Espinosa v. State

194 S.W.3d 703, 2006 Tex. App. LEXIS 4611, 2006 WL 1459969
CourtCourt of Appeals of Texas
DecidedMay 30, 2006
Docket14-04-01096-CR, 14-04-01097-CR
StatusPublished
Cited by41 cases

This text of 194 S.W.3d 703 (Espinosa v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Espinosa v. State, 194 S.W.3d 703, 2006 Tex. App. LEXIS 4611, 2006 WL 1459969 (Tex. Ct. App. 2006).

Opinions

[707]*707JOHN S. ANDERSON, Justice.

Appellant, Enrique Espinosa, pleaded guilty to two counts of attempted capital murder. See Tex. Pen.Code Ann. § 15.01 (Vernon 2003); Tex. Pen.Code Ann. § 19.03(a)(1) (Vernon Supp.2005). After a punishment hearing, a jury assessed punishment at fifty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division, and a $5,000 fine for each offense to run concurrently. Appellant asserts three issues on appeal. We affirm.

Factual and PRocedueal BACKGROUND

Around noon on February 12, 2003, appellant walked along the Galveston seawall with another man. Two Galveston police officers, Officer Clemente Garcia and Officer Jerry Roberts, drove past the men and recognized appellant as having an outstanding warrant. The officers made a u-turn on Seawall Blvd., so appellant and the other man were walking towards the officers. Officer Garcia exited the driver’s side of the police vehicle and walked to the back of the car. Officer Roberts exited the passenger side of the vehicle, approached appellant and the other man, and began talking to them. Within less than one minute, appellant took a few steps away from Officer Roberts, pulled out a gun, and shot him two times, once in the leg and once in the stomach. Officer Garcia yelled at appellant from behind the police vehicle and fired two shots at appellant. Appellant then fired one shot at Officer Garcia. Appellant and the other man ran from the scene on foot, and Officer Garcia followed them. Both appellant and Officer Garcia fired more shots at each other during this pursuit. Officer Garcia eventually lost appellant and the other man.

Later than evening, Roberto Torres, appellant’s older cousin, and appellant’s mother convinced appellant to turn himself in to the police. Torres called Officer Joey Quiroga and arranged to meet Officer Qui-roga in a public location for appellant to be arrested. Officer Quiroga met Torres, appellant, and appellant’s mother, at a grocery store parking lot, where Officer Qui-roga arrested appellant. Appellant then directed Officer Quiroga to the gun he used earlier in the day.

Appellant subsequently pleaded guilty to two counts of attempted capital murder of a police officer without an agreement as to punishment. Appellant elected to have a jury assess punishment. After hearing evidence from both the State and defense, the jury assessed punishment at 55 years’ confinement and a $5,000 fine for each offense.

Discussion

Appellant asserts three issues on appeal: (1) the trial court erred in permitting the prosecutor to improperly argue to the jury; (2) the trial court erred in permitting the introduction of appellant’s out of court statement; and (3) the trial court erred in admitting impermissible victim impact testimony.

I. Improper Jury Argument

In his first issue, appellant contends that through a series of questions to witnesses, the State improperly made an argument to the jury.1 Specifically, appellant contends the prosecutor attempted to make an improper comparison of the punishment differences between attempted capital mur[708]*708der and capital murder when questioning two witnesses. During Officer Clemente Garcia’s testimony, the prosecutor asked whether someone, prior to killing another, would be called a killer. During Roberto Torres’s testimony, the prosecutor elicited questions about what appellant’s punishment would have been if the officers at whom appellant shot had died and whether “we’re asking the jury to give [appellant] credit for the fact that [the officers] didn’t die.” Appellant contends these questions were not designed to elicit personal knowledge from the witnesses, but rather were to frame an argument to the jury by persistently questioning witnesses about subjects that exceed the bounds of permissible jury argument.

Proper jury argument consists of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answers to argument of opposing counsel; or (4) pleas for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999); Wright v. State, 178 S.W.3d 905, 929 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Error is not reversible unless, in light of the record as a whole, the argument is extreme and manifestly improper. Allridge v. State, 762 S.W.2d 146, 155 (Tex.Crim.App.1988); Wright, 178 S.W.3d at 929.

The State contends appellant waived review of any error regarding the State’s comments because appellant failed to object to similar comments made during voir dire. Appellant’s failure to timely object to an alleged error waives the complaint on appeal. Tex.R.App. P. 33.1(a). When the parties present the same evidence or argument to the jury elsewhere during trial without objection, no reversible error exists. McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App.1992) (overruled on other grounds); Longoria v. State, 154 S.W.3d 747, 766 (Tex.App.Houston [14th Dist.] 2004, pet. ref'd). Appellant must object at the earliest possible opportunity to prevent waiver of an issue on appeal. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991); Ross v. State, 154 S.W.3d 804, 807-08 (Tex.App.-Houston [14th Dist.] 2004, pet. refd). The prosecutor first made the complained of remarks during voir dire when the prosecutor discussed the differences in punishment between attempted capital murder and capital murder. The prosecutor explained that if a person commits capital murder, the punishment is either life in prison or the death penalty, but if you only attempt to commit capital murder, the penalty range is reduced by one degree. The prosecutor also described a hypothetical where a defendant intended to strangle a six-year-old girl to death and left her by the road, but she lived because emergency workers saved her. Therefore, the defendant in the hypothetical could only be charged with attempted capital murder. Had the child died, the crime charged would have been capital murder. Appellant did not object to the punishment explanation or the hypothetical.

When appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made. Beltran v. State, 99 S.W.3d 807, 811 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (overruling issue about trial court’s improper comments because appellant failed to preserve error by objecting when the court made the comments); see also Cruz v. State, 877 S.W.2d 863, 868 (Tex.App.-Beaumont 1994, pet. ref'd) (holding the defendant waived the issue on appeal of improper argument during closing argument because he did not object during voir dire when the prosecutor first made comments about the difference in punishment between the charged crime of murder and capital murder). Ac[709]*709cordingly, we hold appellant failed to preserve the issue of whether these questions amounted to improper jury argument for appellate review because he did not object when the prosecutor first made the complained of argument to the jury during voir dire.

Furthermore, even if appellant had properly preserved this issue for review, no harm occurred.

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Bluebook (online)
194 S.W.3d 703, 2006 Tex. App. LEXIS 4611, 2006 WL 1459969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/espinosa-v-state-texapp-2006.