IN THE
TENTH COURT OF APPEALS
No. 10-12-00202-CR
PEDRO GARCIA, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-1920-C2
MEMORANDUM OPINION
Pedro Garcia, Jr. was convicted of aggravated sexual assault. TEX. PENAL CODE
ANN. § 22.021 (West Supp. 2012). The victim, S.W., was under the age of six at the time
of the assault. Garcia was sentenced to 57 years in prison. He appeals. In two issues,
Garcia contends the trial court abused its discretion in denying two separate motions
for mistrial. Because the trial court did not abuse its discretion, the trial court’s
judgment is affirmed.
MISTRIAL
When the trial court sustains the defense’s objection, grants the requested
instruction to disregard, but denies the motion for mistrial, the proper issue is whether
the refusal to grant the mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d
72, 76-77 (Tex. Crim. App. 2004). In deciding whether to grant a motion for mistrial,
however, the trial court effectively conducts an appellate function: determining
whether improper conduct is so harmful that the case must be redone. Id. at 77. “Only
in extreme circumstances, where the prejudice is incurable, will a mistrial be required.”
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (quoting Hawkins, 135 S.W.3d
at 77). A prompt instruction to disregard will ordinarily cure any prejudice associated
with an improper question and answer, even one regarding extraneous offenses. Ovalle
v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).1 Accord Marshall v. State, 210 S.W.3d
618, 628-629 (Tex. Crim. App. 2006); Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim.
App. 2004); Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998).
Improper Question
In his first issue, Garcia complains that the trial court abused its discretion in
denying a mistrial when it sustained an objection to a question asked by the State in the
guilt/innocence phase of the trial. Both Garcia and the State reviewed the potential
prejudice of the State’s question in light of the factors pronounced in Mosley v. State, 983
1The Ovalle opinion viewed the instruction to disregard as a means to cure “error.” However, in light of
Hawkins, we view it as curing “prejudice.”
Garcia v. State Page 2
S.W.2d 249, 259 (Tex. Crim. App. 1998). The Court of Criminal Appeals in Mosley
adopted factors to use to evaluate whether the trial court abused its discretion in
denying a motion for mistrial for improper argument during the guilt/innocence phase
of a trial. Id. 240-259. In Hawkins, the Court of Criminal appeals tailored the Mosley
factors to evaluate the denial of a motion for mistrial resulting from improper argument
in the punishment phase of the trial. Hawkins, 135 S.W.3d at 77. Because the Court of
Criminal Appeals has not adopted the Mosley/Hawkins factors in evaluating the denial
of a motion for mistrial pursuant to any reason other than improper argument, such as
an improper question put forward by the State, we do not use those factors in our
review of Garcia’s first issue. Mejias v. State, 10-11-00168-CR, 2012 Tex. App. LEXIS 5616
(Tex. App.—Waco July 12, 2012, pet. ref’d) (not designated for publication).
Monica Garcia, Garcia’s daughter, testified on behalf of her father. Monica stated
that she had seen inappropriate sexual behavior by S.W., such as kissing a cousin in a
closet and watching an adult video. On cross-examination, she clarified that the kissing
incident occurred when S.W. was 8 years old but before her outcry and the video
incident occurred after S.W.’s outcry. Monica considered S.W. to be the sexual
aggressor in both incidents. Monica then agreed that she did not report either of these
incidents to any authority, even after her father was arrested for the sexual assault of
S.W.
Garcia v. State Page 3
It was after this exchange that the State asked whether Monica’s family had a
history of not contacting authorities when there had been sexual abuse, to which Garcia
objected. A hearing was held outside the presence of the jury, and the trial court
sustained Garcia’s objection. Later, the jury was instructed to disregard the last
statement or question by the prosecutor, and Garcia’s motion for mistrial was denied.
After reviewing the record, we find the prosecutor’s question was not so extreme
that prejudice, if any, could not be cured by the instruction to disregard. Accordingly,
the trial court did not abuse its discretion in denying Garcia’s motion for mistrial, and
his first issue is overruled.
Improper Argument
In his second issue, Garcia contends the trial court abused its discretion in
denying his motion for mistrial after an objection to a comment made by the State in its
argument at the punishment phase of the trial was sustained. To review the denial of a
motion for mistrial in response to improper argument in the punishment phase of a
non-capital case, we apply the Mosley test as it has been tailored for punishment
proceedings. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, we
balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative
measures, and (3) the certainty of the punishment assessed absent the misconduct
(likelihood of the same punishment being assessed). Id.
Garcia v. State Page 4
During closing argument in the punishment phase, the State commented that
Garcia liked to play with the children of the family and that “*w+e know these are
children in a family that has repeatedly failed to report sexual abuse.” Garcia objected
to this statement, and the trial court promptly sustained the objection. Garcia then
requested an instruction to disregard which was given by the trial court. His motion for
a mistrial, however, was denied.
Both S.W.’s mother and father, Brandy and Pedro (who is Garcia’s son), testified
at the punishment phase that they did not believe that the remainder of the Garcia
family would keep Garcia away from children if he were ever out of prison. Pedro even
testified, without objection, that there had been sexual abuse in the past in his family
that had not been reported to the police. Thus, the prosecutor’s argument appears to be
based on the evidence presented at the punishment phase of the trial.
For the purpose of addressing the issue raised, we will, however, assume
without deciding that the argument was improper and conduct an error analysis of the
trial court’s decision to deny Garcia’s motion for mistrial. The prejudicial effect of the
prosecutor’s statement, if any, was minimal. Further, the trial court promptly
instructed the jury to disregard the comment of the prosecutor. And there was nothing
to suggest this was the type of comment which an instruction would not cure.
Moreover, Garcia had been convicted four times in the past for drug related offenses,
and the longest sentence he received for one of those offenses was 10 years in prison.
Garcia v. State Page 5
The punishment range for the aggravated sexual assault was 25 years to life in prison.
The State asked for a verdict of life in prison, but the jury assessed punishment at 57
years in prison. Thus, it was likely that Garcia would have been assessed the same
punishment even without the prosecutor’s comment.
In balancing the Mosely/Hawkins factors, we find the trial court did not abuse its
discretion in denying Garcia’s motion for mistrial. His second issue is overruled.
CONCLUSION
Having overruled each of Garcia’s issues on appeal, we affirm the judgment of
the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 11, 2013
Do not publish
[CRPM]
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