                             NUMBER 13-11-00409-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

RAY VINCENT VALLEJO,                                                          Appellant,


                                             v.

THE STATE OF TEXAS,                                                            Appellee.


                  On appeal from the 275th District Court of
                          Hidalgo County, Texas.


                          MEMORANDUM OPINION
       Before Chief Justice Valdez and Justices Garza and Perkes
                Memorandum Opinion by Justice Garza
       Appellant, Ray Vincent Vallejo, was convicted of capital murder and sentenced to

life imprisonment without possibility of parole. See TEX. PENAL CODE ANN. § 19.03(a)(2)

(West Supp. 2011).      On appeal, Vallejo argues that:      (1) the evidence was legally

insufficient to support his conviction; (2) the trial court erred by allowing evidence of his
gang affiliation; (3) he was denied a fair and impartial trial; and (4) the trial court erred

by allowing testimony that fellow gang members did not testify due to fear of retaliation.

We affirm.

                                      I. BACKGROUND

       In the early afternoon of June 21, 2009, police in Weslaco, Texas, were

dispatched to a residence in response to a 911 call during which the caller had hung up.

When they arrived they saw a woman, identified as Manuela Bocanegra, standing

outside the residence and bleeding profusely. Officers then entered the residence and

found a second injured female, lying face down on the floor and covered in blood, but

still breathing.   The second victim was identified as Donna Bocanegra, Manuela’s

daughter.

       Though Manuela recovered, Donna later died from her injuries.            An autopsy

revealed that Donna had suffered three gunshot wounds, including a fatal gunshot

wound to the head. Forensic analysis showed that the two women had been shot with

two different weapons: Donna with a .38 Special revolver and Manuela with a .45

caliber weapon.

       Juan Aldrete Jr., a neighbor, recalled that he heard the sound of “aluminum

hitting aluminum” coming from the Bocanegras’ residence on the day in question. He

went to see what happened and observed that the door to the Bocanegras’ house had

been “kicked open.” Several minutes later, Aldrete saw two males running out of the

back of the Bocanegras’ house. In a photo lineup presented later by police, Aldrete

identified Vallejo as one of the men who had run from the house. Another neighbor,

Gregorio Piata, also saw two males running from the Bocanegras’ residence at the time



                                             2
of the incident. Piata testified that the males got into a very loud, “s[o]uped-up” red Ford

Mustang with tinted windows and “just took off, just screeching tires and they left.”

       Manuela Bocanegra testified that she and Donna were doing laundry when two

men kicked open a door, entered their home, and said “this is a stick up.” The men

were wearing black gloves and “their hands were covered with black handkerchiefs,” but

Manuela could see that they were both carrying handguns. One of the intruders fired a

shot into the ceiling. Manuela asked the men what they wanted, but they responded

only with expletives. A struggle ensued, during which one of the men shot Manuela

repeatedly. Manuela did not see the men shoot Donna, but she heard other gunshots

and later saw Donna bleeding on the floor. According to Manuela, the men told her: “I

don’t want no more words from you, you f[***]ing old lady. Because you’re not the only

one. All your family is next.” She testified: “Every time I would open my mouth to ask

either one of them [what they wanted], they would shoot at me.” She suffered gunshot

wounds to the neck, chest, shoulder, and ear. In the struggle, one of the assailants was

shot in the hand, and he then said: “Let’s get the f[***] out of here. There is nothing

here. Let’s go. Hurry.” The other gunman said “Let’s get out. Let’s go.” They then ran

out the back door of the house, and Manuela heard a “very loud” noise from a car

driving away.

       Manuela testified that she was about “a foot away” from the men when she first

asked them what they wanted. Although the gunmen were wearing masks, she could

see each man’s eyes and nose, and she stated: “[N]ever in my life will I forget those

two faces.” She positively identified Vallejo as one of the assailants, both in a photo

lineup during the initial investigation and again at trial. Manuela identified Lionzo Cantu



                                             3
as the other perpetrator.1

       Shortly after the incident, an investigator with the Weslaco Police Department

observed a maroon Ford Mustang traveling at a high rate of speed near the area where

the crime was committed. The investigator, who was off-duty and driving his personal

vehicle at the time, had to maneuver out of the way in order to avoid colliding with the

Mustang. Police later observed the maroon Mustang at the home of Fidel Cuellar.

Investigator Albino Flores testified that Cuellar was a known member of a gang, Tri City

Bombers, or “TCB,” which is known for violence and, in particular, home invasions.

       Lieutenant Ricardo Suarez of the Donna Police Department testified that he is in

charge of the Crime Stoppers tip line. He stated that, over several years, he received

information that Cuellar and other TCB gang members were participating in home

invasions. He also received information that Cuellar drove a red Ford Mustang.

       Police set up surveillance at the house of two suspected TCB members, Joel

Espinoza and Felipe Mata. Eventually, the red Mustang was observed parked at the

house. Police brought Espinoza in for questioning and showed him a photo lineup.

Espinoza identified Vallejo as being involved in the shooting at the Bocanegras’ house.

       After police observed the red Mustang commit a traffic violation, they stopped the

vehicle and seized it. Piata was asked to come to the police department to identify the

vehicle. Piata said that, based on appearance and sound, the seized vehicle was the

same vehicle he saw departing the Bocanegras’ residence on June 21, 2009.

       Police apprehended Vallejo and Cantu. When Vallejo was apprehended, he had

an injury on his hand consistent with a gunshot wound. However, DNA swabs taken


       1
         Cantu was also charged with capital murder. He pleaded guilty to the lesser-included offenses
of murder and attempted murder and was sentenced to fifty years’ imprisonment.

                                                  4
from the crime scene did not match Vallejo’s DNA.

      Vallejo was convicted of capital murder, attempted capital murder, and

aggravated robbery. The trial court, upon defense counsel’s motion, dismissed the

attempted capital murder and aggravated robbery counts and sentenced Vallejo to life

imprisonment without parole. This appeal followed.

                                     II. DISCUSSION

A.    Sufficiency of the Evidence

      By his first issue, Vallejo argues that the evidence was legally insufficient to

support his conviction.

      1.     Standard of Review and Applicable Law

      In conducting a legal sufficiency review, we consider the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Hacker v. State,

389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). We give deference to “the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19).       When faced with conflicting evidence, we

presume that the trier of fact resolved any such conflict in favor of the prosecution, and

we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

      Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240



                                            5
(Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried. Id. Here, a hypothetically

correct jury charge would state that Vallejo is guilty of the indicted offense if he: (1)

intentionally or knowingly caused Donna Bocanegra’s death; (2) in the course of

committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2). A

person commits robbery if, in the course of committing theft, and with intent to obtain or

maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes

bodily injury to another; or (2) intentionally or knowingly threatens or places another in

fear of imminent bodily injury or death. Id. § 29.02(a) (West 2011). “In the course of

committing theft” means “conduct that occurs in an attempt to commit, during the

commission, or in immediate flight after the attempt or commission of theft.”        Id. §

29.01(1) (West 2011).

      The jury was charged on the law of parties, under which a person is criminally

responsible for an offense committed by the conduct of another if, “acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids,

or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2) (West 2011).

When we review the sufficiency of the evidence supporting a defendant’s participation

as a party to the crime, “we may consider ‘events occurring before, during and after the

commission of the offense, and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.’” King v. State, 29 S.W.3d




                                            6
556, 564 (Tex. Crim. App. 2000) (quoting Ransom v. State, 920 S.W.2d 288, 302 (Tex.

Crim. App. 1994)).

       2.     Analysis

       Vallejo’s complaint regarding the sufficiency of the evidence is confined to the

issue of identity: he argues that the evidence was insufficient to support the jury’s

finding that he was the one that accompanied Cantu in committing the attempted

robbery and murder.        He contends that his identity as Cantu’s accomplice was

established only by the testimony of Manuela Bocanegra, which he argues was not

credible or reliable.    In particular, Vallejo notes that:     (1) according to Manuela’s

testimony, the perpetrators were wearing masks; (2) Manuela provided police with a

description of her assailant which led to a computer-generated sketch which “in no way

resembles [Vallejo]”; (3) she initially testified that her assailant had a piercing in his right

eyelid, but later remembered that it was in his left eyelid; and (4) she initially testified

that she told investigators that the suspects had dark complexions, but later clarified

that she told investigators that the suspects looked “Mexican.”

       We first note that Vallejo is mistaken in claiming that his identity was established

only by Manuela’s testimony. Aldrete—who observed two males running out of the

back of the Bocanegras’ house shortly after he heard the sound of “aluminum hitting

aluminum” coming from the house—also identified Vallejo as one of the men fleeing the

scene. We also note that, even though the evidence established that the perpetrators

were wearing masks, Manuela testified that she could see the eyes and noses of the

men. Her inability to see her assailants’ hair, mouth, and ears does not deprive her

positive identification of its probative power. See Hacker, 389 S.W.3d at 865 (generally



                                               7
setting forth standard of review); see also Alexander v. State, No. 01-09-00630-CR,

2010 Tex. App. LEXIS 10157, at *7 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, pet.

ref’d) (mem. op., not designated for publication) (noting that a witness “was not required

to see the [suspect’s] entire face to make a positive identification”); Rubio v. State, No.

14-04-00030-CR, 2004 Tex. App. LEXIS 11687, at *7 (Tex. App.—Houston [14th Dist.]

Dec. 23, 2004, pet. ref’d) (mem. op., not designated for publication) (noting that

appellant’s argument that a witness identification was “unreliable because the burglar

wore a ski mask and [the witness’s] degree of attention was insufficient” goes to the

witness’s credibility and is judged by the jury).

       In any event, “[t]he jury is the sole judge of witnesses’ credibility and the weight

to be given testimony.” Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

The jury was free to believe or disbelieve all or part of Manuela’s testimony.        See

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“[The finder of fact] is

entitled to believe or disbelieve all or part of the witness’s testimony—even if that

testimony is uncontroverted—because he has the opportunity to observe the witness’s

demeanor and appearance.”). Even if we were to agree with Vallejo that Manuela’s

testimony was unreliable, we may not act as a “thirteenth juror” by substituting our

judgment for that of the jury. See Brooks, 323 S.W.3d at 905. Instead, our task is only

to decide whether any rational juror could have found the essential elements of the

crime beyond a reasonable doubt. See id. at 895 (citing Jackson, 443 U.S. at 319). We

find that a rational juror could have concluded from all of the evidence adduced that

Vallejo was the person who accompanied Cantu in carrying out the attempted robbery

and murder.



                                              8
       3.     Motion for New Trial

       As part of his argument regarding his first issue, Vallejo asks that we “place

special attention” to his motion for new trial and an affidavit by Cantu which was

attached thereto. Cantu’s affidavit read, in relevant part:

       I wish to state that after pleading guilty to the abovementioned charges, I
       take full responsibility for the actions of the crime. I was the person who
       shot both victims. I had previously spoken to Mr. Vallejo regarding my
       involvement in the crime at which time I denied any involvement in the
       crimes. I also never told anyone else of my involvement, including my
       attorney. Mr. Vallejo was not involved with these crimes. He was not
       present at the crime scene nor did he have any knowledge at all of the
       crimes, either before or after the crimes occurred. To my knowledge, he
       has never been to the victim’s house nor does he know the victims.
       These crimes are not gang motivated crimes. I committed these crimes
       for my own personal reasons.

       After Mr. Vallejo was found guilty and sentenced to life, I knew that I had
       to tell of my involvement with the crime because Mr. Vallejo was not
       involved and my conscience would not allow me to remain quiet. Mr.
       Vallejo is an innocent man and was no way involved in this crime.

       I did not come forward with this information prior to his trial or before my
       plea because I had insisted to everyone that I was not involved, however,
       when he was found guilty, I decided I must plead guilty to the crimes that I
       did commit and take the punishment which I deserved. After pleading
       guilty to the charges, I informed my attorney . . . that Mr. Vallejo was not
       involved with these crimes.

       Vallejo’s motion for new trial was based, in part, on grounds that “[n]ewly material

evidence favorable to the accused has been discovered.” See TEX. CODE CRIM. PROC.

ANN. art. 40.001 (West 2006). However, on appeal, Vallejo does not contend that the

trial court erred in denying his motion for new trial on these grounds, nor does he

explicitly make the dubious argument that Cantu’s post-trial affidavit should be




                                             9
considered in our evaluation of the sufficiency of the evidence before the jury.

Accordingly, any complaint in that regard is waived. See TEX. R. APP. P. 38.1(i).2

        Vallejo’s first issue is overruled.

B.      Admission of Evidence

        By his second issue, Vallejo contends that the trial court erred when it admitted

evidence of his gang affiliation. We review a trial court’s decision to admit or exclude

evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782,

793 (Tex. Crim. App. 2006) (internal citations omitted). “If the trial court’s decision was

within the bounds of reasonable disagreement, the appellate court should not disturb its

ruling.” Id.


        2
         Even if Vallejo did argue on appeal that the trial court erred in denying his motion for new trial,
that argument would not be meritorious for at least two reasons:

            First, there was no hearing on Vallejo’s motion for new trial at which he offered Cantu’s affidavit
into evidence. See Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009) (“[P]ost-trial motions
such as these are not self-proving and any allegations made in support of them by way of affidavit or
otherwise must be offered into evidence at a hearing.”); McIntire v. State, 698 S.W.2d 652, 658 (Tex.
Crim. App. 1985) (“[An affidavit may] suffice to establish every facet of a . . . cognizable ground for new
trial, . . . an accused may have said affidavit introduced into evidence, and the matter may be resolved
exclusively on that basis. In order to so introduce his affidavits, however, a hearing is required.”).

         Second, Vallejo’s motion for new trial did not establish, or even argue, that Cantu’s testimony (1)
was unknown to him at the time of trial, (2) was unobtainable with due diligence, (3) was admissible, or
(4) would probably have brought about a different result in a new trial. See TEX. CODE CRIM. PROC. ANN.
art. 40.001 (West 2006) (“A new trial shall be granted an accused where material evidence favorable to
the accused has been discovered since trial.”); Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App.
2003) (“Under [article 40.001], a defendant is entitled to have his motion for new trial granted if[:] (1) the
newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new
evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely
cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will
probably bring about a different result in a new trial.”); see Wilson v. State, 633 S.W.2d 351, 352 (Tex.
App.—Corpus Christi 1982, pet. ref’d) (“[U]nless the defendant satisfies all four requirements for a new
trial based on newly discovered or available evidence, he is not entitled to a new trial simply because a
convicted co-defendant is ready, willing, and able to testify to facts, which, if believed by the jury, would
exonerate the defendant.”); see also Drew v. State, 743 S.W.2d 207, 228 (Tex. Crim. App. 1987) (“It is
not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his
codefendant by the filing of a recanting affidavit or other statement. It should go without saying that not
every recanting or other statement requires a new trial of the other defendant for whose benefit it is
produced.”).


                                                     10
        During the State’s case-in-chief, the prosecutor asked the trial court to admit

evidence that Vallejo was a TCB gang member. Defense counsel objected, and a

hearing was held outside the presence of the jury. At the hearing, defense counsel

argued that the evidence was inadmissible character evidence because its only

relevance was in establishing that Vallejo was guilty because he is a gang member.

See TEX. R. EVID. 404(b). The prosecutor argued in response that the evidence was

admissible because it tended to show Vallejo and Cantu’s motive in selecting the

Bocanegras’ house for their assault. The prosecutor further explained:

        [T]here was a raid done of a house that belonged to one of the other
        daughters of the Bocanegra[s], and her and her husband. And it was
        believed that maybe they had money, had drugs, were involved. And
        we—it’s our contention that that is why [Vallejo and Cantu] came to this
        house. They believed that they got the wrong house—or they believed
        those people, those people had initially lived there.

Investigator Flores testified outside the presence of the jury that police had received

information that the suspects were affiliated with the TCB gang and that this particular

gang was known for carrying out home invasions and robberies. He conceded on

cross-examination that he had no information that the Bocanegras were from a rival

gang, and he could not explain why Vallejo and Cantu chose the Bocanegras’ house to

carry out their attack. The prosecutor noted that she would be eliciting testimony that

the car used by the assailants was owned by a TCB member. The trial court admitted

the evidence over defense counsel’s objection.

        On appeal, Vallejo contends that the evidence should have been excluded under

Texas Rules of Evidence 403 and 404(b).3 Rule 403 provides that, “[a]lthough relevant,


        3
         At trial, defense counsel did not explicitly argue that the evidence was inadmissible under Rule
403; however, she repeatedly argued that the evidence was irrelevant other than to show character
conformity. We assume, but do not decide, that Vallejo’s Rule 403 objection was preserved for our

                                                   11
evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.” TEX.

R. EVID. 403. Under Rule 404(b), evidence of an accused’s “other crimes, wrongs or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” TEX. R. EVID. 404(b). “It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . . .” Id. Gang membership evidence is

admissible under Rule 404(b) if it is relevant to show a non-character purpose that in

turn tends to show the commission of the crime. Ortiz v. State, 93 S.W.3d 79, 94 (Tex.

Crim. App. 2002) (citing Vasquez v. State, 67 S.W.3d 229, 239–40 (Tex. Crim. App.

2002); Medina v. State, 7 S.W.3d 633, 643–44 (Tex. Crim. App. 1999)).

        Even assuming that the trial court erred in admitting the evidence of Vallejo’s

gang affiliation, we nevertheless conclude that the error would not be reversible

because Vallejo has not shown that his substantial rights were affected by the error.

See TEX. R. APP. P. 44.2(b). Texas Rule of Appellate Procedure 44.2(b) states that we

must disregard any non-constitutional error in a criminal case that does not “affect

substantial rights,” id., and the Court of Criminal Appeals has held that “[a] substantial

right is affected when the error had a substantial or injurious effect or influence in

determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997). Here, as set forth above, Manuela Bocanegra testified that she was, at one

point, about “a foot away” from her assailants and could see each man’s eyes and nose.

She unequivocally identified Vallejo—both in a police-administered photo lineup and

review. See TEX. R. APP. P. 33.1 (regarding preservation of error).

                                                   12
again at trial—as one of the two attackers who broke into her house, shot her multiple

times, and shot and killed her daughter. In light of this evidence, we cannot conclude

that the evidence of Vallejo’s gang affiliation “had a substantial or injurious effect or

influence in determining the jury’s verdict.” See id. Accordingly, any error in admitting

the evidence was harmless. Vallejo’s second issue is overruled.

      By his fourth issue, Vallejo contends that the trial court erred in admitting

testimony that fellow gang members—Espinoza and Mata in particular—did not testify

at trial due to their fear of retaliation. Vallejo complains specifically of the following

testimony given by Investigator Billy Pemelton:

      [Prosecutor:]        Have you had dealings with gang members and gang
                           activity?

      [Pemelton:]          Yes, I have.

      [Prosecutor:]        Can you tell the ladies and gentlemen of the jury
                           based on your experience in law enforcement,
                           hypothetically speaking, if a gang member, known
                           gang member were to rat out or testify against
                           another known gang member, what would,
                           hypothetically speaking, what would happen?

      [Pemelton:]          In my 19 years of experience, I’ve seen it that there
                           would be repercussions if you testify against a known
                           fellow gang member.

      [Defense counsel]: Your Honor, I will object, that it calls for speculation.

      THE COURT:           Overruled.

      [Pemelton:]          In my experience what I have seen in my career is
                           that they will threaten your family members, or
                           yourself.

      Vallejo argues that his trial counsel’s objection to Investigator Pemelton’s

testimony should have been sustained under Texas Rule of Evidence 602 because the



                                            13
testimony was speculative. See TEX. R. EVID. 602 (“A witness may not testify to a

matter unless evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter.”). He does not, however, explain how the admission

of this testimony caused him to suffer harm.                       Having reviewed the record—and

especially in light of Manuela Bocanegra’s testimony and identification of her

attackers—we cannot say that this testimony “had a substantial or injurious effect or

influence in determining the jury’s verdict.” See King, 953 S.W.2d at 27; see also TEX.

R. APP. P. 44.2(b). We therefore overrule this issue for the same reasons set forth

above with respect to issue two.

C.     Prosecutorial Misconduct

       By his third issue, Vallejo argues that he was deprived of a fair and impartial trial

due to comments made by one of the prosecutors and because the prosecutor

“repeatedly violat[ed] the rules of evidence and the Confrontation clause.”

       First, with regard to the alleged objectionable comments, one of Vallejo’s trial

attorneys testified that he heard one of the prosecutors say “[t]hat f[***]ing bitch” during

a bench conference. Defense counsel stated that he was seated in his regular position,

close to the jury, at the time he overheard the remark. The remark was allegedly made

in the direction of Vallejo’s other trial attorney, who is female. The trial court bailiff also

testified that he heard “bickering” during the bench conference and that the prosecutor

at one point said “[f***]ing bitch.” The prosecutor categorically denied making such a

remark and accused defense counsel of lying.4 The trial court denied Vallejo’s motion

for mistrial.



       4
           The prosecutor did not directly accuse the bailiff of lying.

                                                       14
      A mistrial is an extreme remedy, and “[o]nly in extreme circumstances, where the

prejudice is incurable, will mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court’s remedy for improper

conduct that is ‘so prejudicial that expenditure of further time and expense would be

wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999)). We review the denial of a motion for mistrial under an abuse of discretion

standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Espinosa v.

State, 328 S.W.3d 32, 38 (Tex. App.—Corpus Christi 2010, pet. ref’d).

      Texas Rule of Appellate Procedure 33.1 provides that, as a prerequisite to

presenting a complaint for appellate review, the record must show that the complaint

was made to the trial court by a timely and specific request, objection, or motion. TEX.

R. APP. P. 33.1. A motion for mistrial is timely only if it is made as soon as the grounds

for it become apparent. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007)

(citing Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994), 23 C.J.S.

Criminal Law § 1388 (1989)). Here, the prosecutor allegedly made the objectionable

comment during trial proceedings on Friday, February 25, 2011.           Defense counsel

allegedly overheard the remark at the time it was made, so the potential grounds for

mistrial would have been immediately apparent to defense counsel at that time;

however, the issue was not brought to the trial court’s attention until the following

Monday, February 28, 2011. Accordingly, Vallejo’s motion for mistrial was untimely.

See id. (holding that appellant’s motion for mistrial was untimely where the grounds for

mistrial first became apparent during a witness’s testimony but appellant failed to move

for a mistrial until after that witness and another witness had concluded their testimony).



                                            15
Even if Vallejo had timely requested a mistrial—and even assuming arguendo that the

prosecutor did, indeed, make the alleged objectionable remark—Vallejo has not

established that any prejudice resulting from the remark was incurable. Hawkins, 135

S.W.3d at 77 (noting that a mistrial is required “[o]nly in extreme circumstances, where

the prejudice is incurable”).

        Vallejo further argues by his third issue that the State “repeatedly . . . elicited

hearsay testimony from police officers that told the jury that fellow gang members had

implicated [Vallejo] in the commission of the crime.”5 Vallejo states that “[t]he hearsay

statements were originally objected to and the judge sustained the objections but the

State continued to elicit the hearsay testimony without further objection from the

defense.” Vallejo does not argue that the trial court erred in admitting the testimony, nor

does he contend that his trial counsel was ineffective for failing to object each time the

testimony was elicited. Rather, he appears to contend that the prosecutor committed

misconduct, rendering his trial unfair and depriving him of his Sixth Amendment right to

confront witnesses, see Crawford v. Washington, 541 U.S. 36, 59 (2004), by repeatedly

eliciting the alleged hearsay testimony.

        Vallejo cites two Texas Court of Criminal Appeals cases and two court of appeals

cases in support of his argument. First, in Wright v. State, 609 S.W.2d 801 (Tex. Crim.


        5
          In particular, Vallejo complains that the prosecutor elicited testimony from police officers that, as
a result of their interrogation of TCB members Joel Espinoza and Felipe Mata, they determined that
Vallejo was a suspect in Donna Bocanegra’s murder. He complains that the prosecutor, at various times,
attempted to have “back door hearsay” admitted by prefacing questions to witnesses with statements
such as: “Without getting into what anyone told you . . . .”

        Vallejo also complains of the prosecutor’s statement that she intended to call Espinoza and Mata
as hostile witnesses and that, if called as a witness, Espinoza and Mata planned to assert their Fifth
Amendment privilege not to testify. However, those statements were made outside the presence of the
jury and so cannot form the basis of a complaint that Vallejo was deprived of a fair and impartial trial.


                                                     16
App. 1980), the Court of Criminal Appeals reversed a conviction when the prosecutor’s

argument—suggesting that the defendant could be “dangerous in the community” even

though he had no prior convictions because “Jack the Ripper and the Boston Strangler”

also had no prior convictions—“evince[d] a course of conduct . . . which could serve no

purpose other than to inflame and prejudice the minds of the jurors.” Id. at 804. The

Court reached a similar conclusion in Koller v. State, 518 S.W.2d 373, 376, 378 (Tex.

Crim. App. 1975) (finding that the prosecutor’s “repeated[] attempt[s] to remind the jury

of the appellant’s failure to testify . . . could have served no other purpose than to

deprive the appellant of a fair trial by prejudicing the jury against him”). In Dakin v.

State, 632 S.W.2d 864 (Tex. App.—Dallas 1982, pet. ref’d), the Dallas Court of Appeals

reversed a murder conviction where the prosecutor “provid[ed] an ongoing commentary

on the evidence and the weight to be given to it.” Id. at 868. And, in Morin v. State, 960

S.W.2d 132 (Tex. App.—Corpus Christi 1997, no pet.), this Court reversed a murder

conviction where the State elicited testimony from a police investigator that a friend of

the appellant had informed the investigator that the appellant was involved in the crime.

Id. at 137–38.

      All four cases cited by Vallejo are plainly distinguishable.     In Wright, Koller,

Dakin, and Morin, the appellant objected to the introduction of the challenged evidence

and obtained an adverse ruling from the trial court either on the evidentiary issue or on

a motion for mistrial. See Wright, 609 S.W.2d at 804 (“The appellant's objection to this

argument was overruled.”); Koller, 518 S.W.2d at 377 (“[T]he court again denied the

appellant’s renewed motion for mistrial, but sustained his objection and instructed the

jury to disregard the testimony.”); Morin, 960 S.W.2d at 137 (trial court granted defense



                                           17
counsel a running objection to the admission of alleged hearsay testimony); Dakin, 632

S.W.2d at 865 n.1, 868 (trial court sustained appellant’s objection to prosecutor’s

argument but denied motion for mistrial). That is to say, the appellants in those cases

preserved their evidentiary issues for appellate review. See TEX. R. APP. P. 33.1. Here,

on the other hand, as Vallejo concedes, the allegedly inadmissible testimony was

repeatedly elicited “without further objection from the defense.” See Lane v. State, 151

S.W.3d 188, 193 (Tex. Crim. App. 2004) (“An error [if any] in the admission of evidence

is cured where the same evidence comes in elsewhere without objection.”) (citing Valle

v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). Moreover, Vallejo does not

direct us to any point in the record where his trial counsel asked the trial court to

admonish the prosecutor, for a limiting instruction, or for a mistrial on the basis of

prosecutorial misconduct in the eliciting of hearsay testimony.6 Accordingly, his third

issue has not been preserved for our review. See Hernandez v. State, 219 S.W.3d 6,

14 (Tex. App.—San Antonio 2006) (“To preserve error for prosecutorial misconduct, the

appellant must: (1) make a timely and specific objection; (2) request an instruction to

disregard the matter improperly placed before the jury; and (3) move for mistrial.”), aff’d,

273 S.W.3d 685 (Tex. Crim. App. 2008); see also TEX. R. EVID. 802 (“Inadmissible

hearsay admitted without objection shall not be denied probative value merely because

it is hearsay.”).7


        6
         Vallejo’s motion for new trial did not raise prosecutorial misconduct, or the repeated eliciting of
alleged hearsay testimony, as grounds for relief.
        7
           To the extent that Vallejo claims that his Sixth Amendment right to confront witnesses was
violated by the prosecutor’s conduct, he directs us to no instance in the record where his trial counsel
objected on those grounds. Therefore, that issue has also been waived. See Holland v. State, 802
S.W.2d 696 (Tex. Crim. App. 1991) (“[A]ppellant lodged a hearsay objection, not an objection to a
violation of confrontation. The two are neither synonymous nor necessarily coextensive. . . . No error on
the basis of violation of confrontation was as yet preserved.”); see also TEX. R. APP. P. 33.1.

                                                    18
       Vallejo’s third issue is overruled.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                  ________________________
                                                  DORI CONTRERAS GARZA,
                                                  Justice



Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
6th day of June, 2013.




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