Christopher M. Longoria v. State

Christopher M. Longoria v. State of Texas IN THE TENTH COURT OF APPEALS No. 10-99-209-CR CHRISTOPHER M. LONGORIA, Appellant v. THE STATE OF TEXAS, Appellee From the 278th District Court Madison County, Texas Trial Court # 10,075 O P I N I O N Christopher M. Longoria, an inmate, was convicted of assaulting a prison guard. He was sentenced to three years in prison. Longoria appeals this conviction and sentence. We affirm. Background Longoria was identified as having assaulted Officer Wheaton, a prison guard at the Ferguson Unit, during a fight that initially began between another inmate, Gilberto Cortez, and another prison guard, Officer White. An inmate jumped on Wheaton’s back while he was attempting to assist White in subduing Cortez. Other inmates then joined in. During the fracas, Wheaton’s eye was scratched to the extent that it required surgery to repair a detached retina. Another officer identified Longoria as the inmate who injured Wheaton. Continuance In his first issue, Longoria believes the trial court erred in denying a continuance during trial due to an absent witness. He argues that Article 29.13 of the Code of Criminal Procedure authorized his continuance during trial. See Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 1989). That article provides: A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had. Id. We review the trial court’s decision for an abuse of discretion. See Martinez v. State, 867 S.W.2d 30, 41 (Tex. Crim. App. 1993). A priest had apparently been conducting Mass at the time the incident between Cortez and White began. At the end of the State’s case-in-chief, Longoria mentioned to the trial court that he would need to call the priest as a witness. Longoria did not ask for a continuance based on this need at that time. The first day of trial concluded during Longoria’s presentation of his witnesses. The next day, he continued his case. Prior to calling his last two witnesses, he informed the trial court that the priest would be the next witness, and the investigator who had been sent that morning with a subpoena to serve him had not yet returned with the priest. The court recessed for an unknown amount of time so the priest could be located. After the break, Longoria requested a continuance because the priest could not be found. The trial court denied the request. Longoria further explained to the court that the priest had been interviewed but was reluctant to testify. He had been promised that he would not be called as a witness unless it was necessary. The trial court again denied the requested continuance. At the end of his case, Longoria again asked for a continuance to be able to locate the priest. He offered the priest’s affidavit, stating the priest would testify that he did not see anything and did not see the inmate, meaning Gilberto Cortez, resisting. Longoria believed this testimony was necessary to show that the State’s witnesses had committed perjury. There was no indication that the priest witnessed any part of the incident between Longoria and Wheaton. The court denied the motion. Under the circumstances of this case, the unavailability of the priest was not an “unexpected occurrence since the trial began, which no reasonable diligence could have anticipated,” and Longoria was not “so taken by surprise that a fair trial” could not be had. See id.; Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 1989). Longoria’s first issue is overruled. Motion For Mistrial Longoria took the stand and testified that he did not jump on or strike officer Wheaton. On cross-examination, the following occurred: State: When they were investigating this incident, did they talk to you about it? Longoria: Well, they talked to everybody. Is that what you mean? State: Yeah. Longoria: They talked to everybody. State: You didn’t give them a statement, did you? Longoria objected, and the trial court sustained the objection. The court instructed the jury to disregard the last statement. Longoria requested a mistrial which was overruled. In his second issue, Longoria contends that the trial court erred in overruling his motion for mistrial because the State commented, by its question, on Longoria’s post-arrest silence. Because the trial court sustained Longoria’s objection to the State’s question, we need not decide whether that action was correct. Instead, we will presume its ruling was correct and focus only on whether the court’s denial of Longoria’s motion for mistrial was error. Prejudice Cured? Potential prejudice resulting from a comment on post-arrest silence might be cured by an instruction to disregard. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). An instruction to disregard will be presumed effective unless the facts of the case “suggest[s] the impossibility of withdrawing the impression produced on the minds of the jury[.].” Id. (citing Hatcher v. State, 43 Tex. Crim. 237, 65 S.W. 97, 98 (1901)). The effectiveness of a curative instruction is determined on a case-by-case basis. Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.—Dallas 1993, pet. ref’d). Although not expressly adopted as exhaustive or definitive, the Court of Criminal Appeals has relied on several factors to determine whether an instruction to disregard cured the prejudicial effect of the comment. Waldo, 746 S.W.2d at 754. They are as follows: 1. The nature of the error; 2. The persistence of the prosecution in committing the error; 3. The flagrancy of the violation; 4. The particular instruction given; 5. The weight of the incriminating evidence; and 6. The harm to the accused as measured by the severity of the sentence. Id. We shall also rely on these factors. See Veteto v. State, 8 S.W.3d 805, 811 (Tex. App.—Waco 2000, pet. ref’d); Mendoza v. State, 959 S.W.2d 321, 324 (Tex. App.—Waco 1997, pet. ref’d). Nature of the Error The nature of the error, if any, made by the prosecutor is not such that an instruction to disregard can never cure it. Veteto, 8 S.W.3d at 811. Persistence and Flagrancy Although Longoria was in prison at the time on a different offense, it is not clear that he had been “arrested” for the assault on Wheaton. The State did not ask again whether Longoria had made a statement to officials denying his involvement in the assault. Arguably, the State may have been pursuing the same theme when Longoria was subsequently asked, “You’re testifying here today, though, aren’t you?” However, no objection was raised regarding this question, and no other comment was made by the State regarding Longoria’s post-arrest silence. Based on the facts shown from the record, we do not believe the State persistently or flagrantly pursued an improper line of questioning. Particular Instruction An instruction specifically informing the jury to disregard the last comment has been held to be adequate. Waldo, 746 S.W.2d at 755-756. Likewise, an instruction that the court assumed the jury would follow the court’s instructions and not consider the line of questioning has also been held to be adequate. Fletcher, 852 S.W.2d at 275. Here, the trial court instructed, “Jury is instructed to disregard that last statement.” We find this to be an adequate instruction. Weight of Incriminating Evidence A prison guard identified Longoria as the inmate who scratched Wheaton’s eye. Longoria denied committing the assault. Immediately prior to being asked whether he made a statement, he was asked if anyone spoke to him about the assault. He responded, “they talked to everybody.” This gives the implication that a statement was given. Under these particular circumstances, the inference by the State’s next question to Longoria’s silence could not have been given much, or any, weight by the jury as evidence of his guilt. Severity of Punishment Longoria was convicted of assault of a public servant, a third degree felony. Tex. Pen. Code Ann. § 22.01(b)(1) (Vernon Supp. 2001). Punishment for a third degree felony is imprisonment for two to ten years and a fine of up to $10,000. Id. § 12.32 (Vernon 1994). Longoria received a three year sentence and no fine. We are unable to conclude that the question by the State caused an improper increase in Longoria’s punishment. Summary of Considerations Any reference to Longoria’s post-arrest silence by the State was removed from the minds of the jury by the court’s instruction to disregard. The instruction effectively cured the prejudice, if any, caused by the State. The court did not err in overruling Longoria’s motion for mistrial. His second issue is overruled. Charge Error In his third issue, Longoria complains that the trial court erred in overruling his objections to the jury charge in the guilt/innocence phase. Specifically, Longoria objected to the charge because it included the classifications of the primary offense and the lesser offense. The court and State explained that the classifications were needed to distinguish the two offenses. Both were a form of assault. The Court of Criminal Appeals has held that this type of charge is improper. Moreno v. State, 541 S.W.2d 170, 172 (Tex. Crim. App. 1976); Staggs v. State, 503 S.W.2d 587, 588 (Tex. Crim. App. 1974). However, it has also held that “the error is not such as to require reversal.” Moreno, 541 S.W.2d at 173; Staggs, 503 S.W.2d at 588. The Court reasoned that because the prosecution has the right to inform the prospective jurors during voir dire about the range of punishment applicable in the case, the inclusion of such information in the jury charge would not be reversible error. Staggs, 503 S.W.2d at 588. Longoria’s third issue is overruled. Conclusion Having overruled all issues presented for review, the trial court’s judgment is affirmed. TOM GRAY Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed April 11, 2001 Do not publish