Opinion issued August 8, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00250-CR
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OSVALDO CRUZ CORNEJO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 75599-CR
MEMORANDUM OPINION
A jury convicted appellant Osvaldo Cruz Cornejo of driving while
intoxicated as a third offense, and it assessed punishment of four years in prison.
See TEX. PENAL CODE §§ 49.04(a), 49.09(b)(2). On appeal, Cornejo raises two
issues. He contends that the trial court improperly limited questioning during jury
selection by prohibiting his counsel from describing possible conditions of
community supervision. He also contends that the court erred by denying his
motion for mistrial because a comment during the State’s closing argument about
an extraneous offense was incurably harmful.
We affirm.
Background
A black sport-utility vehicle struck a car that was stopped at a red light. The
driver of the SUV continued, turning left through the intersection with smoke and
steam emanating from the vehicle. The SUV traveled several miles down the road
before it pulled into a driveway in a residential area.
Aaron Thomas and James Tucker were outside and saw the SUV pull into
the driveway in front of Thomas’s grandparents’ house, about 25 feet from where
they were standing. Thomas heard the car making grinding noises, noticed “it was
having troubles,” and watched as it “jumped into gear and tried to back out” but
ended up stuck in a shallow ditch across the street. Thomas and Tucker offered
assistance to the driver, whom they both identified at trial as appellant Osvaldo
Cornejo.
Pearland Fire Department Lieutenant Eric Welch responded to the accident.
Thomas and Tucker told him that Cornejo was the driver of the SUV. Cornejo
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initially told Welch that he had not been driving. Welch testified that Cornejo later
admitted that he had been driving, alone, in the SUV.
Department of Public Safety Trooper N. Gassiott also responded to the
accident. Cornejo told Gassiott that he had been a passenger in the vehicle, and he
described the driver as a man who looked like himself. Cornejo also told Gassiott
that he always wears a seatbelt. At trial, Gassiott explained that a mechanism in car
doors causes seat belts to retract during a collision to restrain passengers from
contact with the dashboard or the airbag. He checked the seat belts in the SUV and
found that all but the driver’s seat belt were fully retracted and locked, which
indicated to him that no passenger had been using those seat belts at the time of the
collision. Because the driver’s seat belt had some slack in it, Gassiott believed it
was in use at the time of the collision.
At the scene, Gassiott suspected that Cornejo “was under the influence of a
substance that hindered his ability to operate a motor vehicle.” Cornejo smelled of
alcohol, and he admitted that he had been drinking. He swayed when standing, and
he had difficulty keeping his balance. He was arrested for driving while
intoxicated.
During jury selection, defense counsel explained that “if the defendant
swears that he has had no prior felony offense” convictions, he may apply for
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community supervision. He started to identify possible conditions of probation,
and the trial court sustained an objection:
Defense counsel: Now, what are the possible conditions of being
placed on probation? What are some of the
possible? Well, No. 1, commit no offense against
this State or the United States. No. 2, do
community service to make up for wrongdoing.
No. 3, report in person to probation. No. 4, pay
fines, court costs, restitution. Another one is to do
180 days in jail as a condition—
State: Your Honor, I’m going to object. Based on what
the jury will assess, if they do do probation, they
aren’t going to decide the terms of probation.
Court: Counselor, I think you’ve gone far enough afield.
I’m going to sustain the objection. Move on,
please.
Defense counsel: Okay.
At trial Cornejo admitted that he had been intoxicated at the time of the
collision, but he denied that he had been driving the vehicle. He testified that he
was a self-employed electrician and that he had been working at a client’s house on
a project with a day laborer he had hired earlier that day. Cornejo testified that he
had to dispose trash accumulated from the project. After drinking with his client,
he did not want to drive, so he asked the day laborer to drive instead. He testified,
“Well, prior to my last two convictions I quickly learned that drinking and driving
is something that I would not do and I would never do it. So that’s the reason why I
had let him drive.”
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Cornejo maintained that he was asleep, reclined in the front passenger seat,
wearing a seatbelt at the time of the initial collision at the red light. He asserted
that when the vehicle finally stopped in the ditch, he had to climb into the driver’s
seat to get out because the passenger door “was completely smashed in.” He said
he “quickly jumped out the driver’s side” to look at the vehicle. Cornejo also said
that the driver, who was “roughly around” his size, ran from the scene. He did not
know the man’s full name or other identifying information about him.
Cornejo testified that his plan was for his brother and sister-in-law to meet
him to drive the SUV home safely and soberly after the day laborer returned to his
own car. On cross-examination, the State asked Cornejo questions relevant to his
defensive theory about personal responsibility. Cornejo testified that he previously
had not met the man who worked for him that day, and he learned the man’s first
name but not his last name:
State: You made the comment earlier that you didn’t want to
run off and leave your parents’ car because you were
responsible for it; right?
Defendant: Yes. That was the rule my parents told me, that I was
responsible for the vehicle.
State: So would you say it’s responsible to let someone you
don’t know and have never met before drive your
parents’ vehicle?
Defendant: . . . I believe it’s something that I do quite frequently
because I don’t have a driver’s license.
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State: Okay. So you believe it is responsible. You’re fine with
it, letting someone else you don’t know drive your
parents’ vehicle?
Defendant: Depending on the person. The person, to my knowledge,
he said that he had a vehicle. So to my knowledge I
thought he had a driver’s license. So I thought it was
responsible for him to drive my vehicle—my parents’
vehicle.
State: Even though you didn’t know him?
Defendant: Even though I didn’t know him.
State: Just because he had a driver’s license you were going to
let him drive?
Defendant: Of course.
State: Did you see his driver’s license?
Defendant: No.
State: Did you ask him for his driver’s license?
Defendant: No.
The State referred to this testimony in its closing argument, despite a pretrial
motion in limine that required it “not to mention, allude to or refer to, in any
manner, any extraneous offenses” by Cornejo “in the presence of the jury.” During
closing arguments, the State emphasized that the case depended heavily on the
jury’s assessment of credibility because multiple witnesses testified that Cornejo
was driving, yet he said he was only a passenger. The prosecutor said,
You heard ten witnesses in this case from the State, ten of them
who all said the same thing. People saw the defendant driving, could
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tell you what he was wearing, looked at him in the face and said, that
is the person driving the car. Those people have no stake in the
outcome of this case. The only person who has a stake in the outcome
of this case is the defendant. He is the only person whose story was
different from everyone else’s. Again, you determine the credibility.
You determine the believability of everybody you heard.
Another thing is the defendant admitted just now on the stand
he has no driver’s license; yet, he also admitted he drove earlier in the
day.
The court excused the jury to discuss the violation of the motion in limine.
Defense counsel asked for a mistrial, which was denied, but the trial court gave the
jury the following limiting instruction: “Ladies and gentlemen of the jury, you are
instructed to disregard any comment made by either side with regard to the
defendant not having a valid driver’s license and not to consider it for any
purpose.”
The jury found Cornejo guilty, and it assessed punishment at four years in
prison. Cornejo appealed.
Analysis
I. Limitation of questioning during jury selection
In his first issue, Cornejo argues that the trial court erred by limiting his
counsel’s examination during jury selection. He contends that the trial court should
have permitted his counsel wider latitude to explain to the panel of potential jurors
the possible conditions that a court can impose on a person sentenced to
community supervision.
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We review a challenge to limitation of voir dire under an abuse-of-discretion
standard of review. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003);
Dewalt v. State, 307 S.W.3d 437, 456 (Tex. App.—Austin 2010, pet. ref’d). “To
preserve error, appellant must show that he was prevented from asking particular
questions that were proper.” Sells, 121 S.W.3d at 756. A showing that “the trial
court generally disapproved of an area of inquiry from which proper questions
could have been formulated” is insufficient to preserve error “because the trial
court might have allowed the proper question had it been submitted for the court’s
consideration.” Id.
The State objected to defense counsel’s explanation of possible conditions of
community supervision, and defense counsel acquiesced and moved forward with
questioning. The trial court stated, “I think you’ve gone far enough afield. . . .
Move on, please,” and defense counsel said, “Okay.” The record does not reflect
any specific questions that Cornejo sought to ask but was prohibited from asking.
Because he has not shown that he was prevented from asking a particular, proper
question, he has failed to preserve error. See Saldinger v. State, 474 S.W.3d 1, 6
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); Dewalt, 307 S.W.3d at 457;
Mohammed v. State, 127 S.W.3d 163, 170 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d).
We overrule the first issue.
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II. Closing argument
In the second issue, Cornejo argues that the court erred by denying his
motion for mistrial based on the prosecutor’s reference in closing argument to
driving without a license.
We review both the denial of a motion for mistrial and a ruling on an
objection to closing argument for an abuse of discretion. Archie v. State, 221
S.W.3d 695, 699 (Tex. Crim. App. 2007); see Cole v. State, 194 S.W.3d 538, 545–
46 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We must uphold the court’s
ruling if it was within the zone of reasonable disagreement. Archie, 221 S.W.3d at
699. “Only in extreme circumstances, where the prejudice is incurable, will a
mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.
2004).
Proper jury argument generally is confined to the following areas: (1) a
summation of the evidence presented at trial; (2) a reasonable deduction drawn
from that evidence; (3) an answer to the opposing counsel’s argument; or (4) a plea
for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999);
Acosta v. State, 411 S.W.3d 76, 93 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
In reviewing whether jury argument falls within one of these four areas, we
consider the argument in light of the entire record. Acosta, 411 S.W.3d at 93. Even
when jury argument improperly falls outside these four accepted areas, the
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argument does not constitute reversible error unless, in light of the record as a
whole, the argument is extreme or manifestly improper, violates a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding.
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Acosta, 411
S.W.3d at 93.
The defensive theory was that Cornejo was responsible, followed the law,
and asked someone else to drive because he had been drinking beer. During
closing arguments, while arguing about the importance of credibility, the
prosecutor focused on the fact that the State’s witnesses were disinterested but
Cornejo, the only witness who said someone else was driving the SUV, was not
disinterested. The prosecutor said, “Another thing is the defendant admitted just
now on the stand he has no driver’s license; yet, he also admitted he drove earlier
in the day.”
The evidence referenced by the prosecutor was elicited without objection
when Cornejo offered a nonresponsive answer on cross-examination. The State
asked if he thought it was responsible to allow a person he did not know to drive
his car. In response, Cornejo testified, “I believe it’s something that I do quite
frequently because I don’t have a driver’s license.” Defense counsel did not object
or ask for a limiting instruction at that time.
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When evidence is admitted without objection and without a limiting
instruction, it becomes part of the general evidence and it may be used for all
purposes. See Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001);
Walker v. State, 469 S.W.3d 204, 213 (Tex. App.—Tyler 2015, pet. ref’d); see also
TEX. R. EVID. 105(b)(1).
In Bacon v. State, 500 S.W.2d 512 (Tex. Crim. App. 1973), the defendant
testified during the guilt-or-innocence phase, and he offered a nonresponsive
answer to a question on cross-examination. Id. at 514. When asked what he told the
police, the defendant volunteered that he had asked to “take a lie detector test.” Id.
The prosecutor referred to the defendant’s testimony about a “polygraph
examination” in closing argument. Id. The Court of Criminal Appeals held that
although “evidence of polygraph examinations is not proper evidence in a criminal
trial,” and “thus, not a proper subject of argument,” there was “no error when
appellant himself first mentioned the subject while testifying in his own behalf.”
Id. Because the “appellant was the first to bring up the matter and the prosecutor’s
argument merely referred to what was already in evidence,” the Court held that the
argument was not improper. Id.
Cornejo injected into evidence his lack of a driver’s license by volunteering
that information in response to a question that did not inquire about it. His attorney
did not object or seek a limiting instruction at the time, and thus, the testimony was
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admitted for all purposes. See Hammock, 46 S.W.3d at 895. While the prosecutor’s
reference to this testimony was prohibited by the limine order, the substance of the
argument was not otherwise improper because summation of the evidence and
reasonable deductions from the evidence are proper areas of jury argument. See
Guidry, 9 S.W.3d at 154; Acosta, 411 S.W.3d at 93; see also Bacon, 500 S.W.2d at
514. Moreover, the prosecutor did not emphasize the extraneous offense and made
no improper reference to matters outside the record. See Gaddis v. State, 753
S.W.2d 396, 400 (Tex. Crim. App. 1988).
In any case, the court gave a limiting instruction directing the jury to
“disregard any comment made by either side with regard to the defendant not
having a valid driver’s license and not to consider it for any purpose.” In the
absence of evidence to the contrary, we presume that the jury followed this
instruction. See Walker v. State, 300 S.W.3d 836, 850 (Tex. App.—Fort Worth
2009, pet. ref’d). No such evidence is present in this case.
We overrule the second issue.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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