De La Cerda v. State

1

JOSE RAYMUNDO DE LA CERDA, Appellant v. THE STATE OF TEXAS, Appellee

No. 14-22-00471-CR

Court of Appeals of Texas, Fourteenth District

November 9, 2023

Do Not Publish - Tex.R.App.P. 47.2(b).

On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 21-CR-2026

Panel consists of Justices Wise, Zimmerer, and Poissant.

MEMORANDUM OPINION

Jerry Zimmerer Judge

A jury convicted appellant Jose Raymundo De La Cerda of murder and sentenced him to serve 28 years in prison. See Tex Penal Code Ann. § 19.02. Appellant appeals his conviction in two issues. In his first issue appellant argues that the trial court erred when it denied his motion for mistrial made during the State's closing argument. We overrule this issue because appellant failed to preserve this issue since appellant's argument on appeal does not comport with the objection made in the trial court. Appellant argues in his second issue that he received ineffective assistance of counsel because his trial attorneys failed to object to parts of the prosecutor's closing argument. We overrule this issue because appellant has not established that his trial counsel rendered deficient performance when they did not object to the challenged portions of the State's closing argument. We therefore affirm the trial court's judgment.

Background^[1]

The complainant, Andrew Cordova, and several of his friends were drinking inside a cabaret known as Las Catrinas Cabaret. The owner of the cabaret, Oscar Deleon, Sr., was tending bar that night.

Melinda Rodriguez, who had worked at the cabaret as a bartender entered the cabaret and began talking to Deleon about a long-running pay dispute. Appellant and two other people waited outside for Rodriguez. Deleon had Rodriguez go with him to the cabaret's office, where the discussion became heated. The two exited the office and continued the argument in the main area of the cabaret. Meanwhile, appellant and his two companions entered the cabaret. The complainant intervened in the argument and slapped Rodriguez. Rodriguez then charged at the complainant. Appellant then stepped up and began firing a handgun at the complainant, ultimately hitting him once in the arm and six times in the back. Appellant, Rodriguez, and their two companions, ran out of the cabaret. The complainant was pronounced dead at the scene. The entire incident was captured on video by multiple security cameras.

It was undisputed at trial that appellant was the person who fired the fatal shots. The dispute at trial focused on whether appellant's conduct was justified by the reasonable use of deadly force in defense of a third person. The jury rejected this defense and found appellant guilty of murder. The jury sentenced appellant to serve 28 years in prison. This appeal followed.

Analysis

Appellant raises two issues on appeal, which we address in order.

I. Appellant did not preserve his first issue for appellate review.

In his first issue on appeal appellant argues that the trial court abused its discretion when it denied his motion for mistrial made during the prosecution's closing argument. Specifically, appellant asserts that the following part of the prosecution's closing argument warranted a mistrial because, in appellant's view, it impermissibly commented on appellant's right to remain silent:

PROSECUTOR: You know, we talked in voir dire about the charge, what reasonable belief is. And just very briefly, I want talk about that. Because this is the law that governs your instructions. A reasonable belief means a belief that an ordinary and prudent person would have held in the same circumstances as the Defendant. That's the standard. Was Jose Delacerda's [sic] actions that night - - did he have a reasonable belief? Now, I have to prove to you beyond a reasonable doubt one of these three things. And by the way, we've proven them all. Number one, the Defendant did not reasonably believe Andrew Cordova was using or attempting to use deadly force against Melinda Rodriguez? We've proved that. You know, I've got to give the defense credit. They had to be grinning ear to ear when the paramedics and the police showed up and they found out that Andrew Cordova had four knives on him. They had to be like, oh, thank god, thank god he had weapons there.

DEFENSE: I'm going to object. This is attacking the Defendant over the shoulder.

TRIAL COURT: Sustained.

DEFENSE: I'd ask that the jury be instructed to disregard the comment.

TRIAL COURT: Disregarding any comments about the defense counsel.

DEFENSE: And I would move for a mistrial.

TRIAL COURT: Denied.

DEFENSE: Thank you.

Appellant continues that the trial court's curative instruction to the jury was inadequate and that he was harmed by the trial court's denial of his motion for mistrial. The State responds that appellant failed to preserve his argument on appeal because it does not comport with the objection he made in the trial court. We agree with the State.

To preserve error, the record must show that appellant made a timely request, objection, or motion and that the trial court ruled on it. Quick v. State, 557 S.W.3d 775, 787 (Tex. App.-Houston [14th Dist.] 2018, pet. ref'd). Additionally, the complaining party bears the responsibility of clearly conveying to the trial judge the party's particular complaint, the precise and proper application of law, as well as the underlying rationale. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). A general or imprecise objection will not preserve error for appeal unless it is clear from the record that the legal basis for the objection was obvious to the trial court and opposing counsel. Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016); Penton v. State, 489 S.W.3d 578, 580 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). There are two main purposes behind this requirement: (1) to inform the trial court of the basis of the objection and give the trial court a chance to rule on it, and (2) to give opposing counsel the chance to remove the objection or provide other testimony. Quick, 557 S.W.3d at 787.

Whether a party's particular complaint is preserved depends on whether the complaint made on appeal comports with the complaint made in the trial court. Pena, 285 S.W.3d at 464. "In making this determination, we consider the context in which the complaint was made and the parties shared understanding at that time." Id.

It is well-settled that a prosecutor cannot properly comment on a defendant's failure to testify. Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983). Such comments violate the U.S. Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). In assessing whether a criminal defendant's Fifth Amendment right has been violated, courts must view the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor of it being a permissible argument. Id. Thus, the implication that the State referred to a defendant's failure to testify must be a clear and necessary one. Id. If the language might reasonably be construed as merely an implied or indirect allusion, there is no violation. An appellate court cannot determine that a prosecutor manifestly intended to comment on a defendant's failure to testify if there is some other equally plausible explanation for the argument. The test, therefore, is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on a defendant's failure to testify. Id. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Id.

Another type of improper argument occurs when a prosecutor makes uninvited and unsubstantiated accusations of improper conduct directed toward a defense attorney in an attempt to prejudice the jury against the defendant. Courts refer to this as striking a defendant over the shoulders of his counsel. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) ("We have consistently held that argument which strikes at defendant over the shoulders of defense counsel is improper . . . ."); Pena v. State, 554 S.W.3d 242, 252 (Tex. App.-Houston [14th Dist] 2018, pet. refd) (same). This type of argument can be seen, for example, when the prosecutor argues that defense counsel has manufactured evidence, suborned perjury, accepted stolen money, or represented criminals. Pena, 554 S.W.3d at 252. This type of argument is improper. Dinkins, 894 S.W.2d at 357.

In the challenged argument, the prosecutor did not refer to appellant, nor did he mention a failure to testify, or call attention to the absence of evidence that only appellant could provide. See Owen, 656 S.W.2d at 459 ("If the remark complained of called the jury's attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed."). Instead, the prosecutor argued that he had to "give the defense credit" when "they" alluded to the four knives found on the complainant's dead body as the "claws of the bear[,] [a]ll four of them." We conclude that the prosecutor's argument was, at most, an attempt to prejudice the jury against the defendant by striking at defendant over the shoulders of his counsel and not a comment on appellant's failure to testify. Appellant's trial counsel also understood that was the argument being made because he objected that the prosecutor's argument was "attacking the Defendant over the shoulder." The trial court also understood that was appellant's objection because she instructed the jury to "disregard any comments about the...