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