Elijio Garcia v. State

Opinion issued June 10, 2004

     













In The

Court of Appeals

For The

First District of Texas





NO. 01-03-00190-CR





ELIJIO GARCIA, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 916102





MEMORANDUM OPINION


          A jury convicted appellant Elijio Garcia of unauthorized use of a motor vehicle. After appellant pled true to two prior convictions, the trial court assessed punishment at eight years imprisonment. In two points of error, appellant argues that the trial court erred in precluding him from making effective closing arguments and in denying effective cross-examination of a witness. In one cross-point, the State argues that the trial court improperly admitted evidence of extraneous acts of a third party. We affirm.

Background

          In June 2002, Officer J. Castillo witnessed a driver hit a curb with his vehicle as he drove down the street. After passing through a stop light, Officer Castillo signaled the driver to pull over. The driver eventually stopped in a parking lot. Garcia exited the vehicle and met Officer Castillo at the rear of the vehicle. Officer Castillo asked for identification and Garcia responded that he did not have any. Officer Castillo ordered Garcia to put his hands on the vehicle for a pat-down. Garcia started to comply, but then ran away.

          Officer Castillo chased him for a brief time, but then returned to his patrol car to wait for additional officers and a canine unit. At one point during the chase, Officer Castillo glimpsed Garcia wearing only underwear and socks. Shortly thereafter, Garcia emerged from behind a house and walked directly toward Officer Castillo, who immediately placed him under arrest. Garcia wore white socks and jogging pants put on backwards, that were different from the clothes he had been wearing at the time Officer Castillo initially stopped him. Before the arrest, Officer Castillo learned that Garcia had been driving a stolen vehicle.

Closing Argument

          Garcia contends that the trial court erred in limiting his closing jury argument. During his closing jury argument, the following occurred:

                    Appellant:  Is what you heard from Officer Castillo enough for you to render a guilty verdict? It’s simply not enough. Not in the face of what Pablo Huerta told you about the time frame; not in the face of what Ms. Castro told you about the fact that the car had been vandalized before by someone that she admits is not my client. Never seen him before, had no reason to - -

 

                    State:          Objection, Your Honor, that’s a misstatement of the testimony.

 

                    Appellant:  She had no reason to believe my client had any involvement in the altercation with her son that led to that gang-related incident.

 

                    State:          Objection, Your Honor. Again, a misstatement of the testimony.

 

                    Court:         Sustained.


          Garcia contends the trial court precluded him from arguing to the jury that someone else may have had a motive to harm the complainant’s property. Garcia asserts that the trial court’s error in disallowing the argument amounts to constitutional error.

          Proper jury argument is: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent’s argument; or (4) a plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).

          After reviewing the record, we conclude that the trial court properly sustained the State’s objection to the closing argument. Although Ms. Castro testified that she had no reason to believe that Garcia was involved in an altercation with her son, she never testified that it was someone other than Garcia who vandalized her vehicle or that he had no involvement in this earlier incident. Accordingly, Garcia’s closing argument misstated Ms. Castro’s testimony and the trial court correctly sustained the State’s objection.

          In addition, the trial court did not instruct the jury to disregard Garcia’s closing argument, nor did Garcia ever offer a bill of exception as to any further argument he would have made. Thus, we conclude that the trial court did not preclude Garcia from completing his closing argument to the jury.

          Given our disposition on Garcia’s first point of error, it is unnecessary for us to address the State’s cross-point of error.

Cross-Examination

          Garcia also contends that the trial court erred in limiting his right to cross-examine a witness. He argues that counsel sought to show the existence of possible bias of Officer Castillo causing him to make a faulty identification of Garcia. During Garcia’s cross-examination of Officer Castillo, the following transpired:

                    Appellant:  Let me ask you this question: Had the canine officer made the scene - - excuse me - - do you think it would have been a helpful piece of information to go ahead and have the dog smell the car and then see if the dog were to actually alert on my client as the possible driver of the car? Would that have been good evidence to give to the jury?

 

                    Witness:      I really don’t know, ma’am, because I’m not a canine officer, like I said. I’m not trained in that area, what he could have done or may have done. I don’t know if that would have been good for him to do or not because - - I mean, you would have to ask the canine officer, you know, because that’s his specific job. I really couldn’t tell you that.

 

                    Appellant:  I’m not really asking you, I guess, about how the dog works or how the dog makes the determination, what I’m asking you is that obviously this case rests solely on your identification of my client. You’d agree with that?

 

                    Officer:       That’s correct.

 

                    Appellant:  No one else saw this person driving the car that night except you?

 

                    Officer:       That’s correct.

 

                    Appellant:  And given that human beings are fallible sometimes, to make mistakes, had the dog, then, been able to be sort of a backup - -

 

                    State:          Objection, Your Honor. The officer already said it was not within his personal knowledge or expertise.

 

                    Court:         Sustained.

 

                    Appellant:  Let me ask you this, Officer, You said you’ve been on the force for 28 years, right?

 

                    Officer:       Yes, ma’am.

 

                    Appellant:  How many times have you used a canine unit to capture a suspect in the course of those years? Just a ballpark.

 

                    Officer:       Last - - I wasn’t a specialized unit prior to being in patrol, so the last five years I used them one time on patrol.

 

                    Appellant:  One time?

 

                    Officer:       Yes, ma’am.

 

                    Appellant:  Did you find that one time - -

 

                    State:          Objection, Your Honor, to this whole line of questioning.

 

                    Court:         Sustained.


          The State argues that Garcia waived his complaint because he neither made a bill of exception, nor an offer of proof containing the trial testimony that he hoped to elicit from the officer. We agree.

          The record does not indicate that Garcia’s counsel made a bill of exception or an offer of proof. Rule 33.2 requires a party to make a bill of exception about a matter that would not otherwise appear in the record. Tex. R. App. P. 33.2. When, as in this case, there is no bill of exception or offer of proof to show the facts Garcia could have proved through cross-examination of an adverse witness, the issue has not been preserved for appellate review. See Love v. State, 861 S.W.2d 899, 900–01 (Tex. Crim. App. 1993). Accordingly, Garcia has waived his complaint.

          Conclusion

          We affirm the judgment of the trial court.

 

Jane Bland

                                                             Justice

 

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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