Date: 10-03-2020

Case Style:

Case Number: 05-18-00877-CR

Judge: Ken Molberg

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: G. Calvin Grogan
Noble Dan Walker Jr.
Jeffrey Kovach

Defendant's Attorney:

Description: Greenville TX - Criminal Defense Attorney, Murder


Garza was convicted of murdering Robert Poynter—the husband of Chacey
Poynter, with whom Garza was having an affair1—by shooting him in the head with
a shotgun after Chacey lured him to a remote area. The evidence at trial showed
Chacey and Garza planned the murder and agreed Garza would kill Robert. Garza
does not challenge the sufficiency of the evidence. His sole issue on appeal relates
to the testimony of Michael Burk, a detective with the Royse City Police Department
and the lead detective in the case. Specifically, Garza complains the trial court erred
by denying his motion for mistrial after Detective Burk testified, “Well, [Chacey]
did say Michael Garza killed her husband.”
During his cross-examination by defense counsel, Detective Burk testified
about information provided to him by Chacey:
Q: Other information that you were receiving is about how the
homicide actually occurred, wasn’t that right, from Ms. Poynter as
her – from her statement?
A: She did give some inclination of what she believed.
Q: Okay. And based upon your conversation with her at that
point, you didn’t have much faith in her credibility of the story;
isn’t that right?
A: Well, she did say Michael Garza killed her husband.
[Defense counsel]: Judge, I’m going to object. That’s
nonresponsive.
The Court: Sustained.
[Defense counsel]: I’m going to ask this jury be instructed to
disregard that comment.
The Court: Please disregard the last comment.
[Defense counsel]: Judge, I’m going to move for a mistrial.
The Court: Denied.
–3–
Q (By [defense counsel]): Sergeant Burk, you understood my
question to be about what your belief about her credibility was?
Did you understand that question?
A: I believe you were asking about her interview.
Q: I asked about her credibility, Sergeant Burk. . . .
Although she was granted immunity, Chacey refused to testify and was held in
contempt of court.
ANALYSIS
Because it is dispositive, we need only address whether Garza preserved his
complaint for appellate review.
In order to properly exclude evidence or obtain an instruction to disregard, a
party’s objection must address both the non-responsiveness and the inadmissibility
of the answer. Smith v. State, 763 S.W.2d 836, 841 (Tex. App.—Dallas 1988, pet.
denied). “Even after the ‘nonresponsive’ portion of the objection is made, there
remains the question of the testimony’s admissibility.” Id. In this case, Garza’s only
objection was a “nonresponsive” objection to Sergeant Burk’s statement. The trial
court’s instruction to the jury to disregard the statement, thus, was not even proper
because Garza did not provide the trial court a reason the statement was not
admissible. Id.
Complaints urged on appeal must comport with the objection made in the trial
court in order to preserve the complaint for appellate review. Yazdchi v. State, 428
S.W.3d 831, 844 (Tex. Crim. App. 2014); Van Byrd v. State, 605 S.W.2d 265, 269
–4–
(Tex. Crim. App. 1980). Failure to properly object may waive even constitutional
error. Yazdchi, 428 S.W.3d at 844. A defendant waives his constitutional right to
confront witnesses if he does not object at trial. Holland v. State, 302 S.W.2d 696,
700 (Tex. Crim. App. 1991). Perhaps recognizing that his failure to object at trial to
the admissibility of Detective Burk’s statement presents a waiver problem, Garza
does not explicitly contend his rights under the Confrontation Clause of the Sixth
Amendment to the United States Constitution were violated. See U.S. CONST.
amend. VI.2
Rather, he implies he was deprived of his right to confront witnesses
by arguing that since Chacey refused to testify, “the defense would have no
opportunity to confront Chacey about her claims allegedly made to Detective Burk”
and “the State knew that Mr. Garza could never challenge the statements attributed
to Chacey alleging Mr. Garza’s guilt.”
Garza did not advise the trial court that his motion for mistrial was based on
a violation of his right to confront Chacey about her alleged statements to Detective
Burk. See U.S. CONST. amend. VI. Nor did Garza raise a hearsay objection.
Because Garza failed to argue on what basis Detective Burk’s statement was
inadmissible, he waived any complaint about the trial court’s denial of his motion
for mistrial. See Nash v. State, No. 05-15-01070-CR, 2017 WL 491256, at *3 (Tex.

2 The Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the
accused shall enjoy the right to be confronted with the witnesses against him. Id. The Confrontation Clause
is implicated when the State offers a testimonial out-of-court statement made by a witness who is absent
from trial and whom the defense had no opportunity to cross-examine either prior to or during trial.
Crawford v. Washington, 541 U.S.36, 50–52 (2004).
–5–
App.—Dallas Feb. 7, 2017, no pet.) (mem. op.) (not designated for publication);
Carrion v. State, 488 S.W.3d 925, 928 (Tex. App.—Eastland 2016, pet. denied);
Prince v. State, No. 01-13-00269-CR, 2015 WL 5025902, at *7 (Tex. App.—
Houston [1st Dist.] Aug. 25, 2015, no pet.) (mem. op.) (not designated for
publication) (“Because [appellant’s] objection was that Sgt. Clopton’s testimony
was nonresponsive, not that it constituted improper bolstering, his motion for
mistrial does not comport with the argument now made on appeal, which
accordingly has been waived.”).

Outcome: Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

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Defendant's Experts:

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