Salinas v. State

• Decision Date: 18 November 1981
• Docket Number: No. 04-81-00015-CR,04-81-00015-CR
• Citation: 625 S.W.2d 397
• Parties: Johnny R. SALINAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 397

625 S.W.2d 397

Johnny R. SALINAS, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00015-CR.

Court of Appeals of Texas, San Antonio.

Nov. 18, 1981.

Julie Marquez, San Antonio, for appellant.

Bill White, Dist. Atty., Anton Paul Hajek, III, Asst. Criminal Dist. Atty., San Antonio, for appellee.

Before ESQUIVEL, BUTTS and CANTU, JJ.

OPINION

CANTU, Justice.

This is an appeal from a conviction for the possession of a controlled substance, heroin. Punishment was assessed at 50 years by a jury upon an indictment alleging an enhancement count under the provisions of Tex. Penal Code § 12.42(b). The sufficiency of the evidence is not challenged.

Appellant initially complains about the trial court's permitting the State's prosecutor to inform the jury venire, during jury selection, about the punishment applicable to one charged as a habitual offender. Appellant was originally indicted as a habitual offender under Tex. Penal Code § 12.42(d).

During general remarks to the jury venire the State's prosecutor sought to inform the prospective jurors about the punishment applicable to subsequent offenders under Texas law. Appellant objected to having the enhancement counts revealed to the venire prior to the guilt/innocence phase and further objected to any reading of the enhancement counts in the indictment.

The trial court overruled the objection and the prosecutor, without directly referring to appellant's case, proceeded to inform the venire of the law applicable generally to repeat offenders and habitual offenders under Tex. Penal Code § 12.42.

The trial court then proceeded, over objection, to personally explain the mechanics of the Texas recidivist laws to the venire, including an explanation about the automatic aspects of the habitual portion of § 12.42.

Only one of the enhancement counts was ultimately submitted to the jury, the middle count being eliminated by the trial court. Thus, appellant's punishment was set by the jury with instructions permitting punishment only as a repeat offender. Appellant's objection was sufficiently preserved for our review.

Appellant relies upon the holding in Bevill v. State, 573 S.W.2d 781 (Tex.Cr.App.1978) for reversal.

In Bevill v. State, supra, our Court of Criminal Appeals held that both the State and the defendant, in cases where the jury is called upon to assess punishment, have a right to qualify the jury on the full range of punishment. In effect, the Court held that in cases where an accused is charged as a repeat offender, facing punishment by a jury, guided by a prescribed penalty range, both the State and defense have a right to qualify the jury on the full range of punishment.

In cases where the accused is charged as a habitual offender, under Tex. Penal Code Ann. § 12.42(d), no perceivable reason was noted by the Court for allowing the prosecutor or defense attorney to inform the prospective jurors of the automatic imposition of punishment at life imprisonment upon a finding that both enhancement paragraphs were true.

In the instant case, the jury was charged on the law applicable to repeat offenders, Tex. Penal Code Ann. § 12.42(b), and not as to habitual offenders, Id., § 12.42(d). Therefore, the imposition of punishment by the jury was not bridled by the knowledge that appellant's punishment was set by law automatically at any particular term of years.

In addition, the remarks of the prosecutor during voir dire amounted to nothing more than a general statement of the law applicable to punishment of subsequent offenders.

While we recognize the impropriety of the court in permitting the prosecutor to comment on the habitual aspect of the possible punishment and particularly the trial court's own interjection, we do not consider it to be reversible error, in view of events which transpired subsequently and to which we now draw our attention.

In submitting its charge to the jury on punishment, the trial court authorized punishment only within the range of punishment prescribed in Tex. Penal Code Ann. § 12.42(b).

Additionally, the trial court, in its charge to the jury on punishment, instructed them that the second count of the indictment alleged for enhancement had been withdrawn from their consideration and that they should not consider it for any purpose.

We think that the error, if any, was rendered harmless by the withdrawal from the jury of the second count of the indictment.

But even if we are to concede that appellant suffered error during voir dire examination, we would not be justified in ordering a reversal in view of an incident occurring during the State's case in chief to which we now refer.

During the direct examination of police officer Edward C. Guerra, and in answer to a question by the prosecutor, the witness replied unresponsively to the question asked, but volunteered the information that appellant and his codefendant had been arrested hundreds of times.

The jury was withdrawn and appellant requested a mistrial. The trial court immediately responded to the motion, granted a mistrial ¹, and asked for a new jury panel.

Counsel for appellant sought a conference with appellant regarding the requested mistrial and immediately urged the trial court to rescind the granting of the mistrial. Appellant personally consented to the withdrawal of the mistrial and simply sought an admonishment of the witness and a ruling of the court on the admissibility of the remark.

An offer to instruct the jury was rejected by appellant, who was apparently satisfied to proceed with the trial from that juncture.

The error giving rise to the granting of the mistrial was a comment upon the criminal record of appellant and was highly prejudicial as recognized by the trial court's instantaneous response to the motion.

The error complained of during voir dire examination was of a similar nature, touching upon appellant's prior criminal history, although perhaps not as prejudicial.

By refusing the mistrial we are satisfied that appellant preferred to continue the trial with the same jury and under limited curative relief. An election to proceed to trial after withdrawing a motion for mistrial amounts to a waiver by appellant of any claim of prejudice from the incident thereafter, either on appeal, on motion for new trial, or otherwise. Cardenas v. Superior Court, 14 Cal.Rptr. 657, 363 P.2d 889 (1961); People v. Keagle, 7 Ill.2d 408, 131 N.E.2d 74 (1956); State v. Hulet, 159 Wash. 72, 292 P. 107 (1930).

In People v. Keagle, supra, the Supreme Court of Illinois, in a very similar case, stated:

In the case at bar defendant desired to go to the jury on the record as it then stood. He was then satisfied that the error alleged was not substantial and did not prejudice his case before the jury; he then was satisfied that he had a fair trial. We will not permit him to refuse the court's offer of a mistrial, gamble on the verdict of the jury being in his favor, and yet retain for use on appeal, in event of an adverse verdict, a valid claim of error based on such conduct.

131 N.E.2d at 78.

The record clearly shows that appellant's decision to withdraw his motion was voluntarily and knowingly made.

Finding little perceivable difference in the error complained of in both instances, we hold that appellant's ground of error was waived under the rule that improper admission of evidence does not constitute reversible error if the same or similar facts were shown by facts not objected to. Botello v. State, 172 Tex.Cr. 634, 362 S.W.2d 318 (1962); Freeman v. State, 172 Tex.Cr. 389, 357 S.W.2d 757 (1962); Moseley v. State, 158 Tex.Cr. 578, 258 S.W.2d 331 (1953).

By his second ground of error, appellant complains of the trial court's admitting into evidence, over objection, at the penalty phase of the trial, a prison packet containing the judgment and sentence belonging to the prior conviction alleged for enhancement in the second count of the indictment and withdrawn from the jury's consideration by the trial court.

More specifically, appellant contends for the first time on appeal that the judgment and sentence contained within State's exhibit number 7, a prison packet, are inadmissible inasmuch as the conviction out of which the judgment and sentence arise is void.

The record fails to disclose any objection to the introduction of the items complained of, although the trial court permitted appellant's counsel the opportunity to object specifically to the proffered exhibits. There is nothing in the record to aid us either by name of instrument or page number in identifying the items complained of now.

The following appears in the record with regard to State's exhibit number 7:

"Ms. Marquez: We would also object to the introduction of this thing ², your Honor, in that it is just-trying to find a back door to get this into evidence when the Court has already stricken this from the second paragraph of the enhancement portion of the indictment.

"The Court: All right. That is overruled."

The trial court repeatedly inquired of counsel for appellant if any other objections were to be lodged in opposition to the introduction of State's exhibit number 7. Several were given, but none as complained of on appeal.

It is well settled that in order to complain on appeal of error by the trial court in the admission of evidence, the ground of error presented on appeal must comport with the trial objection. Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976).

As in Bouchillon the trial objection did not specify which portions of the lengthy prison packet were objectionable. It was, therefore, not error to overrule an objection that was too vague and general to advise the trial court of that portion of the exhibit to which the objection was directed.

Assuming, arguendo, that the objection had specifically apprised the trial court of the nature of the complaint, nevertheless, in view of the trial court's instruction to the jury withdrawing the second count from...