Opinion issued July 12, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00621-CR
NO. 01-11-00622-CR
NO. 01-11-00623-CR
NO. 01-11-00624-CR
NO. 01-11-00625-CR
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JOSE LUIS ORTA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case Nos. 62713, 62715, 63681, 63682, and 63683
MEMORANDUM OPINION
A jury found Jose Luis Orta guilty of five felony offenses, consisting of one
charge of evading arrest, one charge of assault of a public servant, and three
charges of failure to appear. Orta stipulated to the truth of various enhancement
paragraphs, and the jury assessed punishment at ten years’ imprisonment and a
$2,000 fine for evading arrest, a $500 fine for assault of the public servant, and two
years’ imprisonment and a $500 fine for each of the three failure-to-appear
offenses. On appeal, Orta contends that the trial court erred in denying his motion
for mistrial. He also challenges the sufficiency of the evidence supporting his
conviction for one charge of failure to appear, arising out of his failure to appear at
his November 15, 2010 court setting. Finding no error, we affirm.
Background
Sergeant R. Arriaga, of the Manvel Police Department, accompanied by
Officer-trainee J. Lovel, was on patrol one night in January 2010 when they pulled
over a Jaguar because of a defective taillight. Orta was in the driver’s seat and two
passengers were also in the car. After checking the Jaguar, Sergeant Arriaga and
Officer Lovel returned to their patrol car to run a check on Orta’s driver’s license.
The check revealed that Orta had outstanding warrants, which provided sufficient
reason to arrest him. The officers returned to the car to arrest Orta. Orta stepped
out of the car as instructed but began to argue with Officer Lovel. When Officer
Lovel stepped in to take Orta into custody, Orta squared off and tried to return to
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the Jaguar. Officer Lovel intercepted Orta, and the men began to struggle. At that
point, Sergeant Arriaga deployed his stun gun at Orta. Orta flinched, but one of
the prongs did not made contact with his chest, so the weapon failed to deliver a
shock. Orta ripped the other prong off and discarded the weapon. Then, he ran
back to the driver’s side of his car, got in, and drove on Highway 6 toward Alvin at
a high rate of speed.
Arriaga and Lovel returned to the patrol car and, with lights on and sirens
blaring, pursued the Jaguar at speeds approaching 120 miles per hour. With the
assistance of both the Brazoria County Sheriff’s Department and the Alvin Police
Department, they located the Jaguar, but, by the time they reached it, it was
unoccupied. They searched the nearby area, but were unable to locate Orta or
either of the passengers.
A few months later, in April 2010, Sergeant Arriaga again was on night
patrol, this time with another trainee, Officer N. Peters. The officers observed a
truck parked in a church parking lot with its headlights facing Highway 6. The
officers drove up to the truck and asked if everything was O.K. Sergeant Arriaga
recognized Orta from the prior encounter and told Peters, “That’s Jose Orta. We
have warrants on him.” Meanwhile, Orta, who apparently had also recognized
Sergeant Arriaga, began to drive out of the parking lot. Officer Peters turned on
the patrol car’s emergency lights and pulled the truck over. As Officer Peters
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approached the driver’s side, Sergeant Arriaga headed for the passenger side of the
truck to prevent Orta from accessing anything inside the car. Officer Peters
escorted Orta to the back of the truck, and Sergeant Arriaga met them there. Orta
tried to bolt, but the officers grabbed him and tried to restrain him, while ordering
him to stop resisting arrest. Despite the officers’ orders, Orta continued to resist.
The officers attempted to place Orta in handcuffs, but he continued to fight with
Officer Peters, pulling him to the ground. Eventually, Sergeant Arriaga was able
to deploy his stun gun on Orta’s back, but Orta continued to resist, even after two
more deployments. The officers continued to urge Orta to stop resisting, but Orta
showed no signs of slowing down, telling the officers, “Shoot me, you’ll have to
shoot me.” After Orta began biting Officer Peters’s arm, Sergeant Arriaga
administered a fourth shock, which appeared to affect Orta more than the prior
shocks. The officers again attempted to handcuff Orta, but Orta elbowed Sergeant
Arriaga in the mouth, splitting the inside of his lip and causing it to bleed.
I. Denial of Motion for Mistrial
Before trial, the defense moved to suppress evidence of Orta’s prior arrests
and outstanding arrest warrants during trial. The motion specifically addressed the
videotape of the second traffic stop, which included a recorded discussion among
the police officers in the patrol car about Orta’s outstanding warrants. The State
responded that it would mute the audio portion of the videotape during that
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discussion, but contended evidence of outstanding warrants was necessary to prove
that the officers were lawfully discharging their duty when they stopped Orta.
With the parties’ agreement, the Court ordered that the witnesses could refer to the
fact that Orta had warrants without any further detail.
Orta moved for a mistrial during the State’s questioning of Officer Peters.
When the State asked Officer Peters why he ordered Orta to exit the vehicle, Peters
responded, “I had already been informed that he had evaded police twice in a
motor vehicle and that—I was afraid that if [Orta] stayed in the vehicle, that he
would again try to evade in the motor vehicle.” Defense counsel objected to this
testimony on the basis that it violated the motion in limine, and the trial court
sustained the objection. Defense counsel next asked that the testimony regarding
the previous arrests be stricken from the record, and the trial court instructed the
jury to disregard Officer Peters’s testimony regarding any prior offense. After the
instruction, defense counsel requested a mistrial, which the trial court denied.
A. Standard of review
Orta complains that the trial court erred in denying his motion for mistrial.
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007).
Under this standard, we uphold the trial court’s ruling as long as the ruling is
within the zone of reasonable disagreement. Id. “A mistrial is a device used to
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halt trial proceedings when error is so prejudicial that expenditure of further time
and expense would be wasteful and futile.” Wood v. State, 18 S.W.3d 642, 648
(Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999)). It is appropriate only for “a narrow class of highly prejudicial and
incurable errors.” Id.; see Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.
2004). Thus, a trial court properly exercises its discretion to declare a mistrial
when, due to the error, an impartial verdict cannot be reached or a conviction
would have to be reversed on appeal due to “an obvious procedural error.” Wood,
18 S.W.3d at 648.
Where, as here, the trial court sustains an objection and instructs the jury to
disregard but denies the defendant’s motion for a mistrial, the issue is whether the
trial court abused its discretion in denying a mistrial. Hawkins, 135 S.W.3d at 77.
In determining whether the trial court abused its discretion in denying the mistrial,
we balance three factors: (1) the severity of the misconduct (prejudicial effect),
(2) curative measures, and (3) the certainty of conviction absent the misconduct.
Id. at 75. Only in extreme circumstances, where it appears that the question or
evidence is clearly calculated to inflame the minds of the jury and is of such
character as to suggest the impossibility of withdrawing the impression produced
on the jurors’ minds, will a mistrial be required. Kelley v. State, 677 S.W.2d 34, 36
(Tex. Crim. App. 1984).
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B. Analysis
In considering the severity of the limine violation, we note that the State’s
question did not ask Peters to provide any details concerning the outstanding
warrants; the question was reasonably framed to elicit enough information to
justify the April 2010 traffic stop—that is, the existence of the outstanding
warrants—without further elaboration. The single reference to Orta’s two earlier
attempts to evade arrest was brief, and the trial court promptly instructed the jury
to disregard Peters’s answer. Further, the trial court had consolidated one of the
charged prior attempts to evade arrest in this same proceeding. The impression
that Orta had been charged with two, rather than just one, attempts to evade arrest
is not so inflammatory that the trial court’s prompt instruction could not eliminate
any prejudicial effect. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App.
1998) (“A witness’s inadvertent reference to an extraneous offense is generally
cured by a prompt instruction to disregard.”). We presume that the jurors follow
the trial court’s instructions. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.
Crim. App. 2000); Rojas, 986 S.W.2d at 250; Gardner v. State, 730 S.W.2d 675,
696 (Tex. Crim. App. 1987) (jury presumed to follow instruction after accomplice
witness alluded to defendant’s previous incarceration). We hold that the trial court
did not abuse its discretion in denying Orta’s motion for mistrial.
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II. Evidentiary sufficiency – failure to appear on November 15, 2010
A. Standard of review
Orta contends that the evidence is legally and factually insufficient to
support his conviction on the charge of failure to appear at his November 15, 2010
court setting. We review legal and factual sufficiency challenges using the same
standard of review. See Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323
S.W.3d 893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, the evidence
is insufficient to support a conviction if, considering it in a light favorable to the
verdict, no rational factfinder could have found the essential elements of the
charged offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct.
1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009);
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We presume that
the factfinder resolved any conflicting inferences in favor of the verdict and defer
to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
evaluation of the credibility and weight of the evidence. See Williams, 235 S.W.3d
at 750.
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B. Failure to appear
A person commits the offense of failure to appear when the person lawfully
released from custody “intentionally or knowingly fails to appear in accordance
with the terms of his release.” TEX. PENAL CODE ANN. § 38.10(a) (West 2011).
The person may defend himself against the charge by showing that he had a
reasonable excuse for his failure to appear. Id. § 38.10(c). Orta failed to appear
for his trial setting on November 15, 2010. Orta claims that the State failed to
present sufficient evidence to support the jury’s determination that he
“intentionally or knowingly” committed the offense. Orta complains that, at the
time of his release, the instanter in his bond did not sufficiently notify him of the
date on, and the court number in, which he was required to appear. Orta further
claims that some evidence shows that he had a reasonable excuse.
“Generally, an instanter bond gives proper notice and, in the absence of
evidence of a reasonable excuse, is sufficient to prove an appellant intentionally
and knowingly failed to appear in accordance with the terms of his release.” Bell
v. State, 63 S.W.3d 529, 531 (Tex. App.—Texarkana 2001, pet. ref’d) (citing
Euziere v. State, 648 S.W.2d 700, 702 (Tex. Crim. App. 1983)). Proof that the
defendant was free pursuant to an instanter bond supplies a prima facie showing
that the defendant had notice of the proceeding at which he failed to appear.
Richardson v. State, 699 S.W.2d 235, 238 (Tex. App.—Austin 1985, pet. ref’d);
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see Bell, 63 S.W.3d at 531. If some evidence shows that the defendant did not
have proper notice of the scheduled proceeding, however, the prima facie case
does not suffice; the State must do more than show the bond’s terms to prove an
intentional or knowing failure to appear. Richardson, 699 S.W.2d at 238; see also
Bell, 63 S.W.3d at 531–32. For example, the State must prove that the defendant
had actual notice of the proceeding or that he engaged in conduct designed to
prevent him from receiving notice. Richardson, 699 S.W.2d at 238; see Bell, 63
S.W.3d at 532.
C. Analysis
Pertinent to the failure-to-appear offense, the State introduced testimony
from Dale Foster, the Brazoria County Court Administrator, who maintains the
felony criminal dockets for the county. Foster testified that, according to her
docket sheets, Orta was set for trial in three cause numbers on November 15, 2010
in the 149th District Court, but, as noted on the bailiff’s handwritten list of bond
forfeitures, he failed to appear in court on that date. The State also elicited
testimony from Adam Haynes, the bondsman who had written bonds on Orta’s
behalf. Haynes testified that he bonded Orta out of jail on November 10, 2010.
Haynes recalled that he spoke with Orta about missing court on November 15,
2010, and Orta told Haynes that he “got his dates mixed up.”
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The State also examined Denise Templet of the Brazoria County District
Clerk’s office about Orta’s failure to appear. Templet testified that she had been
clerk of the 149th District Court in November 2010. Through Templet, the State
admitted orders for the pretrial hearing and trial setting for Cause No. 62713, as
well as orders addressing Cause Nos. 62714 and 62715. Each of these orders
assigns a court date of November 15, 2010. Each contains a completed sheriff’s
return, which demonstrates that these documents were personally served on Orta
while he was still in custody. Through Templet’s testimony, the State also
introduced documents showing that Orta’s bond was forfeited on November 15,
2010.
Orta’s evidentiary-insufficiency argument relies on bondsman Haynes’s
recollection of Orta’s statement that he confused his dates. The jury, however,
need not have credited that explanation or considered it to be a reasonable one.
See Williams, 235 S.W.3d at 750. The jury was entitled to rely on the sheriff’s
returns as proof that Orta knew of the proper court date and intentionally failed to
appear. In deference to the jury’s evaluation of the credibility and weight of the
evidence, we hold that the evidence is sufficient to support the jury’s finding that
Orta intentionally and knowingly failed to appear.
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Conclusion
We hold that the trial court did not abuse its discretion in denying Orta’s
motion for mistrial. We further hold that the evidence is sufficient to support the
jury’s finding that Orta knowingly and intentionally failed to appear at his
November 15, 2010 trial setting. We therefore affirm.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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