Mata v. State

• Citation: 867 S.W.2d 798
• Decision Date: 03 November 1993
• Docket Number: No. 08-92-00074-CR,08-92-00074-CR
• Parties: Alfredo MATA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 798

867 S.W.2d 798

Alfredo MATA, Appellant, v. The STATE of Texas, Appellee.

No. 08-92-00074-CR.

Court of Appeals of Texas,

El Paso.

Nov. 3, 1993.

David C. Guaderrama, El Paso County Public Defender, El Paso, for appellant.

Jaime E. Esparza, Dist. Atty., El Paso, for state.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a conviction for the felony offense of illegal investment. Trial was by jury upon Appellant's plea of guilty. Punishment was assessed by the jury at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 30 years. In four points of error, Appellant asserts error in the trial court's refusal to permit his questioning of the venire about the prosecutor's side bar expressions, in denying him a hearing to determine whether the State exercised its preemptory challenges in a discriminatory fashion, and additionally challenges the sufficiency of evidence to support his judgment of conviction. We affirm the judgment of the trial court.

I. PROCEDURAL HISTORY

The record in the instant case shows that Appellant entered his plea of guilty to the offense as alleged in the indictment, i.e., illegal investment. Appellant had earlier made his election for jury punishment. During the course of Appellant's voir dire regarding probation as an alternative to incarceration, one venireperson pointed out on individual voir dire before the Court that when Appellant's counsel was explaining probation, the prosecutor was shaking his head. The venireperson took this to indicate that the prosecutor didn't believe that probation was in fact working.

Following the conclusion of the above individual voir dire, Appellant made a motion for mistrial based on the prosecutor's conduct, and further requested that he be allowed to question the venire regarding whether they saw the prosecutor's actions and what effect it had on them. The trial court denied both motions. After eliciting the above information from a prospective juror, Appellant proceeded to question eight other prospective jurors individually. No questions were asked of the above prospective jurors regarding the prosecutor's alleged side-bar expressions, nor does the record show that Appellant was otherwise prevented from questioning those prospective jurors regarding such alleged expressions. Additionally, no motion for new trial was filed in the instant case.

Prior to either Appellant or the State exercising its preemptory challenges, Appellant advised the trial court as follows:

"I will be wanting a Batson hearing after they have made their strikes. I am going to need to look at their strikes and see if they are striking Hispanics and find out the reason why." ¹

The record shows that the State, after conducting its voir dire examination, exercised its preemptory strikes by striking nine prospective jurors, five of whom possessed Hispanic surnames. After all strikes were exercised by both Appellant and the State, the jury was composed of six jurors who possessed Hispanic surnames.

After all preemptory strikes were exercised, Appellant objected to the State's exercise of three specific prospective jurors, i.e., Barbara Munoz Shull, Mario Zavala, and Javier Saenz. Appellant specifically objected to the striking of the above three prospective jurors because they are of the same ethnic persuasion as Appellant. In support of his contention, Appellant introduced the completed jury questionnaires for each of the above prospective jurors and proceeded to call the prosecutor as a witness for purposes of a Batson hearing. The trial court, after finding that Appellant had failed to establish a prima facie case, denied the request for a Batson hearing. Finally, while the record shows that Appellant requested the trial court take judicial notice that Appellant was Hispanic, the request was objected to by the prosecutor and the trial court never took judicial notice.

II. DISCUSSION

In Points of Error Nos. One and Two, Appellant contends that the trial court erred in refusing his request to question the venire about the prosecutor's side bar expressions said to have taken place during Appellant's voir dire examination. Specifically, Appellant states that because the sole question for the jury was the assessment of punishment, the actions by the prosecutor in allegedly shaking his head during Appellant's discussion of probation served to undermine the jury's complete consideration of probation as an alternative to incarceration.

Side bar remarks are comments of counsel that are neither questions to the witness nor comments addressed to the court. See Brokenberry v. State, 853 S.W.2d 145, 152 (Tex.App.--Houston [14th Dist.] 1993, no pet.); Middleton v. Palmer, 601 S.W.2d 759, 763 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.). A comment is an observation or remark expressing an opinion or attitude. Webster's Ninth New Collegiate Dictionary 264 (1984). Consequently, side bar remarks may be non-verbal as well as verbal expressions. This Court will reverse when a comment is made that injects information "reasonably calculated" to prejudice members of the venire. A comment is considered reasonably calculated to prejudice if it exposes the venire to injurious and prejudicial matters which are reasonably calculated to prevent a fair trial. See Herring v. State, 758 S.W.2d 849, 853 (Tex.App.--Corpus Christi 1988 pet. ref'd.), cert. denied 493 U.S. 896, 110 S.Ct. 247, 107 L.Ed.2d 197 (1989).

As a general rule, in order to preserve error regarding side bar comments which are apparent on the record, an appellant must:

1. Interpose a timely objection. Montoya v. State, 744 S.W.2d 15, (Tex.Crim.App.1987), cert. denied 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988);

2. Request that the court instruct the prospective jurors to disregard the comment made. Id.;

3. Move to quash the venire. Sanchez v. State, 769 S.W.2d 348 (Tex.App.--San Antonio 1989, no pet.);

4. Demonstrate that the comment created prejudice to the defendant by showing that other members of the venire heard or observed the comment. Callins v. State, 780 S.W.2d 176 (Tex.Crim.App.1989), cert. denied 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990).

5. Question prospective jurors who heard or observed the objectionable comments to determine whether the comments influenced them to the defendant's detriment. Id.;

6. Challenge for cause each prospective juror who heard or observed the comment. Hogan v. State, 496 S.W.2d 594 (Tex.Crim.App.1973), cert. denied 414 U.S. 862, 94 S.Ct. 81, 38 L.Ed.2d 112 (1973);

7. Exhaust peremptory challenges. Hammett v. State, 578 S.W.2d 699 (Tex.Crim.App.1979), cert. dism'd 448 U.S. 725, 100 S.Ct. 2905, 65 L.Ed.2d 1086 (1980);

In the instant case however, the prosecutor's non-verbal expressions are not apparent on the face of the record. Because this Court will not speculate as to whether or not other members of the venire observed the prosecutor's non-verbal expressions, or interpreted such expressions as did the sole identified venireperson, it was incumbent on Appellant to file a motion for new trial, supported by affidavit, showing the truth of the grounds of attack. See generally Haynes v. State, 627 S.W.2d 710, 711 (Tex.Crim.App.1982). While a motion for new trial is not a requisite to presenting a point of error on appeal, such a motion is required to adduce facts not otherwise shown on the record. ² TEX.R.APP.P. 30(a). The record in the present case shows that Appellant failed to file any such motion for new trial.

Appellant, relying on Spence v. State, 758 S.W.2d 597, 599 (Tex.Crim.App.1988); M--A--B-- v. State, 718 S.W.2d 424 (Tex.App.--Dallas 1986, no pet.), asserts that he was denied the opportunity to question the venire about the prosecutor's side bar expressions, thereby being denied the right to adequately preserve error for appellate review. We disagree and find Appellant's reliance on the above authorities to be misplaced.

The rule in our jurisdiction is clear. The right to make an offer of proof or perfect a bill of exception as to excluded testimony is absolute. Spence v. State, 758 S.W.2d 597, 599 (Tex.Crim.App.1988); M--A--B-- v. State, 718 S.W.2d 424 (Tex.App.--Dallas 1986, no pet.); R--M--G-- v. State, 711 S.W.2d 397 (Tex.App.--Dallas 1986), aff'd 748 S.W.2d 227 (Tex.Crim.App.1988). The instant case however, is not one in which Appellant has been denied the opportunity to present evidence, but rather, Appellant complains of a denial of a right to question the venire.

The right to counsel guaranteed by Article I, Section 10 of the Texas Constitution includes the right of counsel to question the venire in order to intelligently exercise peremptory challenges. Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990) citing Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629, 631 (1959). Nonetheless, it is a well-established principle that the conduct of voir dire rests largely within the sound discretion of the trial court. Boyd v. State, 811 S.W.2d 105, 115-116 (Tex.Crim.App.1991), cert. denied 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991). Whenever the trial court imposes a limitation in questioning prospective jurors, the standard for review is whether the trial court abused its discretion. Id.

As noted above, during the course of Appellant's voir dire regarding probation as an alternative to incarceration, one venireperson pointed out on individual voir dire before the Court that when Appellant's counsel was explaining probation, the prosecutor was shaking his head as if to indicate that he didn't believe that probation was in fact working.

During the individual voir dire of the above venireperson, the following exchange took place between Appellant's Counsel, the trial court, and the prospective juror:

COUNSEL: Mr. Fairbairn, you know this is a drug case. Okay?

JUROR: Yes.

COUNSEL: And I believe you said you could consider...