                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-19-00199-CR

                                          Saul BOSQUEZ,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 218th Judicial District Court, Atascosa County, Texas
                                  Trial Court No. 17-03-0200-CRA
                              Honorable Lynn Ellison, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: December 18, 2019

AFFIRMED

           Saul Bosquez was convicted by a jury of possession of methamphetamine and sentenced

to two years in a state jail facility. On appeal, Bosquez contends: (1) the trial court erred in

allowing the State to reopen evidence; and (2) the prosecutor made improper comments during

closing argument that violated his right to a fair trial. We affirm the trial court’s judgment.

                                           BACKGROUND

           Bosquez was arrested on an outstanding warrant. When he was searched after being placed

in custody, the officer at the scene did not locate any contraband on him. The officer who searched
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Bosquez after his arrival at the jail, however, discovered a baggie of methamphetamine in his

pocket. Bosquez was subsequently charged with possession of methamphetamine.

       Prior to the lunch break on the first day evidence was introduced at trial, the State rested

its case-in-chief. Immediately after the lunch break, however, and prior to Bosquez’s presentation

of his evidence, the State asked to reopen the evidence to introduce a video recording of the jailer’s

search. The trial court overruled defense counsel’s objection and admitted the video recording

into evidence which was played for the jury. At the conclusion of the evidence, the jury found

Bosquez guilty of the offense. Bosquez appeals.

                                      REOPENING EVIDENCE

       In his first issue, Bosquez asserts the trial court erred in allowing the State to reopen the

evidence to introduce the video recording after it rested. In support of his argument, Bosquez

primarily relies on article 36.02 of the Texas Code of Criminal Procedure and Peek v. State, 106

S.W.3d 72 (Tex. Crim. App. 2003).

       We review a trial court’s decision on a motion to reopen evidence for an abuse of

discretion. Swanner v. State, 499 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.] 2016, no

pet.); Birkholz v. State, 278 S.W.3d 463, 464 (Tex. App.—San Antonio 2009, no pet.). Article

36.02 provides, “The court shall allow testimony to be introduced at any time before the argument

of a cause is concluded, if it appears that it is necessary to a due administration of justice.” TEX.

CODE CRIM. PROC. ANN. art. 36.02. In Peek, the Texas Court of Criminal Appeals addressed when

a trial judge is “required to reopen a case under Art. 36.02” after both sides close and the defense

seeks to reopen the evidence prior to closing arguments. 106 S.W.3d at 72–74, 79; see also

Birkholz, 278 S.W.3d at 467, 469 (holding trial court abused its discretion in denying defendant’s

motion to reopen the evidence when court reconvened for closing arguments on a Monday after

both sides rested on a Friday afternoon). Article 36.02, however, “does not limit a trial court’s


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discretion to reopen a case at any time before argument has concluded.” Swanner v. State, 499

S.W.3d at 920. Instead, “[t]he statute merely mandates certain circumstances in which a trial court

is required to reopen the evidence before argument is concluded.” Id. (emphasis in original); see

also Sharp v. State, 210 S.W.3d 835, 840–41 (Tex. App.—Amarillo 2006, no pet.) (distinguishing

Peek as “addressing situations wherein all parties had presented their evidence, closed, and had

only to tender their closing statements” from situation wherein State rested but appellant had yet

to call any witnesses because “parties were in ‘the course of the trial,’ and the evidentiary portion

of it had yet to be completed”).

       In the instant case, the State rested, but Bosquez had not presented his evidence or rested.

Furthermore, closing arguments had not commenced or concluded. Accordingly, the trial court

did not violate article 36.02 or abuse its discretion in allowing the State to present its additional

evidence.

       Bosquez’s first issue is overruled.

                                       CLOSING ARGUMENT

       In his second issue, Bosquez asserts the prosecutor made improper comments during

closing argument that violated his right to a fair trial. The State responds the complaint is not

preserved for our review.

       Bosquez’s complaint focuses on the following argument:

           MR. LAM [Prosecutor]: Now, Mr. Powers gets to come up here and talk to
       you, and one of the things I like to remind the jury before this happens is that
       remember your common sense. Remember everything that brought you here,
       because that’s what you’re gong to need to remember and that’s what you’re going
       to need to think about, because many of the times, when Defense comes up here,
       they’re going to try to bring smoke and mirrors. But —

            MR. POWERS: I’m going to object as striking over the shoulder.

            THE COURT: I’m sorry. What?



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           MR. POWERS: Basically, striking over the shoulder and saying that the State
       is now alleging that the Defense is going to try to trick the jury, and that’s simply
       striking over the shoulder.

           THE COURT: Ladies and Gentlemen of the Jury, this is closing argument.
       Remember what the lawyers tell you is not evidence, nor is it anything other than
       to help you, to assist in reaching your verdict.
           Proceed, Mr. Lam.

During rebuttal closing argument, the prosecutor made the following argument to which no

objection was made:

           Now, the Defense has put on this show about — about the warrant, and he put
       on these witnesses who were the defendant’s brother and his — his mother, family
       members, which should lead you to question their credibility.
           But more importantly, all that stuff, that’s irrelevant. It’s all smoke and mirrors.
       It’s meant to get you off of the fact that methamphetamine was found in the
       defendant’s pocket. And once you realize that, when you realize — The issue isn’t
       whether there was a vendetta or not. The question is: Was that bag of
       methamphetamine in his pocket? Did Mr. Bosquez — Did Mr. Bosquez possess
       that?

       “Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d

530, 532 (Tex. Crim. App. 2009). “If an issue has not been preserved for appeal, neither the court

of appeals nor [the Texas Court of Criminal Appeals] should address the merits of that issue.” Id.

       To preserve error in prosecutorial argument, a defendant must pursue his objection to an

adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Barnes v. State, 70

S.W.3d 294, 307 (Tex. App.—Fort Worth 2002, pet. ref’d). Generally, the preservation of a

complaint regarding prosecutorial argument requires an objection, a request for an instruction to

disregard if the objection is sustained, and a motion for mistrial if the request for an instruction to

disregard is granted. Archie, 221 S.W.3d at 699; Barnes, 70 S.W.3d at 307. Occasionally, a

request for an instruction to disregard is deemed unnecessary, but a motion for mistrial is always

a prerequisite for presenting the complaint on appeal. Archie, 221 S.W.3d at 699 (quoting Young

v. State, 137 S.W.3d 65, 69–70 (Tex. Crim. App. 2004)); see also Young, 137 S.W.3d at 70 (noting



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where an instruction to disregard cannot cure an objectionable occurrence “a motion for mistrial

is the only essential prerequisite to presenting the complaint on appeal”).            In addition, a

“[c]ontemporaneous objection must [be made] each time the objectionable jury argument is made

in order to preserve error.” Barnes, 70 S.W.3d at 307.

       In the instant case, Bosquez’s complaint regarding the reference to “smoke and mirrors” in

the State’s initial closing argument was not preserved because defense counsel did not move for a

mistrial following the trial court’s instruction. In addition, defense counsel also failed to object to

the same reference made during the State’s rebuttal closing argument. See Cole v. State, 194

S.W.3d 538, 545 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding objection to State’s

first reference to “smoking mirrors” failed to preserve error for appeal because no objection was

made “to any of the similar ‘smoking mirrors’ remarks that followed”); see also Garcia v. State,

126 S.W.3d 921, 925 (Tex. Crim. App. 2004) (holding prosecutor’s comment that defense counsel

was “going to argue that hogwash you’ve heard” was “plainly directed at defense counsel’s

theories and arguments in the case” and did not “warrant a reversal for attacking the personal

morals and integrity of defense counsel”); Hinojosa v. State, 433 S.W.3d 742, 764 (Tex. App.—

San Antonio 2014, pet. ref’d) (noting “[t]erms such as ‘rabbit trails’ and ‘smoke screens’ have

been considered proper in reference to defense evidentiary tactics”). Accordingly, Bosquez’s

second issue was not preserved for our review.

                                            CONCLUSION

       The trial court’s judgment is affirmed.

                                                   Liza A. Rodriguez, Justice

DO NOT PUBLISH




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