Opinion filed November 19 , 2020



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 18

- 00 334

- CR

__________
LIVAN OTERO RODRIGUEZ , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 70 th District Court

Ector County, Texas Trial Court Cause No. A

- 45,186

M E M O R A N D U M O P I N I O N The jury convicted Appellant, Livan Otero Rodriguez, of three counts of
sexual assault of a child (Counts Two, Four, and Five) and two counts of indecency
with a child (Counts One and Three)

. S ee T EX

. P ENAL C ODE A NN . § 21.11 (West 2019) , § 22.011 (West Supp. 2020 )

. The jury assessed Appellant’s punishment at

c onfinement for twenty years for each count of sexual assault of a child and five years for each count of indecency with a child

. The trial court ordered the sentences2

for Count One ( five years) and Count Two (twenty years) to run concurrently. The
trial court order ed the sentence for Count Three (five years) to run consecutively
, beginning at the end of the sentence for Count Two. The trial court ordered the sentence for Count Four (twenty years) to run consecutively to the sentence in Count Three, and the sentence for Count Five (twenty years) to run consecutively to the
sentence in Count Four. In two issues on appeal, Appellant asserts that the trial court erred in failing to grant a mistrial during voir dire and that the trial court erred in granting the State’s
motion to strike a veniremember for cause . We affirm. Background facts The victim, J.G., was almost fifteen years old at the time she and her mother moved into Appellant’s apartment

. Although Appellant never married J.G.’s mother, J.G. considered Appellant her step father

. J .G. was fifteen years old when Appellant began sexually assaulting her. J.G. testified that Appellant began by touching her private areas on various occasions
, until one day when Appellant began having sexual intercourse with her

. While she was still fifteen, J.G. became pregnant. Appellant began sending J.G. and her high

- school boyfriend threatening text messages, claiming that Appellant was the fath er and admitting to having sexual intercourse with J.G. on multiple occasions. It was at this time that J.G. told her mother of Appellant’s conduct, and the police became involved. A DNA test revealed that Appellant was
the father of J.G.’s child

. Analys is
In Appellant’s first issue , he asserts that the prosecutor made an improper comment about the defendant’s right not to testify. S ee U.S. C ONST

. amend. V ; T EX

. C ONST . art. I, § 10 ; T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.08 (West 2005 )

. During
voir dire, the prosecutor discussed the types of evidence typically found in a sexual3

assault case. In doing so, the prosecutor apparently was trying to list all of the possible types of evidence for the purpose of determining if any of the
venireme mbers woul d require a particular type of evidence in order to find a person guilty. During this discussion, the prosecutor asked: “What about confessions? Who gets to pick whether or not they confess to the police? The perpetrator does. All right?” Defense coun sel did not object to this statement at the time it was made. He subsequently moved for a mistrial later in voir dire by asserting that the earlier statement constituted an improper comment on the defendant’s right not to testify. The judge denied the re quest. We review a trial court ’ s denial of a motion for mistrial under an abuse of
discretion standard. Hawkins v. State , 135 S.W.3d 72, 7 6

– 77 (Tex. Crim. App. 2004)

. Courts continually acknowledge that “ [a] mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “ Only in extreme circumstances, where t he prejudice is incurable, will a mistrial be required.” Hawkin s , 135 S.W.3d at 77. As a threshold matter, we find that Appellant did not preserve his request for a mistrial for appellate review. See T EX

. R. A PP

. P. 33.1 ( as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion ). “The essential requirement is a timely, specific request that the trial court refuses .” Young v. State , 137 S.W.3d 65, 69 (Tex. Crim. App. 200 4 ) ( citing T EX

. R.
A PP

. P

. 33.1(a)). “A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent.” Griggs v. State , 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). In the present case, defense counsel did not make his motion for mistrial
until we ll after the prosecutor had made the statement that was the subject of the
motion for mistrial ; the reporter’s record contains approximately fifty pages between4

the statement and the motion for mistrial

. Thus, the motion for mistrial was not
made as soon as the grounds for it became apparent
, and it was therefore untimely. Appellant also cites on appeal an answer made by a witness for the State concerning the lack of a confession . During the S tate’s case

- in

- chief, the lead investigator testified that he “did meet with [Appellant], but [Appellant] refused to give [him] a statement.” However, this answer followed the motion for mistrial. Defense counsel did not object to this testimony. Accord ingly, Appellant did not preserve error with respect to this evidence. See T EX

. R. A PP

. P. 33.1. Moreover, the trial court did not abuse its discretion in denying the motion for
mistrial. In a criminal prosecution, the State may not “comment on the failure of [the] accused to testify.” Bustamante v. State , 48 S.W.3d 761, 764 (Tex. 2001). Doing so violates bo th the Fifth Amendment of the United States Constitution’s and
Article I , section 10 of the Texas Constitution’s privileges against self

- incrimination and the freedom from being compelled to testify. Id

. ; U.S. C ONST

. amend. V ; T EX

. C ONST . art. I, § 10. Additionally, Article 38.08 of the Texas Code of Criminal Procedure also prohibits such comments. C RIM

. P ROC

. art. 38.08. [T] he offending language must be viewed from the jury ’ s standpoint and the implication that the comment referred to the defendant ’ s failure to testify must be clear. It is not sufficient that the language might be construed as an implied or indirect allusion

. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant ’ s failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character.
Bustamante , 48 S.W.3d at 765 (footnotes omitted)

. There is no bright

- line rule on the timing of when a statement is made that constitutes a prohibited comment on the defendant’s right to remain silent. Id . at 766. However, the timing of the statement is a factor that a court may consider
, and

c ourts have often held that comments by the prosecutor during voir dire or before5

the testimony closes have not violate d the prohibition on commenting on the defendant’s right not to testify

. Campos v. State , 589 S.W.2d 424, 426

– 27 (Tex. Cim. App. [Panel O p.] 1979); Myers v. State , 527 S.W.2d 307, 308

– 09 (Tex. Crim. App. 1975); Barba v. State , 486 S.W.3d 715, 720

– 23 (Tex. App.

— Texarkana 2016, no pet.). These cases have relied on the fact that it is difficult for the State to know at that point whether the defendant will testify

. See Barba , 486 S.W.3d at 720

– 23. Here, t he context in which the prosecutor made the comment shows that the language used is not of the kind that the jury would necessarily and naturally take to be a comment on the defe ndant’s future failure to testify. To this end, t he facts of the present case closely resemble those of Barba v. State . In that case, the prosecutor was attempting to explain during voir dire the types of evidence that a jury might expect to receive in a sexual assault case , as was the situation in this appeal. Id

. at 718

– 19

. Given the context of the statement, t he court held that the State did not refer

to the defendant ’s right not to testify but
, rather
, identified confessions as one of several types of evidence that jurors might see in sexual assault case s

. Id. The court
concluded its analysis by holding that the prosecutor’s statements about confessions were merely part of a broad discussion about the veniremembers’ ability to follow
the law. Id. Here, the prosecutor began discussing types of evidence that may or may not be found in a sexual assault case, and during that discussion
, she included confessions as a type of evidence that is generally not seen in sexual assault cases. The prosecutor immediately followed the statement about confessions with:

So, while we would like to see all these things, we don ’ t always have them.
Is there a nybody here who would require one of these things? Would say I [

-- ] I ’ d have to have that or it ’ s an automatic not guilty. Got to have it. Right?6 Can we all keep an open mind and look at all the evidence as it comes in together, knowing that we may not have some of these things or all of these things?
We note that the present case differs from Barba in one respect because the prosecutor expressly followed the comment about a confession with a statement that the perpetrator had the ability to control whether such evidence existed. However, the prosecutor did not offer a suggestion as to why a defendant might not want to give a confession. See Godfrey v. State , 859 S.W.2d 583, 585 (Tex. App.

— Houston [14th Dist.] 1993, no pet.) (cited by Barba ). Therefore, we hold that the statement

was proper and did not violate Appellant’s rights. We overrule Appellant’s first
issue. In Appellant’s second issue , he c ontends that the trial court erred in granting the State’s challenge for cause of a veniremember . Appellant contends that no grounds exist ed to support the challenge

. S ee C RIM

. P ROC

. art. 35.16 (West 2006 ). During voir dire, the prosecutor asked the veniremembers if anyone had previously had a bad experience with the d istrict a ttorney’s (DA’s) office . A veniremember
raised her hand. When initially asked by the prosecutor if she could put aside that judgment and judge the case based solely on the facts, the veniremember replied: “I
don’t know.” During subsequent questioning at the bench, t he veniremember stated that she had a previous experience with an assistant DA from Ector C ounty in which she believed that the assistant DA treated her and her son’s case indifferently

. When
asked if she could remain impartial given her previous encounter with the DA ’s
office , the veniremember responded : “ No, it wouldn’t keep me from it. . . . I mean, I don’t know. I mean, I had an incident in the past where the assistant DA

-- I just didn’t like the way he behaved, and if he walked in front of a bus today, I wouldn’t
shed a tear. ” In response to subsequent questions from both defense counsel and the prosecutor , the veniremember stated that her prior incident with the Ector C ounty7

assistant DA would not affect her ability to remain impa rtial and would not affect her ability to listen to the evidence and render a verdict on the evidence. At the end of questioning, the S tate moved to strike the veniremember for cause . The trial court granted the challenge on the basis of incurable bias b y stating that it gave particular weight to the statement about the assistant DA walking in front of a bus.
A veniremember may be challenged for cause if he or she has a bias or prejudice in favor of or against a party to the case. Id. art. 35.16(a)(9). The proponent of a challenge for cause bears the initial burden of establishing that the challenge is proper. Gardner v. State , 306 S.W.3d 274, 29 5

– 9 6 (Tex. Crim. App. 2009). “The test is whether the bias or prejudice would substantially impair the

prosp ective juror’s ability to carry out his oath and instructions in accordance with
the law.” Id. at 295. A trial court’s ruling on a challenge for cause may be reversed only for a clear abuse of discretion. Id. at 296. Because an appella te c ourt is only given a cold record for review, the trial court is in the best position to observe the veniremember’s demeanor and responses. Chambers v. State , 866 S.W.2d 9 , 22 (Tex. Crim. App. 1993). A trial court’s ruling on a challenge for cause is give n considerable discretion , particularly when the veniremember’s answers are ambiguous, vacillating, unclear, or contradictory

. Gardner , 306 S.W.3d at 296

. Here, the veniremember initially stated that she did not know whether she could render a verdict solely upon the facts. She later responded that her previous negative experience would not affect her ability to render a fair verdict solely on the
evidence. “ W hen the feeling ex pressed by a prospective juror is one of bias or prejudice in favor of or against the defendant

. . . , it is not ordinarily deemed possible for such a juror to be qualified by stating that he can lay aside such prejudice or
bias. ” Smith v. State , 907 S.W.2d 522, 5 30 (Tex. Crim. App. 1995)

. It is well settled that an inability to be impartial to the S tate is a bias for the defendant. See i d

. at 529 ( citing Ransom v. State , 630 S.W.2d 904, 908 (Tex. App.

— Amarillo 1982, no pet.)).8

Appellant asserts that the veniremember d id not have a bias against the S tate because her negative experience was with a n assistant DA who was not involved with the present case . Appellant also asserts that the negative experience occurred several years ago. Howev er, the prosecutor was an assistant DA for Ector County
, and the same county DA’s office was involved in the current suit. Additionally, even though the veniremember stated that the event occurred a “long time ago,” the
veniremember’s next words were , “but, I mean, you know, when it affects your children, it stays with you.” Lastly, the trial court noted particular concern with the veniremember’s statement that
, “if [the unnamed prosecutor] walked in front of a bus today, I wouldn’t s hed a tear.” Giving great deference to the trial court’s ruling on challenges for cause
, we conclude that the trial court could have reasonably
determine d that the veniremember’s statements were equivocal and inconsistent and
that the veniremember’s feelings toward the unnamed prosecutor could have reasonably show n a bias against the State that could not be rehabilitated. Therefore, the trial court did not err in granting the cha llenge to strike the veniremember for

cause. We overrule Appellant’s second issue. This Court’s Ruling We affirm the judgment s of the trial court.

November 19, 2020 JOHN M. BAILEY Do not publish. See T EX

. R. A PP

. P . 47.2(b). CHIEF JUSTICE Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. 1
Willson, J., not participating.

1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.