Marilu Lozano Rojas v. State

NUMBERS 13-06-651-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARILU LOZANO ROJAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court of Cameron County, Texas

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

After a jury trial, appellant, Marilu Lozano Rojas, was convicted of possession of a controlled substance, in an aggregate weight of four grams or more but less than 200 grams; possession of marihuana; unlawful possession of a firearm by a felon; and delivery of a controlled substance in an aggregate weight of less than 1 gram. By two issues, Rojas challenges her convictions, contending: (1) that she was denied her right to present a defense, and (2) that the trial court abused its discretion in denying her motion for mistrial based upon the State's improper closing argument. We affirm.

I. BACKGROUND

In April 2005, Cameron County Investigator Miguel Rodriguez began receiving information that drug deals were taking place at the home that Rojas shared with her husband, Gilberto Rojas. ⁽¹⁾ _{Investigator Rodriguez set up surveillance at the Rojases' home. After observing several people drive up to the home, approach the front door, and leave in under one minute, police stopped one of the vehicles. Police found cocaine on David Perez, the driver of the car. Perez agreed to help the police conduct a controlled buy to aid the police in obtaining a search warrant for the Rojases' home. Investigator Carlos Martinez rode with Perez to the Rojases' home and remained in Perez's car while Perez attempted to purchase drugs from the Rojases' residence. Meanwhile, with binoculars, Investigator Rodriguez observed the controlled buy from 300 yards away.}

_{Investigator Rodriguez testified that Perez was greeted at the front door of the Rojases' residence by Marilu Rojas. Perez and Rojas spoke for about fifteen seconds and then Rojas went inside the house and closed the door while Perez waited outside. Less than one minute later, Investigator Rodriguez saw Rojas come out of the house and meet again with Perez. Perez returned to his car and Rojas went back inside her residence. During his testimony, Investigator Rodriguez admitted that he did not see Rojas hand plastic bags to Perez. However, after returning to the car, Perez and Investigator Martinez drove to a constable's office. At the constable's office, they presented four plastic bags containing cocaine, purportedly obtained from the Rojas' residence, to a constable. Perez also performed an additional controlled buy for the police. In the second buy, Perez met Rojas' husband, Gilberto, at the carport entrance of the house. Gilberto then went inside the house, and after about two or three minutes, Gilberto came back outside and met momentarily with Perez. Perez then walked back to his car and departed with four plastic bags of cocaine.}

_{After the controlled buys, Investigator Rodriguez obtained and executed a search warrant of the Rojas' residence. On a dining room table inside the home, police found 59 plastic bags containing varying amounts of cocaine. ⁽²⁾ Plastic bags containing marijuana were also found. Green plastic ties, similar to the type used in the controlled buys, were found. In addition to narcotics, police also found over seventeen weapons, including semiautomatic assault rifles, in the house. Some of the guns were found placed around the house while others were found in a safe. Investigator Rodriguez was unable to obtain the combination to the safe from Rojas, and had to obtain the combination from her husband and son.}

_{During the raid, the police also discovered that the Rojas' home was protected by a surveillance system, in which an outside camera by the carport was connected to an inside monitor for viewing. A box of ammunition was found next to the surveillance monitor. Additionally, two money bags were found on an ironing board. ⁽³⁾ When the raid was complete, Investigator Rodriguez arrested Gilberto Rojas. Marilu Rojas was not arrested at the time of the raid. ⁽⁴⁾}

_{After the raid, Marilu Rojas was charged by complaint and information of the offense of possession of a controlled substance with the intent to deliver. Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003). On September 30, 2005, Rojas waived the indictment and pleaded guilty. At the punishment hearing on November 10, 2005, the trial court advised Rojas that it would not follow the plea agreement and would instead sentence her to serve two years' imprisonment. The trial court reset the punishment hearing to allow Rojas an opportunity to decide whether to enter her plea of guilty or proceed to trial. On November 21, 2005, Rojas withdrew her plea of guilty and the matter was set for trial.}

_{On January 25, 2006, Rojas was indicted for the offenses of possession of controlled substance with intent to deliver, see Tex. Health & Safety Code Ann. § 481.112(a), (d); possession of marihuana, see Tex. Health & Safety Code Ann. § 481.121(a), (b)(3) (Vernon 2003) with a habitual count, see Tex. Penal Code Ann. § 12.42(2)(B) (Vernon 2003), unlawful possession of firearm by felon, see Tex. Penal Code Ann. § 46.04(1)(A)(1) (Vernon 2003), and delivery of a controlled substance, see Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003). Rojas pleaded not guilty to all offenses as charged.}

_{Rojas was subsequently convicted of possession of controlled substance, in an aggregate weight of four grams or more but less than 200 grams; possession of marihuana; unlawful possession of a firearm by felon; and delivery of controlled substance in an aggregate weight of less than 1 gram. This appeal ensued.}

_{II. Discussion}

_{A. Exclusion of Evidence}

_{In her first issue, Rojas asserts that she was denied her constitutional right to present a defense when she was not allowed to introduce evidence concerning a collateral forfeiture proceeding. See Tex. Const. art. I, § 10 (setting forth rights of accused in criminal prosecutions, including right to be heard and to present evidence); Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Specifically, Rojas sought to introduce civil forfeiture petitions as exhibits during the cross-examination of State's witness, Investigator Rodriguez, to show the "greed" of the State in pursuing criminal charges against her. The State responds that Rojas failed to preserve her complaint for review because she did not adequately lodge an objection on state constitutional grounds. See Tex. R. App. P. 33.1. ⁽⁵⁾ The following colloquy, held outside the presence of the jury and just before closing arguments, is relevant in our determination of whether the issue was preserved:}

_{[Defense Counsel]: Real quick on the record - - I'm sorry - - the reason that I believe that it would be relevant or admissible, just on the record, Judge, and that I ask for a ruling, is because I think it is relevant to bring forward the bias or motive from the State's witnesses.}

_{Two, under Texas Rules of Evidence 607, it goes to the credibility of the witnesses which is something that the jury should consider since the jury is the exclusive judges [sic] of the facts under 38.04 of the Code of Criminal Procedure. And I believe - - not being able to argue to the extent, I guess, I was asking about, bias and motive of the witness, that would be denying my client due process, and due course of law, under the Fifth and Fourteenth Amendments of the United States Constitution, and Article One, Section 9 and 10 of the State Constitution, and it also denies my right to a fair trial . . . .}

_{. . . .}

_{[Trial Court]: Is this in the form of an objection, then, or a response to the previously entered limine item?}

_{[Defense Counsel]: I guess that's the basis of - -}

_{[Trial Court]: Your objection - - well, as I said, I granted the relief requested subject to the caveats I stated yesterday. That remains in effect.}

_{Your objection is noted. Your objection is overruled, if it is an objection - -}

_{[Defense Counsel]: I guess I don't know what it is technically called.}

_{[Trial Court]: - - it wasn't in the form of an objection, but you protected yourself on the record both on the limine yesterday and now with this "vague objection" that you're making now.}

_{Based on the above exchange, we conclude Rojas properly raised her due process--right to present a defense--issue before the trial court. Moreover, we conclude the "objection" was not vague or merely a "shotgun" objection as the State contends. See Webb v. State, 899 S.W.2d 814, 818 (Tex. App.-Waco 1995, pet. ref'd) (noting that "shotgun" objections, citing many grounds for the objection without argument, will not preserve points based on authority which is merely mentioned in the trial court). Accordingly, we proceed to address Rojas' complaint.}

_{Recently, the Texas Court of Criminal Appeals has ruled that "the exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes defendant from presenting a defense." Potier, 68 S.W.3d at 665.}

_{At trial, part of Rojas' defense was that the charges she faced actually belonged to her husband, Gilberto Rojas. Another part of her defense consisted of her contention that the State was motivated by greed in its decision to prosecute her. On appeal, Rojas claims that the exclusion of the complained-of evidence as hearsay and irrelevant amounted to constitutional error because it prevented her from effectively presenting her defense. See id.}

_{Although the trial court excluded the civil forfeiture petitions, in presenting her defense, Rojas was allowed to cross-examine Investigator Rodriguez regarding the forfeiture proceedings and the items seized during the raid. Rojas was also allowed to argue her defense of bias or motive during opening statement and closing argument. During opening statement, defense counsel stated:}

_{You just heard that vehicles were seized from the house. Well, you're also going to hear DVDs were seized, play stations and games were seized, almost generally, everything that was in this house was seized and the state wants that property. They want it. And when someone or something wants something bad enough, they are going to go through lengths to get that property. And one way they do [sic] is to prosecute somebody.}

_{Because Rojas was able to argue her state bias defense and present the additional defense that the charges should have only been brought against her husband, we hold that the exclusion of the complained-of evidence did not "significantly undermine fundamental elements of the accused's defense," and therefore was not constitutional error. See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (concluding that, although the excluded testimony was in fact relevant, because Ray was not completely prevented from presenting her defense that the drugs belonged to the driver of the vehicle, the error committed by the trial court was not of constitutional dimension); Potier, 68 S.W.3d at 666 (citing United States v. Scheffer, 523 U.S 303, 315 (1998) ("That [the defendant] was unable to . . . present his case to the extent and in the form he desired is not prejudicial where, as here, he was not prevented from presenting the substance of his defense to the jury.")); see also Frierson v. State, 839 S.W.2d 841, 849-50 (Tex. App.-Dallas 1992, writ ref'd). Accordingly, appellant's first issue is overruled.}

_{B. Mistrial}

_{In her second issue, Rojas argues that the trial court abused its discretion by denying her motion for mistrial based upon improper jury argument. Rojas complains about the following statement, which occurred during the State's closing argument at the guilt/innocence stage of trial:}

_{There is, however, evidence that [Rojas] went to the door and sold to a source of information, drugs. So why isn't that source of information here to tell you about that? Well, could it be because these drug dealers have an arsenal of weapons? Could it be that? Yes, it could. Could it be that that source of information doesn't want to come here and have to face a drug dealer with an arsenal of weapons who still has two sons, or three sons out there?}

_{Rojas objected to this statement. The trial court sustained the objection, stating, "[a]ll right. Let's -- I'll sustain that. We don't need to speculate as to why the C.I. did or did not show up. Obviously, it speaks for itself." The trial court then immediately instructed the jury, "Ladies and gentlemen of the jury, obviously, the source of information was not here - - and you know that. You are to disregard any statement as to why, or why he is not here because it constitutes speculation. All right?" ⁽⁶⁾ Rojas then moved for mistrial. The trial court denied Rojas' request for mistrial. ⁽⁷⁾}

_{When the trial court sustains an objection and instructs the jury to disregard but denies a motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Primes v. State, 154 S.W.3d 813, 814 (Tex. App.-Fort Worth 2004, no pet.). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, that is, "so prejudicial that expenditure of further time and expense would be wasteful and futile," will a mistrial be required. Hawkins, 135 S.W.3d at 77 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.1999)). In determining whether the trial court abused its discretion in denying the mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)}

_{Generally, a prompt instruction to the jury to disregard the objected to testimony will cure error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). The determination of whether an error justifies a mistrial is made by examining the particular facts of the case. Id.}

_{Here, as a curative measure, the trial court immediately instructed the jury to disregard the statement. The court's instruction to disregard cured the prejudicial effect, if any, caused by the State's remarks. See id. It is well settled that if a trial court instructs a jury to disregard, we must presume that the jury followed the trial court's instruction. Ladd, 3 S.W.3d at 567; Allen v. State, 202 S.W.3d 364, 370 (Tex. App.- Fort Worth 2006, pet. ref'd). In the present case, the trial court's instruction properly instructed the jury that they already knew the informant did not show up to testify and that they were to disregard any statement as to why he failed to testify.}

_{Although Rojas contends that "the harm inflicted by the State was not militated by the instruction to disregard" she cites no cases holding that denying a mistrial under circumstances such as those presented here is an abuse of discretion, nor does she point to any supporting evidence in the record for her argument. Accordingly, Rojas has failed to rebut the presumption that the jury followed the instruction to disregard.}

_{Additionally, Rojas contends that the State's argument invoked matters outside the record to infer that the informant feared for his life. Rojas argues that this deviation from the record had a substantial and injurious effect on the jury's verdict. Even assuming the argument was improper, when considering the entire record, including the severity of the misconduct, the curative measures of the trial court, and the certainty of Rojas' conviction, we cannot say that the State's remarks were so prejudicial that Rojas' substantial rights were affected. In fact, during the trial, the jury heard testimony that multiple firearms (including revolvers and rifles) and plastic bags containing illegal drugs were found in the Rojases' residence, thereby lessening any prejudicial effect that the State's argument would have had on the jury.}

_{Moreover, the conviction is supported by more than ample evidence. The jury heard testimony that two controlled buys were conducted at the Rojas' residence and that Rojas was seen selling drugs to the informant during one of the controlled buys. Further, throughout the trial, the jury heard testimony of weapons and illegal drugs seized when the search warrant was executed. Based on the testimony given at trial, there is more than ample evidence to support Rojas' conviction, even absent the State's closing remarks.}

_{After examining the record as a whole and balancing the appropriate factors, we conclude that the State's argument was not sufficiently egregious to defeat the presumed efficacy of the trial court's instruction to disregard. We overrule Rojas' second issue.}

_{III. CONCLUSION}

_{The judgment of the trial court is affirmed.}

_{_________________________}

_{DORI CONTRERAS GARZA,}

_Justice

_{Do not publish.}

_{Tex. R. App. P. 47.2(b).}

_{Memorandum Opinion delivered and}

_{filed this the 16th day of August, 2007.}

1.

Rojas' brief refers to her husband as both Gilbert and Gilberto. We herein refer to him as Gilberto.

2. Investigator Rodriguez testified that "nickel," "dime", and "twenty" bags were found on the dining room table. He further testified that in the drug trade, "nickel" bags sell for $5 and contain about .8 grams of cocaine, "dime" bags sell for $10 and contain 1.5 grams of cocaine, and "twenty" bags sell for $20 and contain 3 grams of cocaine. The bags found in the Rojases' residence were consistent with these descriptions.

3. All of the property seized by police was identified only by the name of Gilberto Rojas.

4.

Neither the record, nor the brief of either Rojas or the State indicates the date on which the raid took place. Rojas' brief merely states that while Marilu Rojas was not arrested at the time the search warrant was executed, she was later arrested on October 11, 2005.

5.

To preserve error on appeal, the complaining party must make a timely, specific objection and obtain a ruling on the objection. See Tex. R. App. P. 33.1(a); see also Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding appellant did not preserve error as to argument that exclusion of evidence violated Sixth Amendment because appellant did not refer to the constitution in the trial court and did not put the trial court on notice that he was alleging a constitutional violation); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Eaves v. State, 141 S.W.3d 686, 690-91 (Tex. App.-Texarkana 2004, pet. ref'd) (holding appellant failed to preserve error as to trial court's alleged violation of Sixth Amendment by refusal to admit evidence that child sexual-assault complainant previously had been sexually assaulted, given that appellant did not voice this argument in the trial court).

The point of error on appeal must also comport with the objection made at trial. Broxton, 909 S.W.2d at 918. Even constitutional errors may be waived on appeal. Id. (holding that defendant waived due process claim that he was denied right to present his defense because he failed to object at trial on those same grounds.).

6.

To be permissible, the State's jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992).

7. The State contends the complained-of argument was made in response to defense counsel's argument concerning the existence of the confidential information or why the informant, David Perez, III, would not appear on the stand against Rojas. Specifically, during closing argument, defense counsel stated:

Look at when this testimony about Mrs. Rojas develops. It is not when they turned in this evidence that they are supposedly saying that she handed it over to a confidential informant who -- we don't know -- even exists.

Did you meet David Perez, III, on the stand? Did you see any pictures of him? Did you hear any audiotape of him? Did you see any videotape of him? No, I'm sorry, you didn't . . . .