AFFIRMED; Opinion Filed November 15, 2012.
/
In The nurt nf Apirahi Fift1! Diitrirt of rxa at 1a11ai No. 05-i 1-00309-CR
JOHN A. HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellec
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-25333-R
OPINION Before Justices Moseley, Fillmore, aixl Myers Opinion By Justice Myers
Appellant was convicted of aggravated robbery with a deadly weapon and sentenced to forty-
five years in prison and a $10,000 fine. He contends the trial court denied him an opportunity to
present a complete defense. We affirm.
DiscussioN
in his only issue, appellant argues that, by erroneously overruling various defense objections
made during the voir dire and the State’s case-in-chief, the trial court denied him the right to present
a complete defense. The State responds that appellant’s constitutional complaint was not preserved
for appellate review and, alternatively, that the court did not violate appellant’s right to present a
complete defense. Preervatioii of Error
Proper preservation of error requires a party to make a timely and specific objection as soon
as the basis fir the object ion becomes apparent, and the complaint on appeal must not vary from the
trial court objection. See TEX. R. EVID. 103(a)(l); TEx. R. Arp. P. 33. l(a)( I )(A) Heidelbergv. State,
14$ S.W.3d 535, 536 (Tex. Crim. App. 2004). An objection preserves only the specific ground
cited. See Moslev v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g); Johnson
v, State, 803 S.W.2c1 272, 292 (Tcx. Crim. App. 1990) (“An objection stating one legal theory may
not be used to support a different legal theory on appeal.”). Even claims of constitutional error may
be waived if not properly brought to the attention of the trial court. Broxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995).A defendant’s right to present a defense is the type of claim that
is forfeited if it is not specifically urged at trial. See Anderson v. State, 301 S.W.3d 276, 280 (Tex.
Crirn. App. 2009).
A total of seven defense objections are at issue in this case, in which the complainant was
stabbed, beaten, and robbed near a Quick Trip convenience store. During the voir dire, appellant’s
counsel objected to “improper voir dire” by the prosecutor regarding the concept of reasonable
doubt, and that the State asked an improper “commitment question” concerning the definition of
“beyond a reasonable doubt.” Defense counsel also objected based on the “absolute right ... not to
testify” when the prosecutor asked prospective jurors if they could think of a reason why a defendant
might not want to testii’. During the State’s direct examination of a hostile witness, Angie De Los
Santos Trevino. appellant objected to admission of her handwritten statement to the Garland police
as a “recorded recollection” under rule 803(5) of the rules of evidence; objected that the prosecutor
was testifying; and objected that the prosecutor was being argumentative. Appellant also contends
the trial court erroneously overruled his objection that the prosecutor was improperly leading the complainant when the prosecutor asked him: “And then what happened. Was there anybody—was
there anybody following you from the Quick Trip?’
The record shows that appellant’s counsel stated the grounds for his various objections, but
at no point did he object to any of the alleged errors based on a violation of the constitutional right
to present a complete defense. The trial objections preserved error only as to the specific grounds
stated. See Mosley, 983 S.W.2d at 265. Because appellant did not raise his argument at trial, he did
not preserve the issue for our review. See TEx. it Aip. p. 33.1 (aX 1 )(A); Anderson, 301 S.W.3d at
280; Broxton, 909 S.W.2d at 918; Hayes v. State, 124 S.W.3d 781, 786-87 (Tex. App.—Flouston
[1st Dist.] 2003). aff’d, 161 S.W.3d 507 (Ta. Crim. App. 2005); Houston v. State, No. 05-11-
00016-CR, 2012 WI 2511588, at * 1 (Ta. App.—DalIas July 2. 2012, no pet.) (not designated for
publication); Villasenor v. State, No. 05-I 0-00969-CR. 2011 WI 3435376, at *2 (Tex. App.—Dallas
Aug. 8,2011, no pet.) (man op., not designated for publication).
Denial ofthe Right to Present a Complete Defense
But even ifwere to conclude appellant preserved his issue, his argument thIs on the merits.
A criminal defendant’s constitutional right to a meaningful opportunity to presenta complete defense
is grounded in the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s
Compulsory Process and Confrontation Clauses. Anderson, 301 S.W.3d at 280 (citing Crane v.
Kentucky, 476 U.S. 683,690(1986)); see also U.S. CoNsr. amend. VI, XIV. “Erroneous evidentiary
rulings rarely rise to the level of denying the hmdsmental constitutional rights to present a meaningful defense.” Potier v. State, 68 S.W.3d 657,663 (‘rex. Crim. App. 2002). A trial court’s
exclusion of evidence may rise to the level of a constitutional violation if the ruling excludes otherwise relevant and reliable evidence which “forms such a vital portion ofthe case that exclusion
effectively precludes the defendant from presenting a defense.” Wiley i’. State, 74 S.W.3d 399,405
-3- 1 cx. Corn. App. 200.?) (quotlnr Thtie,, ( S.W.3d at 665). the fact that a defendant was unable
to present his case to the extent and in the form he desired does not rise to constitutional error if he
was not prevented from presenting the substance of his defense to the jury. Polic’r, 6X S.W.3d at 666.
Appellant first argues the trial court abused its discretion by overruling three objections to
the State’s voir dire examination, The defense’s first objection was made when, while discussing
the concept of reasonable doubt with a prospective juror, the prosecutor stated. “Beyond a reasonable
doubt is not the same thing as beyond a shadow of a doubt. Ms. Winn, what do you think about
that?” Appellant objected to “improper voir dire on the subject,” and the trial court overruled the
objection. Appellant also objected when the prosecutor asked the jury panel if anyone felt the same
way as a panelist who said that a puzzle with missing pieces “resembles what’s on the front of the
box. But if the piece is missing, the picture is not complete.” Appellant’s counsel objected to the
prosecutors line ol questioning, arguing the question was “a commitment question to the beyond
a reasonable doubt definition.” The trial court overruled the objection because “[the prosecutor]
hasn’t said anything to tie into reasonable doubt.” The third objection challenged the following
question by the prosecutor:
Does everyone recall that? That is an unalienable—inalienable right that we as citizens have. We don’t have to testify in criminal cases in which we are charged. Everybody feel comfortable with that’? Can anybody think of some reasons—let’s talk with Ms. Winn. Can you think of a reason why a person may not want to?
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AFFIRMED; Opinion Filed November 15, 2012.
/
In The nurt nf Apirahi Fift1! Diitrirt of rxa at 1a11ai No. 05-i 1-00309-CR
JOHN A. HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellec
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-25333-R
OPINION Before Justices Moseley, Fillmore, aixl Myers Opinion By Justice Myers
Appellant was convicted of aggravated robbery with a deadly weapon and sentenced to forty-
five years in prison and a $10,000 fine. He contends the trial court denied him an opportunity to
present a complete defense. We affirm.
DiscussioN
in his only issue, appellant argues that, by erroneously overruling various defense objections
made during the voir dire and the State’s case-in-chief, the trial court denied him the right to present
a complete defense. The State responds that appellant’s constitutional complaint was not preserved
for appellate review and, alternatively, that the court did not violate appellant’s right to present a
complete defense. Preervatioii of Error
Proper preservation of error requires a party to make a timely and specific objection as soon
as the basis fir the object ion becomes apparent, and the complaint on appeal must not vary from the
trial court objection. See TEX. R. EVID. 103(a)(l); TEx. R. Arp. P. 33. l(a)( I )(A) Heidelbergv. State,
14$ S.W.3d 535, 536 (Tex. Crim. App. 2004). An objection preserves only the specific ground
cited. See Moslev v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g); Johnson
v, State, 803 S.W.2c1 272, 292 (Tcx. Crim. App. 1990) (“An objection stating one legal theory may
not be used to support a different legal theory on appeal.”). Even claims of constitutional error may
be waived if not properly brought to the attention of the trial court. Broxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995).A defendant’s right to present a defense is the type of claim that
is forfeited if it is not specifically urged at trial. See Anderson v. State, 301 S.W.3d 276, 280 (Tex.
Crirn. App. 2009).
A total of seven defense objections are at issue in this case, in which the complainant was
stabbed, beaten, and robbed near a Quick Trip convenience store. During the voir dire, appellant’s
counsel objected to “improper voir dire” by the prosecutor regarding the concept of reasonable
doubt, and that the State asked an improper “commitment question” concerning the definition of
“beyond a reasonable doubt.” Defense counsel also objected based on the “absolute right ... not to
testify” when the prosecutor asked prospective jurors if they could think of a reason why a defendant
might not want to testii’. During the State’s direct examination of a hostile witness, Angie De Los
Santos Trevino. appellant objected to admission of her handwritten statement to the Garland police
as a “recorded recollection” under rule 803(5) of the rules of evidence; objected that the prosecutor
was testifying; and objected that the prosecutor was being argumentative. Appellant also contends
the trial court erroneously overruled his objection that the prosecutor was improperly leading the complainant when the prosecutor asked him: “And then what happened. Was there anybody—was
there anybody following you from the Quick Trip?’
The record shows that appellant’s counsel stated the grounds for his various objections, but
at no point did he object to any of the alleged errors based on a violation of the constitutional right
to present a complete defense. The trial objections preserved error only as to the specific grounds
stated. See Mosley, 983 S.W.2d at 265. Because appellant did not raise his argument at trial, he did
not preserve the issue for our review. See TEx. it Aip. p. 33.1 (aX 1 )(A); Anderson, 301 S.W.3d at
280; Broxton, 909 S.W.2d at 918; Hayes v. State, 124 S.W.3d 781, 786-87 (Tex. App.—Flouston
[1st Dist.] 2003). aff’d, 161 S.W.3d 507 (Ta. Crim. App. 2005); Houston v. State, No. 05-11-
00016-CR, 2012 WI 2511588, at * 1 (Ta. App.—DalIas July 2. 2012, no pet.) (not designated for
publication); Villasenor v. State, No. 05-I 0-00969-CR. 2011 WI 3435376, at *2 (Tex. App.—Dallas
Aug. 8,2011, no pet.) (man op., not designated for publication).
Denial ofthe Right to Present a Complete Defense
But even ifwere to conclude appellant preserved his issue, his argument thIs on the merits.
A criminal defendant’s constitutional right to a meaningful opportunity to presenta complete defense
is grounded in the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s
Compulsory Process and Confrontation Clauses. Anderson, 301 S.W.3d at 280 (citing Crane v.
Kentucky, 476 U.S. 683,690(1986)); see also U.S. CoNsr. amend. VI, XIV. “Erroneous evidentiary
rulings rarely rise to the level of denying the hmdsmental constitutional rights to present a meaningful defense.” Potier v. State, 68 S.W.3d 657,663 (‘rex. Crim. App. 2002). A trial court’s
exclusion of evidence may rise to the level of a constitutional violation if the ruling excludes otherwise relevant and reliable evidence which “forms such a vital portion ofthe case that exclusion
effectively precludes the defendant from presenting a defense.” Wiley i’. State, 74 S.W.3d 399,405
-3- 1 cx. Corn. App. 200.?) (quotlnr Thtie,, ( S.W.3d at 665). the fact that a defendant was unable
to present his case to the extent and in the form he desired does not rise to constitutional error if he
was not prevented from presenting the substance of his defense to the jury. Polic’r, 6X S.W.3d at 666.
Appellant first argues the trial court abused its discretion by overruling three objections to
the State’s voir dire examination, The defense’s first objection was made when, while discussing
the concept of reasonable doubt with a prospective juror, the prosecutor stated. “Beyond a reasonable
doubt is not the same thing as beyond a shadow of a doubt. Ms. Winn, what do you think about
that?” Appellant objected to “improper voir dire on the subject,” and the trial court overruled the
objection. Appellant also objected when the prosecutor asked the jury panel if anyone felt the same
way as a panelist who said that a puzzle with missing pieces “resembles what’s on the front of the
box. But if the piece is missing, the picture is not complete.” Appellant’s counsel objected to the
prosecutors line ol questioning, arguing the question was “a commitment question to the beyond
a reasonable doubt definition.” The trial court overruled the objection because “[the prosecutor]
hasn’t said anything to tie into reasonable doubt.” The third objection challenged the following
question by the prosecutor:
Does everyone recall that? That is an unalienable—inalienable right that we as citizens have. We don’t have to testify in criminal cases in which we are charged. Everybody feel comfortable with that’? Can anybody think of some reasons—let’s talk with Ms. Winn. Can you think of a reason why a person may not want to?
Defense counsel objected, “Your Honor, I object to that. It’s an absolute right that a person has not
to testify [sic].” The trial court overruled the objection.
Appellant contends the trial court abused its discretion by overruling his first two voir dire
objections because the questions were improper commitment questions and/or a mischaracterization
of the State’s burden of proof. “Commitment questions are those that commit a prospective juror
-4- to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.”
Standefèr v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). The challenged questions did not
ask prospective jurors to commit regarding a conviction or to resolve or refrain from resolving any
particular issues, and the State did not mischaracterize its burden ofproofregarding the allegations
in the indictment. As for appellant’s argument that the third challenged question was an improper
reference to his constitutional right not to testify, a comment that occurs before testimony in the case
has closed “cannot be held to refer to a failure to testify which has not yet occurred.” Grcjffv. Slate,
65 S.W.3d 730,737 (Tex. App.—Waco 2001. pet. ret’d). Thus, we cannot say the trial court abused
its discretion by overruling appellant’s voir dire objections.
Turning to appellant’s contentions regarding the State’s direct examination ofAngie De Los
Santos Trevino, the testified that she did not want to testify and that the could not rememberwriting
a statement for the police. After Trevino testified that she did not remember writing a statement for
the police or recall the things that were said in the statement the State offered Trevino’s handwritten
statement to the Garland police as a recorded recollection under rule 803(5) of the Texas Rules of
Evidence. Appellant’s counsel objected that Trevino had not been afforded an opportunity to review
the statement to “see if it refreshes her memory before we ask it be admitted.” The prosecutor
responded, “Your Honor, she’sjust stated in front ofthejury that she doesn’t even remember writing
the statement and then she doesn’t remember the content” The trial court overruled the objection
and admitted the statement The trial court then granted the prosecutor’s request to treat Trevino as
a hostile witness.
Appellant argues the trial court erroneously admitted the statement because the State failed
to lay a proper predicate under rule 803(5). Yet, even if we assume the trial court erred, the trial
court’s ruling does not rise to the level ofconstitutional error. Erroneous evidentiary rulings rarely
—5-- rise to the level ofdenying fIrndamental constitutional rights, see Potter. 68 S.W.3d at 663, and there
has been no showing that this occurred here. Nor can we say. based on the record and the arguments
betbre us, that the admission of the statement influenced the jury or had more than a slight effect
See Motilla ‘ State. 78 S.W.3d 352, 355 rex. Crim. App. 2002).
Appellant also claims the trial court abused its discretion by overruling his objections that
the prosecutor was testifying and being argumentative during the direct examination of Trevino.
According to the record, the prosecutor questioned Trevino about each of the lines in her written
statement. When Trevino repeatedly responded that she did not recall the statements, the prosecutor
asked her about speaking with the prosecutor and an investigator prior to triaL Trevino acknowledged that she had met with them. Appellant objected as follows:
[PROSECUTOR:] Okay. Well let’s get back to the part about the stabbing. Do you remember saying tome “He mid me he didn’t stab him, hejust hit him with the bat”?
[TREVINO:] No, I don’t recall.
[PROSECUTOR:] You don’t remember telling me that last week?
[TREV1NO:] Well I remember telling you a lot of things.
[DEFENSE COUNSEL]: Your Honor, I’m sorry, I object to this line of questioning. if the prosecutor wants to testify she should be called to the stand.
The court overruled the objection. Thereafter, Trevino stated that she did not “know how much of
this I remember and what I don’t remember.” The prosecutor responded, “Thank you, you’ve
already said that Let me go through it again line by line, because we had this conversation and I
want to make sure ifyou’re changing your story today.” Appellant’s counsel objected, “Objection
argumentative, Your Honor.” The trial court overruled the objection.
The rules of evidence vest the trial court with wide latitude in controlling the manner and
mode of interrogating witnesses and presenting evidence so as to (1) make the interrogation and
-6- presentation effective for the ascertainment ofthe truth, (2) avoid needless consumption oftime, and
(3) protect witnesses from harassment or undue embarrassment TEx. R. EyED. 611(a); Padlila v.
State, 278 S.W.3d 98. 106 (Tex. App.—Texarkana 2009, pet. ref’d). Although the Suite called
Trevino to the stand, the court granted the prosecutor permission to treat Trevino as a hostile witness.
The prosecutor did not harass Trcvino or subject her to undue embarrassment, and appellant has not
shown the court abused its discretion by overruling his objections.
Appellant also alleges the trial court erroneously overruled his objection that the prosecutor
was improperly leading the complaining witness when the prosecutor asked the complainant: “And
then what happened. Was there anybody—was there anybody following you from the Quick Trip?”
“Leading questions are questions that suggest the desired answer, instruct the witness how
to answer, or put words into the witness’s mouth to be echoed back.” Tinlin v. State, 983 S.W.2d
65.70 (Ta. App.—Fort Worth 1998. pet. rerd). A question is not leading merely because it can
be answered “yes” or “no.” Id. A question is impermissibly leading only when it suggests which
answer, “yes” or “no,” is desired. id. Rule 611(c) prohibits leading questions on direct examination
“except as may be necessary to develop the testimony of the witness.” TEx. It EyED. 611(c). The
nile contemplates that some leading questions are acceptable at the trial court’s discretion. ff5’att
v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). To establish that a trial court abused its
discretion, an appellant must show the question resulted in undue prejudice. Id.
We do not conclude the prosecutor’s question was a leading question. The prosecutor did
not suggest the desired answer, instruct the witness how to answer, or put words into her mouth. See
Tinlin, 983 S.W.2d at 70. Moreover, even ifit could be considered a leading question, appellant has
not shown the trial court abused its discretion to permit leading questions to develop the witness’s
testimony under the circumstances, or that the challenged question resulted in undue prejudice. See
—7— Tix. R. Evin. ôll: Huti, 23 SW3d at 2.
(‘on cliision
After carefully reviewing the record, we conclude appellant fluted to preserve error and that
he did not meet his burden of showing the trial court denied him an opportunity to present a
complete defense. Whether the court’s rulings are viewed in isolation or collectively, appellant has
not shown the exclusion of relevant and reliable evidence that tbrmed such a vital part of his case
that its exclusion effectively precluded him from presenting a defense. We overrule appellant’s
issue.
We affirm the trial court’s judgment.
LANA MY RS JUSTICE
Do Not Publish TEx. R. API’. P. 47 I 10309F.U05
—8-- (!nitrt uf ppra15 iftI! Jtstrirt uf xa it 1a11a JUDGMENT JO! IN A. 1-fERNANDEZ. Appellant Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05-i 1-00309-CR V. F09-25333-R). Opinion delivered by Justice Myers, Justices TI! Ii STATE OF TEXAS. Appellee Moseley and Fillmore participating.
Based on the Court’s opinion of this date. the judgment of the trial court is AFFIRMED.
.ludment entered November 15. 2012.
LANA YERS JUSTICE