NUMBER 13-99-016-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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RUBEN RODRIGUEZ, Appellant,
THE STATE OF TEXAS, Appellee.
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On appeal from the 214th District Court of Nueces County,
Texas.
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Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa
A jury found appellant, Ruben Rodriguez, guilty of burglary of a habitation. His punishment was assessed at twelve years confinement and a $1,000 fine. By four points of error, appellant contends: (1) the trial court misdirected the jury as to the law at the guilt/innocence phase of the trial, (2) the trial court failed to read the charge as finally written, (3) the trial court erred in admitting State's Exhibit Three, and (4) the prosecutor's improper plea for law enforcement was not cured by the judge's instruction to the jury to disregard the statement. We affirm.
A. BackgroundGeorge Alvarez allegedly asked appellant to drive him to Alvarez's girlfriend's house to retrieve his wallet. Appellant and Alvarez went to a house which was owned by Richard Rundle, who lived in the house by himself, and began pounding on the front door about 12:30 a.m. Rundle was at home and asleep when appellant and Alvarez began pounding on his front door. They then left the front porch and went around to the back of the house. When they reached the back patio, one tested the back door and the other unscrewed the bulbs from the lights on the patio. Rundle then called 911. When Officer Phillip Wagner arrived, Rundle opened his front door and told Wagner that he last saw the individuals on the back patio. When Wagner went to the back of the house, appellant was located in or just outside the garage. Appellant took off running when Wagner identified himself as a policeman. Appellant was apprehended a few minutes later.
B. Jury ChargeIn his first and second points of error, appellant complains that when the trial judge failed to read the charge to the jury as finally written, he improperly instructed the jury that it could find him guilty even if it had a reasonable doubt that appellant was guilty of the offense. Appellant contends the trial court committed reversible error because the harm was egregious and denied him a fair and impartial trial.
When he orally read the entire charge, the judge read one portion of the charge concerning reasonable doubt as follows:
if you have a reasonable doubt as to whether he is guilty of
either such circumstances you will find him guilty of
burglary of a habitation with the intent to commit theft.
The charge, as written, states:
if you have a reasonable doubt as to whether he is guilty of either such circumstances you will find him not guilty of burglary of a habitation with the intent to commit theft.
When we review a jury charge for error, our first inquiry is whether the alleged error was preserved. If so, any harm, regardless of the degree, is sufficient to require reversal of the conviction. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on state's motion for rehearing). On the other hand, if no proper objection was made at trial, the accused must claim and show that the error was "fundamental" in order to obtain a reversal. Id. A reversal will be granted only if the error is so egregious and created such harm that he "has not had a fair and impartial trial" -- in short, "egregious harm." Id. Here, appellant did not object to the charge and thus failed to preserve error. In order to gain reversal, he must show that the error caused him egregious harm. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). We determine harm in light of the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record as a whole. Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).
The question, then, is whether omitting the word "not" in the judge's oral reading of the jury charge caused egregious harm. The paragraph orally read, taken by itself, inaccurately set forth the State's burden of proof as being less than beyond a reasonable doubt. The jury was properly instructed as to reasonable doubt throughout the jury charge and was also properly instructed as to the burden of proof, except in the cited paragraph. Because (1) the word "not" was only omitted when the judge read the charge, and not in the written form; (2) the remainder of the charge concerning the application of reasonable doubt was read correctly; and (3) the jury was able to take the written charge with them to the jury room, the omission of the word "not" clearly did not cause egregious harm to appellant. See Id. at 642 ("We are not persuaded that appellant's due process rights under the Fifth Amendment and his right to trial by jury under the Sixth Amendment are implicated by a jury charge that correctly instructs the jury as to the State's burden of proof throughout save one small portion thereof and also correctly defines the term 'reasonable doubt' throughout."). Furthermore, if the jury was confused by the conflicting applications of reasonable doubt from listening to the judge, it had the written version of the charge which correctly set forth the proper course if it had a reasonable doubt. Therefore, appellant was not egregiously harmed by the trial judge's mistake in his oral rendition of the charge. Appellant's first and second points of error are overruled.
C. Admission of EvidenceIn his third point of error, appellant complains the trial court erred in admitting State's Exhibit No. 3. Appellant contends the exhibit was not admissible under the rule of optional completeness, and he asserts the evidence was hearsay.
At trial, during the State's direct examination of Officer Phillip Wagner, the officer who discovered and arrested appellant at the scene of the crime, Wagner stated that when he arrived at the scene and walked "to the back of the house, to the corner, [he] could see [appellant] standing just inside the garage." During cross-examination, appellant introduced Wagner's Field Arrest Sheet into evidence as Defense Exhibit No. 1. The arrest sheet stated that Wagner "observed [appellant] standing outside open attached garage." Appellant's counsel then questioned Wagner about the arrest sheet not matching his testimony concerning the location of appellant inside or outside the garage. Wagner responded that "the arrest sheet says I observed them outside, and the -- what I call 58, which is the original field report, states inside." On redirect, the State offered State's Exhibit No. 1, the Field Report, into evidence under the Rule of Optional Completeness.(1) Appellant objected stating:
Your Honor, that's not part of the same document, so the
Rule of Optional Completeness does not apply. The officer
has already separated them in space and time; furthermore,
the document itself is hearsay and has hearsay within
hearsay. And it's being offered to bolster the witness's
testimony on direct and that's improper and we object to it.
The court admitted the report. Later in the trial, before closing arguments, the State moved to withdraw State's Exhibit No. 3. The exhibit had not been published to the jury, and the jury had not seen or read its contents.
In his brief, appellant contends State's Exhibit No. 3 is not admissible under evidence rule 107 because "mere use of an offense report for purposes of cross-examination does not invoke Rule 107 where the party against whom the report is used does not introduce any portion of the report and, other than refreshing the witness's memory on particular points, it is not read to the jury." This complaint is different from the objection appellant made at trial. At trial, appellant objected that since the offense report and the arrest report were not part of the same document, the rule of optional completeness did not apply. When the objection at trial is different from the complaint raised on appeal, nothing is preserved for our review. Martinez v. State, 867 S.W.2d 30, 40 (Tex. Crim. App. 1993). Therefore, we will not consider appellant's complaint that State's Exhibit No. 3 was inadmissible under rule 107.
However, we find that appellant did preserve error on his hearsay objection. Appellant contends the admission of the offense report was prejudicial to him and may have contributed to his conviction. We agree with appellant that Wagner's offense report does constitute hearsay. Police offense reports are hearsay and specifically inadmissible under Texas Rule of Evidence 803(8)(B). Likewise they are also inadmissible as a business record under rule 803(6). See Gaitan v. State, 905 S.W.2d 703, 708 (Tex. App.--Houston [14th Dist.] 1995, pet. ref'd) (citing Cole v. State, 839 S.W.2d 798, 810-11 (Tex. Crim. App. 1990)); Perry v. State, 957 S.W.2d 894, 898-99 (Tex. App.--Texarkana 1997, pet. ref'd) (The limitation on police reports is based on the presumption that observations by an officer at a scene of a crime are not as reliable as observations by other public officials. This is due to the adversarial nature of the confrontation between the defendant and the police in the criminal context.).
Nevertheless, the report was admitted in connection with the rule of optional completeness. In order to determine if the admission was proper, we must determine whether the rule of optional completeness applied to the offense report. After reading evidence rule 107, it is clear the offense report was properly admitted since the rule states "any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence." See Tex. R. Evid. 107. The further clarification in the rule of "as when a letter is read, all letters on the same subject between the same parties may be given," supports the admission of the offense report. Officer Wagner explained: "the arrest sheet is what you're going to list down your suspect information, who you're arresting, and a brief narrative as to your probable cause, why they're being arrested. . . . the arrest sheet is done at the scene," and the offense report is done back at the station and "you sit down and you put everything into chronological order. The arrest sheet, you're just trying to list down a [probable cause], which is a much quicker report."
The controversial difference between the two reports in this case is that in the arrest report the officer said appellant was found outside the garage, and in the offense report he is found inside the garage. The admission of the offense report allowed the State to fulfill the purpose of rule 107 which is to permit an opponent to correct any misleading impressions left with the jury through the introduction of only a portion of the evidence. We conclude the contents of both reports, which were related to the same subject and merely stated the facts out of which the arrest occurred, were admissible to explain the arrest and make it fully understood. See Wintters v. State, 616 S.W.2d 197, 202 (Tex. Crim. App. 1981).
When the report was admitted under the rule of optional completeness, the hearsay contained within, although otherwise inadmissible, was permitted to be introduced. See Kipp v. State, 876 S.W.2d 330, 340 (Tex. Crim. App. 1994) (under certain circumstances hearsay testimony can be viewed as being invited; for instance, if part of hearsay statement is testified to, remainder of statement may be admissible under rule of optional completeness); Wintters, 616 S.W.2d at 202 (State was allowed to offer into evidence those portions of an offense report on the same subject when the appellant first raised the subject of the report and questioned the witness as to specific portions of its contents); Credille v. State, 925 S.W.2d 112, 116-19 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd) (rule of optional completeness is one of admissibility and permits introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain matter "opened up" by adverse party.). Accordingly, we overrule appellant's third point of error.
D. Improper Jury ArgumentIn his fourth point of error, appellant complains the trial court's instruction to disregard the prosecutor's improper plea for law enforcement during closing argument was ineffective in curing the error. Appellant contends the prosecutor's arguments placed before the jury a harmful fact not in evidence -- the public's desire for a conviction.
During closing argument, the prosecutor stated:
Now, your spouses and your coworkers and your friends
probably know that you've been serving on a jury this week,
and what are you gonna tell them when you -- when you've
made your verdict and when you've decided? Are you
gonna tell them. . . that you believed two convicted felons,
rather than police officers, Rick Rundle, a long-time resident,
employed long-time in Corpus Christi, homeowner--
At this point, appellant's counsel objected and stated:
Judge, I need to object to this line of argument. That's an
improper plea for law enforcement. They should be able to
tell their friends that they believed the evidence. That's an
improper attempt -- .
The judge sustained the objection and instructed the jury to disregard the statement.
It is well settled that even if a prosecutor's jury argument is improper, an instruction by the trial judge to the jury to disregard the improper argument is usually sufficient to cure the error. Melton v. State, 713 S.W.2d 107 (Tex. Crim. App. 1986); Logan v. State, 698 S.W.2d 680 (Tex. Crim. App. 1985). Reversible error occurs only when a statement to a jury is so inflammatory that its prejudicial effect cannot reasonably be removed by such admonition. McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985); Blansett v. State, 556 S.W.2d 322 (Tex. Crim. App. 1977).
In the instant case, appellant has not preserved his complaint for our review. Appellant objected to the prosecutor's argument, and the trial court sustained the objection and gave an instruction to disregard. Since appellant failed to ask for any further relief, such as a mistrial, after the objection was sustained, no error was preserved. See Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986), overruled on other grounds, Watson v. State, 762 S.W.2d 591, 599 (Tex. Crim. App. 1988); Parr v. State, 606 S.W.2d 928, 930 (Tex. Crim. App. 1980). Objection must be made and an adverse ruling obtained even when the objectionable argument is so prejudicial that an instruction to disregard will not cure the argument. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). A defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Id. Here, appellant needed to take the further step of moving for a mistrial. He did not, and he did not obtain an adverse ruling.(2) Because he did not preserve error for our review, we overrule appellant's fourth point of error.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 17th day of August, 2000.
1. Rule 107. Rule of Optional Completeness
When part of an act, declaration, conversation, writing or recorded
statement is given in evidence by one party, the whole on the same
subject may be inquired into by the other, and any other act, declaration,
writing or recorded statement which is necessary to make it fully
understood or to explain the same may also be given in evidence, as
when a letter is read, all letters on the same subject between the same
parties may be given. "Writing or recorded statement" includes
depositions.
Tex. R. Evid. 107.
2. The proper method of pursuing an objection until an adverse ruling is to: (1) object; (2) request an instruction to disregard; and (3) move for a mistrial. Koller v. State, 518 S.W.2d 373 (Tex. Crim. App. 1975); Brooks v. State, 642 S.W.2d 791 (Tex. Crim. App. 1982).