Mark Jaime Aguilar v. State

Opinion

                             NUMBER 13-03-00446-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

MARK JAIME AGUILAR,                                                                  Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 347th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, Mark Jaime Aguilar, guilty of the offense of attempted escape^[1] and assessed his punishment at two years in a state jail facility.  The trial court has certified that this Ais not a plea-bargain case, and [appellant] has the right of appeal.@  See Tex. R. App. P. 25.2(a)(2).  By one point of error, appellant contends the trial court erred in denying his motion for mistrial because the prosecutor committed prosecutorial misconduct.  We affirm.

Specifically, appellant complains of the following direct examination of Nueces County Sheriff=s Department Lieutenant J. R. Ramos by the prosecution:

Prosecutor:                Okay.  And let me see.  These are rather silly questions, but is the Nueces County Jail a secure correctional facility?

Ramos:                       Yes.

Prosecutor:                Was Mark Aguilar confined at that time in the Nueces County Jail?

Ramos:                       Yes.

Prosecutor:                And was he in custody?

Ramos:                       Yes.

Prosecutor:                This would have been an unauthorized departure from custody if he had been released, correct?

Ramos:                       Yes, ma=am.

Prosecutor:                And was it your understanding that he also was facing some federal weapons charges?

Defense Counsel:     Your Honor, I object.  That is not part of our - - we had a motion - -

The Court:                  Sustained.

Defense Counsel:     - - in limine,^[2] and we also had an agreement^[3] that it was the parole - - the weapons charge she was referring to was not indicated.  It was only a charge.  He had been in there over eight months.

Prosecutor:                Objection to a side bar, Your Honor.

The Court:                  Well, [Defense Counsel=s] objections [sic] is sustained.  I don=t think we need to go into those matters. 

Prosecutor:                Yes, Your Honor.

Defense Counsel:     Your Honor, I object to that, and I ask for it to be - - for you to instruct the jury for it to be stricken from the record.  And I ask for a mistrial, Your Honor.

The Court:                  Well, the jury will disregard the remarks about the federal charges, if any.  The matter is in the record.  The jury has been instructed to disregard, and the application for mistrial is denied.

                                                          * * * * * * *

Prosecutor:                Okay, And does the Nueces County Jail, does it operate by or under contract with the United States?

Ramos:                       Yes.

Prosecutor:                And does it confine persons arrested or charged with or convicted of criminal offenses?

Ramos:                       Yes.

A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.  Id.  The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case.  Id.  An improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard.  Id.  Mistrials are an extreme remedy for prejudicial events that occur during trial. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).

Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant's option, our law prefers that the trial continue.  Id.  A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of jurors.  Ladd, 3 S.W.3d at 567; see Bauder, 921 S.W.2d at 698 (mistrial applicable only when objectionable event is so emotionally inflammatory that curative instructions will unlikely prevent jury from being unfairly prejudiced against defendant). 

In order to preserve error, a defendant must (1) make a timely and specific objection, (2) request an instruction that the jury disregard the matter improperly placed before the jury, and (3) move for a mistrial.  Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); see Tex. R. App. P. 33.1(a).  An objection is timely if raised as soon as the grounds for objection become apparent.  Tex. R. App. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).  An error in admission of evidence is cured where the same evidence comes in elsewhere without objection.  Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

The record reflects the trial court sustained appellant=s objection regarding the federal charge.  We find nothing in the record showing the statement was so emotionally inflammatory that the jury was unduly prejudiced.  See Bauder, 921 S.W.2d at 698.  Therefore, we conclude any harm that may have been committed was rectified when the trial court instructed the jury to disregard the prosecutor=s statement.  See Ladd, 3 S.W.3d at 567.  We hold the trial court did not abuse its discretion in denying appellant=s motion for mistrial.

Appellant further asserts that after the trial court sustained his objection to a question and denied his motion for mistrial, the prosecutor continued the same line of questioning in violation of the trial court=s ruling.  In order to preserve error, a party must object each time inadmissible evidence is offered.  Ethington, 819 S.W.2d at 858.  Because appellant did not object to these subsequent questions, we hold he failed to preserve error.  See Tex. R. App. P. 33.1(a); see also Ethington, 819 S.W.2d at 858.  We overrule appellant=s sole point of error.

The judgment of the trial court is affirmed.              

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 4th day of August, 2005.

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^[1] See Tex. Pen. Code Ann. '' 38.06, 15.01 (Vernon 2004). 

^[2] Although appellant argues the existence of a motion in limine, the record contains no such motion.

^[3] The only agreement found in the record occurred after opening arguments when the State asked for a bench conference with the trial court and defense counsel.  The court determined that the State could Arefer to the charge as to why he is in the jail, but . . . don=t . . . be reckless.@  However, no mention was made regarding what appellant was charged with at the time of the attempted escape.