NO. 07-10-0115-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
AUGUST 23, 2011
GAVINO DURON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COURT-AT-LAW NO. SEVEN OF TRAVIS COUNTY;
NO. C-1-CR-08-500442; HONORABLE ELISABETH A. EARLE, JUDGE
Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.[1]
MEMORANDUM OPINION
Following a jury trial, Appellant, Gavino Duron, was convicted of assault with bodily injury and sentenced to two hundred-fifty days confinement.[2] In a single issue, Appellant asserts the trial court abused its discretion by denying his motion for a mistrial after a witness violated a pretrial motion in limine. We affirm.
Background
On April 30, 2008, an Assistant County Attorney of Travis County filed an information[3] charging Appellant with intentionally, knowingly and recklessly causing bodily injury to Sarah Vasquez by striking her on and about the head with his hand and seizing her on and about her torso, also with his hand, on or about December 2, 2007. Prior to trial, Appellant filed a Motion in Limine, requesting "the State's attorney and the State's witnesses not to allude to . . . [a]ny evidence of, details of, or references or allusions to the [Appellant} assaulting witness Anjelica [sic] Ramos on prior occasions." That motion was granted. A jury trial on the merits was conducted February 25, 2010.
At trial, the State produced four witnesses: Angelica Ramos,[4] Sarah Vasquez, Officer Mark Jelesijevic, and Detective Robert Holsonback. Their testimony established that, on December 2, 2007, Ramos, two of her children and Sarah Vasquez accompanied Appellant to a restaurant. Before they were seated, Appellant became upset over a remark by Ramos and left the restaurant. Because Appellant was upset, Ramos decided to drive him home.
After dropping her children off at their grandmother's house, Ramos proceeded to drive Appellant home. Appellant was seated in the right front passenger seat and Vasquez was seated behind Ramos in the back seat. En route, Ramos returned her boyfriend's phone call and Appellant became angry. He leaned over Ramos and told her that, if she didn't give him her phone, he was going to hit her.
Vasquez, who had been quiet up to this point, interjected that Appellant was not going to hit her friend and that he needed to back off. Appellant then turned around in his seat facing Vasquez and threatened her. When Appellant started coming toward the back seat, Vasquez held her hand up to his face and told him he needed to back away. Appellant then hit Vasquez in her forehead as she fought back. Ramos drove as quickly as possible to Appellant's apartment while this scuffle continued. When they arrived at Appellant's apartment, Appellant opened the passenger door, grabbed Vasquez by her arms and tried to pull her from the back seat to the front seat and out of the car. Eventually, Appellant stopped, spit in Vasquez's face and ran to his apartment. Afterwards, Vasquez felt dizziness and confusion.
When they arrived at Ramos's apartment, there was a big bump shaped like an egg in the center of Vasquez's forehead. The police were called. Officer Mark Jelesijevic took an oral statement from Vasquez and photographed her injuries. Detective Robert Holsonback later obtained a written statement from Vasquez and charged Appellant with assault causing bodily injury.
During the State's direct examination of Ramos, the following exchange occurred:
STATE: So [Appellant] got into your personal space?
RAMOS: Oh, yeah. He completely leaned right over me.
STATE: Would you consider that threatening, what he was doing towards you?
RAMOS: I considered it a threat right off the bat when he told me he was going to hit me.
STATE: Did you think he might follow through?
RAMOS: Yes, ma'am. He always has.
At that point, Appellant's counsel objected to the testimony as violating the prior motion in limine and requested that the court instruct the jury to disregard the last statement. The court granted that request, whereupon Appellant's counsel immediately moved for a mistrial. After instructing the jury to disregard the statement, and receiving their assurance that they could, the trial proceeded without a formal ruling on counsel's motion for mistrial.[5]
At the trial's conclusion, the jury found Appellant guilty of assault causing bodily injury and Appellant was sentenced by the court to two hundred-fifty days confinement. This appeal followed.
Discussion
In his single issue, Appellant contends the trial court abused its discretion by failing to grant a mistrial after Ramos testified that Appellant always followed through on his threats. Appellant asserts Ramos's testimony was highly prejudicial and incurable. The State asserts that any prejudice to Appellant due to Ramos's testimony was cured by the trial court's instruction.
A trial court's denial of a motion for mistrial is reviewed for an abuse of discretion and must be upheld if it was within the zone of reasonable disagreement. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009). A mistrial halts trial proceedings when error is so prejudicial that the expenditure of further time and expense would be wasteful and futile; Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), and should be granted "only when residual prejudice remains" after less drastic alternatives are explored. Barnett v. State, 161 S.W.3d 128, 134 (Tex.App.--Fort Worth 2005), aff'd, 189 S.W.3d 272 (Tex.Crim.App. 2006).
Whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd, 3 S.W.3d at 567. A mistrial is required only when the improper question or evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced in the minds of the jurors. Young v. State, 283 S.W.3d 854, 878 (Tex.Crim.App. 2009) (per curiam), cert. denied, ___ U.S. ___, 130 S. Ct. 1015, 175 L. Ed. 2d 622 (2009). An instruction to disregard will ordinarily cure error associated with a witness's improper reference to an extraneous offense committed by the defendant. Id. at 878; Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (en banc) (instruction by trial judge to disregard will suffice to cure an inadmissible reference to or implying of extraneous offenses). Further, we presume the jury followed the trial court's instruction to disregard testimony in the absence of evidence that it did not. Ladd, 3 S.W.3d at 567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987)); State v. Boyd, 202 S.W.3d 393, 402 (Tex.App.--Dallas 2006, pet. ref'd).
Considering the facts of this case, we conclude the trial court did not abuse its discretion by denying Appellant's motion for mistrial. The jury heard testimony from two witnesses that Appellant assaulted Vasquez and viewed photographs taken by police shortly after the incident documenting Vasquez's injuries and corroborating their testimony. Nothing in the record suggests the jury would have reached a different verdict absent the complained-of statement. Further, the implied reference to Appellant's prior threats and the certainty with which he carried them out was brief, did not contain any substantive facts, was not repeated by the State, and was followed by a prompt instruction to disregard. Although Appellant asserts otherwise, nothing in the record suggests the reference to his prior threats was so "highly prejudicial and incurable" that the trial court erred by denying his motion for mistrial. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 542 U.S. 905, 124 S. Ct. 2837, 159 L. Ed. 2d 270 (2004). See also Gardner v. State, 730 S.W.2d 675, 697 (Tex.Crim.App. 1987) ("The bare fact [that appellant had been to the penitentiary], unembellished, was not so inflammatory as to undermine the efficacy of the trial court's instruction to disregard it.") Having reviewed the record, we cannot say the trial court's ruling was outside the zone of reasonable disagreement. Accordingly, we overrule Appellant's sole issue.
Conclusion
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002.(a)(1) (West 2005).
[2]The offense of assault with bodily injury is a Class A misdemeanor. See Tex. Penal Code Ann. § 22.01(a) & (b) (West 2011).
[3]Although the Information named the defendant as "Gabino Duron," motions filed by Appellant, the Charge of the Court and the Judgment reflect "Gavino Duron." We express no opinion as to the correct name of Appellant.
[4]Ramos testified that she had a prior relationship with Appellant for approximately six years and had two children by him.
[5]The record reflects the following:
COURT: All right. At this point in time, I'm going to ask you to disregard the last statement made by this witness [Ramos]. And if you feel like you cannot disregard that, I need to know at this point. So I can rely that each of you can disregard that last comment made by the witness as struck from the record; is that correct?
JURY: (Nodding heads).
COURT: All right. Hearing everyone saying they can agree, so we can proceed. Thank you.
>[5] We ordered the parties to then brief the issue. Appellant has filed a brief; the State has not.
Analysis
Concerning determination of a defendant’s indigence for the purpose of appointed appellate counsel and a free appellate record, the Court of Criminal Appeals recently succinctly explained:
A defendant is indigent for purposes of the appointment of appellate counsel if he is not financially able to employ counsel. For purposes of qualifying as an indigent in order to receive a copy of the record furnished without charge, a defendant must be unable to pay or give security for the appellate record. Indigency determinations are made at the time the issue is raised and are decided on a case-by-case basis. Determining indigency for purposes of appointing counsel and indigency for purposes of obtaining a free record are discrete inquiries, but the factors to be considered are the same. A defendant can be found indigent for one purpose without being found indigent for the other. Relevant to both indigency determinations are the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. Each county should have guidelines and financial standards that it applies to determine whether a defendant is indigent for purposes of appointing counsel.[6]
McFatridge v. State, No. PD-1494-08, 2010 Tex. Crim. App. Lexis 4, at *8-10 (Tex.Crim.App. Jan. 27, 2010) (internal quotation marks and footnotes omitted). As for the burden of proof and review of the trial court’s determination, the court continued:
[The Court of Criminal Appeals] has adopted a two-step process to guide courts in making indigency determinations for purposes of a free record for appeal. First, the defendant must make a prima facie showing of indigency. Once the defendant satisfies this initial burden of production, the burden then shifts to the State to show that the defendant is not, in fact, indigent. This means, essentially, that unless there is some basis in the record to find the defendant’s prima facie showing to be inaccurate or untrue, the trial court should accept it as sufficient to find him indigent. After a defendant establishes a prima facie showing of indigency, an appellate court can uphold a trial court’s determination of non-indigence only if the record contains evidence supporting such a determination. In [Whitehead, 130 S.W.3d at 87, the Court of Criminal Appeals], recognized that the two-step process outlined above also applies when determining whether a person is indigent for purposes of appointed counsel. A reviewing court should uphold a trial court’s ruling denying indigent status only if it finds that the trial court, having utilized this two-step process, reasonably believed the defendant was not indigent.
Id. at *10-11 (internal quotation marks and footnotes omitted). Prima facie evidence is that quantum of proof on which the factfinder may find the matter in issue established unless rebutted by other evidence. See Snoke v. State, 780 S.W.2d 210, 213 (Tex.Crim.App. 1989) (per curiam) (once prima facie showing of indigency is made out, defendant has shown entitlement to record unless evidence refuting claim is offered); Thomas v. State, 474 S.W.2d 692, 695 (Tex.Crim.App. 1972) (discussing definition of prima facie evidence).
Here, the issue concerns the first step of the trial court’s indigency determination, that is, whether the facts on which appellant relied are sufficient to establish a prima facie case of indigency.
The record indicates appellant has no obligation for the support of dependents, minimal to no monthly expenses, and no apparently obligatory terms of repayment for a loan from his aunt. He additionally owns a pickup with an equity value of $1,500 to $2,000. Of primary import to this discussion, appellant owns real property he values at $30,000. Even assuming a perfected lien of $7,500 against the property, a significant equity remains. Appellant’s evidence does not establish his financial inability to employ counsel. We agree with the trial court’s finding that appellant is not prima facie indigent. See Tex. Code Crim. Proc. Ann. art. 1.051(b) (Vernon Supp. 2009).
Appellant cites Barry v. Brower, 864 F.2d 294 (3d Cir. 1988) for the proposition that “[t]he Constitution requires states to meet a ‘present’ need for counsel. If by their nature an accused’s assets cannot be timely reduced to cash and cash is required, the ‘present’ financial inability to obtain counsel which defines indigence for Sixth Amendment purposes appears.” Id. at 299-300. The defendant in Barry possessed a joint interest in his home. He contacted six attorneys for representation. Five declined a mortgage as security and the sixth declined “long-term financing.” Id. at 300 n.12. Thus the evidence supported the defendant’s need for cash to employ counsel.
This record contains no similar evidence of unsuccessful attempts by appellant to make use of his land, with or without its liquidation, to meet his present need for representation. It thus cannot be said that this record shows appellant requires cash to employ counsel or obtain an appellate record.
Agreeing with the trial court appellant failed to make a prima facie showing he is financially unable to employ counsel, or unable to pay or give security for the appellate record, we affirm its order denying appellant appointed counsel for appeal and a free appellate record.
Per Curiam
Publish.
[1] Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon Supp. 2009) (appointment of counsel); Tex. R. App. P. 20.2 (record).
[2] This attorney signed appellant’s notice of appeal and appeared at the hearing for appellant. He also signed appellant’s brief on the indigence issue in this court.
[3] Appellant’s affidavit lists no dependents. Appellant testified in passing of expenses for insurance, food, and utilities. Given his testimony indicating his present expenses are satisfied by withdrawals from his commissary account, the trial court reasonably could have considered the references to insurance, food and utility expenses, and the similar expense amounts reflected in his affidavit, to indicate that appellant assisted his mother with these items before incarceration. The $500 monthly food expense appellant listed in his affidavit, for instance, could not be a personal expense after his incarceration. The record contains no explanation how, with no monthly income, appellant paid the $1070 monthly expenses he itemized in his affidavit.
[4] The trial court reasonably could have concluded appellant’s debts to his trial counsel and his aunt were not immediately payable. See Whitehead v. State, 130 S.W.3d 866, 878-79 (Tex.Crim.App. 2004) (reaching similar conclusion with respect to indebtedness to family member).
[5] See Ham v. State, 301 S.W.3d 930, Nos. 07-09-0331-CR, 07-09-0385-CR, 2009 Tex. App. Lexis 9657 (Tex.App.--Amarillo December 18, 2009) (per curiam order).
[6] The record contains no indication of the standards promulgated by Hall County or their application by the trial court. See Tex. Code Crim. Proc. Ann. art. 26.04(a),(l) (Vernon Supp. 2009) (countywide procedures for appointment of counsel must include procedures and financial standards for determining whether a defendant is indigent).