosecution objected again, and the trial court sustained the objection. Additionally, on the issue of consent, Cordova stated, while cross-examining Officer Ramsey, "This - like I said, I never gave consent and as a matter of fact I was asked twice and twice I refused to give consent." Again, the court sustained the prosecution's objection to Cordova testifying.

This review of Cordova's cross-examination reveals that Cordova, as a pro se criminal defendant, had difficulty objectively asking questions of the arresting officers without interjecting his own view of the events that transpired on the night of his arrest. Cordova's interjections were appropriately objected to by the prosecution, and those objections were properly sustained by the trial court. There is simply no indication, as Cordova argues, that he was attempting, during his cross-examination of Officer Keen, to have the record reflect some observable, but non-verbal, incident that was occurring in the courtroom.

Further, even if Cordova had been trying to have the record reflect a non-verbal event, it is clear from the record that Cordova did not properly preserve his complaint for appeal. After the trial court sustained the prosecution's objection to Cordova's statement, "I'd like for the jury to note that," Cordova then stated, "I'm sorry. Let me redirect this question. Was the defendant and myself given any kind of sobriety tests?", to which Officer Keen replied, "I can't recall." At no time did Cordova object or indicate to the trial court that he wanted to preserve a complaint for appeal regarding some non-verbal event occurring in the courtroom. In order to properly preserve error, Cordova was required to make an offer of proof. See Tex. R. Evid. 103(a)(2) (explaining that error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected and "the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked"). Here, there is no indication in the record or in Cordova's arguments contained in his brief what evidence he claims was improperly excluded. Further, it is not apparent from the context within which Cordova asked questions what evidence was improperly excluded.

We, therefore, conclude that the trial court properly sustained the State's objection that Cordova was presenting jury argument during his cross-examination of Officer Ramsey.

Conclusion

Finding no error, we affirm the trial court's judgment.

 

Karen Angelini, Justice

DO NOT PUBLISH