NUMBER 13-17-00157-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STEVEN ALPACINO CERVANTES
A/K/A STEVEN ALPACHINO SANCHEZ
CERVANTES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Steven Alpacino Cervantes a/k/a Steven Alpachino Sanchez Cervantes
appeals his convictions for three counts of failing to stop and render aid, each a third-
degree felony. See TEX. TRANSP. CODE ANN. § 550.021(c)(1)(B) (West, Westlaw through
2017 1st C.S.). A jury found appellant guilty, and the trial court sentenced appellant to
concurrent five-year prison terms on each count. By nine issues, which we treat as six,
appellant argues that: (1) prosecutorial misconduct rendered his trial “constitutionally
unfair,” and the trial court erred in denying his motions for mistrial on that basis; (2) the
trial court abused its discretion in overruling appellant’s objection to the testimony of an
undisclosed witness; (3) the trial court abused its discretion in overruling appellant’s
objections to photographic evidence; (4) appellant’s Fifth Amendment protection against
self-incrimination was violated when he was compelled to display his tattoo at trial; (5) the
trial court erred in denying appellant’s motion for new trial; and (6) cumulative error
warrants reversal of appellant’s convictions. We affirm.
I. BACKGROUND
The charges against appellant stem from a motor vehicle collision between a white
Lexus and a vehicle operated by Miguel Matamoras and occupied by his girlfriend, Maria
Penaloza, and Penaloza’s two children. Penaloza testified that they were driving to a
nail salon in McAllen, Texas when a white Lexus collided with the side of their vehicle at
a high rate of speed. Penaloza described the driver of the other vehicle as a husky male
with tattoos and a beard. She stated that the driver smelled of alcohol. The driver talked
briefly to Matamoras before fleeing the scene on foot. Paramedics arrived and
transported Penaloza and her children to the emergency room. Penaloza’s left arm was
broken in the accident, and the injury resulted in permanent disfigurement.
Matamoras testified that the collision left him feeling dizzy. He exited his vehicle
and attempted to orient himself. The driver of the Lexus then approached Matamoras
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and asked if everyone was okay. Matamoras recalled that the driver smelled of alcohol
and that he had a mustache and a wavy tattoo on his chest. Moments later, a bystander
told Matamoras that the driver was running away. Matamoras ran in the indicated
direction in pursuit, but he did not locate the driver.
Serena Cervantes, appellant’s daughter, testified that she was driving home with
her mother when she saw the aftermath of a vehicular accident. She recalled thinking
that one of the vehicles involved in the accident looked like appellant’s vehicle.
McAllen police officers Jose Razo, Antonio Garcia, Michael Gutierrez, Mike Garcia,
and Irineo Ramos each testified concerning their role in investigating the accident. The
officers searched the area but were unable to locate the driver of the Lexus. Officer Razo
concluded that the driver disregarded a stop sign, thereby causing the collision. Officers
discovered marijuana seeds, synthetic marijuana, a cell phone, and a credit card issued
to Dyana Lucas in the abandoned vehicle. The vehicle was registered to Lucas, who
officers learned was appellant’s girlfriend. Serena spoke to an officer at the scene and
told him that the Lexus looked like her father’s vehicle. The officers dusted for
fingerprints, but the latent prints were unsuitable for comparison. Officers removed the
airbag and submitted it for DNA testing; however, no discernible DNA profile could be
retrieved.
After obtaining a search warrant, Officer Ramos reviewed the contents of the
recovered cell phone, which included photographs of appellant and text messages
indicating that the phone’s owner referred to himself as “Chino.” Officer Ramos also
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visited a store owned by Lucas, which sold synthetic marijuana similar to what was found
in the Lexus.
The trial court admitted State’s Exhibit 1, a photograph of appellant in which a
tattoo on his chest is partially visible. Penaloza testified that the driver of the Lexus had
the same tattoo. Appellant later displayed his tattoo in court, and Penaloza again
recognized it. Both Penaloza and Matamoras positively identified appellant in court as
the driver of the Lexus.
John Vasquez, a Hidalgo County Sheriff’s deputy, testified that he responded to a
reported burglary at appellant’s residence. Appellant told Deputy Vasquez that someone
stole several items from the home, including his vehicle, which appellant described as a
white Lexus. Deputy Vasquez inspected the house, but he did not find any signs of
forced entry.
The jury returned guilty verdicts on three counts of failing to stop and render aid.
Appellant filed a motion for new trial, which the trial court denied following a hearing.
This appeal followed.
II. PROSECUTORIAL MISCONDUCT
By his first issue, appellant argues that “[t]he prosecution engaged in prosecutorial
misconduct rendering [a]ppellant’s trial constitutionally unfair.” Appellant complains of
the following conduct by the State: (1) placing an unadmitted exhibit on the counsel table
within the view of the jury; (2) showing a witness an exhibit, which the trial court ruled was
inadmissible; (3) commenting on matters outside of the record in response to an
objection; and (4) laughing at a remark made by a witness. Appellant also argues that
4
the trial court erred in overruling his motions for mistrial concerning the State’s reference
to the aforementioned exhibit, its comments on matters outside the record, and its closing
argument which appellant alleges “shifted the burden of proof.”
A. Standard of Review and Applicable Law
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007). Under
this standard, we uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Id. “A mistrial is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and futile.”
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a narrow class of
highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004). When the prejudice is curable, an instruction by the court to
disregard eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex.
Crim. App. 2004). The law generally presumes that a jury will follow the trial court’s
instruction. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
We resolve allegations of prosecutorial misconduct on a case-by-case basis and
determine whether the prosecutor’s conduct requires reversal based on the probable
effect on the minds of the jurors. Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App.
1988); Bautista v. State, 363 S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.).
Prosecutorial misconduct exists where (1) the prosecutor deliberately violated an express
court order; (2) the misconduct was so blatant as to border on being insubordinate; or (3)
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a prosecutor’s action was so clearly calculated to inflame the minds of the jury that an
instruction to disregard cannot cure the harm. See Stahl, 749 S.W.2d at 831; Perkins v.
State, 902 S.W.2d 88, 96 (Tex. App.—El Paso 1995, pet. ref’d).
Prosecutorial misconduct is an independent basis for an objection that must be
specifically urged to preserve error. Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim.
App. 2012); Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004,
pet. ref’d). The proper method is to (1) object on specific grounds, (2) request an
instruction that the jury disregard the matter improperly placed before the jury, and (3)
move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Cook
v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).
B. Analysis
1. Exhibits in View of Jury
The trial court admitted State’s Exhibit 1, a photograph of appellant, over
appellant’s objection that it was a mugshot that constituted evidence of an extraneous
offense. The trial court granted appellant’s identical objection to State’s Exhibit 2.
During the State’s examination of Matamoros, the following exchange took place:
Defense Counsel: Judge, the only objection I have before he proceeds,
the State has all the pictures where the jury can see
them. They haven’t been admitted. I ask that those
pictures—
Trial Court: All right. Cover up the photos.
Defense Counsel: They were denied, Your Honor.
Prosecutor: The photos are already—
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Defense Counsel: I understand, Judge.
Prosecutor: —where the jury can’t see them.
Defense Counsel: The jury is right there, Judge?
Trial Court: All right. Duly noted. Cover them up and move on.
....
Prosecutor: They are covered up, Judge.
At another point in the proceedings, the following exchange occurred:
Defense Counsel: Judge, I will object again to the State having pictures
where the jury can see them. Judge, I mean—
Trial Court: All right. I already told [you] all once in the morning.
You know better than that.
Defense Counsel: I will ask for a mistrial again, Judge.
Trial Court: That will be denied.
Appellant did not specifically object on the basis of prosecutorial misconduct, nor
did he request an instruction to disregard. Therefore, appellant has not preserved his
allegation of prosecutorial misconduct in this instance for appellate review. See
Penry, 903 S.W.2d at 764. Even if appellant had properly preserved his complaint, the
record does not support his contention that the prosecution acted deliberately in violation
of the court’s directive or that any juror saw the exhibit. See Havard v. State, 800 S.W.2d
195, 203–04 (Tex. Crim. App. 1989) (finding no merit in the appellant’s allegation of
prosecutorial misconduct based in part on the fact that the jury did not see a photograph
that the trial court had ordered should not be shown to the jury); Delgadillo v. State, 508
S.W.2d 383, 384 (Tex. Crim. App. 1974) (concluding there was no prosecutorial
7
misconduct in relation to an unadmitted exhibit being visible to the jury where the record
reflected no bad faith on the part of the prosecutor); see also Daniels v. State, No. 01-01-
01030-CR, 2002 WL 31521221, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 14, 2002,
pet. ref’d) (op., not designated for publication) (concluding that the prosecutor’s
placement on counsel table of a file marked with defendant’s prior convictions did not
constitute misconduct, where there was no evidence that jurors looked at the file or
considered what, if anything, they saw). We conclude that the record does not
demonstrate prosecutorial misconduct. See Stahl, 749 S.W.2d at 831. Therefore, the
trial court did not abuse its discretion in denying appellant’s motion for mistrial. See
Archie, 221 S.W.3d at 699–700.
2. Exhibit Displayed to Witness
Appellant also argues that the following actions of the State constituted
prosecutorial misconduct:
Prosecutor: Does the tattoo look like this?
Matamoras: Yeah.
Prosecutor: Okay. Does it fairly and accurately reflect the same
tattoo you saw on April 10th, 2014?
Defense Counsel: Judge, the—
Matamoras: Yeah, it had this—
Defense Counsel: —same objection we had—we had this—
Matamoras: Yeah.
Defense Counsel: At this time I move for a mistrial, Judge, as to—
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Matamoras: Yeah, it was like—
Trial Court: Nothing has been introduced.
Matamoras: —it was shaped like a name.
Trial Court: Your objection is overruled. What do you have,
Counsel?
Prosecutor: Judge, it’s State’s Exhibit No.—
Trial Court: The Court has already ruled on that.
Prosecutor: It’s not for—it’s for identifying purposes, Judge.
....
Trial Court: All right. You showed it to him, now what? You’re not
going to offer it into evidence because it’s denied and
put that photo down.
Appellant contends that the State was displaying State’s Exhibit 2 to the witness,
which the trial court previously ruled was inadmissible. The State does not take issue
with this contention, and it appears to be supported by the context of the witness
examination. Nevertheless, appellant failed to specifically urge an objection based on
prosecutorial misconduct. Therefore, appellant did not preserve his complaint. See
Penry, 903 S.W.2d at 764. Further, the record does not establish prosecutorial
misconduct because the State complied with the trial court’s order to discontinue referring
to the exhibit. See Havard, 800 S.W.2d at 204 (concluding that there was no
prosecutorial misconduct warranting a mistrial by the prosecutor’s questioning of a
witness regarding photographs that were ruled inadmissible, where the prosecutor
ceased doing so upon the trial court’s order). We conclude the trial court did not abuse
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its discretion in denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699–
700.
3. Comments on Matters Outside the Record
Next, appellant complains of the following colloquy during the State’s examination
of Officer Razzo:
Prosecutor: As a crash specialist, do you believe that the marijuana
was important as evidence?
Defense Counsel: Judge, again, I’m going to object to relevance at this
point. I don’t know where [the State] is going with it.
Prosecutor: Your Honor, there is testimony—if I may, there is
testimony and its already been made a point that there
was—there were drugs in the vehicle that were
recovered during the inventory, synthetic and regular
marijuana, and there is testimony that this driver was
impaired in some way either by drinking or was high
and had involvement in some sort of drugs and that
being the reason for him fleeing the accident.
Defense Counsel: Judge, but as we go into the indictment it’s not one of
the—
Trial Court: Where are you going with this questioning? . . . There
is no testimony . . . of any marijuana use or anything.
It was just found in there.
Prosecutor: Your Honor, in the—if I may, in the vehicle inventory
when it was done there was synthetic and regular
marijuana found and that’s relevant because of the
place of employment of this Defendant and what they
sold at that place.
Defense Counsel: Judge, again—Your Honor, at this time I move for a
mistrial. There is no testimony before this Court as
to—
Trial Court: Your mistrial is denied.
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Defense Counsel: Judge, she is bringing facts into the witness—into the
jury right now without—
Trial Court: I already ruled, Counsel. And his objection is good.
Move on to something else. . . . The jury will disregard
that last statement made by the prosecuting counsel.
Appellant maintains that the State improperly commented on matters outside of
the record. “Improper references to facts that are neither in evidence nor inferable from
the evidence are generally designed to arouse the passion and prejudice of the jury and,
as such, are inappropriate.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App.
2011). However, we note that the State’s comments are generally supported by the
evidence adduced at trial. There were multiple witnesses who testified concerning the
vehicle inventory. It would be reasonable to infer from this evidence that the presence
of illicit substances motivated appellant to flee the accident. There was also evidence
that appellant’s girlfriend owned a store which sold synthetic marijuana.
Furthermore, the record fails to establish that the prosecution’s comments were
incurably prejudicial. The trial court sustained appellant’s objection and sua sponte
instructed the jury to disregard the comments. “An instruction to disregard is
presumptively inadequate only in the most blatant cases; only offensive or flagrantly
improper conduct warrants reversal when there has been an instruction to disregard.”
Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.—Waco 2007, pet. ref’d) (citing Wilkerson
v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994)). We find nothing in the record to
suggest that the jury disregarded the trial court’s instruction, so we must presume the
instruction was followed. See Gamboa, 296 S.W.3d at 580 (relying on the presumption
11
that the jury followed the judge’s instructions). We further conclude that the
prosecution’s comments were not of such a nature that the trial court’s curative instruction
was inadequate. See Pierce, 234 S.W.3d at 268. Therefore, the trial court did not
abuse its discretion in denying appellant’s motion for mistrial. See Archie, 221 S.W.3d
at 699–700.
4. Laughing in Front of Jury
Appellant argues that the State engaged in prosecutorial misconduct by laughing
during appellant’s questioning of Officer Ramos:
Defense Counsel: Well, no text message at 9:11, no text message at ten
o’clock—
Officer Ramos: The phone was left behind. How was he going to text?
Defense Counsel: I understand but there is [sic] no calls—there is nothing
there at that point, correct?
Officer Ramos: No, sir.
Defense Counsel: Now, they may think it’s funny, but I don’t think it’s
funny.
Prosecutor: Objection, sidebar.
Defense Counsel: Judge, they’re laughing in front of the jury.
Trial Court: Both of you cease and desist. Let’s go.
Appellant neither requested an instruction to disregard, nor did he request a
mistrial. Therefore, he has not preserved his complaint. See Penry, 903 S.W.2d at 764.
Even if one had been requested, we do not believe a mistrial on this record would have
been warranted. While laughter or snickering by counsel is inappropriate under most
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circumstances, the isolated instance cited here does not arise to reversible prosecutorial
misconduct. See McFarland v. State, 834 S.W.2d 481, 488 (Tex. App.—Corpus Christi
1992, no pet.) (prosecutor’s “snickering” at comments made by defense counsel during
final jury argument was not so inflammatory that it could not have been cured by trial
court’s instruction to disregard).
5. Shifting the Burden of Proof
Next, appellant argues that a mistrial was warranted when the State “shifted the
burden of proof during closing arguments.” Appellant contends that the State’s comment
concerning appellant’s power to secure evidence via subpoena was improper.
The Fifth Amendment of the United States Constitution protects the right of an
accused from being compelled to be a witness against himself. U.S. CONST. amend. V.
In addition, the burden of proof in a criminal case is placed on the State to prove each
element of the charged offense beyond a reasonable doubt, and attempts to shift that
burden to the defendant may constitute a violation of the due process clause of the
Fourteenth Amendment. See TEX. PENAL CODE ANN. § 2.01 (West, Westlaw through
2017 1st C.S.); Lowry v. State, 692 S.W.2d 86, 87 (Tex. Crim. App. 1985) (en banc) (citing
Mullaney v. Wilbur, 421 U.S. 684, 702 (1975)). The State may comment on the
defendant’s failure to produce witnesses or evidence, but only if it does so in a manner
that does not amount to a comment on the defendant’s decision not to testify. See, e.g.,
Pope v. State, 207 S.W.3d 352, 365 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d
664, 674 (Tex. Crim. App. 2000); Hinojosa v. State, 433 S.W.3d 742, 762 (Tex. App.—
San Antonio 2014, pet. ref’d). Jury argument pointing out that the defendant has failed
13
to present evidence in his favor does not shift the burden of proof but instead summarizes
the state of the evidence and is a reasonable deduction from the evidence. See
Jackson, 17 S.W.3d at 674.
During closing argument, appellant’s counsel commented that “there was a video
around there that didn’t show anything that we wished we would have gotten.” The State
responded by arguing that appellant had the power to subpoena evidence such as the
video. The State’s comment was clearly in response to appellant’s closing argument and
not a reference to appellant’s failure to testify. See id. We conclude that the trial court
did not abuse its discretion in denying appellant’s motion for mistrial. See Archie, 221
S.W.3d at 699–700.
6. Continuing Misconduct
Lastly, appellant maintains that he is entitled to a new trial due to on-going
prosecutorial misconduct throughout the proceedings. A new trial may be warranted in
the absence of a specific objection, where serious and continuing prosecutorial
misconduct undermines the reliability of the factfinding process and deprives the
defendant of fundamental fairness and due process of law. Bautista, 363 S.W.3d at 263;
Jimenez v. State, 298 S.W.3d 203, 214 (Tex. App.—San Antonio 2009, pet. ref’d). For
the reasons discussed above, we conclude that the record does not demonstrate serious
and continuing prosecutorial misconduct. We overrule appellant’s first issue.
III. DISCLOSURE OF WITNESSES
By his second issue, appellant argues that the trial court erred in permitting the
testimony of Deputy Vasquez. Appellant objected to his testimony because the State
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did not identify Deputy Vasquez on its witness list.
A. Standard of Review and Applicable Law
Generally, notice of the State’s witnesses must be given upon request by the
defense. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Hamann v. State,
428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Depena v. State,
148 S.W.3d 461, 465 (Tex. App.—Corpus Christi 2004, no pet.). If the trial court allows
a witness who was not on the State’s list to testify, we review that decision for an abuse
of discretion. See Martinez, 857 S.W.2d at 39; Hamann, 428 S.W.3d at 227. In our
review, we consider two factors: (1) whether the State’s actions in calling a previously
undisclosed witness constituted bad faith, and (2) whether the defendant could have
reasonably anticipated that the witness would testify. Wood v. State, 18 S.W.3d 642,
649 (Tex. Crim. App. 2000) (citing Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim.
App. 1992)); Hamann, 428 S.W.3d at 228.
B. Analysis
Appellant filed a motion for discovery, requesting the names of any expert witness
the State intended to call. However, appellant did not request any information
concerning lay witnesses. Furthermore, there is no discovery order in the record
requiring the State to provide such information. Therefore, the State was under no
obligation to disclose that it intended to call Deputy Vasquez. See Martinez, 867 S.W.2d
at 39; Hamann, 428 S.W.3d at 227; Depena, 148 S.W.3d at 465. In addition, the record
demonstrates that appellant could have reasonably anticipated that Deputy Vasquez
would testify. Appellant filed a notice of its intention to rely on the State’s subpoenas for
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witnesses. Due to numerous trial settings, the State filed over twenty applications for
subpoenas identifying Deputy Vasquez. We conclude that on this record the trial court
did not abuse its discretion in overruling appellant’s objection to Deputy Vasquez’s
testimony. See Martinez, 857 S.W.2d at 39.
We also observe that appellant did not move for a continuance in order to prepare
for Deputy Vasquez’s testimony. Therefore, even if there was error in the admission of
the testimony, we are precluded from holding that the error was harmful. See Lindley v.
State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982) (“The failure to request a
postponement or seek a continuance waives any error urged in an appeal on the basis of
surprise.”); see also McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005)
(considering defendant’s failure to request continuance as a factor weighing against
finding of harm when State failed to give timely rule 404(b) notice); Martin v. State, 176
S.W.3d 887, 900 (Tex. App.—Fort Worth 2005, no pet.) (explaining that the defendant
waived any complaint that he was surprised by the State’s untimely notice by failing to
request a continuance). We overrule appellant’s second issue.
IV. EVIDENTIARY RULING
By his third issue, appellant argues that the trial court erred by admitting State’s
Exhibit 1 because the State failed to notify appellant of its “intent to use other-crimes
evidence” and because the exhibit was overly prejudicial. 1 Particularly, appellant
complains that the exhibit was a mugshot from a prior offense.
1 Appellant argues that the trial court erred by admitting State’s Exhibits 1 and 2. However, the
trial court sustained appellant’s objection to State’s Exhibit 2. Therefore, we will only address the trial
court’s ruling concerning State’s Exhibit 1.
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A. Standard of Review and Applicable Law
We review a trial court’s ruling on the admission or exclusion of evidence for an
abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We
will uphold the trial court’s ruling unless it falls outside the zone of reasonable
disagreement. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016). If the
trial court’s evidentiary ruling is reasonably supported by the record and correct on any
theory of applicable law, we will uphold the decision. See State v. Story, 445 S.W.3d
729, 732 (Tex. Crim. App. 2014).
The typical concern in admitting a defendant’s mugshot is whether it provides
prejudicial evidence of an extraneous offense. Hollis v. State, 219 S.W.3d 446, 466
(Tex. App.—Austin 2007, no pet.); see Alexander v. State, 88 S.W.3d 772, 780–81 (Tex.
App.—Corpus Christi 2002, pet. ref’d) (determining that a mugshot from a prior offense
was inadmissible because it “had a substantial and injurious effect on the jury’s verdict”
by painting appellant “as someone who had been arrested at least twice before”). When
the photograph itself establishes that it was taken by law enforcement in the context of
an unrelated arrest, it is improper evidence of an extraneous offense. Araiza v. State,
929 S.W.2d 552, 555 (Tex. App.—San Antonio 1996, pet. ref’d); see Richardson v. State,
536 S.W.2d 221, 223 (Tex. Crim. App. 1976) (concluding that the introduction of a
mugshot that showed front and side view of defendant and depicting a sign that read
“SAN ANTONIO PD P7302316 10–22 73 7–15 AM” was reversible error). However,
when there are no indications that the picture was taken by law enforcement, it does not
17
constitute inadmissible extraneous offense evidence. Araiza, 929 S.W.2d at 555 (citing
Huerta v. State, 390 S.W.2d 770, 772 (Tex. Crim. App. 1965)).
B. Analysis
Our review of the record reveals no circumstances that would indicate that the
photograph was a mugshot or that it was taken following an arrest for an extraneous
offense. The photograph contains no markings. Appellant is directly facing the camera,
and his chest, shoulders, and head are visible. He is wearing a collared shirt, and the
background is nondescript. The testimony concerning the photograph was limited to a
witness stating that he recognized the partial tattoo visible in the picture. Because the
exhibit does not constitute evidence of a prior offense, we conclude that the trial court did
not abuse its discretion in overruling appellant’s objection on that basis. 2 See Hollis, 219
S.W.3d at 466 (concluding that trial court did not err in overruling objection to mugshot
where there was nothing about the picture indicating an extraneous offense). We
overrule appellant’s third issue.
V. PRIVILEGE AGAINST SELF-INCRIMINATION
By his fourth issue, appellant argues that the trial court’s ruling requiring him to
display his tattoo in court violated his Fifth Amendment right against self-incrimination.
Requiring a defendant to display an identifying characteristic to the jury does not
violate the Fifth Amendment. See Taylor v. State, 474 S.W.2d 207, 210 (Tex. Crim. App.
1971) (“[I]t has been held proper during a trial to require the defendant to stand, put on a
2 Aside from appellant’s characterization of the exhibit as a mugshot from a prior offense, appellant
presents no additional argument as to why the exhibit was “overly prejudicial.”
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hat, remove glasses, or make a footprint for the purposes of identification.”); Whitlock v.
State, 338 S.W.2d 721, 723 (Tex. Crim. App. 1960) (concluding trial court did not err in
failing to declare a mistrial where the defendant complied with request to display his left
hand which was missing a portion of the thumb). Accordingly, Texas courts have
repeatedly held that the display of a defendant’s tattoos to the jury is not a violation of the
right against self-incrimination. Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App.
2007); Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim. App. 2003); Sauceda v. State,
309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. ref’d); Garcia v. State, 239 S.W.3d
862, 868 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); DeLeon v. State, 758 S.W.2d
621, 625 (Tex. App.—Houston [14th Dist.] 1988, no pet.); see also McDonald v. State,
No. 13-98-072-CR, 1999 WL 33757925, at *2 (Tex. App.—Corpus Christi Feb. 25, 1999,
no pet.) (op., not designated for publication). We overrule appellant’s fourth issue.
VI. MOTION FOR NEW TRIAL
By his fifth issue, appellant argues that the trial court erred in denying his motion
for new trial, which asserted claims of prosecutorial misconduct. Appellant’s motion for
new trial urged the same grounds as his motions for mistrial and trial objections.
Appellant does not present any new issues that we have not already addressed in this
memorandum opinion. For the reasons discussed above, we conclude that appellant
was not entitled to a new trial based on prosecutorial misconduct. We overrule
appellant’s fifth issue.
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VII. CUMULATIVE ERROR
By his sixth issue, appellant argues that his conviction “should be reversed through
the cumulative error doctrine.”
Multiple errors may be found to be harmful in their cumulative effect, even if each
error considered separately, would be harmless. Chamberlain v. State, 998 S.W.2d 230,
238 (Tex. Crim. App. 1999). The mere existence of multiple errors, however, does not
warrant reversal unless they operated in concert to undermine the fundamental fairness
of the proceedings. Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).
Moreover, if an individual’s claims of error lack merit, then there is no possibility of
cumulative error. Gamboa, 296 S.W.3d at 585. Appellant has not demonstrated any
trial court error from which we could consider cumulative harm. We overrule appellant’s
sixth issue.
VIII. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of November, 2018.
20