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                                 MEMORANDUM OPINION

                                        No. 04-09-00330-CR

                                        Amador M. VALDEZ,
                                            Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 242753
                          Honorable Monica E. Guerrero, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice, concurring in the judgment only

Delivered and Filed: May 12, 2010

AFFIRMED

           Amador M. Valdez was found guilty of the misdemeanor offense of assault bodily injury -

family and was placed on community supervision for two years. He appeals, arguing that (1) the

evidence was legally and factually insufficient; (2) the trial court erroneously allowed the State to

introduce evidence in violation of Texas Rule of Evidence 404(b); (3) the trial court abused its

discretion in denying his motion for continuance; and (4) the trial court abused its discretion in

denying his “numerous motions for mistrial.” We affirm.
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                                             BACKGROUND

          Around 3:00 a.m. on February 2, 2008, neighbors of Priscilla Ponce, Valdez’s wife, were

awakened by loud banging on their front door. One of those neighbors, Julia Vasquez, testified that

her grandson woke her up and told her that the woman next door, Priscilla Ponce, “was screaming

outside.” When Vasquez opened her front door, Ponce was screaming and telling Vasquez, “Call the

police. Call the police. He was trying to kill me. He was choking me.” According to Vasquez,

Ponce’s “hair was all messed up, and she was hysterical. She was screaming.” Ponce kept repeating

that her husband had choked her and tried to kill her. Vasquez testified that Ponce’s husband was

Valdez and that he was standing right behind Ponce:

          She was about right here, and he was about right here, just a walking distance. And,
          he kept on telling her, “Come on, let’s go home. Let’s go home.” She said, “No, you
          were choking me. You’re trying to kill me. Call the police. Call the police.” She kept
          repeating. Then he said, “She’s making a mountain out of a mole hill. She always
          runs me off, and then she calls me back.” That’s what he told me. And then she kept
          on screaming, and he said, “Okay. Call the police. Anyway I got money to come out.”

According to Vasquez, Ponce seemed to be very scared. So, Vasquez told her grandson to call the

police.

          Likewise, Vasquez’s grandson, Victor Martinez, testified that Ponce was crying. According

to Martinez, Ponce said that her husband had come home, choked her, and was trying to kill her.

Martinez testified that he called the police.

          Officer John Silva arrived on the scene. Officer Silva testified that he could tell Ponce had

been crying and was “obviously scared.” Ponce told Officer Silva that Valdez “had went into the

house and choked her.” Ponce said that she and Valdez had been arguing, and Valdez began choking

her. She then tried running to the neighbors’ house to get help, but Valdez “grabbed onto her, trying



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to prevent her from going. She finally broke out of his grasp and was able to get help.” Officer Silva

testified that he saw “some red markings” on Ponce’s neck, which indicated that “somebody did put

a hand on her.” Photographs taken on the night of the incident, which show the red marks on Ponce’s

neck, were then admitted into evidence. According to Officer Silva, Ponce’s injuries were consistent

with her story that Valdez had choked her. A photograph of Valdez showing a scratch on his face

was also admitted into evidence. According to Officer Silva, he believed the scratch to have been

caused by Ponce as she was defensively trying to stop Valdez from choking her. Officer Silva also

testified that when he entered Ponce’s home, he saw a hole in the wall. A photograph depicting the

hole in the wall was admitted into evidence. Officer Silva then spoke to Valdez and asked him for

his side of the story. According to Officer Silva, Valdez replied, “She’s right.” Officer Silva testified

that he understood Valdez’s statement to mean that Ponce had told the truth about the assault.

        Ponce’s statement that she gave to police on the night of the incident was also admitted in

evidence:

        I was asleep. [Valdez] came in at 2:00 in [the] morning drunk and wanted to argue.
        I told him to [please] leave and go to his home. He didn’t want to leave [and] just
        started strangling my neck while I’m in bed. [Valdez] got up to punch a hole in my
        wall and I ran neck [sic] door out of desperation and called cops.

        At trial, Ponce recanted her previous statements to her neighbors and police, claiming that

Valdez never assaulted her. According to Ponce, Valdez arrived at their home in the early morning

hours and woke her up with sexual advances. Ponce testified that because she was tired and upset

that he had been drinking, she refused his advances, which resulted in them arguing. Ponce claimed

that she fabricated the story and ran to her neighbors’ house because of learned behavior from her

former abusive husband:



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        I don’t believe [Valdez] should suffer for me being emotionally distraught from my
        former marriage with Hector Ramirez. For seven years, I was beaten and I was
        abused. And, to find out that [Hector] die[d] of AIDS for being a homosexual, I am
        traumatized for that whole experience of seven years of battered wife. Then I meet
        [Valdez], get married.

                                                ***

        Yeah, I was asleep, tired -- like I said, tired from work. He comes in and, you know,
        just wants to -- well, do things, and I’m exhausted and tired. So out of frustration,
        yeah, I call 911 and make up a lie that he assaulted me because that was a pattern I
        had for seven years with Hector Ramirez.

Ponce claimed that the red marks on her face were caused by a “hysteria rash,” pimples, and rosacea.

And, Ponce claimed that Hector Ramirez, not Valdez, was the person who punched the hole in the

wall.

                                            SUFFICIENCY

        Valdez argues that the evidence is both legally and factually insufficient to support his

conviction on the charge of assault bodily injury - family. In a legal sufficiency review, we view the

evidence in the light most favorable to the verdict and then determine whether a rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Prible v. State,

175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005). In a factual sufficiency review, we view all the

evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the

verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard

of proof beyond a reasonable doubt could not have been met. Id. at 730-31.

        We hold the evidence to be legally sufficient. Ponce’s neighbors testified that she appeared

at the door, in the middle of the night, hysterical. Ponce told them that Valdez had choked her and

was trying to kill her. Ponce said the same thing to Officer Silva and wrote the same thing in a



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statement. Photographs taken on the night of the incident show red marks to Ponce’s neck consistent

with her being choked.

        With regard to factual sufficiency, Valdez emphasizes that Ponce recanted her earlier

statements and testified that she had lied to her neighbors and police. The jury, however, was free

to accept or reject all or any portion of Ponce’s testimony. Adelman v. State, 828 S.W.2d 418, 421

(Tex. Crim. App. 1992). Whether Ponce was testifying truthfully at trial or whether her statements

on the night of the incident were truthful was a credibility question for the jury, to which we must

defer. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). We hold that the evidence is

factually sufficient.

                                             RULE 404(B)

        In his second issue, Valdez argues that the trial court erred in allowing the State to introduce

evidence of extraneous bad acts in violation of Rule 404(b). As a pretrial matter, Valdez requested

that any evidence of extraneous bad acts be excluded because, although requested by Valdez, the

State had not provided notice of its intent to introduce evidence of extraneous bad acts. The State

responded that it did not intend to introduce any evidence of extraneous bad acts unless the defense

opened the door to such evidence. Then, during opening statement, Valdez pronounced that the

evidence would show the following:

        [Ponce] will admit and take the stand that none of this ever happened. She made it
        all up. She made it all up, called the police, [and] filed a police report because she
        was mad because [Valdez] went out drinking. That’s what we’re going to show.
        You’ll hear straight from the horse’s mouth, so to speak. I want you to take that
        seriously into consideration when you hear whatever else they put on there. The
        reasonable doubt standard will be met, and it will be a fairly simple process for you
        to ascertain the truth in this case. The truth will be, I lied. I made the whole thing up.
        I was mad at him, period. And that will be it. And with that, you will have everything
        that they’ll put up. It may be convincing, it may not be. I don’t know, we’ll see, but


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       nothing will be more convincing than the cry in the night, which will ultimately be
       a soft mutter on the stand where she says, I was mad. I was in an emotional state. I
       was angry. I made the whole thing up.

After Valdez’s opening statement, the State argued to the trial court that because Valdez opened the

door in opening statement by stating that the complainant had lied, thereby presenting a theory of

fabrication, the State should be allowed to introduce evidence of extraneous bad acts to rebut the

theory of fabrication pursuant to Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). The trial

court agreed. Valdez did not obtain a running objection.

       Valdez now argues that the trial court erred in allowing Delia Ramirez, Ponce’s former

mother-in-law, to testify that Valdez assaulted her on March 13, 2008, and in allowing photographs

depicting injuries sustained by Ramirez’s son and Valdez as a result of the March 13, 2008, incident

to be admitted. Valdez, however, has failed to preserve error for appeal. “To preserve error in

admitting evidence, a party must object each time the inadmissible evidence is offered or obtain a

running objection. An error in the admission of evidence is cured where the same evidence comes

in elsewhere without objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).

During Ramirez’s testimony, Valdez did not object each time the allegedly inadmissible evidence

was offered. Any error in the admission of the objected-to testimony was therefore cured.

       Valdez also argues that the trial court erred in allowing the State to question Ponce about

extraneous bad acts and in admitting photographs depicting injuries sustained. Once again, however,

Valdez failed to object each time the allegedly inadmissible evidence was offered. Although Valdez

objected before Ponce was questioned about the extraneous bad acts, he did not obtain a running

objection and did not object each time the evidence was offered during her testimony. Therefore, any

error in the admission of the objected-to testimony was cured.


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                                   MOTION FOR CONTINUANCE

       In his third issue, Valdez argues that the trial court erred in denying his motion for

continuance. We review a trial court’s ruling on a motion for continuance for abuse of discretion.

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To establish an abuse of discretion,

there must be a showing that the defendant was actually prejudiced by the denial of his motion. Id.

       After opening statement, the State argued that Valdez had opened the door to extraneous

offense evidence by arguing a theory of fabrication. Defense counsel then objected stating, “I do not

believe that the door was opened or could be opened at argument by stating the facts of the case that

the complaining witness intends to take the stand and say that she made the whole thing up.” The

trial court responded, “Well, looking at this Bass case, it sure does seem to say that.” Defense

counsel then moved for a continuance so that he could do research “to rebut the State’s case law.”

Defense counsel then tried to distinguish the facts of Bass v. State, 270 S.W.3d 557 (Tex. Crim. App.

2008), from the facts presented in this case. The trial court noted that the case law seemed “very

clear on this” and stated, “If you want, I will give you a couple of moments to explain that theory to

Mr. Valdez and let him know what the ruling is, and after that we’re going to start back up.” Defense

counsel then moved for another continuance so that he could “have the opportunity to persuade the

Court otherwise.” The trial court denied this second request for continuance. On appeal, Valdez

argues that he was denied “an opportunity to review and respond to the case law that the State

presented to him for the first time at trial.” We first note that the State was not required to provide

Valdez with case law before trial. Secondly, we note that the State presented the case law in response

to Valdez’s opening statement. Therefore, we see no abuse of discretion by the trial court in denying

Valdez’s motion for continuance.


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                                    MOTIONS FOR MISTRIAL

       In his final issue, Valdez argues that the trial court abused its discretion by denying his

numerous motions for mistrial. We review a trial court’s ruling on a motion for mistrial for abuse

of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Thus, we must uphold

the trial court’s ruling if it was within the zone of reasonable disagreement. Id. “Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required.” Id. (quoting Hawkins

v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).

       First, Valdez argues that the trial court abused its discretion in denying the motion for

mistrial he made when Delia Ramirez began testifying about the March 13, 2008, incident. However,

as noted previously, Valdez did not object each time Ramirez testified about the March 13, 2008,

incident. See Valle, 109 S.W.3d at 509 (“An error in the admission of evidence is cured where the

same evidence comes in elsewhere without objection.”). Likewise, Valdez argues that the trial court

abused its discretion in denying the motion for mistrial he made during Ponce’s testimony. As noted

previously, during Ponce’s testimony, Valdez objected, arguing that the State should not be allowed

to question Ponce about Valdez’s extraneous bad acts and that photographs depicting injuries

sustained as a result of the March 13, 2008, incident should not be admitted. However, as noted

previously, Valdez did not obtain a running objection and did not object each time the evidence was

offered during Ponce’s testimony. See id. Thus, we find no abuse of discretion by the trial court in

denying Valdez’s motions for mistrial.

       Second, Valdez argues that the trial court abused its discretion in denying the motion for

mistrial he made when Ponce’s written statement to police was admitted in evidence. However, even

if we were to assume that Ponce’s written statement was erroneously admitted, the substance of the


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report was testified to by other witnesses. See Valle, 109 S.W.3d at 509. Therefore, we find no abuse

of discretion by the trial court in denying the motion for mistrial.

          Finally, Valdez argues that the trial court abused its discretion in denying the motion for

mistrial he made during the State’s closing argument. During closing argument, the State argued the

following:

          Well, again, who has a reason to lie? It’s something to think about. Again, you know,
          we talked about plenty of reasons why victims don’t go forward, whether it’s money,
          whether they moved back. Well, you heard – you heard her take the stand and say,
          you know what, he’s been going to church. He’s been sitting with Jehovah’s Witness,
          and he’s made an improvement. He’s gone from something that he was to now this
          peaceful guy that he is. Well, you know, if he thinks he’s made amends with the
          Lord, I’m – good for him. Now, it’s time for him to make amends with the State of
          Texas because we don’t allow this to happen. Y’all wouldn’t want your sisters or
          your daughters or your mothers to be in this situation.

(emphasis added). Valdez then objected on the grounds that the prosecutor cannot ask jurors to put

their families in the position of the victim.

          A proper jury argument must fall within one of four general areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel;

and, (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). We

agree that the prosecutor’s argument was improper. A prosecutor may not ask a juror to imagine and

focus on the events of the criminal act as if it had actually happened to them and their families. See

Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985); Ayala v. State, 267 S.W.3d 428,

435 (Tex. App.—Houston [14th Dist.] 2008, pet. filed). Such an argument openly pleads with the

jury to abandon its objectivity in deciding the case. Brandley, 691 S.W.2d at 712; Ayala, 267 S.W.3d

at 435.




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       However, we must disregard such error unless it affects Valdez’s substantial rights. See TEX .

R. APP . P. 44.2(b); see also Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008). To

determine whether Valdez’s substantial rights were affected, we balance the severity of the

misconduct (i.e., the prejudicial effect), any curative measures, and the certainty of conviction absent

the misconduct. Brown, 270 S.W.3d at 573. “Further, in evaluating the severity of the misconduct,

we must assess whether the jury argument is extreme or manifestly improper by looking at the entire

record of final arguments to determine if there was a willful and calculated effort on the part of the

State to deprive appellant of a fair and impartial trial.” Id. (quotations omitted). Viewing the State’s

closing argument in its entirety, we cannot conclude that there was a willful and calculated effort on

behalf of the State to deprive Valdez of a fair and impartial trial, and viewing the record as a whole,

we cannot conclude that Valdez was prejudiced by the State’s remark. See id. Although there were

no curative measures, such as an instruction to disregard, the State’s comment was quick, and the

State did not dwell upon it during closing argument. And, given the evidence presented at trial, we

fail to see how this comment made by the State prejudiced Valdez. See Brandley, 691 S.W.2d at 712

(holding that the prosecutor asking the jurors during the punishment phase of the trial to place

themselves in the shoes of the child victim’s father was harmless error). Therefore, we hold that the

improper comment made by the State was harmless, see TEX . R. APP . P. 44.2(b), and the trial court

did not abuse its discretion in denying Valdez’s motion for mistrial.

       Valdez also argues that the trial court should have granted the second motion for mistrial he

made immediately after the State finished its closing argument. However, by waiting for the State

to finish its closing, Valdez did not timely object and failed to preserve error for appeal with respect




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to the trial court’s denial of his motion for mistrial. See Valencia v. State, 946 S.W.2d 81, 82-83

(Tex. Crim. App. 1997); see also TEX . R. APP . P. 33.1.

                                          CONCLUSION

       We affirm the judgment of the trial court.



                                                       Karen Angelini, Justice

Do not publish




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