Jairo R. Veras v. State , 2013 Tex. App. LEXIS 9002 ( 2013 )

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Affirmed and Opinion filed July 23, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00587-CR
JAIRO R. VERAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1326686
OPINION
Appellant Jairo R. Veras appeals his conviction for burglary of a building,
asserting in a single appellate issue that the trial court erred in denying his request
for a mistrial based on the State’s revealing to a venire panel in voir dire that
appellant had prior convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the offense of burglary of a
building, a restaurant. The indictment contained two enhancement paragraphs for
appellant’s prior convictions, in 2007 and 2009, for possession of a controlled
substance.
At voir dire, the trial court informed the jury that the allegations, as pleaded
in the indictment, carried a range of two to ten years’ confinement. The State also
informed the venire panel that the punishment range in the case was two to ten
years’ confinement and asked whether the veniremembers could consider the full
range of punishment. Apparently, at some point during voir dire, the State showed
a PowerPoint slide to the venire panel. The PowerPoint slide, which is included in
the appellate record, contains the title “Punishment Range.” Below the title are the
words “With two prior felony convictions,” followed by “2 years up to 10 years
and up to $10,000 fine.” A small linear graph is located below the words, showing
arrows and lines between the numbers “2” and “10” on the graph.
Two veniremembers asked the prosecutor whether the jury would hear
evidence of past convictions, and the prosecutor explained twice that prior
convictions could be considered in the punishment phase if the evidence were
presented. The record reflects the following exchange during the State’s voir dire:
[Veniremember]: Are you saying that this Defendant has two prior
felony convictions, and therefore we consider ten years?
[Prosecutor]: Right.
[Veniremember]: So we do already know?
Appellant’s trial counsel asked to approach the bench and the parties engaged in an
off-record bench conference. The State then offered the following comment:
[Prosecutor]: Sorry about that. To answer your question, no, at this
point of the trial, I’m not talking about what you’re going to hear in
the case, no evidence, nothing like that. What we do is the
punishment range for this type of offense, if we were able to prove to
you that there were two prior felony convictions, then the punishment
2
range would be two to ten. And that’s what you would be considering
if we could prove it. So everybody can consider the full range, the
two to ten?
At a later point in the State’s voir dire, several veniremembers referred to the
slide or questioned the available punishment based on prior convictions. The
prosecutor explained that the State offers hypotheticals during voir dire, and the
veniremembers do not know the facts of the case. The prosecutor stated that the
prior convictions must be proven by the State, and that the jury may consider only
guilt or innocence based on the evidence presented during the guilt/innocence
phase of trial.
The trial court interjected, pointing out that jury selection involves
hypothetical facts, and stating that whether or not the facts were hypothetical, to be
fair and impartial, a jury member must be able to consider the full range of
punishment and base a verdict on the evidence. A second prosecutor reiterated to
the venire panel that the State’s voir dire consisted of hypothetical scenarios. The
second prosecutor asked each row of veniremembers, “despite what [was]
surmised incorrectly from our slide,” whether the veniremembers could be fair and
listen to the evidence presented. Veniremembers 5 and 23 referred to the slide and
did not believe they could be fair or impartial; these veniremembers were not
seated on the jury.
After the State completed its voir dire, and outside of the jury’s presence,
appellant’s trial counsel moved for a mistrial based on “an improper voir dire,”
complaining the jury had been tainted because the State showed on a screen that
appellant had prior convictions. The trial court denied the motion, noting that the
State had used a hypothetical situation and that appellant was free to further
explore the matter with the venire panel. Appellant’s trial counsel did so. At the
end of voir dire, appellant’s counsel re-urged appellant’s motion for mistrial, which
3
the trial court denied.
The jury was seated. At trial, appellant testified about his criminal history
including the following: a 2011 conviction for assault of a family member, a 2010
theft conviction, a 2009 conviction for possession of a controlled substance, a 2007
conviction for possession of a controlled substance, a 2005 conviction of
possession of a controlled substance, and a 2004 conviction for unauthorized use of
a motor vehicle.
The jury found appellant guilty of the charged offense.           Before the
punishment phase commenced, appellant’s trial counsel objected to the seating of
the jury panel, referring to how voir dire was allegedly tainted by the PowerPoint
slide.    The trial court overruled the objection.     The jury assessed appellant’s
punishment at six years’ confinement, and the trial court sentenced appellant
accordingly.
ISSUE PRESENTED
In his sole appellate issue, appellant contends that the trial court erred in
denying his motion for mistrial based on the State’s allegedly improper conduct at
voir dire in revealing to the venire panel that appellant had prior convictions.
According to appellant, the State violated article 36.01 of the Texas Code of
Criminal Procedure, in showing the slide to the venire panel.
ANALYSIS
We review the trial court’s denial of appellant’s motion for mistrial under an
abuse-of-discretion standard. Webb v. State,

232 S.W.3d 109

, 112 (Tex. Crim.
App. 2007). Under this standard, we view the evidence in the light most favorable
to the trial court’s ruling and uphold the ruling if it falls within the zone of
reasonable disagreement.

Id. A reviewing

court cannot substitute its judgment for
4
that of the trial court, but instead determines whether the trial court’s decision was
arbitrary or unreasonable.

Id. A trial

court abuses its discretion when no
reasonable view of the record could support the trial court’s ruling. See

id. When, as

in this case, a party requesting a mistrial does not first seek a lesser remedy, a
reviewing court cannot reverse the trial court’s judgment if the alleged error could
have been cured by a less drastic alternative. Ocon v. State,

284 S.W.3d 880

, 884–
87 (Tex. Crim. App. 2009).
As a threshold matter, we must consider whether appellant preserved his
complaint for appellate review.       Because the objection, the request for an
instruction to the jury, and the motion for mistrial implicate judicial remedies of
decreasing desirability for events of decreasing frequency, the traditional and
preferred procedure for a party to voice its complaint has been to seek them in
sequence—that is, (1) to object when it is possible, (2) to request an instruction to
disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a
party believes an instruction to disregard was not sufficient. Young v. State,

137 S.W.3d 65

, 69 (Tex. Crim. App. 2007). But, this sequence is not essential to
preserve complaints for appellate review.

Id. The crucial

requirement is a timely,
specific request that the trial court refuses.

Id. See Tex.

R. App. P. 33.1(a)(1).
Appellant asserts that it is apparent from the record that he immediately
attempted to inform the State and trial court of his objection. Appellant notes that
his counsel sought to approach the bench and the parties engaged in an off-record
colloquy, which was followed by the prosecutor’s remark. Appellant contends that
it is reasonable to conclude from the prosecutor’s comment that appellant voiced a
complaint and that the trial court did not sua sponte issue an instruction to the State
to clarify that the reference to felony convictions was merely hypothetical. But,
this court cannot conclude that appellant preserved error based upon speculation or
5
supposition as to what may have occurred during a bench conference at which no
record was made.1 See Cockrum v. State,

758 S.W.2d 577

, 585 n.7 (Tex. Crim.
App. 1988); Saldivar v. State,

980 S.W.2d 475

, 483 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref’d). Appellant’s request to approach the bench and the off-
record bench conference that followed did not preserve error as to any complaint or
show that appellant moved for a mistrial during this bench conference. 2 See Tex.
R. App. P. 33.1(a)(1);

Cockrum, 758 S.W.2d at 585

n.7;

Saldivar, 980 S.W.2d at 483

; Wallace v. State,

822 S.W.2d 290

, 293 (Tex. App.—Houston [1st Dist.] 1991,
pet. ref’d).
A motion for mistrial is timely only if it is made as soon as the grounds for it
become apparent. See Griggs v. State,

213 S.W.3d 923

, 927 (Tex. Crim. App.
2007). The record does not reflect when the State first showed the PowerPoint
slide to the venire panel. The record does not reflect that appellant objected,
requested an instruction to disregard, or moved for a mistrial after the prosecutor
stated that appellant had two prior felony convictions. The prosecutor then stated
that, if the State were able to prove that there were two prior felony convictions,
then the punishment range would be two to ten years.                      After these remarks,
appellant did not object, request an instruction to disregard, or move for a mistrial.
The record reflects that appellant first moved for a mistrial at the end of the State’s
voir dire. At that time, appellant obtained an adverse ruling. Later in the trial,
1
Appellant has not assigned error on appeal or preserved error in the trial court as to the court
reporter’s failure to make a record of this bench conference. See Valle v. State,

109 S.W.3d 500

,
508–09 (Tex. Crim. App. 2003). The record does not show that appellant took any of the steps
by which the substance of this bench conference could have been memorialized. See Moore v.
State,

999 S.W.2d 385

, 398 (Tex. Crim. App. 1999).
2
In any event, even if we were to presume, as suggested by appellant, that during the bench
conference appellant voiced a complaint and the trial court did not sua sponte instruct the State to
clarify its comments, appellant still did not preserve error as to any complaint because he failed
to obtain a ruling on any objection, did not request an instruction to disregard, and did not move
for a mistrial.
6
appellant twice re-urged his motion for mistrial and obtained an adverse ruling
each time.
If a party delays in moving for a mistrial and, by failing to object, allows for
the introduction of further objectionable testimony or comments and a greater
accumulation of harm, the motion for mistrial is untimely and preserves nothing
for appellate review. See

Griggs, 213 S.W.3d at 927

. Appellant has not shown
any legitimate reason for waiting until the conclusion of the State’s voir dire to
assert his complaint. See Lagrone v. State,

942 S.W.2d 602

, 618 (Tex. Crim. App.
2006). The record reflects that appellant did not move for a mistrial as soon as the
grounds for this motion became apparent and that appellant’s failure to move for a
mistrial earlier permitted further objectionable comments and a greater
accumulation of harm. Thus, appellant’s motions for mistrial were all untimely
and, as such, did not preserve error.3 See

Griggs, 213 S.W.3d at 925

–27. We
overrule appellant’s single appellate issue.
The trial court’s judgment is affirmed.
/s/       Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, Busby.
Publish — TEX. R. APP. P. 47.2(b).
3
Even if appellant had preserved error, we would conclude that the trial court did not err in
denying the motions for mistrial because any harm could have been cured by an instruction to
disregard. See

Ocon, 284 S.W.3d at 884