Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00028-CR
Matthew ROSE,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. CRW1910200
Honorable Lynn Ellison, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Irene Rios, Justice
Liza A. Rodriguez, Justice
Sandee Bryan Marion, Chief Justice (Ret.) 1
Delivered and Filed: July 26, 2023
AFFIRMED
Matthew Rose was convicted of two counts of aggravated sexual assault of a child and two
counts of indecency with a child by contact. In one issue, Rose argues the trial court abused its
discretion in denying his motion for mistrial. We affirm.
BACKGROUND
Rose was charged by indictment with two counts of aggravated sexual assault of a child
and two counts of indecency with a child by contact. The charged offenses involved two separate
1
Sitting by assignment pursuant to Section 74.003(b) of the Texas Government Code
04-22-00028-CR
complainants. The case proceeded to trial before a jury. During jury selection, in response to
individual questioning by the prosecutor, Prospective Juror Number 29 (“Juror No. 29”) stated that
he was employed as an investigator with Child Protective Services (“CPS”). Juror No. 29 further
stated that he knew the assistant district attorney and some of the witnesses who would be testifying
in the case. When defense counsel questioned Juror No. 29 in front of the other prospective jurors
the following took place:
Defense Counsel: [Y]ou had raised your card to the question of whether you
felt this was not the case for you due to some issue. Why did
you raise your card to that?
Juror No. 29: Just some conflict of interest kind of thing. Like, we have a
small unit, and I know I’ve heard Mr. Rose’s name in our
office a couple of —
Trial Court: Come forward, please.
At the bench and away from the other prospective jurors, the trial court and defense counsel
engaged in further questioning of Juror No. 29. 2 When the follow-up questioning was over, defense
counsel asked the trial court to instruct the prospective jurors to disregard any statements made by
Juror No. 29. 3 The trial court granted the request and gave the following instruction to the
prospective jurors:
Ladies and gentlemen of the jury, each of you and, as a panel, all of you are
instructed to disregard and not to consider for any purpose during the entirety of
this proceeding any statements made by [Juror No. 29].
Thereafter, defense counsel moved for a mistrial “based on the fact that the jury panel has been
poisoned by [Juror No. 29’s] statement” that he had heard Rose’s name in the CPS office a couple
of times. The trial court denied the motion for mistrial.
2
In his brief, Rose indicates that the follow-up questioning was conducted in front of the other prospective jurors, but
the reporter’s record shows it occurred at the bench before the trial court, the prosecutor, and defense counsel only.
3
Defense counsel also challenged Juror No. 29 for cause and the record indicates the challenge was granted.
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After the jury was selected, Rose pled guilty to each of the charged offenses. Punishment
was tried to the jury. During the punishment trial, both complainants testified about the offenses.
The jury assessed punishment at life in prison for each of the aggravated sexual assault of a child
offenses, and twenty years in prison for each of the indecency with a child by contact offenses.
Nothing in the record indicates the jury failed to follow the trial court’s instruction to disregard
Juror No. 29’s comment.
DISCUSSION
In his sole issue, Rose argues the trial court abused its discretion by denying his motion for
mistrial because Juror No. 29’s comment was so emotionally inflammatory that an instruction to
disregard could not cure its prejudice.
We review a court’s denial of a motion for mistrial for an abuse of discretion. Archie v.
State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A trial court abuses its discretion when its
decision lies outside the zone of reasonable disagreement. Id. “A mistrial is the trial court’s remedy
for improper conduct that is so prejudicial that expenditure of further time and expense would be
wasteful and futile.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). “Only in
extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Id. “The trial
court is required to grant a motion for a mistrial only when the improper [conduct] is clearly
prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing
the impression produced on the minds of the jurors.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.
Crim. App. 2003). “Instructions to the jury are generally considered sufficient to cure improprieties
that occur during trial.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). Courts
“generally presume that a jury will follow the judge’s instructions.” Id. “Ordinarily, a prompt
instruction to disregard will cure error 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).
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Here, we must determine if the trial court’s instruction to disregard cured the prejudice, if
any, stemming from Juror No. 29’s comment. We find Young v. State, 137 S.W.3d 65 (Tex. Crim.
App. 2004), instructive. In Young, the defendant was convicted of aggravated sexual assault of a
child and sentenced to 75 years in prison. Id. at 67. During voir dire, a prospective juror who had
worked with children for decades commented in front of the other prospective jurors that children
were truthful about sexual assault allegations, and she had never had a situation where a child was
found to be untruthful. Id. at 67-68. Defense counsel moved for a mistrial, which the trial court
denied. Id. at 68. The Texas Court of Criminal Appeals held that the trial court did not abuse its
discretion by denying the motion for mistrial because an instruction to disregard would have cured
any prejudice caused by the prospective juror’s comments. Id. at 72.
Also instructive is Sanchez v. State, 769 S.W.2d 348 (Tex. App.—San Antonio 1989, no
pet.). During voir dire, a venireperson made statements that she knew about the defendant’s prior
“case.” Id. at 352. The venireperson was excused. Id. The trial court offered to instruct the venire
to disregard the statements, but the defendant declined the instruction. Id. The defendant moved
for a mistrial, which the trial court denied. Id. On appeal, we held that the denial of the defendant’s
motion for mistrial was not an abuse of discretion. Id. We reasoned that the venireperson’s
“statement did not specify what the ‘case’ was about or whether it was a civil case or a criminal
one” and “it did not state any outcome.” Id. We emphasized that “[t]he statement was an
ambiguous one, subject to several interpretations” and that nothing in the record showed that any
of the other venirepersons were influenced to the defendant’s prejudice. Id.
In this case, Juror No. 29 stated in front of the venire that he was a CPS investigator and
that he had heard Rose’s name in the office a couple of times. Rose claims the comment was
prejudicial and incurable by instruction because it referred to an extraneous offense. We disagree.
The comment was vague. It did not reveal the context in which Rose’s name was mentioned, nor
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did it connect Rose to any offense, misconduct, or allegation. See id. (holding the trial court did
not abuse its discretion in denying motion for mistrial based on venireperson’s ambiguous
statements about the defendant’s prior “case”). But even if the comment could be characterized as
referring to an extraneous offense committed by Rose, it is well-established that a prompt
instruction to disregard will usually cure any prejudice resulting from the improper admission of
extraneous offense evidence. See Sandoval v. State, 665 S.W.3d 496, 529 (Tex. Crim. App. 2022)
(“[G]enerally, such an instruction will cure prejudice from a witness’s inadvertent reference to an
extraneous offense.”); Ovalle, 13 S.W.3d at 783-84; Abdnor v. State, 871 S.W.2d 726, 738 (Tex.
Crim. App. 1994).
We conclude that any prejudice from Juror No. 29’s comment was not so emotionally
inflammatory that it could not be cured by an instruction to disregard. See Young, 137 S.W.3d at
71 (holding prospective juror’s comment that she had never known a child to be untruthful about
a sexual assault allegation could have been cured by an instruction to disregard); Towery v. State,
262 S.W.3d 586, 598-99 (Tex. App.—Texarkana 2008, pet. ref’d) (holding it was within the zone
of reasonable disagreement that the trial court’s instruction to disregard cured any prejudice arising
from venireperson’s “general, political statement” about racial bias). Because any prejudice arising
from Juror No. 29’s comment was cured by the instruction to disregard, the trial court did not
abuse its discretion in denying the motion for mistrial. See Gamboa, 296 S.W.3d at 581 (holding
trial court did not abuse its discretion in denying a motion for mistrial regarding extraneous offense
evidence elicited during guilt phase when the trial court instructed the jury to disregard it); Young,
137 S.W.3d at 71 (holding trial court did not abuse its discretion in denying motion for mistrial
when prejudice could have been cured by instruction to disregard); Towery, 262 S.W.3d at 599
(holding trial court did not abuse its discretion in denying motion for mistrial when any prejudice
was cured by instruction to disregard). We overrule Rose’s sole issue.
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CONCLUSION
The trial court’s judgments are affirmed.
Liza A. Rodriguez, Justice
DO NOT PUBLISH
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