Hernandez v. State

Affirmed.

Kurt B. Wentz, Houston, TX, for Appellant. Devon Anderson, District Attorney–Harris County, Texas, Jessica Caird, Assistant District Attorney–Harris County, Texas, Houston, TX, for Appellee.

A jury convicted appellant, William Hernandez, of aggravated robbery and, after finding an enhancement paragraph true, assessed his punishment at confinement for life. In two points of error, appellant argues that (1) the evidence to support his conviction was insufficient because the accomplice witness testimony was not adequately corroborated and (2) the trial court abused its discretion in denying his motion for mistrial when Spanish-speaking members of the jury heard the accomplice witness volunteer information regarding an extraneous offense.

We affirm.

A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). Whether a witness's improper reference to an extraneous offense mandates a mistrial is determined by examining the particular facts of the case. See id. “A mistrial is an appropriate remedy 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) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)).

We review a trial court's denial of a mistrial under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007). In determining whether a trial court abused its discretion in denying a motion for mistrial, we consider (1) the severity of the underlying misconduct, (2) any curative measures adopted, and (3) the certainty of the conviction absent the misconduct. Id. at 700. “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).

Appellant argues that Castaneda's revelation of other pending aggravated robberies, committed with appellant and in a similar manner, was especially harmful to him. He also argues that even though only two Spanish-speaking jurors were identified, others on the jury could also have understood Castaneda's comments.

However, nothing in the record suggests that Castaneda's testimony was “so highly prejudicial and incurable” that the trial court erred by denying the motion for mistrial. See Ocon, 284 S.W.3d at 884. The complained-of statement was made in Spanish and was never translated for the entire jury to hear. The trial court identified the two jurors who were able to understand what Castaneda had said and instructed them not to share the information with the other jurors and not to consider the evidence. Jurors are presumed to follow instructions, and appellant does not point to any evidence suggesting that the jurors in this case failed to follow the trial court's instruction. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App.2009) (holding that “[i]nstructions to the jury are generally considered sufficient to cure improprieties that occur during trial” and that courts “generally presume that a jury will follow the judge's instructions”); see also Ladd, 3 S.W.3d at 567 (holding that trial court could have reasonably concluded that instruction to disregard was sufficient to cure any harm).

We overrule appellant's second point of error.

We affirm the judgment of the trial court.
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