Hugo Romero v. State ( 2013 )

Opinion issued August 20, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00974-CR
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HUGO ROMERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1253992
MEMORANDUM OPINION
A jury convicted appellant Hugo Romero of possession with intent to deliver
400 grams or more of a controlled substance, cocaine. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.102(3)(D), 481.112(f) (West 2010). The jury also found that he
used or exhibited a deadly weapon during the commission of that offense, and it
assessed punishment at imprisonment for 50 years and a $125,000 fine. In his sole
issue, Romero challenges the trial court’s denial of his motion for mistrial after the
prosecutor referenced the results of a ballistics test which were inadmissible
hearsay. Because the prosecutor’s statement was not the kind of extreme,
prejudicial statement that could not have been cured by the trial court’s instruction
to disregard, we affirm.
Background
Houston police officers responded to a call regarding a shooting at a
residence leased by appellant Hugo Romero and his friend Julian Lozano. In front
of the house, a car had crashed into a parked school bus. Inside, they found
Enrique Berman shot to death, lying on the kitchen floor. After searching the
house, the officers found over 440 grams of cocaine in Romero’s bedroom.
Romero was charged with murder and with possession with intent to deliver
over 400 grams of a controlled substance. The murder charge was severed and
Romero was prosecuted for the drug offense. Berman’s death was not mentioned
until the punishment phase of the trial, after the jury had found Romero guilty.
Romero did not deny shooting Berman, but he said that it was an accident.
He testified that he had started talking to Berman about guns and retrieved
Lozano’s gun. When Romero showed the gun to Berman, Romero dropped it.
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According to his testimony, he caught the gun and must have inadvertently touched
the trigger. Berman’s girlfriend, Rosalinda Machado, was present and immediately
afterward she saw Romero standing with the gun in his hand. Romero then went to
Lozano’s room, woke him, and told him that “there’s been an accident.” Lozano
called 9-1-1 after he determined that Romero had not called for help. Lozano
testified that Romero asked him to “help him out” and “get rid of the gun.”
Romero started “walking around like a zombie” and moving around clothes in his
car. Then Romero attempted to leave in his car, but he collided with a school bus.
Supporting the contention that the shooting was an accident, both Romero
and Lozano testified that Romero was inexperienced with guns. Romero, Lozano,
and Machado all agreed that there was no argument or disagreement between
Romero and Berman and that they were good friends. Machado testified that
Romero had been friendly and cordial to Berman and her before the shooting,
offering them beer. Romero admitted that he did not check to see if the gun was
loaded, but he advanced the theory that the revolver had been modified to have a
“hairline trigger pull.”
A homicide detective involved in the case testified that the gun was a
revolver that required “quite a bit of pressure” to depress the trigger to fire it. He
also testified that the fact that the revolver was loaded could be determined even
with the cylinder closed because “the edge[s] of the rims on the bullets” would be
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visible. On cross-examination of the detective, Romero’s attorney sought to
emphasize the detective’s lack of credentials to offer an opinion about the gun:
DEFENSE COUNSEL: . . . You’re not an expert in weapons, right?
DETECTIVE: I am not an expert, no.
DEFENSE COUNSEL: So, therefore, you send it out to get it tested
and get a ballistics report, correct?
DETECTIVE: Yes.
DEFENSE COUNSEL: You didn’t do the ballistics report or the
ballistics test?
DETECTIVE: I did not personally.
On redirect, the prosecutor asked the detective about the ballistics testing first
referenced by Romero’s attorney:
PROSECUTOR: Defense counsel asked if you were an expert in
ballistics, and you said no. Is that why you had the gun tested by
experts in ballistics?
DETECTIVE: Yes.
PROSECUTOR: And, as you stated on direct examination, is that
why you checked to make sure that those experts were able to
conclude that the gun was working properly?
DETECTIVE: Yes.
DEFENSE COUNSEL: Objection, Your Honor, hearsay.
COURT: Sustained.
DEFENSE COUNSEL: Instruct the jury to disregard his last
response, Judge.
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COURT: The jury will disregard.
DEFENSE COUNSEL: Move for a mistrial, Judge.
COURT: Denied.
After finding that Romero exhibited a deadly weapon during the commission
of the offense, the jury assessed his punishment as 50 years in prison and a fine of
$125,000. In his sole issue on appeal, Romero challenges trial court’s denial of his
motion for mistrial.
Analysis
I. Waiver
The State argues that Romero has waived his sole argument on appeal
because his defense counsel failed to timely object to the prosecutor’s question
eliciting hearsay. Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” TEX. R. EVID. 801(d). In order to be considered timely, the
objection must be made at the first opportunity or as soon as the basis of the
objection becomes apparent. Aguilar v. State, 26 S.W.3d 901, 905–06 (Tex. Crim.
App. 2000); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). If
possible, a timely objection should be made before the evidence is improperly
admitted. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Jasso
v. State, 112 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).
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Here, the objection was made as soon as reasonably possible. The basis for
the objection, that the prosecutor stated the conclusions of the ballistics experts,
was clear in only the second half of the prosecutor’s question:
PROSECUTOR: And, as you stated on direct examination, is that
why you checked to make sure that those experts were able to
conclude that the gun was working properly?
DETECTIVE: Yes.
DEFENSE COUNSEL: Objection, Your Honor, hearsay.
Before the prosecutor said “were able to conclude,” it was not apparent whether
the prosecutor was merely asking the detective to again confirm that he had sent
the revolver to ballistics testing by “experts.” Defense counsel’s objection follows
immediately on the heels of the detective’s short, one-word answer. From the
transcript, we cannot conclude that the defense counsel waited or hesitated in
making the objection; in fact, it may have been contemporaneous with the
detective’s one-word answer.
The record does not clearly demonstrate an untimely objection. Although
the standard for a timely objection is both demanding and unforgiving, Jasso, 112
S.W.3d at 813, it also recognizes that it is not always possible to object before
evidence is offered. See Ethington, 819 S.W.2d at 858. When it is not possible to
object before admission, as here when the objectionable remark came at the end of
a short question, the objection is timely as long as counsel “objected as soon as the
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objectionable nature of the evidence became apparent” and moved to strike the
evidence. Id. In this case, defense counsel did both. He objected immediately
after the detective’s one-word response, rather than waiting for any additional
questions to be asked and answered or allowing lengthy testimony to continue. See
Lagrone, 942 S.W.2d at 618 (“Appellant did not object until the prosecutor’s
question had been asked and answered, and the prosecutor had passed the
witness.”); Ethington, 819 S.W.2d at 857–58 (defense objected to prosecutor’s
initial question about an armed robbery, but then never objected to multiple
subsequent questions and answers concerning the details of the planned armed
robbery); Jasso, 112 S.W.3d at 813 (police officer’s answer mentioned that
objectionable lie-detector test was administered, but no objection until after a
subsequent question and answer about the test); Jones v. State, 111 S.W.3d 600,
604 (Tex. App.—Dallas 2003, pet. ref’d) (“Jones did not object until after the
officer’s last response . . . . However, the basis for Jones’s objection became
apparent after the State’s first question.”).
Accordingly, we conclude that Romero has not waived his complaint on
appeal for failure to make a timely objection.
II. Denial of motion for mistrial
When a trial court denies a defendant’s motion for mistrial after sustaining
an objection and instructing the jury to disregard, the dispositive issue is the denial
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of a mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).
We review the trial court’s refusal to grant a mistrial for an abuse of discretion.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Bryant v. State, 340
S.W.3d 1, 12 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We view the
evidence in the light most favorable to the trial court’s ruling, upholding the ruling
if it was within the zone of reasonable disagreement. Bokemeyer v. State, 355
S.W.3d 199, 202 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Wead v.
State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.
Hawkins, 135 S.W.3d at 77. “[O]rdinarily, a prompt instruction to disregard will
cure error associated with an improper question and answer.” Simpson v. State,
119 S.W.3d 262, 272 (Tex. Crim. App. 2003); see also Russeau v. State, 171
S.W.3d 871, 885 (Tex. Crim. App. 2005).
Although we do not conduct the usual harm analysis in deciding whether the
trial court abused its discretion, “whether a mistrial should have been granted
involves most, if not all, of the same considerations that attend a harm analysis.”
Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (quoting Hawkins,
135 S.W.3d at 77). In determining whether a trial court abused its discretion in
denying a mistrial, we apply a version of the three-part Mosley test tailored for
punishment proceedings. Id. (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.
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Crim. App. 1998)). We balance three factors: (1) the severity of the misconduct
(the statements’ prejudicial effect), (2) curative measures (the efficacy of any
cautionary instruction by the judge), and (3) the certainty of the punishment
assessed absent the misconduct (the likelihood of the same punishment being
assessed). Hawkins, 135 S.W.3d at 77; see Archie, 221 S.W.3d at 700.
Romero argues that the question about the ballistics test was highly
prejudicial because it related to whether he intentionally shot Berman, although
other evidence was presented supporting the theory that it was an accident.
Relying on Crawford v. State, 603 S.W.2d 874 (Tex. Crim. App. 1980), Romero
contends that the court’s instruction to disregard was insufficient to remove the
impression left by the question because it was the “only evidence on the status of
the actual weapon.” In Crawford, however, the improper statement at issue
directly repudiated the defense’s central theory and introduced improper past
conduct evidence. While addressing the defense’s theory of self-defense or
manslaughter in that murder case, the complainant’s son testified that the
defendant had previously attempted to poison the victim. See id. at 876.
The disclosure in this case that the gun was “working properly” was not a
severely prejudicial statement in the same sense as the statement in Crawford. The
defense theory that the gun’s trigger had been modified was only one piece of
evidence related to whether the shooting was an accident, and it was not the main
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focus of the evidence about Romero’s intent. The jury was presented with
uncontradicted testimony that Romero was inexperienced with guns, that he had
failed to determine if the gun was loaded, that he and Berman were “good friends,”
and that there was no dispute or disagreement between them. Furthermore, the
substance of the inadmissible statement was that the revolver was “working
properly.” This did not tend to prove or disprove either the officer’s claim that
“quite a bit of pressure” on the trigger was necessary to fire the revolver or
Romero’s suggestion that the gun had been modified. Accordingly, the prejudicial
effect of the prosecutor’s reference to a ballistics report stating that the gun was
working properly was not great.
Furthermore, the disclosure did not expose any new information about
Romero’s prior bad acts or offenses. See Bryant, 340 S.W.3d at 13. Instead it
merely referred to a ballistics report first brought up by the defense. This kind of
statement was not a clearly calculated attempt to “inflame the minds of the jury.”
See Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988) (describing
incurable improper questions). Thus, we conclude that the prosecutor’s statement
was not “of such character as to suggest the impossibility of withdrawing the
impression produced on the minds of the jurors.” Russeau, 171 S.W.3d at 885;
Ladd v. State, 3 S.W.3d 547, 566–67 (Tex. Crim. App. 1999) (mistrial not required
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when prosecution revealed defendant was smoking crack cocaine on the night of
murder and terminated from employment a few months before).
Because the statement about the gun was not so inflammatory as to leave an
indelible impression on the jury, the trial court’s immediate instruction to disregard
the testimony should have been effective to cure any harm that resulted from the
improper question. We presume that the jurors followed the trial court’s
instruction to disregard the prosecutor’s statement. See Wesbrook v. State, 29
S.W.3d 103, 116 (Tex. Crim. App. 2000); Waldo v. State, 746 S.W.2d 750, 754
(Tex. Crim. App. 1988). The comment that the gun was working properly does not
amount to such an extreme circumstance that would warrant a mistrial despite the
curative instruction. See Hawkins, 135 S.W.3d at 77, 84–85.
Finally, the punishment range for possession of more than 400 grams of
cocaine is imprisonment for a term between 15 and 99 years, and a fine not to
exceed $250,000. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.112.
Romero’s punishment was well within the punishment range: 50 years and a fine
of $125,000. A deadly weapon finding is authorized upon sufficient evidence that
a defendant “used or exhibited” a deadly weapon during the commission of or
flight from a felony offense. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(2).
A firearm is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West
Supp. 2012). The effect of the deadly-weapon finding is that Romero will not be
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eligible for parole until he has served one-half of his sentence or 30 years,
whichever is less. See TEX. GOV’T CODE ANN. § 508.145(d)(1) (West 2012).
Although he said it was accidental, Romero admitted that he shot Berman.
In addition to the issue of Romero’s intent, the jury heard evidence concerning
other issues that would bear on an appropriate sentence for Romero. This evidence
included the fact that Romero apparently did not try to get help for Berman, and
instead he attempted to flee. Other evidence relevant to punishment included
testimony that Romero was a hard worker with good character. The jury also
heard the testimony of Berman’s father that his passing had caused great sorrow to
his family, particularly affecting him, his wife, and Berman’s children.
Considering the totality of this evidence and the relatively slight focus on the issue
of the trigger-pull during the punishment phase of the trial, there is no reason to
conclude that the punishment the jury assessed would have been any different if
the question concerning the ballistics test had not been asked. See Archie, 221
S.W.3d at 700 (upholding decision that, “due to the strength of the State’s
punishment case, it is likely that the same punishment would have been assessed
regardless of the improper comment”). Likewise, due to the strength of the State’s
case supporting the deadly weapon finding, it is likely that the jury would have
made the same finding regardless of the prosecutor’s improper question.
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Considering that the statement was not highly prejudicial, that curative
measures are presumed to have been effective and followed by the jury, and that
there is no reason to conclude that the punishment would have been any different,
we conclude that the trial court did not abuse its discretion in denying Romero’s
motion for mistrial.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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