COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

DAVI D FO NSECA. J R., Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-08-00277- CR

Appea l from the 171st J udicial District Court of El Paso County , Texas (TC# 20050D04352)

O P I N I O N David F onseca

J r. appe als his convictions for murde r (Count I ), eng ag ing in or g anized criminal ac tivity

(Count I I ), and two c ounts of ag g ravated assault with a de adly wea pon (Counts I I Iand I V). He was sente nced to life in prison for the murde r and or g anized criminal ac tivity convictions, and 45 y ear s’ imprisonment for the a g g ravated assault convic tions. All sentences
wer e orde red to be serve d concur rently . On appe al, he r aises two issues in which he challeng es the trial cour

t’s denial of two motions for mistrial. Raul Esquival was murde red on June 26, 2005, when Appe llant, a member of the B arr io Azteca g ang , stabbed him multipl e times. Appellant wa s tried for Mr . Esquival’s murder and related offe nses in Aug ust 2008. During trial, the State pre sented e x tensive evide nce of Appellant’s longhistory

as a me mber of the “Azteca s,” including Appellant’s r ank and position within the ga

ng , the org anization’s structure, r ules, signature sig ns, and member ship rites. A jury convicted A

ppellant of a ll the char g es, and the court sente nced him to incar cer ation for life forthe murder
.

I ssues One a

nd Two both addre ss what Appellant c hara cter izes as improper re fer ence s to his alleg ed assoc iations with a “prison” g ang . I n I ssue One, A ppellant contends the trial court 1
err ed by overr uling his motion for a mistrial af ter the State’ s attorney

“mentioned in opening argument that [Appellant] belong ed to a pr ison ga ng .” I n I ssue Two, Appe llant argues the trial court e rre d by

denying his sec ond reque st for a mistrial duringthe State’s ca se-in-c hief, “ that [Appellant] belong ed to a pr ison ga ng .” B eca

use both complaints fail for failure to preser

ve the alleg ed er ror f or appe llate re view, we will address them tog ether
. Prior to opening statements, def ense c ounsel reque sted a motion in lim ine re quiring the State to refr ain from using the term “ Ba rrio Azteca ” in re fer ence to Appellant’s g ang membership, due to the a mount of media cove rag e surr ounding this and othe r re lated ca ses. Specifica lly , counsel e x presse d conce rns about the potential f or pre judice g iven the wide public knowledg e that the B arr io Azteca g ang is a “prison g ang ,” and r equeste d that the prosec ution ref er to the or g anization sim ply as a “ criminal stree t ga

ng .” The prosec ution ag ree d to limi t the jury ’s exposure to the term “ prison g ang ” duringthe pre sentation of evide nce. T he cour t instructed the State to counse l its wit nesses not to ref er to the B arr io Azteca Ga ng by its name and not as a

“prison g ang ” duringtheir testimony
. Appellant complains that the State violate d the cour t’s limine ruling in two instance s. First, af ter the pr osecution’s ope ning statement, def ense c ounsel made the following objection: During the State’s openingargument when he mentioned the wor d ‘prison.’ At Appellant’s attorney

objected to the e vidence of his membership and a ctivities with the 1 Ba rrio Azteca s sever al times during the State’s ca se-in-c hief. On a ppeal, Appe llant does not challeng e any

of the trial c ourt’s ruling s relate d to those objections. -2-this ti me, I am asking for the Court to g rant a mistrial on the gr ounds that it violates y our pre vious order. A nd the mention of word ‘ prison’ alongwith Ba rrio Azteca is hig hly

prejudicia l to the defe nse -- to the defe ndant’s due pr ocess r ight of prose cution. The c ourt denied the motion, and there w as no fur ther discussion on the objec tion. Second, duringthe State’s pre sentation of evide nce a n ey e-w itness made re fer ence s to seeingAppellant “thr owing me Azteca g angsigns,” and using Azteca slang including, “ que putos,” which the w itness refe rre d to as a “ prison g angword.” Def ense c ounsel objecte d to the witness’s statement, a

nd afte r the c ourt indicated it intended to hold its ruling on the objection, counsel c ontinued: Ithink in terms the rec ord and I would have to sa

y that this point the er

rors [sic] has bee n done. I

think at this poi nt if y ou -- I am g oing to objec t to this witness stating the word prison. I think the only

cure -- I mean, I am g oing to have to ask for a n instruction. Iam g oing to ha ve to ask for

a mistrial. The c ourt denied the motion and instructed the jury to disreg ard the witness’s statement. The State continued to question the witness without further discussion or argument on Appellant’s motion. Appellant now c ontends that the trial cour t abused its discretion by

denying his motions on the basis that the re fer ence and evide nce r elating the B arr io Aztecas and “ prison” violated Texas Rules of Evidence 404(b). Appe llant argues that by relating Appe llant’s g ang membership to “prison,” the State imprope rly introduced e vidence of prior ba d acts, spec ifically that Appellant had be en pre viously convicted of

other c riminal activity , and had se rved pr ison tim e. Appellant fa ils to cite to any point in the recor d wher e these objections and this argument wer e prese nted to the trial cour t. I nstead, Appe llant relies on the tria l court’s limine ruling , and conclude s that the two “prison” ref ere nces violate d that rulingto such a de g ree that he is entitled

-3-to a new tr ial.

To prese rve a

complaint for a

ppellate r eview the rec ord must demonstrate that the complaining party

made a timely and spec ific objec tion and obtained a r uling. See T E X .R.A P P .P. 33.1(a). In addition, the objection made to the tr ial court must comport with the argument raised on a

ppeal. Jenk

ins v. State , 912 S.W .2d 793, 810 (Tex.Crim.App. 1993). A trial court’ s limi ne ruling s alone, pre serve nothing f or re view. Gonzales v. State , 685 S.W .2d 47, 50 (Tex.Crim.App. 1985). Neither A ppellant’s motions for mistrial nor the trial c ourt’s limine ruling s prese rved the arguments he now ra ises for a ppellate r eview. I ssues One a nd Two ar e there fore overr

uled for la ck of pr eser

vation. Havingoverr

uled both of Appe llant’s issues, we a ffirm the tria l court’s judg ment.

Marc h 23, 2011 DAVI D WEL L I NGTON CHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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