Oscar David Pardo v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00530-CR

Oscar David PARDO, Appellant

v.

The STATE of Texas, Appellee

From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR5260 Honorable Ron Rangel, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: December 17, 2014

AFFIRMED

A jury convicted appellant Oscar David Pardo of injury to a child. The trial court sentenced

Pardo to forty years’ confinement and assessed a $1,500.00 fine. On appeal, Pardo contends the

trial court erred in: (1) granting the State’s challenges for cause as to two venire members; and (2)

admitting evidence of alleged extraneous offenses in violation of Rule 403 of the Texas Rules of

Evidence. We affirm the trial court’s judgment. 04-13-00530-CR

BACKGROUND

A detailed rendition of the facts is unnecessary to our disposition. Accordingly, we provide

a brief background for context in relation to the issues raised.

Pardo and his girlfriend lived with Pardo’s parents. The girlfriend had two children from

a previous relationship — a five-year-old boy and a five-month-old boy. On one occasion, while

the girlfriend was at school, Pardo’s parents and the five-year-old left the house, leaving Pardo

with the infant, O.M. When his parent’s returned, they discovered O.M. was injured. O.M. was

taken to the emergency room where he was diagnosed with a subdural hematoma, requiring

surgery and a two-month hospital stay. Pardo testified the infant was injured while he was bathing

him. According to Pardo, when the child was splashed with water, he jumped back and struck his

head.

The Texas Department of Family and Protective Services (“the Department”) became

involved, removing O.M. from the home. Under the reunification plan established by the

Department, O.M.’s mother was required to keep the children away from Pardo. Pardo was

ultimately charged with injury to a child.

During the voir dire proceedings, venire member number 8 admitted he was biased against

the State, and venire member number 17 admitted he could not sit in judgment of another. Pardo’s

attorney had an opportunity to question each venire member about their admissions. The State

challenged each venire member for cause. Pardo objected to the State’s challenges and requested

an opportunity to rehabilitate the challenged members. The trial court overruled Pardo’s objection

and dismissed both venire members. Pardo’s attorney then asked for additional peremptory strikes,

which the trial court denied.

At trial, the State called six witness. One of the witnesses was a caseworker for the

Department who was involved with O.M. and his mother. The caseworker testified that because -2- 04-13-00530-CR

Pardo was suspected of abusing O.M., the child’s mother “was not allowed to let the children have

access to Mr. Pardo.” The caseworker also testified the mother’s parental rights to O.M. were

ultimately terminated because of physical abuse.

After the caseworker provided some testimony without objection, Pardo’s attorney asked

to approach the bench to discuss the caseworker’s testimony. During an in camera hearing, the

parties and the trial court discussed the boundaries of the questions the State intended to pose to

the Department caseworker. Pardo objected to the proposed testimony on grounds of relevancy

and lack of probative value. The record establishes the trial court understood the objection to be

a Rule 403 objection and conducted a balancing test, weighing the probative value of the testimony

against the potential prejudicial impact. The trial court concluded the probative value of the

evidence outweighed any potential prejudicial effect and permitted the State’s questioning to

continue over Pardo’s objection.

Ultimately, the jury convicted Pardo of injury to a child, and the trial court sentenced him

to forty years’ confinement. Thereafter, Pardo perfected this appeal.

ANALYSIS

As noted above, Pardo complains about events during the voir dire process and the

admission of the caseworker’s testimony. More specifically, Pardo contends the trial court erred

in: (1) granting the State’s challenge for cause as to venire member number 8; (2) granting the

State’s challenge for cause as to venire member number 17; and (3) admitting evidence of

extraneous alleged offenses because the prejudicial effect of the evidence outweighed the

probative value.

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Venire Members Dismissed for Cause

Standard of Review

We review the entire record of the voir dire proceedings to determine if the trial court

properly granted a challenge for cause. Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App.

2011). An appellate court must give great deference to the trial court’s decision to grant a

challenge for cause “because the trial judge is present to observe the demeanor of the venireperson

and to listen to his tone of voice.” Id. Therefore, we reverse a trial court’s ruling on a challenge

for cause only if it is evident the court committed a clear abuse of discretion. Id.

Application

In his first two issues, Pardo contends the trial court erred in granting two of the State’s

challenges for cause. Venire member number 8 was dismissed because he expressed bias against

the State. Venire member 17 was dismissed because he expressed an inability to sit in judgment

of another. Pardo also contends the trial court should have permitted him an opportunity to

rehabilitate the venire members before they were summarily dismissed and given him two

additional peremptory strikes. The State counters, arguing the venire members were properly

dismissed because both expressed an inability to follow the law, and Pardo had an opportunity to

rehabilitate the venire members, but could not.

The Texas Code of Criminal Procedure (“the Code”) permits either the State or the defense

to challenge a particular venire member for cause. TEX. CODE CRIM. PRO. ANN. art. 35.16 (West

2006). The Code provides that a venire member may be challenged for cause when he “has a bias

or prejudice in favor of or against the defendant . . . [or] the law upon which either the State or the

defense is entitled to rely.” Id. art. 35.16(a)(9), (c)(2). The test is whether the venire member’s

bias or prejudice would substantially impair his ability to follow his oath and the instructions of

the court. Gonzales, 353 S.W.3d at 831–32. -4- 04-13-00530-CR

“To show error in a trial court’s grant of [the] [S]tate’s challenge of a potential juror for

cause, a defendant must demonstrate one of two things: (1) the trial judge applied the wrong legal

standard in sustaining the challenge, or (2) the trial judge abused his discretion in applying the

correct legal standard.” Williams v. State, 417 S.W.3d 162, 173 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d) (citing Jones v. State, 982 S.W.2d 386, 388 (Tex. Crim. App. 1998)). “The

erroneous excusing of a potential juror will call for reversal only if the record shows that the error

deprived the defendant of a lawfully constituted jury.” Williams, 417 S.W.3d at 173 (citing Jones,

982 S.W.2d at 394).

1. Venire Member Number 8

Pardo first argues, with regard to venire member number 8, that the bias of a juror is not

dependent on whether a potential juror is merely “for one side or the other.” However, venire

member number 8’s responses and admissions went beyond being “for one side or the other.”

When specifically asked if he was biased against the District Attorney’s office because of its

handling of a prior case involving his son, he said, “Yes.” The trial court followed up on the venire

member’s response, asking for clarification: “What you said, sir, is that you would be biased

against the State in this trial. That’s what you said, right?” The venire member replied, “That is

correct.” The venire member was then questioned by Pardo’s attorney, who explained his case

was nothing like the case involving the venire member’s son. Pardo’s attorney then asked if the

venire member could follow the trial court’s instructions, the law, and apply the evidence to the

law. The venire member responded, “Probably not.” Pardo’s attorney then asked if the venire

member could be certain one way or the other, and the venire member said he could not. Because

bias against one side or the other is a proper ground for a challenge for cause under the Code, we

hold the trial court did not abuse its discretion in granting the State’s challenge for cause and

dismissing venire member number 8. See TEX. CODE CRIM. PRO. ANN. art. 35.16(a)(9). -5- 04-13-00530-CR

As to the failure to allow Pardo to rehabilitate the potential juror, Pardo’s attorney was

permitted to question venire member number 8, and the venire member persisted in his statement

of bias against the State. In fact, it was during the attempted rehabilitation by Pardo’s attorney

that venire member number 8 fully expressed his bias against the State, admitting he could not

follow the court’s instructions or the law. We cannot say the trial court abused its discretion in

foreclosing additional attempts at rehabilitation.

With regard to the request for an additional peremptory strike because of the challenge for

cause relating to venire member number 8, we have already determined the trial court did not err

in granting the State’s challenge for cause. Admittedly, when a trial court makes an erroneous

ruling on a defendant’s challenge for cause, the defendant is harmed because he has been

effectively denied one of his statutorily allotted peremptory challenges. Gonzalez, 353 S.W.3d at

831. Here, however, the trial court properly granted the State’s challenge for cause. Thus, Pardo

was not deprived of any of his allotted peremptory challenges — he had the same number of

challenges left when venire member number 8 was dismissed as he had before venire member

number 8 was dismissed. See id. Accordingly, there was no need to award Pardo additional

peremptory challenges.

2. Venire Member Number 17

As to venire member number 17, Pardo contends that statements made by venire member

17 during voir dire did not equate to “bias or prejudice against the law upon which the State is

entitled to rely.” See TEX. CODE CRIM. PRO. ANN. art. 35.16(c)(2). After reviewing the record, the

essence of the statements made by venire member number 17 was that he could not follow the law

because he could not sit in the judgment of another person. When asked whether he would follow

the law and apply the law to the facts, venire member number 17 expressed that he absolutely

could not do it. Thus, venire member number 17 expressed prejudice, in essence, against all phases -6- 04-13-00530-CR

of the applicable law. Because bias or prejudice against any law upon which the State intends to

rely is a proper ground for a challenge for cause under the Code, we hold the trial court did not

abuse its discretion in granting the State’s challenge for cause and dismissing venire member

number 17. See Gonzales, 353 S.W.3d at 831.

As to the failure to allow Pardo’s attorney to rehabilitate the potential juror, just as with

venire member number 8, Pardo was permitted to question venire member number 17, and he

again expressed his discomfort with judging another. Thus, we cannot say the trial court abused

its discretion in refusing to permit Pardo further attempts at rehabilitation.

And, as before, with regard to the request for an additional peremptory strike, because we

have held the trial court did not err in granting the State’s challenge for cause as to this second

potential juror, Pardo was not deprived of any of his allotted peremptory challenges. See Gonzalez,

353 S.W.3d at 831. Thus, there was no need for the trial court to award Pardo additional

peremptory challenges. See id.

Conclusion

Having reviewed the entire record of the voir dire proceedings, we conclude the trial court

did not abuse its discretion in granting the challenges for cause based on the provisions of the Code

cited above. Furthermore, Pardo was not entitled to additional peremptory strikes based on the

granting of the challenges for cause. Accordingly, we overruled Pardo’s first and second issues.

Admission of Evidence — Rule 403

In his final issue, Pardo contends the trial court erred in admitting the testimony of the

Department caseworker because it violated Rule 403 of the Texas Rules of Evidence. 1 Prior to

1 We note that in his appellate brief, Pardo cites Rule 404(b) of the Rules of Evidence, which governs the admissibility of extraneous offense evidence. See TEX. R. EVID. 404(b) (stating evidence of other crimes, wrongs or acts is not admissible to prove character of person to show action in conformity therewith, but may be admissible for other purposes). However, after reviewing his brief, we conclude that Pardo is challenging only the admissibility of the

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conducting any substantive analysis, we note that the State contends this error was not preserved

for this court’s review. We agree.

Preservation of Error

Pardo alleges that after his Rule 403 objection, and before any medical witness testimony,

the jurors were “conditioned to believe that [he] was a danger to the child.” Specifically, he

contends evidence was improperly admitted regarding the Department’s suspicion that he abused

O.M., as well as evidence relating to the Department’s requirement that O.M.’S mother keep her

children away from Pardo. However, Pardo fails to note that during the Department caseworker’s

testimony, the same evidence he later complained of, and complains of now on appeal, was

admitted, without objection. Before Pardo lodged any objection, the Department caseworker

testified O.M. “was removed for physical abuse.” She also testified that Pardo, “the mother’s

paramour,” was suspected of abusing the child. Additionally, she testified about the Department’s

investigation and the family plan in place for the mother to achieve reunification. Still further, she

testified that one requirement in the family plan was that “[O.M.’s mother] was not allowed to let

the children have access to Mr. Pardo.” The trial court, having heard this unobjected to evidence,

concluded, “[s]ince the issue of termination has already been brought forward before the jury, I’ll

let the State inquire as to why the termination occurred.”

“An error in the admission of evidence is cured where the same evidence comes in

elsewhere without objection.” Valle v. State, 109 S.W.3d 500, 509. (Tex. Crim. App. 2003). Here,

caseworker’s testimony based on Rule 403 of the Texas Rules of Evidence. Even if we were to conclude Pardo presented argument in his brief with regard to Rule 404(b), we would hold Pardo did not preserve this issue for our review because he failed to make a Rule 404(b) objection at trial. The trial court concluded Pardo’s objection was based on Rule 403, stating, “I’m conducting a 403 balancing test and I’ll allow the testimony. . . .” Pardo did not attempt to correct the trial court’s conclusion or otherwise object based on Rule 404(b). An argument on appeal that does not comport with the objection at trial is waived. Lyssy v. State, 429 S.W.3d 37, 40 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).

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Pardo failed to object to the same testimony he later claimed was more prejudicial than probative.

Thus, we hold any error by the trial court in admitting the objected-to testimony was cured.

Accordingly, we hold Pardo has failed to preserve this issue for our review. However, even if

Pardo had preserved error, we nevertheless would hold the trial court did not err in admitting the

evidence over his Rule 403 objection.

We review a trial court’s decision to admit extraneous offense evidence over a Rule 403

objection under the abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.

Crim. App. 2009). As long as the trial court’s ruling is within the “zone of reasonable

disagreement,” there is no abuse, and the ruling must be upheld. Id. at 343–44 (quoting

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). If the trial court’s ruling is

correct on any legal theory, it will be upheld. De La Paz, 279 S.W.3d at 344.

Applicable Law

Rule 403 favors the admission of relevant evidence. Aragon v. State, 229 S.W.3d 716, 724

(Tex. App.—San Antonio 2007, no pet.). Moreover, the rule presumes relevant evidence is more

probative than prejudicial. Id. Relevant evidence tends to make facts that are significant to a

determination of guilt more or less likely than they would be if the evidence did not exist. See

Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); TEX. R. EVID. 401. Nevertheless,

even relevant evidence must be excluded under Rule 403 if the probative value of the evidence is

“substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

TEX. R. EVID. 403; see Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

Evidence is inadmissible under Rule 403 when it suggests the fact finder should make a decision

on an improper basis. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). -9- 04-13-00530-CR

In determining a Rule 403 issue, we must consider the probative value of the evidence, its

potential to improperly affect the jury, the time the State uses to develop the evidence, and the

State’s need for the evidence. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006);

see Gigliobianco, 210 S.W.3d at 641–42. With these factors in mind, we begin our analysis.

During the State’s questioning of the Department caseworker, Pardo objected to the

probative value of the caseworker’s testimony as opposed to its potential prejudicial effect. Out

of the presence of the jury, the court conducted an in camera hearing to determine the boundaries

of the proposed testimony. The trial court conducted a Rule 403 balancing test and concluded the

evidence outlining the Department’s investigation into the abuse of O.M. and the termination of

his mother’s parental rights was more probative than prejudicial. Pardo contends this testimony

was highly prejudicial because it creates a presumption of guilt based on extraneous offenses. We

hold the trial court did not err in admitting the caseworker’s testimony.

As we noted in our analysis of the waiver issue, the evidence Pardo claims violates Rule

403 is simply a development of evidence already heard by the jury. Because the evidence was so

substantially similar to evidence already admitted, we cannot conclude the evidence had the

potential to improperly affect the jury. Additionally, the trial court could have reasonably

determined that evidence developed from previously admitted testimony, which was directly

related to circumstances surrounding the abuse of O.M., was probative. See Shuffield, 189 S.W.3d

at 787; Gigliobianco, 210 S.W.3d at 641–42. The testimony established Pardo’s restricted access

to O.M., and his involvement in the Department’s investigation into the alleged abuse of O.M. We

cannot say that in a case where the defendant is on trial for injury to a child, the trial court abuses

its discretion in finding evidence relating to the Department’s investigation into that precise set of

circumstances is relevant. - 10 - 04-13-00530-CR

Furthermore, this evidence was submitted to establish the continuing nature of the abuse

that ultimately led to the termination of the mother’s parental rights based on her failure to prevent

Pardo’s access to O.M. The need for the State to establish the continuing abuse of O.M. was

important in dispelling reasonable doubt that could arise from Pardo’s explanation of the cause of

O.M.’s initial injury. Thus, the State’s need for the Department caseworker’s testimony was

significant. See Shuffield, 189 S.W.3d at 787; Gigliobianco, 210 S.W.3d at 641–42.

Finally, the time needed to develop the evidence of Pardo’s involvement in the

Department’s investigation into the abuse of O.M. was de minimis. See Shuffield, 189 S.W.3d at

787; Gigliobianco, 210 S.W.3d at 641–42. The State, in approximately two pages of testimony,

questioned the caseworker about the Department’s investigation and established that the reason

for the termination of the mother’s parental rights was because she continued to allow Pardo

unsupervised access to O.M. The testimony of the caseworker and the arguments of the parties

regarding that testimony comprised, at most, seven pages of the three volume record, which

included nearly two hundred pages of testimony. Accordingly, we hold the evidence relating to

the Department’s investigation into Pardo’s abuse of O.M. clearly did not consume an inordinate

amount of time. See Shuffield, 189 S.W.3d at 787; Gigliobianco, 210 S.W.3d at 641–42; cf.

Newton v. State, 301 S.W.3d 315, 320–21 (Tex. App.—Waco 2009, pet. ref’d) (discussing amount

of time needed to develop complained of evidence).

After reviewing the probative value of the evidence relating to the caseworker’s testimony,

its potential effect on the jury, the State’s need for the evidence, and the time taken by the State to

develop it, we hold the trial court’s decision to admit the evidence relating to the caseworker’s

testimony was not outside the zone of reasonable disagreement.

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Based on the foregoing, we overrule Pardo’s issues and affirm the trial court’s judgment.

Marialyn Barnard, Justice

Do Not Publish

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