                               NUMBER 13-18-00012-CR

                                  COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


SAMUEL LEAL,                                                                  Appellant,

                                              v.

THE STATE OF TEXAS,                                                            Appellee.


                       On appeal from the 319th District Court
                             of Nueces County, Texas.


                           MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

          Appellant Samuel Leal appeals from his conviction for aggravated robbery, a first-

degree felony. See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2017 1st C.S.).

In a single issue, Leal complains that the trial court should have granted a mistrial after a

police detective testified during trial that he was investigating a series of robberies. We

affirm.
                                              I. BACKGROUND

       Leal was indicted for aggravated robbery. See id. The indictment included an

allegation that Leal was a habitual felony offender and had previously been convicted of

two previous aggravated robberies in Nueces County in 2003 and in 2008. See id. §

12.42(d).

       Cornelius Robinson testified at trial that he was robbed of his wallet and personal

papers at knife-point on March 6, 2016. He testified that he left work at his refinery security

job and was driving along Leopard Street in the predawn hours of March 6, 2016. He was

looking for his friend Lucy Siller, so he could return her birth certificate card. According to

Robinson, Lucy1 had given the card to him as collateral for a loan of $40 several years

earlier. Robinson had been looking for Lucy for several months to return her card. He

thought he had seen her on this portion of Leopard Street within the past few months, but

he did not have her card with him at the time. Robinson saw a woman who looked like

Lucy near the La Siesta Motel on Leopard. Robinson pulled into the parking lot to talk to

the woman and discovered she was not Lucy. When asked whether she knew Lucy, the

woman, whose name was Destiny Rodriguez, said she did and offered to get in touch with

Lucy for Robinson. Robinson testified that he followed Destiny2 into her room at the motel.

There was a man in the room, lying on the bed who paid no attention to Robinson.

Robinson followed Destiny into a second room, and within a few minutes another man

entered. The second man asked Robinson if he had any money. According to Robinson,

he told the man he had five dollars. The man aggressively asked Robinson if he had more


       1   We refer to Lucy Siller the way the witnesses at trial did, by her first name.
       2   We similarly refer to Destiny Rodriguez the way the witnesses at trial did, by her first name.


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money, pulled out a pocket knife with a four-inch blade, and held the blade close to

Robinson’s chest and neck; the man roughly searched Robinson’s pockets. Although the

incident was brief, no more than five to seven minutes long, Robinson feared that the man

would stab him. Robinson explained that the man allowed Robinson to leave on the

condition that Robinson bring back $100 to trade for his wallet, notebook, and credit cards.

        Robinson testified that he drove to another motel where he stopped and telephoned

his bank to cancel his credit and debit cards and then called the Corpus Christi Police

Department (CCPD) to report that he had been robbed. Officers responded, and later

Robinson met with a detective.

        Detective Augustine Maldonado of the CCPD testified at trial regarding his

investigation into the aggravated robbery of Robinson. He first became involved because

he “was investigating a series of robberies.” Defense counsel began to object but instead

asked for a bench conference. The trial court immediately instructed the jury to disregard

the statement by Detective Maldonado and then denied counsel’s subsequent motion for

mistrial.3 The detective continued his testimony describing the investigation he conducted

which included obtaining a video statement by Robinson.                            In addition, Detective

Maldonado prepared photo arrays for Robinson’s review. From these arrays, Robinson

identified photographs of Destiny Rodriguez and Samuel Leal. CCPD videotaped the

interview and Robinson’s identification of Leal during the photo arrays. Portions of the

recording were shown to the jury. Detective Maldonado testified that he prepared the




         3 The trial court told the jury, “You-all will disregard the last answer to the question.” Counsel then

requested a mistrial after the instruction and during a subsequent bench conference, “And, Your Honor . . .
to this witness’s mention of this, I’m going to ask the Court to find that the jury has been prejudiced by this
remark of other robberies and I’m going to have to move for a mistrial.”


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affidavit for Leal’s arrest after Robinson’s identification. Leal was arrested on June 10,

2016, on three separate warrants for aggravated robbery.

       The trial court admitted into evidence recordings of portions of Leal’s telephone

calls from jail to a woman believed to be his mother. Leal urged the woman to get in touch

with Destiny and tell her to stay away from her house, her mother’s house, and just lay low

until after the trial. He emphasized to his mother that she should make sure to let Destiny

know the investigator looking for Destiny was driving an unmarked car. Leal further

emphasized that if Destiny did not appear, the only witness Leal had to worry about was

“this black dude,” by which he meant Robinson.

       Monica Lewis, an investigator for the Nueces County district attorney’s office,

testified at trial that she served a subpoena on Destiny, but she did not appear for trial.

The trial court issued a writ of attachment for her as a material witness against Leal.

Investigator Lewis was not able to find Destiny before trial to serve the writ. Her state-

issued vehicle is an unmarked car.

       The jury convicted Leal of aggravated robbery. Leal elected to have punishment

by the trial court. Before the subsequent punishment hearing, the State and Leal reached

a plea agreement as to the other two pending indictments and as to his sentence. In

exchange for Leal’s plea of no contest to the remaining two cases, and his pleas of true to

the enhancements, the State agreed to recommend a thirty-five-year sentence of

imprisonment for each case to run concurrently and to recommend that Leal retained his

right to appeal in this case. The State asked the trial court to make an affirmative deadly

weapon finding in this case, which the trial court did. The trial court accepted the parties’s

agreement and sentenced Leal accordingly. This appeal ensued.



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                                        II. MOTION FOR MISTRIAL

        Leal’s sole issue on appeal is that the trial court denied his motion for mistrial after

Detective Maldonado testified he was investigating a string of armed robberies.

        A.       Standard of Review

        We review a trial court's ruling on a motion for mistrial for an abuse-of-discretion.

We view the evidence in the light most favorable to the trial court’s ruling and uphold the

trial court’s ruling if it was within the zone of reasonable disagreement. Webb v. State,

232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex.

Crim. App. 2004). We do not substitute our judgment for that of the trial court but rather

decide whether the trial court's decision was arbitrary or unreasonable. Thus, a trial court

abuses its discretion in denying a motion for mistrial only when no reasonable view of the

record could support the trial court’s ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex.

Crim. App. 2004).

        A mistrial is the appropriate remedy when the objectionable event is so emotionally

inflammatory that a curative instruction is unlikely to prevent the jury from being unfairly

prejudiced against the defendant. Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App.

2004).4




        4  In Young v. State, a prosecution for sexual abuse of a child, a prospective juror was questioned
during voir dire and stated her opinion that in twenty-five years of working in child welfare, a child who makes
an accusation is generally telling the truth. 137 S.W.3d 65, 71 (Tex. Crim. App. 2004). The trial court denied
the defense motion for mistrial. Id. The court of appeals reversed, holding that an instruction could not cure
the prejudicial effect on the defendant’s rights. Id. However, the court of criminal appeals reversed after
finding that an instruction that the defendant did not request, could have cured any prejudicial effect. Id.


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       B.      Discussion

       During the second day of trial, Detective Maldonado was asked why he was tasked

with this case and he responded, “I was investigating a series of robberies.” Counsel

objected, and the trial court immediately instructed the jury to disregard. Counsel moved

for a mistrial which the trial court denied. No further mention of other robberies occurred

during the three-day trial. Leal argues that this evidence was harmful because the only

evidence of robbery in the record came from Robinson. Leal argues further that the

evidence in this case was not so strong that he would have been convicted without these

seven words.

       We disagree. Robinson’s testimony was clear, direct, and consistent. In addition,

the jury had Leal’s own words instructing his mother to keep a witness away from trial so

that Robinson would be the only witness. The detective’s words did not implicate Leal in

the other robberies and constituted only a minute or two out of a three-day trial. In addition,

the jury received an immediate instruction to disregard.

       “On appeal, we generally presume the jury follows the trial court's instructions in

the manner presented. The presumption is refutable, but the appellant must rebut the

presumption by pointing to evidence that the jury failed to follow the trial court's

instructions.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (presuming the

jury followed the trial court’s instruction to limit its consideration of nude photographs of

young men to one of several charged offenses); Archie v. State, 340 S.W.3d 734, 741

(Tex. Crim. App. 2011) (holding that the trial court’s instruction to the prosecutor that he

could not continue his line of argument and instructing the jury to disregard the argument

because it was an improper comment on the defendant’s failure to testify was sufficient);



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Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). Leal points to nothing in the

record to indicate that the jury disregarded the trial court’s instruction. We overrule Leal’s

sole issue.

                                      III. CONCLUSION

       We affirm the judgment of the trial court.



                                                                GINA M. BENAVIDES,
                                                                Justice

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

Delivered and filed the
9th day of August, 2018.




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