                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                          No. 04-13-00436-CR

                                              Juan RUBIO,
                                                Appellant

                                                  v.
                                             The STATE of
                                          The STATE of Texas,
                                                Appellee

                      From the 144th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2011CR3435
                           The Honorable Angus McGinty, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 2, 2014

AFFIRMED

           Juan Rubio was convicted by a jury of aggravated robbery. On appeal, Rubio contends the

trial court erred in: (1) admitting recordings of telephone conversations; (2) suggesting an

objection to an exhibit defense counsel sought to offer into evidence; and (3) reminding the

prosecutor that an exhibit had not been offered into evidence. We affirm the trial court’s judgment.

                               RECORDED TELEPHONE CONVERSATIONS

           In his first issue, Rubio contends the trial court erred in admitting into evidence recordings

of telephone conversations he had with two individuals. Rubio made the telephone calls from the
                                                                                       04-13-00436-CR


interrogation room of the police station. In his brief, Rubio asserts, the trial court’s “finding that

[the] exhibit was non-custodial interrogation was error.”

       The Texas Code of Criminal Procedure imposes restrictions on the admissibility of an

accused’s recorded oral statements made as a result of custodial interrogation. TEX. CODE CRIM.

PROC. ANN. art. 38.23, § 3 (West 2005). In order for a statement to be the result of custodial

interrogation, the statement must be made in response to interrogation by law enforcement. State

v. Scheineman, 77 S.W.3d 810, 813 (Tex. 2002). A statement made by a defendant to his co-

defendant while they are alone in a room in a county law enforcement building is not a statement

made in response to custodial interrogation. Id. Similarly, a statement made while the accused is

alone making a telephone call from an interrogation room is not a statement made in response to

custodial interrogation. See Banargent v. State, 228 S.W.2d 393, 402 (Tex. App.—Houston [14th

Dist.] 2007, pet. ref’d) (holding statements made in telephone call by appellant from county jail

were not the product of custodial interrogation). Accordingly, the trial court did not err in

admitting the recordings.

                    SUGGESTING OBJECTION/REMINDER TO OFFER EXHIBIT

       In his second issue, Rubio contends the trial court erred in suggesting an objection for the

prosecutor to make in response to defense counsel’s offering of an exhibit into evidence. In his

third issue, Rubio asserts the trial court erred in reminding the prosecutor to offer an exhibit into

evidence after the prosecutor had elicited a witness’s testimony about the exhibit. The State

correctly notes that Rubio did not object to the trial court’s questions during trial; therefore, error

is not likely preserved. TEX. R. APP. P. 33.1; but see Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim.

App. 2000) (holding trial judge’s comments may rise to level of fundamental error not requiring

an objection if comments taint the defendant’s presumption of innocence); see also Jasper v. State,

61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (noting Blue was a non-binding plurality opinion and
                                                 -2-
                                                                                                      04-13-00436-CR


distinguishing Blue where trial judge’s comments do not rise to “such a level as to bear on the

presumption of innocence or vitiate the impartiality of the jury”). Even assuming that error was

preserved, however, we would overrule Rubio’s contentions.

         With regard to Rubio’s second issue, the prosecutor requested permission to approach the

bench after defense counsel offered a photograph into evidence. At that time, the only testimony

about the photograph was by the clerk of the store Rubio was charged with robbing, and the clerk

testified that the photograph was of a person who had previously been in the store. After the

prosecutor and defense counsel approached the bench, the trial judge asked, “Relevance?” before

any other statement was made by either the prosecutor or defense counsel. The prosecutor then

agreed that one of his objections to the exhibit was relevance.

         With regard to Rubio’s third issue, the prosecutor questioned a witness about an exhibit.

After the witness identified the exhibit and the prosecutor further questioned the witness about the

exhibit, the prosecutor stated that he was passing the witness. The trial judge then asked, “Are you

moving 2?” The prosecutor then moved to introduce the exhibit as State’s Exhibit 2.

         A trial judge has broad discretion in maintaining control of his courtroom and expediting

a trial. Jasper, 61 S.W.3d at 421; In re J.G., 195 S.W.3d 161, 178 (Tex. App.—San Antonio 2006,

no pet.). In this case, the trial judge’s questions appear to have been an effort by the judge to

expedite the process, not to interject any unfairness into it. Although the trial judge sustained the

relevancy objection, the trial judge explained to defense counsel what additional steps would be

necessary for the evidence to become relevant and admissible. 1 See Bogany v. State, No. 01-07-

00050-CR, 2008 WL 623590, at *4-5 (Tex. App.—Houston [1st Dist.] Feb. 21, 2008, pet. ref’d)



1
  The trial judge stated that he understood defense counsel was attempting to prove “an alternate perpetrator’s theory,”
but the clerk’s testimony that the photograph was of a person who previously had been in the store was not sufficient
to support the theory without “a little more fleshing out.”

                                                         -3-
                                                                                       04-13-00436-CR


(holding trial court’s asking State if it had an objection as to relevance in response to a pending

question and then sustaining relevancy objection made by State did not violate appellant’s

fundamental rights) (not designated for publication); see also Dow Chem. Co. v. Francis, 46

S.W.3d 237, 239-40 (Tex. 2001) (holding trial court properly exercised broad discretion to

maintain control and promote expedition in rejecting claim that trial court demonstrated bias by

improperly encouraging counsel to object and adding further bases to counsel’s objections). In

addition, the trial judge’s second question came at the end of the prosecutor’s detailed questioning

of the witness about State’s Exhibit 2, which was a duplicate copy of the photo line-up introduced

as State’s Exhibit 1 and was only being offered because the photographs in State’s Exhibit 1 were

darker and harder to see than the photographs in State’s Exhibit 2 which were brighter and more

visible. Accordingly, the trial court’s questions were within the broad discretion it had to expedite

the trial, and, in any event, the record does not establish that Rubio was harmed by the trial court’s

questions.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                   Catherine Stone, Chief Justice

DO NOT PUBLISH




                                                 -4-
