Opinion
No. 04-16-00747-CR
11-22-2017
Angel Martin SAAVEDRA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 13, Bexar County, Texas
Trial Court No. 492554
The Honorable Crystal D. Chandler, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
On October 26, 2016, a Bexar County jury found Appellant Angel Martin Saavedra guilty of assault bodily injury-married and the trial court subsequently assessed punishment at one-year confinement in the Bexar County Jail, suspended and probated for one year, and a $500.00 fine. On appeal, Saavedra contends the trial court erred in failing to grant a mistrial and failing to provide a spoliation instruction in the jury charge. Additionally, Saavedra contends the State engaged in a sustained campaign to bolster the credibility of its witnesses through the introduction of otherwise inadmissible comments and statements, the cumulative effect of which was to deny Saavedra a fair trial. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Several witnesses testified at trial.
1. Lance Herrera
On June 5, 2015, at 6:22 p.m., Bexar County Sheriff's Office Deputy Lance Herrera responded to a family disturbance. Upon his arrival, Deputy Herrera found Saavedra in his vehicle and instructed him to remain in his vehicle while Herrera ensured no immediate medical attention was required by any of the individuals involved. Deputy Herrera approached Rosa, Saavedra's ex-wife, who was crying and upset, but refused all medical assistance. Rosa was standing with off-duty San Antonio Police Officer Arturo Dominguez. Although he did not take any pictures, Deputy Herrera noted redness to Rosa's neck; he testified the markings appeared more consistent with a push, than actual choking.
For purposes of this appeal, we refer to Appellant Angel Martin Saavedra as "Saavedra" and Complainant Rosa Saavedra as "Rosa."
Deputy Herrera also spoke to Saavedra. "[Saavedra] appeared to be very angry. He wasn't really hostile towards me, but he—he—he looked angry." Saavedra explained that he arrived at Rosa's residence to pick up his three minor children, ages ten, nine, and six, for his custodial summer visitation. Saavedra contended Rosa physically removed the children after they were already in his vehicle and threatened to assault him if he followed her and the children into her home. Saavedra denied touching or hitting Rosa and did not report any damage to his vehicle or his person.
Saavedra was ultimately arrested for assault. Deputy Herrera testified that "based on the totality of the situation and what was being told to me, and by the witnesses, and the redness around the neck, on the lower part of the neck, I made the determination that [Saavedra] was at fault, that . . . family violence had occurred." 2. Rosa Saavedra
Through an interpreter, Rosa testified that she worked as a cafeteria assistant and was previously married to Saavedra for seven years. Rosa testified that, on the day in question, she and the children were waiting for Saavedra because it was his custodial weekend with the children. However, after the children were buckled in his vehicle, Saavedra told Rosa that he was taking the children until the end of the month and that he would not return the children until the first day of July. Rosa testified that she told Saavedra the children needed to be returned to her house on Sunday because the visitation was only for the weekend. Saavedra disagreed and pushed her, "and that's when his aggression towards me [Rosa] started."
Based on Saavedra's aggressive actions, Rosa took the children out of his vehicle and inside the house. When she returned outside, Saavedra began pushing Rosa. Rosa denied hitting Saavedra's vehicle or damaging his property. "He was pushing me. Several times, he grabbed me from my neck, and he was pushing me towards the car." She continued, "[w]hen he had me in the middle of the street in the car, he grabbed me from my neck. He started telling me that he wanted to kill me. He wanted me to—to be dead, to see me dead, and that I was an obstacle in his life." When Rosa attempted to use her cellphone, Saavedra grabbed the phone out of her possession.
Rosa conceded that she was very hurt, more from the words than from the physical contact. Rosa also testified that her neck was red that day, and bruises appeared the following day. During the struggle, Rosa testified that she saw a car turn around and a man get out of the vehicle. The man, later identified as off-duty San Antonio Police Officer Arturo Dominguez, approached Saavedra and attempted to defuse the situation.
During cross-examination, defense counsel attempted to discredit Rosa with inconsistencies between her testimony and her statement contained in the Victim Impact Statement filed with the trial court. Rosa reiterated she met Officer Dominguez for the first time on June 5, 2015. Rosa also testified that she told Officer Dominguez that Saavedra threatened to kill her and that her children were "very scared—afraid, sad, concerned."
3. Arturo Dominguez
Off-duty San Antonio Police Officer Arturo Dominguez was leaving his neighborhood, with his girlfriend and son, when he observed a couple that appeared to be involved in an argument of some type. The female, later identified as Rosa, appeared upset and crying; the male, later identified as Saavedra, appeared to be the aggressor. Dominguez testified that he never saw the female display any aggression or hit Saavedra's property.
Dominguez further testified that he saw the exchange for approximately fifteen seconds. "She was against the back of an SUV. I want to say she was grabbing his hand—his hand or hands, trying to get his hand away from her neck." Saavedra's action were "forceful" and, in Officer Dominguez's opinion, would cause someone pain. When Officer Dominguez exited his vehicle, Saavedra was "upset as well, mad." Saavedra told Dominguez that "he should mind his own business."
Officer Dominguez noted redness to Rosa's neck. He did not see any injuries to Saavedra or any evidence that Rosa attacked Saavedra. Officer Dominguez did not see any damage to Saavedra's vehicle and Saavedra did not mention any damage to his vehicle. He also did not see Rosa kick or punch Saavedra. Finally, on cross-examination, Officer Dominguez testified that as he exited his vehicle, his girlfriend called 911 to report the argument.
4. Defense Witnesses
After the State rested, the defense called Thomas Adams and Chris Kim Drennan to testify that Saavedra had a reputation for being a peaceful person. The defense also called Saavedra's partner, Horacio Perez, who acknowledged Saavedra called him very upset that Saavedra's ex-wife was denying him the court-ordered, summer custody.
5. Angel Saavedra
Saavedra testified that he is an active member of the United States Air Force and that he requested thirty-days leave for the month of June 2015 to spend with his children. When Saavedra arrived at his ex-wife's house, she went inside to notify the children. When his son walked out of the house without his orthotic shoes, Saavedra asked him to go back into the house to get his shoes; both his son and Rosa refused to return for the shoes.
Saavedra further relayed that he was waiting for his son to buckle his seatbelt when Rosa opened the vehicle door and began to unbuckle the youngest child. Rosa physically removed the child out of the vehicle; she grabbed the boys by the hand, and then forcibly pulled the children out of the vehicle. By the time Saavedra exited his vehicle, the children were already running inside the house, with Rosa close behind. When Rosa exited the residence, she was very aggressive. Rosa called him derogatory names, and told him that he would never see his children again.
Saavedra testified that he called 911 and Rosa started kicking his vehicle. He stepped between Rosa and the vehicle, when she raised her phone and hit his elbow, her phone "went flying across the yard." Saavedra was adamant that he never made physical contact with Rosa on the day in question. He specifically denied grabbing or assaulting her.
The jury returned a guilty verdict on the assault bodily injury-married charge and the trial court assessed punishment at one-year confinement in the Bexar County Jail, suspended and probated for a period of one year, and a $500.00 fine. This appeal ensued.
TRIAL COURT'S FAILURE TO GRANT MISTRIAL
A. Standard of Review
"A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). "Whether an error requires a mistrial must be determined by the particular facts of the case." Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim. App. 2016).
"When a trial court sustains an objection and gives the jury an instruction to disregard, but denies a motion for mistrial, an appellate court assumes, without deciding, that the argument was improper and only looks to whether the court abused its discretion when it denied the motion for mistrial." Id.; Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); see also Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) ("We generally presume the jury follows the trial court' instructions in the manner presented."). Under this standard of review, we view the evidence in the light most favorable to the trial court's ruling. Ocon, 284 S.W.3d at 884. "The ruling must be upheld if it was within the zone of reasonable disagreement." Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).
B. Arguments of Parties
Saavedra contends the trial court erred in failing to grant a mistrial after the State elicited inappropriate testimony, asked objectionable questions, and made extra-evidentiary statements in front of the jury that were calculated to bolster the State's witness's credibility. More specifically, Saavedra contends the State's actions amounted to prosecutorial misconduct.
The State counters that any potential error was cured by the trial court's instruction to disregard the evidence in question.
C. Evidence before the Jury
Although Saavedra does not point to specific objections or requests for mistrial, the record supports that defense counsel requested several mistrials during the presentation of the State's case in chief.
1. Testimony of Deputy Herrera
Deputy Herrera testified that the majority of his contact during the incident was with Officer Dominguez, Dominguez was an "off-duty officer was on the scene[,] and had witnessed all of the events taking place in front of him." He further testified that Officer Dominguez was "a credible person" and that the incident "actually happened in front of him." Defense counsel objected based on improper opinion testimony. The trial court sustained defense counsel's objection and instructed the jury to disregard Deputy Herrera's statement. Defense counsel's request for a mistrial was denied by the trial court.
2. Rosa Saavedra
During the State's redirect of Rosa, the prosecutor asked questions about Rosa's victim impact statement. As she reviewed the statement, the prosecutor commented, "I'm looking at the statement now and I'm seeing a lot of consistencies in this statement." Defense counsel immediately objected to improper bolstering. The trial court sustained the objection and instructed the jury to disregard the prosecutor's last question. The trial court, however, denied defense counsel's request for a mistrial.
Shortly thereafter, the prosecutor began his question with the following, "Okay. [Rosa], in the statement, you say "[Saavedra] pushed me against my car." Defense counsel again objected,
. . . this is not proper—this is not impeachment. It is not proper to bolster a witness in this way. He's not—he can ask her if—if the statement refreshes her recollection, but he can't ask—he can't ask—he can't read from the document and then ask her if she agrees with it. That's not proper questioning by a State's advocate.The trial court sustained the objection and instructed the jury to disregard the question. At the bench, the prosecutor asserted the statement was both a prior consistent statement and that it was being offered under the doctrine of optional completeness. Defense counsel argued that reading hearsay statements and asking the witness if she made the statement was not a proper means of offering evidence under optional completeness. When the prosecutor again attempted to ask Rosa to affirm a prior statement, the trial court sustained defense counsel's objection and instructed the jury to disregard the line of questioning.
D. Analysis
"A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Ocon, 284 S.W.3d at 884 (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). Generally, the trial court's instruction to the jury to disregard cures improper testimony or evidence. Id.; accord Ransom v. State, 798 S.W.2d 572, 585-86 (Tex. Crim. App. 1989). "[A] mistrial is only required when the improper evidence is 'clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.'" Martinez v. State, 336 S.W.3d 338, 342 (Tex. App.—San Antonio 2010, no pet.) (quoting Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999)). Reviewing the evidence, in the light most favorable to the trial court's ruling, the record does not support a conclusion that the State's actions were clearly calculated to inflame the minds of the jury or were of such character as to suggest the impossibility of withdrawing the impression produced on their minds. See Ocon, 284 S.W.3d at 884; Ransom, 798 S.W.2d at 585-86. We, therefore, conclude the trial court's instructions were sufficient and timely enough to cure the alleged error and that the jury followed the trial court's instructions to disregard the State's improper questions.
Accordingly, we overrule this issue on appeal.
We turn next to whether the trial court erred in failing to include a spoliation instruction in the trial court's jury charge.
SPOLIATION
Without providing any details of its contents, Officer Dominguez testified that he sent a written statement, via e-mail, to a detective working on the case. Upon objection by defense counsel, the State explained the statement was not in the State's possession and that the State was unaware any such statement was ever made. During the jury charge conference, the trial court denied defense counsel's requested spoliation instruction that the State failed to produce a copy of Officer Dominguez's e-mailed statement.
A. Standard of Review
An appellate court reviews a claim of jury-charge error using the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we determine whether error exists in the jury charge. See Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). Second, if error exists, we determine whether sufficient harm was caused by that error to require reversal. Id.
B. Arguments of the Parties
Saavedra contends the trial court erred in failing to include a spoliation jury charge based on the State's failure to produce the emailed statement by eyewitness Officer Dominguez.
The State counters the evidence presented at trial did not support that the State was ever in possession of the emailed statement. Moreover, the record did not support the State destroyed any evidence or that the evidence ever existed; thus nothing in the record warranted the inclusion of a spoliation charge.
C. Spoliation
Spoliation concerns the loss or destruction of evidence. Torres v. State, 371 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). In the criminal context, when spoliation concerns potentially useful evidence, the defendant bears the burden of establishing that the State lost or destroyed the evidence in bad faith. See Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); see also Castilla v. State, 374 S.W.3d 537, 541 (Tex. App.-San Antonio 2012, pet. ref'd); Torres, 371 S.W.3d at 319-20. "The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed." White v. State, 125 S.W.3d 41, 43-44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (citing Burke v. State, 930 S.W.3d 230, 236 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd)). A defendant bears the burden to "affirmatively show that the lost evidence was favorable and material to his defense." Id. at 44.
D. Analysis
To warrant a spoliation instruction, Saavedra was required to prove the State lost or destroyed evidence in bad faith. See Napper, 322 S.W.3d at 229.
After Officer Dominguez's testimony, the State attempted to locate the alleged e-mailed statement. During the charge conference the following morning, the prosecutor averred that he personally contacted Officer Dominguez and that Officer Dominguez did not have a copy of the statement; additionally, the detective, to whom Officer Dominguez allegedly sent the statement, never received the statement. The prosecutor affirmatively stated that neither he, nor anyone with whom he had contact, ever had a copy of the alleged statement.
Defense counsel argued Officer Dominguez should have a copy of the sent e-mail. He opined, "I think this statement exists somewhere, and it is in the control of the State somehow." Defense counsel further argued that Officer Dominguez's credibility was crucial to the case and reinforced the importance of the statement.
In its ruling, the trial court reiterated that the State attempted to locate and to determine the statement's existence. The State contacted both the officer and the detective. Neither individual had possession of the statement and the State affirmatively averred the statement was never in the State's possession. The trial court further reiterated that although defense counsel filed a pretrial discovery request seeking witness statements, defense counsel never requested nor received a ruling on the discovery motion.
Based on Saavedra's failure to prove the State lost or destroyed the alleged statement in bad faith, we conclude the trial court did not abuse its discretion by denying Saavedra's request for a spoliation instruction. See Notias v. State, 491 S.W.3d 371, 375 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (trial court does not abuse discretion by failing to submit a requested jury instruction that is not in accordance with law); see also Napper, 322 S.W.3d at 238 (finding of criminal spoliation requires evidence of State's bad faith). Accordingly, we overrule Saavedra's second issue.
III. Cumulative Error
In his last issue, Saavedra contends the State engaged in a sustained campaign to bolster the credibility of its witnesses through the introduction of otherwise inadmissible comments and statements, the cumulative effect of which was to deny Saavedra a fair trial.
The cumulative error doctrine provides that the combined effect of multiple errors can, in the aggregate, constitute reversible error, even though each individual error, analyzed separately, was harmless. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (citing United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) ("The cumulative error doctrine provides relief only when constitutional errors so 'fatally infect the trial' that they violated the trial's 'fundamental fairness.'")). To implicate the cumulative error doctrine, however, the alleged errors must actually constitute error. See id. (reasoning that although it is possible for a number of errors to cumulatively rise to the point that they become harmful, non-errors may not, in their cumulative effect, cause error); see also Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en banc) (reiterating non-errors do not produce harm in their cumulative effect).
Because we have no found no error in this appeal, we overrule Saavedra's cumulative error complaint.
CONCLUSION
Having overruled each of Saavedra's issues, we affirm the trial court's judgment.
Patricia O. Alvarez, Justice DO NOT PUBLISH