Fredy Perez v. State

Affirmed and Memorandum Opinion filed July 9, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00476-CR
FREDY PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1402217
MEMORANDUM OPINION
A jury convicted appellant Fredy Perez of aggravated assault and assessed
punishment at seven years’ confinement. In a single issue, appellant contends the
trial court erred by denying appellant’s motion for a mistrial after the State
introduced evidence of an extraneous offense. We affirm.
BACKGROUND
Appellant lived with his girlfriend, the complainant. Appellant was
watching soccer and drinking at his friend’s apartment one night. When the
complainant arrived and asked appellant to leave, appellant took a knife he always
carried on his belt and held it to the complainant’s face. He told her he would give
her a reminder for the rest of her life. He then cut her face from her chin to her ear.
She bled profusely but ultimately received medical attention. Appellant was
arrested and charged with aggravated assault.
During the State’s direct examination of the complainant, the State asked,
“So, what happened next? And I don’t want to talk about anything that’s happened
before. I just want to talk about anything that happened that night. You remember
we had this conversation. Don’t talk about—” Appellant interrupted, and the
court excused the jury. Appellant objected to the State’s reference to “something
happened before,” and the State responded, “I’m sorry. I was trying to remind
her—” The trial court admonished the State to not do it again in the jury’s
presence. Appellant requested an instruction to disregard and a mistrial. The trial
court granted the request for an instruction and denied the request for a mistrial.
When the jury returned, the trial court gave the following instruction:
“Members of the jury, if you will, please, listen to this admonishment. You will
disregard the last question by the State and any answer pertaining to that question
from the witness. Do not consider it for any purpose whatsoever.”
The jury found appellant guilty and assessed punishment at seven years’
confinement.
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ANALYSIS
Appellant contends the trial court erred by denying the mistrial. We review
a trial court’s denial of a mistrial for an abuse of discretion. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009). We view the record in the light most
favorable to the trial court’s ruling. Id. The ruling must be upheld if it was within
the zone of reasonable disagreement. Id.A mistrial is appropriate in “extreme circumstances for a narrow class of
highly prejudicial and incurable errors.” Id. (quotation omitted). A mistrial
“should be granted ‘only when residual prejudice remains’ after less drastic
alternatives are explored.” Id. at 884–85 (quoting Barnett v. State, 161 S.W.3d
128, 134 (Tex. Crim. App. 2005)). An “inadvertent reference to an extraneous
offense is generally cured by a prompt instruction to disregard.” Young v. State,
283 S.W.3d 854, 878 (Tex. Crim. App. 2009). “Therefore, a mistrial should be
granted only in cases where the ‘reference was clearly calculated to inflame the
minds of the jury or was of such a damning character as to suggest it would be
impossible to remove the harmful impression from the jurors’ minds.’” Id.(quoting Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)).
Here, the trial court could have viewed the State’s instruction to its witness
as an innocuous attempt to ensure that the witness did not testify about
objectionable extraneous offenses. The comment did not directly implicate any
other bad act or inadmissible evidence. 1 Even though the State’s comment was
deliberate, we presume that the jury followed the trial court’s instruction to
disregard. See Drake v. State, 123 S.W.3d 596, 604 (Tex. App.—Houston [14th
1
Without citation to the record, appellant contends that the jury heard evidence that
appellant “had committed prior assaults against this complainant on multiple occasions.” The
record does not contain such evidence, and appellant’s issue on appeal concerns only the
“implication of the State’s instruction” to the complainant.
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Dist.] 2003, pet. ref’d) (police chief’s reference to the department “working so
many burglaries on” the defendant was curable by an instruction to disregard; trial
court did not abuse discretion by denying mistrial). Because the trial court
instructed the jury to disregard the State’s indefinite reference to “anything that’s
happened before,” we hold that the trial court did not abuse its discretion in
denying a mistrial. See, e.g., id. (collecting cases); see also Young, 283 S.W.3d at877–78 (no abuse of discretion to deny a mistrial when a police officer testified
that the defendant was in possession of a “stolen firearm,” the trial court instructed
the jury to disregard, and the officer “did not actually assert that the appellant stole
the weapon or that he knew it was stolen”).
Appellant’s sole issue is overruled.
CONCLUSION
Having overruled appellant’s sole issue, we affirm the trial court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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