Gilbert Colunga v. the State of Texas

                          NUMBER 13-19-00575-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


GILBERT COLUNGA,
                                                                           Appellant,

                                              v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Benavides and Silva
             Memorandum Opinion by Justice Benavides

      Appellant Gilbert Colunga appeals his conviction of aggravated assault causing

serious bodily injury, a second-degree felony enhanced by habitual felony offenses. See

TEX. PENAL CODE ANN. §§ 12.42(d), 22.02. By his sole issue, Colunga argues that the trial
court erred by denying his motion for mistrial. We affirm.

                                    I.     BACKGROUND

       Colunga was indicted for aggravated assault causing serious bodily injury to his

then-girlfriend, Lisa Ramonas. See id. At trial, Ramonas testified that on February 11,

2018, Colunga repeatedly hit her with his fists until she fell to the floor. The assault lasted

approximately another ten minutes, breaking her nose, lacerating her face, and leaving

several bruises. Colunga provided a video recorded confession to law enforcement, which

was admitted into evidence at trial, wherein he admitted that he hit Ramonas because

she was using witchcraft against him and stated that he accepted responsibility for his

actions.

       Colunga’s mother testified at the guilt-innocence phase about what she witnessed

on the night of the assault. The following exchange occurred during cross examination:

       [State:]              Isn’t it true that you don’t want your son to go to prison?

       [Mother:]             Of course not.

       [State:]              Isn’t it true that you know if he’s found guilty there’s at
                             least a chance he’ll go to prison?

       [Mother:]             Oh, I know that.

       [Defense:]            Objection. That’s a punishment question.

       [Trial Court:]        Sustained.

       [Defense:]            And at this time I’m gonna ask that the jury be given an
                             instruction to disregard that last answer and question.

       [Trial Court:]        The jury will disregard that last answer, and the motion




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                              for mistrial is denied. You can go ahead and sit down
                              now.

        The jury found Colunga guilty, and the trial court sentenced him to forty years’

imprisonment in the Texas Department of Criminal Justice–Institutional Division. This

appeal followed.

                                 II.    MOTION FOR MISTRIAL

        Colunga argues that his mother’s statements, coupled with the trial court’s failure

to grant a mistrial, caused a prejudicial error that infringed upon his constitutional right to

a fair trial.

        We note that, although the record reflects that the trial court denied a motion for

mistrial, it does not show that Colunga ever made such a motion. To preserve an alleged

error for appeal, an appellant must make a timely request, objection, or motion to the trial

court that “stated the grounds for the ruling that the complaining party sought . . . with

sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). For purposes of

this analysis, we assume but do not decide that the issue is preserved for appeal.

A.      Standard of Review

        We defer to the trial court’s decision to deny a request for a mistrial so long as it is

reasonable. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). Appellate courts

apply an abuse of discretion standard when reviewing a trial court’s motion for mistrial.

Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011); Webb v. State, 232




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S.W.3d 109, 112 (Tex. Crim. App. 2007). We do not substitute our discretion for that of

the trial court; instead, we analyze if the trial court was arbitrary or unreasonable in its

decision making. Webb, 232 S.W.3d at 112.

B.     Applicable Law and Discussion

       “A mistrial is a device used to halt trial proceedings where error is so prejudicial

that expenditure of further time and expense would be wasteful and futile.” Guerrero v.

State, 528 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Mistrial is appropriate only as a last

resort in “extreme circumstances” for a narrow class of highly prejudicial and incurable

errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Because it is an

extreme remedy, a mistrial should be granted only when residual prejudice remains after

less drastic alternatives are explored. Id. at 884–85 (quotation omitted). “Error in the

admission of improper testimony is usually cured by the trial court’s instruction to the jury

to disregard.” Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).

       The question of whether a mistrial should have been granted involves largely the

same considerations that attend a harm analysis. Ramon v. State, 159 S.W.3d 927, 929

(Tex. Crim. App. 2004); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We

balance the severity of the misconduct (i.e., the prejudicial effect), any curative measures,

and the certainty of conviction absent the misconduct. Hawkins v. State, 135 S.W.3d 72,

77 (Tex. Crim. App. 2004). Here, we cannot discern any prejudicial misconduct on the

part of the prosecutor or witness. Moreover, curative measures were taken—namely, the




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trial court promptly instructed the jury to disregard the statements. See Martinez, 17

S.W.3d at 692–93; Mosley v. State, 983 S.W.2d at 259. Colunga alleges that the harm

flowing from the statements made by his mother were not remedied by the motion to

disregard. However, Colunga has failed to show any lingering prejudice or anything in the

record indicating that the jury ignored the trial court’s instruction to disregard, so it is

assumed that the jury followed this instruction. See Hinojosa v. State, 4 S.W.3d 240, 253

(Tex. Crim. App. 1999).

       Finally, there was ample evidence presented during trial that Colunga would have

been convicted of the assault regardless of the statements. This evidence includes:

Colunga’s video confession that he hit Ramonas because he believed she was using

witchcraft against him and that he accepted responsibility for his actions; testimony from

Ramonas; two emergency room physicians’ testimony of the injuries; physical evidence

(including towels, bedsheets, and clothing) containing Ramonas’s blood; testimony from

the responding officer; and Colunga’s statement that his mother witnessed the assault

from the threshold of the bedroom. This evidence would almost certainly have led the jury

to find him guilty regardless of his mother’s statements. See Hawkins, 135 S.W.3d at 77;

Hinojosa, 4 S.W.3d at 253 (finding abundant physical evidence rendered improper

testimony inconsequential).

       Looking at the totality of the circumstances, we conclude that the curative

instruction was sufficient. See Freeman, 340 S.W.3d at 728; Coe 683 S.W.2d at 436. The

trial court did not err in denying the motion for mistrial. We overrule Colunga’s sole issue.




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                                  III.   CONCLUSION

      We affirm the trial court’s judgment.



                                                      GINA M. BENAVIDES
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
17th day of June, 2021.




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