NUMBER 13-11-00409-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RAY VINCENT VALLEJO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza Appellant, Ray Vincent Vallejo, was convicted of capital murder and sentenced to
life imprisonment without possibility of parole. See TEX. PENAL CODE ANN. § 19.03(a)(2)
(West Supp. 2011). On appeal, Vallejo argues that: (1) the evidence was legally
insufficient to support his conviction; (2) the trial court erred by allowing evidence of his gang affiliation; (3) he was denied a fair and impartial trial; and (4) the trial court erred
by allowing testimony that fellow gang members did not testify due to fear of retaliation.
We affirm.
I. BACKGROUND
In the early afternoon of June 21, 2009, police in Weslaco, Texas, were
dispatched to a residence in response to a 911 call during which the caller had hung up.
When they arrived they saw a woman, identified as Manuela Bocanegra, standing
outside the residence and bleeding profusely. Officers then entered the residence and
found a second injured female, lying face down on the floor and covered in blood, but
still breathing. The second victim was identified as Donna Bocanegra, Manuela’s
daughter.
Though Manuela recovered, Donna later died from her injuries. An autopsy
revealed that Donna had suffered three gunshot wounds, including a fatal gunshot
wound to the head. Forensic analysis showed that the two women had been shot with
two different weapons: Donna with a .38 Special revolver and Manuela with a .45
caliber weapon.
Juan Aldrete Jr., a neighbor, recalled that he heard the sound of “aluminum
hitting aluminum” coming from the Bocanegras’ residence on the day in question. He
went to see what happened and observed that the door to the Bocanegras’ house had
been “kicked open.” Several minutes later, Aldrete saw two males running out of the
back of the Bocanegras’ house. In a photo lineup presented later by police, Aldrete
identified Vallejo as one of the men who had run from the house. Another neighbor,
Gregorio Piata, also saw two males running from the Bocanegras’ residence at the time
2 of the incident. Piata testified that the males got into a very loud, “s[o]uped-up” red Ford
Mustang with tinted windows and “just took off, just screeching tires and they left.”
Manuela Bocanegra testified that she and Donna were doing laundry when two
men kicked open a door, entered their home, and said “this is a stick up.” The men
were wearing black gloves and “their hands were covered with black handkerchiefs,” but
Manuela could see that they were both carrying handguns. One of the intruders fired a
shot into the ceiling. Manuela asked the men what they wanted, but they responded
only with expletives. A struggle ensued, during which one of the men shot Manuela
repeatedly. Manuela did not see the men shoot Donna, but she heard other gunshots
and later saw Donna bleeding on the floor. According to Manuela, the men told her: “I
don’t want no more words from you, you f[***]ing old lady. Because you’re not the only
one. All your family is next.” She testified: “Every time I would open my mouth to ask
either one of them [what they wanted], they would shoot at me.” She suffered gunshot
wounds to the neck, chest, shoulder, and ear. In the struggle, one of the assailants was
shot in the hand, and he then said: “Let’s get the f[***] out of here. There is nothing
here. Let’s go. Hurry.” The other gunman said “Let’s get out. Let’s go.” They then ran
out the back door of the house, and Manuela heard a “very loud” noise from a car
driving away.
Manuela testified that she was about “a foot away” from the men when she first
asked them what they wanted. Although the gunmen were wearing masks, she could
see each man’s eyes and nose, and she stated: “[N]ever in my life will I forget those
two faces.” She positively identified Vallejo as one of the assailants, both in a photo
lineup during the initial investigation and again at trial. Manuela identified Lionzo Cantu
3 as the other perpetrator.1
Shortly after the incident, an investigator with the Weslaco Police Department
observed a maroon Ford Mustang traveling at a high rate of speed near the area where
the crime was committed. The investigator, who was off-duty and driving his personal
vehicle at the time, had to maneuver out of the way in order to avoid colliding with the
Mustang. Police later observed the maroon Mustang at the home of Fidel Cuellar.
Investigator Albino Flores testified that Cuellar was a known member of a gang, Tri City
Bombers, or “TCB,” which is known for violence and, in particular, home invasions.
Lieutenant Ricardo Suarez of the Donna Police Department testified that he is in
charge of the Crime Stoppers tip line. He stated that, over several years, he received
information that Cuellar and other TCB gang members were participating in home
invasions. He also received information that Cuellar drove a red Ford Mustang.
Police set up surveillance at the house of two suspected TCB members, Joel
Espinoza and Felipe Mata. Eventually, the red Mustang was observed parked at the
house. Police brought Espinoza in for questioning and showed him a photo lineup.
Espinoza identified Vallejo as being involved in the shooting at the Bocanegras’ house.
After police observed the red Mustang commit a traffic violation, they stopped the
vehicle and seized it. Piata was asked to come to the police department to identify the
vehicle. Piata said that, based on appearance and sound, the seized vehicle was the
same vehicle he saw departing the Bocanegras’ residence on June 21, 2009.
Police apprehended Vallejo and Cantu. When Vallejo was apprehended, he had
an injury on his hand consistent with a gunshot wound. However, DNA swabs taken
1 Cantu was also charged with capital murder. He pleaded guilty to the lesser-included offenses of murder and attempted murder and was sentenced to fifty years’ imprisonment.
4 from the crime scene did not match Vallejo’s DNA.
Vallejo was convicted of capital murder, attempted capital murder, and
aggravated robbery. The trial court, upon defense counsel’s motion, dismissed the
attempted capital murder and aggravated robbery counts and sentenced Vallejo to life
imprisonment without parole. This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
By his first issue, Vallejo argues that the evidence was legally insufficient to
support his conviction.
1. Standard of Review and Applicable Law
In conducting a legal sufficiency review, we consider the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Hacker v. State,
389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). We give deference to “the responsibility of the trier of fact to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19). When faced with conflicting evidence, we
presume that the trier of fact resolved any such conflict in favor of the prosecution, and
we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
5 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes
the particular offense for which the defendant was tried. Id. Here, a hypothetically
correct jury charge would state that Vallejo is guilty of the indicted offense if he: (1)
intentionally or knowingly caused Donna Bocanegra’s death; (2) in the course of
committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2). A
person commits robbery if, in the course of committing theft, and with intent to obtain or
maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes
bodily injury to another; or (2) intentionally or knowingly threatens or places another in
fear of imminent bodily injury or death. Id. § 29.02(a) (West 2011). “In the course of
committing theft” means “conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft.” Id. §
29.01(1) (West 2011).
The jury was charged on the law of parties, under which a person is criminally
responsible for an offense committed by the conduct of another if, “acting with intent to
promote or assist the commission of the offense, he solicits, encourages, directs, aids,
or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2) (West 2011).
When we review the sufficiency of the evidence supporting a defendant’s participation
as a party to the crime, “we may consider ‘events occurring before, during and after the
commission of the offense, and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act.’” King v. State, 29 S.W.3d
6 556, 564 (Tex. Crim. App. 2000) (quoting Ransom v. State, 920 S.W.2d 288, 302 (Tex.
Crim. App. 1994)).
2. Analysis
Vallejo’s complaint regarding the sufficiency of the evidence is confined to the
issue of identity: he argues that the evidence was insufficient to support the jury’s
finding that he was the one that accompanied Cantu in committing the attempted
robbery and murder. He contends that his identity as Cantu’s accomplice was
established only by the testimony of Manuela Bocanegra, which he argues was not
credible or reliable. In particular, Vallejo notes that: (1) according to Manuela’s
testimony, the perpetrators were wearing masks; (2) Manuela provided police with a
description of her assailant which led to a computer-generated sketch which “in no way
resembles [Vallejo]”; (3) she initially testified that her assailant had a piercing in his right
eyelid, but later remembered that it was in his left eyelid; and (4) she initially testified
that she told investigators that the suspects had dark complexions, but later clarified
that she told investigators that the suspects looked “Mexican.”
We first note that Vallejo is mistaken in claiming that his identity was established
only by Manuela’s testimony. Aldrete—who observed two males running out of the
back of the Bocanegras’ house shortly after he heard the sound of “aluminum hitting
aluminum” coming from the house—also identified Vallejo as one of the men fleeing the
scene. We also note that, even though the evidence established that the perpetrators
were wearing masks, Manuela testified that she could see the eyes and noses of the
men. Her inability to see her assailants’ hair, mouth, and ears does not deprive her
positive identification of its probative power. See Hacker, 389 S.W.3d at 865 (generally
7 setting forth standard of review); see also Alexander v. State, No. 01-09-00630-CR,
2010 Tex. App. LEXIS 10157, at *7 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, pet.
ref’d) (mem. op., not designated for publication) (noting that a witness “was not required
to see the [suspect’s] entire face to make a positive identification”); Rubio v. State, No.
14-04-00030-CR, 2004 Tex. App. LEXIS 11687, at *7 (Tex. App.—Houston [14th Dist.]
Dec. 23, 2004, pet. ref’d) (mem. op., not designated for publication) (noting that
appellant’s argument that a witness identification was “unreliable because the burglar
wore a ski mask and [the witness’s] degree of attention was insufficient” goes to the
witness’s credibility and is judged by the jury).
In any event, “[t]he jury is the sole judge of witnesses’ credibility and the weight
to be given testimony.” Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
The jury was free to believe or disbelieve all or part of Manuela’s testimony. See
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“[The finder of fact] is
entitled to believe or disbelieve all or part of the witness’s testimony—even if that
testimony is uncontroverted—because he has the opportunity to observe the witness’s
demeanor and appearance.”). Even if we were to agree with Vallejo that Manuela’s
testimony was unreliable, we may not act as a “thirteenth juror” by substituting our
judgment for that of the jury. See Brooks, 323 S.W.3d at 905. Instead, our task is only
to decide whether any rational juror could have found the essential elements of the
crime beyond a reasonable doubt. See id. at 895 (citing Jackson, 443 U.S. at 319). We
find that a rational juror could have concluded from all of the evidence adduced that
Vallejo was the person who accompanied Cantu in carrying out the attempted robbery
and murder.
8 3. Motion for New Trial
As part of his argument regarding his first issue, Vallejo asks that we “place
special attention” to his motion for new trial and an affidavit by Cantu which was
attached thereto. Cantu’s affidavit read, in relevant part:
I wish to state that after pleading guilty to the abovementioned charges, I take full responsibility for the actions of the crime. I was the person who shot both victims. I had previously spoken to Mr. Vallejo regarding my involvement in the crime at which time I denied any involvement in the crimes. I also never told anyone else of my involvement, including my attorney. Mr. Vallejo was not involved with these crimes. He was not present at the crime scene nor did he have any knowledge at all of the crimes, either before or after the crimes occurred. To my knowledge, he has never been to the victim’s house nor does he know the victims. These crimes are not gang motivated crimes. I committed these crimes for my own personal reasons.
After Mr. Vallejo was found guilty and sentenced to life, I knew that I had to tell of my involvement with the crime because Mr. Vallejo was not involved and my conscience would not allow me to remain quiet. Mr. Vallejo is an innocent man and was no way involved in this crime.
I did not come forward with this information prior to his trial or before my plea because I had insisted to everyone that I was not involved, however, when he was found guilty, I decided I must plead guilty to the crimes that I did commit and take the punishment which I deserved. After pleading guilty to the charges, I informed my attorney . . . that Mr. Vallejo was not involved with these crimes.
Vallejo’s motion for new trial was based, in part, on grounds that “[n]ewly material
evidence favorable to the accused has been discovered.” See TEX. CODE CRIM. PROC.
ANN. art. 40.001 (West 2006). However, on appeal, Vallejo does not contend that the
trial court erred in denying his motion for new trial on these grounds, nor does he
explicitly make the dubious argument that Cantu’s post-trial affidavit should be
9 considered in our evaluation of the sufficiency of the evidence before the jury.
Accordingly, any complaint in that regard is waived. See TEX. R. APP. P. 38.1(i).2
Vallejo’s first issue is overruled.
B. Admission of Evidence
By his second issue, Vallejo contends that the trial court erred when it admitted
evidence of his gang affiliation. We review a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782,
793 (Tex. Crim. App. 2006) (internal citations omitted). “If the trial court’s decision was
within the bounds of reasonable disagreement, the appellate court should not disturb its
ruling.” Id.
2 Even if Vallejo did argue on appeal that the trial court erred in denying his motion for new trial, that argument would not be meritorious for at least two reasons:
First, there was no hearing on Vallejo’s motion for new trial at which he offered Cantu’s affidavit into evidence. See Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009) (“[P]ost-trial motions such as these are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing.”); McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (“[An affidavit may] suffice to establish every facet of a . . . cognizable ground for new trial, . . . an accused may have said affidavit introduced into evidence, and the matter may be resolved exclusively on that basis. In order to so introduce his affidavits, however, a hearing is required.”).
Second, Vallejo’s motion for new trial did not establish, or even argue, that Cantu’s testimony (1) was unknown to him at the time of trial, (2) was unobtainable with due diligence, (3) was admissible, or (4) would probably have brought about a different result in a new trial. See TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2006) (“A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.”); Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (“Under [article 40.001], a defendant is entitled to have his motion for new trial granted if[:] (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial.”); see Wilson v. State, 633 S.W.2d 351, 352 (Tex. App.—Corpus Christi 1982, pet. ref’d) (“[U]nless the defendant satisfies all four requirements for a new trial based on newly discovered or available evidence, he is not entitled to a new trial simply because a convicted co-defendant is ready, willing, and able to testify to facts, which, if believed by the jury, would exonerate the defendant.”); see also Drew v. State, 743 S.W.2d 207, 228 (Tex. Crim. App. 1987) (“It is not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his codefendant by the filing of a recanting affidavit or other statement. It should go without saying that not every recanting or other statement requires a new trial of the other defendant for whose benefit it is produced.”).
10 During the State’s case-in-chief, the prosecutor asked the trial court to admit
evidence that Vallejo was a TCB gang member. Defense counsel objected, and a
hearing was held outside the presence of the jury. At the hearing, defense counsel
argued that the evidence was inadmissible character evidence because its only
relevance was in establishing that Vallejo was guilty because he is a gang member.
See TEX. R. EVID. 404(b). The prosecutor argued in response that the evidence was
admissible because it tended to show Vallejo and Cantu’s motive in selecting the
Bocanegras’ house for their assault. The prosecutor further explained:
[T]here was a raid done of a house that belonged to one of the other daughters of the Bocanegra[s], and her and her husband. And it was believed that maybe they had money, had drugs, were involved. And we—it’s our contention that that is why [Vallejo and Cantu] came to this house. They believed that they got the wrong house—or they believed those people, those people had initially lived there.
Investigator Flores testified outside the presence of the jury that police had received
information that the suspects were affiliated with the TCB gang and that this particular
gang was known for carrying out home invasions and robberies. He conceded on
cross-examination that he had no information that the Bocanegras were from a rival
gang, and he could not explain why Vallejo and Cantu chose the Bocanegras’ house to
carry out their attack. The prosecutor noted that she would be eliciting testimony that
the car used by the assailants was owned by a TCB member. The trial court admitted
the evidence over defense counsel’s objection.
On appeal, Vallejo contends that the evidence should have been excluded under
Texas Rules of Evidence 403 and 404(b).3 Rule 403 provides that, “[a]lthough relevant,
3 At trial, defense counsel did not explicitly argue that the evidence was inadmissible under Rule 403; however, she repeatedly argued that the evidence was irrelevant other than to show character conformity. We assume, but do not decide, that Vallejo’s Rule 403 objection was preserved for our
11 evidence may be excluded if its probative value 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. Under Rule 404(b), evidence of an accused’s “other crimes, wrongs or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” TEX. R. EVID. 404(b). “It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .” Id. Gang membership evidence is
admissible under Rule 404(b) if it is relevant to show a non-character purpose that in
turn tends to show the commission of the crime. Ortiz v. State, 93 S.W.3d 79, 94 (Tex.
Crim. App. 2002) (citing Vasquez v. State, 67 S.W.3d 229, 239–40 (Tex. Crim. App.
2002); Medina v. State, 7 S.W.3d 633, 643–44 (Tex. Crim. App. 1999)).
Even assuming that the trial court erred in admitting the evidence of Vallejo’s
gang affiliation, we nevertheless conclude that the error would not be reversible
because Vallejo has not shown that his substantial rights were affected by the error.
See TEX. R. APP. P. 44.2(b). Texas Rule of Appellate Procedure 44.2(b) states that we
must disregard any non-constitutional error in a criminal case that does not “affect
substantial rights,” id., and the Court of Criminal Appeals has held that “[a] substantial
right is affected when the error had a substantial or injurious effect or influence in
determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). Here, as set forth above, Manuela Bocanegra testified that she was, at one
point, about “a foot away” from her assailants and could see each man’s eyes and nose.
She unequivocally identified Vallejo—both in a police-administered photo lineup and
review. See TEX. R. APP. P. 33.1 (regarding preservation of error).
12 again at trial—as one of the two attackers who broke into her house, shot her multiple
times, and shot and killed her daughter. In light of this evidence, we cannot conclude
that the evidence of Vallejo’s gang affiliation “had a substantial or injurious effect or
influence in determining the jury’s verdict.” See id. Accordingly, any error in admitting
the evidence was harmless. Vallejo’s second issue is overruled.
By his fourth issue, Vallejo contends that the trial court erred in admitting
testimony that fellow gang members—Espinoza and Mata in particular—did not testify
at trial due to their fear of retaliation. Vallejo complains specifically of the following
testimony given by Investigator Billy Pemelton:
[Prosecutor:] Have you had dealings with gang members and gang activity?
[Pemelton:] Yes, I have.
[Prosecutor:] Can you tell the ladies and gentlemen of the jury based on your experience in law enforcement, hypothetically speaking, if a gang member, known gang member were to rat out or testify against another known gang member, what would, hypothetically speaking, what would happen?
[Pemelton:] In my 19 years of experience, I’ve seen it that there would be repercussions if you testify against a known fellow gang member.
[Defense counsel]: Your Honor, I will object, that it calls for speculation.
THE COURT: Overruled.
[Pemelton:] In my experience what I have seen in my career is that they will threaten your family members, or yourself.
Vallejo argues that his trial counsel’s objection to Investigator Pemelton’s
testimony should have been sustained under Texas Rule of Evidence 602 because the
13 testimony was speculative. See TEX. R. EVID. 602 (“A witness may not testify to a
matter unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.”). He does not, however, explain how the admission
of this testimony caused him to suffer harm. Having reviewed the record—and
especially in light of Manuela Bocanegra’s testimony and identification of her
attackers—we cannot say that this testimony “had a substantial or injurious effect or
influence in determining the jury’s verdict.” See King, 953 S.W.2d at 27; see also TEX.
R. APP. P. 44.2(b). We therefore overrule this issue for the same reasons set forth
above with respect to issue two.
C. Prosecutorial Misconduct
By his third issue, Vallejo argues that he was deprived of a fair and impartial trial
due to comments made by one of the prosecutors and because the prosecutor
“repeatedly violat[ed] the rules of evidence and the Confrontation clause.”
First, with regard to the alleged objectionable comments, one of Vallejo’s trial
attorneys testified that he heard one of the prosecutors say “[t]hat f[***]ing bitch” during
a bench conference. Defense counsel stated that he was seated in his regular position,
close to the jury, at the time he overheard the remark. The remark was allegedly made
in the direction of Vallejo’s other trial attorney, who is female. The trial court bailiff also
testified that he heard “bickering” during the bench conference and that the prosecutor
at one point said “[f***]ing bitch.” The prosecutor categorically denied making such a
remark and accused defense counsel of lying.4 The trial court denied Vallejo’s motion
for mistrial.
4 The prosecutor did not directly accuse the bailiff of lying.
14 A mistrial is an extreme remedy, and “[o]nly in extreme circumstances, where the
prejudice is incurable, will mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court’s remedy for improper
conduct that is ‘so prejudicial that expenditure of further time and expense would be
wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999)). We review the denial of a motion for mistrial under an abuse of discretion
standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Espinosa v.
State, 328 S.W.3d 32, 38 (Tex. App.—Corpus Christi 2010, pet. ref’d).
Texas Rule of Appellate Procedure 33.1 provides that, as a prerequisite to
presenting a complaint for appellate review, the record must show that the complaint
was made to the trial court by a timely and specific request, objection, or motion. TEX.
R. APP. P. 33.1. A motion for mistrial is timely only if it is made as soon as the grounds
for it become apparent. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007)
(citing Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994), 23 C.J.S.
Criminal Law § 1388 (1989)). Here, the prosecutor allegedly made the objectionable
comment during trial proceedings on Friday, February 25, 2011. Defense counsel
allegedly overheard the remark at the time it was made, so the potential grounds for
mistrial would have been immediately apparent to defense counsel at that time;
however, the issue was not brought to the trial court’s attention until the following
Monday, February 28, 2011. Accordingly, Vallejo’s motion for mistrial was untimely.
See id. (holding that appellant’s motion for mistrial was untimely where the grounds for
mistrial first became apparent during a witness’s testimony but appellant failed to move
for a mistrial until after that witness and another witness had concluded their testimony).
15 Even if Vallejo had timely requested a mistrial—and even assuming arguendo that the
prosecutor did, indeed, make the alleged objectionable remark—Vallejo has not
established that any prejudice resulting from the remark was incurable. Hawkins, 135
S.W.3d at 77 (noting that a mistrial is required “[o]nly in extreme circumstances, where
the prejudice is incurable”).
Vallejo further argues by his third issue that the State “repeatedly . . . elicited
hearsay testimony from police officers that told the jury that fellow gang members had
implicated [Vallejo] in the commission of the crime.”5 Vallejo states that “[t]he hearsay
statements were originally objected to and the judge sustained the objections but the
State continued to elicit the hearsay testimony without further objection from the
defense.” Vallejo does not argue that the trial court erred in admitting the testimony, nor
does he contend that his trial counsel was ineffective for failing to object each time the
testimony was elicited. Rather, he appears to contend that the prosecutor committed
misconduct, rendering his trial unfair and depriving him of his Sixth Amendment right to
confront witnesses, see Crawford v. Washington, 541 U.S. 36, 59 (2004), by repeatedly
eliciting the alleged hearsay testimony.
Vallejo cites two Texas Court of Criminal Appeals cases and two court of appeals
cases in support of his argument. First, in Wright v. State, 609 S.W.2d 801 (Tex. Crim.
5 In particular, Vallejo complains that the prosecutor elicited testimony from police officers that, as a result of their interrogation of TCB members Joel Espinoza and Felipe Mata, they determined that Vallejo was a suspect in Donna Bocanegra’s murder. He complains that the prosecutor, at various times, attempted to have “back door hearsay” admitted by prefacing questions to witnesses with statements such as: “Without getting into what anyone told you . . . .”
Vallejo also complains of the prosecutor’s statement that she intended to call Espinoza and Mata as hostile witnesses and that, if called as a witness, Espinoza and Mata planned to assert their Fifth Amendment privilege not to testify. However, those statements were made outside the presence of the jury and so cannot form the basis of a complaint that Vallejo was deprived of a fair and impartial trial.
16 App. 1980), the Court of Criminal Appeals reversed a conviction when the prosecutor’s
argument—suggesting that the defendant could be “dangerous in the community” even
though he had no prior convictions because “Jack the Ripper and the Boston Strangler”
also had no prior convictions—“evince[d] a course of conduct . . . which could serve no
purpose other than to inflame and prejudice the minds of the jurors.” Id. at 804. The
Court reached a similar conclusion in Koller v. State, 518 S.W.2d 373, 376, 378 (Tex.
Crim. App. 1975) (finding that the prosecutor’s “repeated[] attempt[s] to remind the jury
of the appellant’s failure to testify . . . could have served no other purpose than to
deprive the appellant of a fair trial by prejudicing the jury against him”). In Dakin v.
State, 632 S.W.2d 864 (Tex. App.—Dallas 1982, pet. ref’d), the Dallas Court of Appeals
reversed a murder conviction where the prosecutor “provid[ed] an ongoing commentary
on the evidence and the weight to be given to it.” Id. at 868. And, in Morin v. State, 960
S.W.2d 132 (Tex. App.—Corpus Christi 1997, no pet.), this Court reversed a murder
conviction where the State elicited testimony from a police investigator that a friend of
the appellant had informed the investigator that the appellant was involved in the crime.
Id. at 137–38.
All four cases cited by Vallejo are plainly distinguishable. In Wright, Koller,
Dakin, and Morin, the appellant objected to the introduction of the challenged evidence
and obtained an adverse ruling from the trial court either on the evidentiary issue or on
a motion for mistrial. See Wright, 609 S.W.2d at 804 (“The appellant's objection to this
argument was overruled.”); Koller, 518 S.W.2d at 377 (“[T]he court again denied the
appellant’s renewed motion for mistrial, but sustained his objection and instructed the
jury to disregard the testimony.”); Morin, 960 S.W.2d at 137 (trial court granted defense
17 counsel a running objection to the admission of alleged hearsay testimony); Dakin, 632
S.W.2d at 865 n.1, 868 (trial court sustained appellant’s objection to prosecutor’s
argument but denied motion for mistrial). That is to say, the appellants in those cases
preserved their evidentiary issues for appellate review. See TEX. R. APP. P. 33.1. Here,
on the other hand, as Vallejo concedes, the allegedly inadmissible testimony was
repeatedly elicited “without further objection from the defense.” See Lane v. State, 151
S.W.3d 188, 193 (Tex. Crim. App. 2004) (“An error [if any] in the admission of evidence
is cured where the same evidence comes in elsewhere without objection.”) (citing Valle
v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). Moreover, Vallejo does not
direct us to any point in the record where his trial counsel asked the trial court to
admonish the prosecutor, for a limiting instruction, or for a mistrial on the basis of
prosecutorial misconduct in the eliciting of hearsay testimony.6 Accordingly, his third
issue has not been preserved for our review. See Hernandez v. State, 219 S.W.3d 6,
14 (Tex. App.—San Antonio 2006) (“To preserve error for prosecutorial misconduct, the
appellant must: (1) make a timely and specific objection; (2) request an instruction to
disregard the matter improperly placed before the jury; and (3) move for mistrial.”), aff’d,
273 S.W.3d 685 (Tex. Crim. App. 2008); see also TEX. R. EVID. 802 (“Inadmissible
hearsay admitted without objection shall not be denied probative value merely because
it is hearsay.”).7
6 Vallejo’s motion for new trial did not raise prosecutorial misconduct, or the repeated eliciting of alleged hearsay testimony, as grounds for relief. 7 To the extent that Vallejo claims that his Sixth Amendment right to confront witnesses was violated by the prosecutor’s conduct, he directs us to no instance in the record where his trial counsel objected on those grounds. Therefore, that issue has also been waived. See Holland v. State, 802 S.W.2d 696 (Tex. Crim. App. 1991) (“[A]ppellant lodged a hearsay objection, not an objection to a violation of confrontation. The two are neither synonymous nor necessarily coextensive. . . . No error on the basis of violation of confrontation was as yet preserved.”); see also TEX. R. APP. P. 33.1.
18 Vallejo’s third issue is overruled.
III. CONCLUSION
The judgment of the trial court is affirmed.
________________________ DORI CONTRERAS GARZA, Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 6th day of June, 2013.