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MEMORANDUM OPINION
No. 04-07-00852-CV
IN THE MATTER OF S.A.B., II
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-JUV-00103
Honorable Carmen Kelsey, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Catherine Stone, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 20, 2008
AFFIRMED
S.A.B. was adjudicated delinquent by a juvenile court after a jury found he had committed
the offense of burglary of a vehicle. S.A.B. was sentenced to 12 months probation in the custody
of his father. On appeal, S.A.B. challenges the trial court’s denial of his motion for mistrial. We
affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the day of the offense, S.A.B. and M.Q. entered a convenience store to get change.
According to M.Q., the two had previously discussed burglarizing a car. After they exited the store,
the owner of the convenience store, Dale Whiteside, observed them walk across the parking lot and
open the door of a car parked in front of the karate school next door. Whiteside believed the car
belonged to a karate school customer so he walked across the parking lot to better observe S.A.B.
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and M.Q. S.A.B. was standing outside the car acting as a lookout as M.Q. rummaged through the
car looking for money or items of value. S.A.B. and M.Q. left the car without taking anything and
walked towards a field across the road from the parking lot. Whiteside went into the karate school
and reported what he had observed. Two of the instructors of the karate school, Officer Robert
Moreno and Detective Robert Carey, were off-duty police officers. Officer Moreno ran after M.Q.
and S.A.B. while Detective Carey drove his personal vehicle across the field to intercept them.
M.Q. and S.A.B. were detained and eventually arrested.
MISTRIAL
S.A.B. argues that his trial was irreparably tainted by M.Q.’s testimony that S.A.B. had
previously burglarized cars with M.Q., and therefore, the trial court abused its discretion in denying
his motion for mistrial. A mistrial is appropriate when error is so prejudicial that the proceedings
should be stopped because expenditure of further time and expense would be wasteful and futile.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The denial of a motion for mistrial is
reviewed under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.
App. 2007). Generally, any error associated with improper questioning will be cured by an
instruction to disregard. Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004). “Only in
extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Id. at 77. To
determine whether the trial court abused its discretion in denying the motion for mistrial, we
consider: (1) the magnitude of the prejudicial effect; (2) the measures adopted to cure the error; and
(3) the certainty of conviction absent the erroneous admission of evidence. See Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998). S.A.B. contends that the following testimony from M.Q.
warranted a mistrial:
Q Was there a discussion about this crime before committing it?
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A Yes, when we were walking that’s when we decided.
Q Who decided exactly?
A Me and [S.A.B.].
Q What did you decide to do?
A Decided to rob the car, or get in the car.
Q How did this conversation come about? Can you tell me what you said and
what [S.A.B.] said?
A Well, we were thinking about it and I made the suggestion come true.
THE COURT: Start over and repeat that and speak louder.
A We were thinking about it and we made the suggestion come true, made it
happen. We thought about it and we did it.
Q How do you know he was willing to do it with you?
A Because we done it in the past.
[ATTORNEY FOR S.A.B.] Objection. May we approach?
The State argues that S.A.B.’s objection and the subsequent discussion at the bench was not
sufficiently specific to preserve error. It was clear, however, from the context of the objection and
the State’s response to the objection that S.A.B. was objecting to M.Q.’s testimony about S.A.B.’s
prior extraneous offenses, i.e., his involvement in prior burglaries.
Although S.A.B. properly preserved error, we nonetheless conclude the trial court did not
abuse its discretion in denying S.A.B.’s motion for mistrial. The inadmissible testimony was not
clearly calculated to inflame the minds of the jury, nor was it of such a character as to suggest the
impossibility of withdrawing the impression left upon the jury. See Kemp v. State, 846 S.W.2d 289,
308 (Tex. Crim. App. 1992). Additionally, M.Q.’s inadmissible testimony was not emphasized by
the State; the trial court gave the jury a proper and specific instruction to disregard the improper
testimony; and in the context of all the evidence presented at S.A.B.’s trial, there was a sufficient
basis for the jury to convict regardless of the inadmissible testimony. See Mosley, 983 S.W.2d at
259. M.Q.’s testimony that S.A.B. had discussed and planned burglarizing a car, and M.Q.’s
testimony that S.A.B. acted as a lookout while M.Q. entered the car to steal money or valuables
provided a sufficient basis for the jury to find he engaged in delinquent conduct. Accordingly, the
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trial court did not abuse its discretion in determining that the instruction to the jury was sufficient
to cure any prejudicial effect arising from M.Q.’s testimony regarding the extraneous offenses. See
Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (noting that reviewing court should
presume the jury followed the trial court’s instruction to disregard evidence or testimony).
CONCLUSION
Having determined that the trial court did not abuse its discretion in denying S.A.B.’s motion
for mistrial, we overrule his point of error. The judgment of the trial court is affirmed.
Catherine Stone, Justice
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