                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00439-CR

                                          Enrique GARCIA,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 406th Judicial District Court, Webb County, Texas
                               Trial Court No. 2017-CRM-001083-D4
                            Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: June 12, 2019

AFFIRMED

           Enrique Garcia was convicted by a jury of possession of a controlled substance. On appeal,

Garcia contends the evidence is legally insufficient to support the jury’s finding that he exercised

care, control, and management over the controlled substance. Garcia also contends the trial court

erred in denying his request for a mistrial. We overrule Garcia’s issues and affirm the trial court’s

judgment.
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                                            BACKGROUND

        Detective Robert Ramirez and Detective Robert Garcia, Jr. parked at a laundromat across

the street from Garcia’s house intending to conduct a “knock and talk” and to request that Garcia

accompany them to the police station to discuss an open case. Officer Laura Montemayor was

dispatched to the scene to provide transportation in the event Garcia agreed to accompany the

detectives. The detectives approached Garcia’s house while Officer Montemayor remained on the

sidewalk in front of the house.

        When the detectives approached Garcia’s house, Garcia’s brother was outside. A short

time later, Garcia came outside and agreed to accompany the detectives.                 When Officer

Montemayor told Garcia she was going to frisk him for officer safety, Garcia began emptying his

pockets, and Officer Montemayor and Detective Ramirez saw Garcia drop a plastic baggie

containing heroin. Officer Montemayor retrieved the plastic baggie but did not confront Garcia at

that time. After Detective Ramirez finished interviewing Garcia at the police station, Officer

Montemayor arrested Garcia for possession of a controlled substance.

        After hearing the evidence presented at trial, a jury found Garcia guilty of the offense, and

he was sentenced to two years’ in state jail. Garcia appeals.

                                  SUFFICIENCY OF THE EVIDENCE

        In his first issue, Garcia contends the evidence is legally insufficient to support the jury’s

finding that he exercised care, control, and management over the controlled substance.

        When addressing a challenge to the sufficiency of the evidence, we consider whether, after

viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). This standard requires appellate courts to defer “to the responsibility




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of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Id.

           Garcia was charged with possession of a controlled substance. See TEX. HEALTH & SAFETY

CODE ANN. § 481.115(a).                 “Possession” is defined as “actual care, custody, control, or

management.” TEX. PENAL CODE ANN. § 1.07(a)(39).

           In the instant case, both Detective Ramirez and Officer Montemayor saw Garcia drop the

plastic baggie while emptying his pockets. Garcia contends their testimony was not credible

because he presented evidence that he was targeted by police after being released from prison 1 and

had been acquitted of two other charges of possession of a controlled substance. Garcia also

contends their testimony contained inconsistencies regarding where the baggie fell. On appeal,

however, we defer to the jury’s assessment of the witnesses’ credibility, and the jury in the instant

case chose to believe the testimony of Detective Ramirez and Officer Montemayor. See Jackson,

443 U.S. at 319; Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (“The jury, being

the judges of the facts and credibility of the witnesses, could choose to believe or not believe the

witnesses, or any portion of their testimony.”).                    Garcia further contends the lighting was

insufficient for Detective Ramirez and Officer Montemayor to see him drop an item and points to

Detective Garcia’s testimony that he did not see Garcia drop the baggie. Detective Ramirez and

Officer Montemayor, however, testified the lighting was sufficient, and photographs of the lighting

in the area were introduced into evidence. Furthermore, Detective Garcia testified he was focused

on Garcia’s house as they crossed the street with Garcia because other family members were inside

the house. Finally, Garcia asserts Officer Montemayor used a code for abandoned property when

she informed dispatch that she had recovered the baggie containing the heroin. Several other



1
    Garcia was convicted of manslaughter in the killing of a police officer.


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witnesses, however, testified the code Officer Montemayor used was for recovered or abandoned

property, and Officer Montemayor properly used the code because she recovered the baggie

containing the heroin. Deferring to the jury’s assessment of the credibility of the witnesses and

the weight to be given the evidence, we hold the evidence is sufficient to support the jury’s finding

that Garcia exercised actual care, custody, control, or management of the controlled substance.

Garcia’s first issue is overruled.

                                             VOIR DIRE

        In Garcia’s second issue, he contends the prosecutor vitiated the presumption of innocence

during voir dire when he stated, “I am pleased to represent all the law-abiding citizens of Webb

County.” Garcia asserts the remark inferred that he was not law-abiding and, therefore, not

innocent of the charges against him. Accordingly, Garcia contends the trial court erred in denying

his request for a mistrial.

        “We review a trial court’s denial of a mistrial for an abuse of discretion.” Balderas v. State,

517 S.W.3d 756, 783 (Tex. Crim. App. 2016). “Because [an] objection, [a] request for an

instruction to the jury, and [a] motion for mistrial seek judicial remedies of decreasing desirability

for events of decreasing frequency, the traditional and preferred procedure for a party to voice its

complaint has been to seek them in sequence—that is, (1) to object when it is possible, (2) to

request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a

mistrial if a party thinks an instruction to disregard was not sufficient.” Young v. State, 137 S.W.3d

65, 69 (Tex. Crim. App. 2004). “However, this sequence is not essential to preserve complaints

for appellate review.” Id. Instead, “[t]he essential requirement is a timely, specific request that

the trial court refuses.” Id.

        In this case, Garcia’s attorney objected to the prosecutor’s statement and requested a

mistrial. When the trial court denied the request for a mistrial, Garcia’s attorney requested that the


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jury be instructed to disregard the prosecutor’s comment. The trial court agreed to address the

comment and instructed the jury as follows:

            THE COURT: Ladies and gentlemen of the jury, as mentioned earlier during
        my voir dire, the prosecutor represents the State of Texas. That’s who they
        represent. And we keep saying the term “voir dire.” Well, I’ll let you-all address
        that. Basically, it’s a French term that means to speak the truth. I had that in my
        notes, but I forgot to mention that. I know some of you have served on a jury. It’s
        a term that we use, I guess, loosely because it’s a legal term that we always refer to
        when we’re talking about jury selection. So Mr. Thomson, you ready?

Garcia’s attorney did not request any further instruction.

        A defendant is entitled to a mistrial only when an instruction to disregard would not “cure”

the prejudicial event about which a defendant complains. Id. at 70. An instruction to disregard

“cures” such an event if it “leave[s] the jury in an acceptable state to continue the trial.” Id. at 69.

In this case, the trial court’s instruction corrected the prosecutor’s misstatement. See TEX. CODE

CRIM. PROC. ANN. art. 2.01 (noting district attorney represents the State). Although the trial court

did not instruct the jury to disregard the prosecutor’s statement, the instruction sufficiently

refocused the jury’s attention on who the State actually represents, and no further objection or

request for further instruction was made. See Draughon v. State, 831 S.W.2d 331, 336-37 (Tex.

Crim. App. 1992) (holding prosecutor’s characterization of victims and their families as her

“clients” during voir dire could have been cured by an instruction and defense counsel “could even

have inquired of the prospective jurors whether [the] statement would affect their deliberations”

during voir dire); Cooper v. State, No. 05-90-01577-CR, 1992 WL 111031, at *2-3 (Tex. App.—

Dallas May 27, 1992, pet. ref’d) (not designated for publication) (holding prosecutor’s remark that

prosecutor represented law-abiding citizens was improper but “not so inflammatory that the trial

court’s instruction to disregard could not remove the harm”). Garcia’s second issue is overruled.




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                                        CONCLUSION

     The judgment of the trial court is affirmed.

                                               Liza A. Rodriguez, Justice

DO NOT PUBLISH




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