                           NUMBER 13-11-00758-CR

                              COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


BRIAN STEER,                                                                Appellant,

                                             v.

THE STATE OF TEXAS,                                                         Appellee.


                      On appeal from the 94th District Court
                           of Nueces County, Texas.


                            MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Perkes
                  Memorandum Opinion by Justice Rodriguez
         A jury convicted appellant Brian Steer of one count of aggravated robbery and two

counts of burglary of a habitation. See TEX. PENAL CODE ANN. §§ 29.03, 30.02 (West

2011).     After Steer pleaded true to two prior felonies, the trial court assessed his

punishment at seventy-five years in the Institutional Division of the Texas Department of
Criminal Justice. By two issues, Steer complains that the trial court abused its discretion

when it denied his motions for mistrial.1 We affirm.

                          I. STANDARD OF REVIEW AND APPLICABLE LAW

               An appellate court reviews a trial court's ruling on a motion for
        mistrial and motion for new trial using an abuse-of-discretion standard of
        review. 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. 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 we decide whether the trial court's decision was arbitrary or
        unreasonable. Thus, a trial court abuses its discretion in denying a motion
        for new trial [or 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).

Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

               A mistrial is an appropriate remedy in "extreme circumstances" for a
        narrow class of highly prejudicial and incurable errors. Hawkins v. State,
        135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642,
        648 (Tex. Crim. App. 2000). A mistrial halts 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 an error requires a mistrial must be determined by the
        particular facts of the case. Id.

                ....

               Because it is an extreme remedy, a mistrial should be granted "only
        when residual prejudice remains" after less drastic alternatives are
        explored. Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005).
        Less drastic alternatives include instructing the jury "to consider as
        evidence only the testimony and exhibits admitted through witnesses on the
        stand," and, questioning the jury "about the extent of any prejudice," if

        1
          Steer also filed a motion for new trial, which was overruled as a matter of law. See TEX. R. APP.
P. 21.8(c) (providing that a motion for new trial is deemed denied when it is not ruled on by written order
within seventy-five days of imposition of the sentence). In that motion, Steer identified the same issues he
raised in his motions for mistrial. However, Steer framed his appellate issues as challenges to the trial
court’s denial of his motions for mistrial, and we will address them as such. See Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007) (explaining that the denial of a motion for mistrial and a denial of a
motion for new trial are reviewed under an abuse of discretion standard); Cueva v. State, 39 S.W.3d 839,
856 (Tex. App.—Corpus Christi 2011, pet. ref’d) (same).
                                                     2
        instructions alone do not sufficiently cure the problem. Arizona v.
        Washington, 434 U.S. 497, 521–22 (1978) (White, J., dissenting). Though
        requesting lesser remedies is not a prerequisite to a motion for mistrial,
        when the movant does not first request a lesser remedy, we will not reverse
        the court's judgment if the problem could have been cured by the less
        drastic alternative. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.
        2004); see also Wood, 18 S.W.3d at 648 (concluding that the trial court did
        not abuse its discretion in denying the appellant's motion for mistrial when
        the appellant had not requested the less drastic remedy of a continuance).

Ocon v. State, 284 S.W.3d 880, 884–85 (Tex. Crim. App. 2009); see Brewer v. State, 367

S.W.3d 251, 253 (Tex. Crim. App. 2012). In other words, “[a]n appellant who moves for

a mistrial without first requesting a less drastic alternative forfeits appellate review of that

class of events that could have been cured by the lesser remedy.” Ocon, 284 S.W.3d at

886–87 (citing Barnett, 161 S.W.3d at 134; Young, 137 S.W.3d at 70).

                                          II.     DISCUSSION2

A.      The State’s File

        By his first issue, Steer complains that the trial court abused its discretion when it

denied his motion for mistrial after the prosecutor displayed his case file before the jury.

A red label with the words “REPEAT OFFENDER” appeared on the side of the file. Steer

argues that his substantial rights were affected by the denial and that the error had a

substantial and injurious effect or influence in determining the jury’s verdict. Steer asks

this Court, in the interest of justice, to grant a new trial, which should “proceed in

accordance with the suggested and necessary policy change within the Nueces County

District Attorney’s office that all repeat offender labels be removed from the prosecutor’s

file prior to any jury trial.”
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     3
      Shortly before noon on the first day of trial, during the second witness’s testimony,

the following colloquy occurred outside the presence of the jury:

             [DEFENSE COUNSEL]:          The prosecutor has a folder with my
                                         client’s name on it. It’s a manila folder.
                                         It’s legal size. And at the bottom of the
                                         folder, there’s a red—a red stripe all the
                                         way across it, probably about an inch and
                                         a half high, and I would say in
                                         three-quarter inch letters, it says,
                                         “Repeat—“

             THE COURT:                  Repeat offender.

             [DEFENSE COUNSEL]:          “Repeat offender,” in bold, black
                                         lettering.     The prosecutor in the
                                         courtroom is sitting probably about two
                                         feet from the last juror member.

             THE COURT:                  I think it’s—I think the file is about three
                                         or four, but nevertheless, relatively close.

             [DEFENSE COUNSEL]:          And the jury, to get to the jury room, they
                                         have to exit the seats that they’re in and
                                         walk right past the prosecutor’s desk and
                                         with that folder that says “Repeat
                                         Offender” on it right next to them and
                                         then into the room.

                                         At this time, Your Honor, I would object
                                         that that—when the jury is walking by, if
                                         they’re looking at it, then it will introduce
                                         into evidence character evidence; and at
                                         this time, we would request a mistrial on
                                         that.

             THE COURT:                  Okay. . . .

             THE STATE:                  Judge, the file in question, I would—I
                                         haven’t measured in terms of the stripe
                                         that [Defense Counsel] is referring to or
                                         the lettering on it. Certainly, his client’s
                                         name is handwritten in ink in a
                                         smaller—smaller font on the file.
                                            4
                                          The—the positioning of this particular
                                          file, I think is undisputed was the lettering
                                          on a—on a smaller part of the file that is
                                          positioned away and to the side of the
                                          jury, and I do not think—and also that file
                                          was out for a very limited portion of this
                                          morning’s testimony; but with that said, I
                                          would agree that that file was out at some
                                          point and it is now—the file is in my—my
                                          briefcase, and the—and should it come
                                          out again, the lettering has been taken
                                          off of that file; and I do not think—I do not
                                          think the jury saw that.

                                          I mean, if that was to be developed, I
                                          suppose we could find that out, but I do
                                          not believe that to be the case. I do not
                                          believe that they did see a red stripe that
                                          they would know what that means. I do
                                          not believe they were in a position from
                                          where they were seated to—I believe
                                          they weren’t in a position from where
                                          they were seated to see what the
                                          lettering contained.

                                          ....

              THE COURT:                  All right, [the motion for mistrial] is denied
                                          at this time.

       Evidence referring to or implying extraneous offenses committed by the defendant

may be rendered harmless by an instruction to disregard. Coe v. State, 683 S.W.2d 431,

436 (Tex. Crim. App. 1984). Steer did not request a curative instruction before moving

for a mistrial. This decision forfeited his appellate relief because any error could have

been cured by an instruction. See Ocon, 284 S.W.3d at 885; see also Brewer, 367

S.W.3d at 253. Less drastic alternatives were available, either by instructing the jury to

consider as evidence only the testimony and exhibits admitted through witnesses on the

stand or by questioning the jury about the extent of any prejudice, if instructions alone do
                                             5
not sufficiently cure the problem. See Ocon, 284 S.W.3d at 885. We will not reverse

the trial court’s ruling on the motion for mistrial because a less drastic remedy could have

cured the problem. See id. We, thus, conclude that the trial court did not abuse its

discretion in denying this motion for mistrial.    See Webb, 232 S.W.3d at 112. We

overrule Steer’s first issue.

B.     Steer’s Post-Arrest Silence

       By his second issue, Steer asserts that the trial court erred in denying his motion

for mistrial after a State’s witness, Detective Victor Trujillo, allegedly commented on his

post-arrest silence in violation of the court’s pre-trial order and Steer’s Fifth Amendment

right to remain silent. Steer contends that the State attempted to elicit inadmissible

testimony by calling an investigator for the mere purpose of showing the jury that the

defendant had refused to give a statement, in violation of the court’s pre-trial order.

       Detective Trujillo testified that he was assigned to investigate this case. His first

step would have been to “review the report, the elements of the crime, determine who [he

needed] to speak to first, or what [he needed] to do.” Detective Trujillo explained that “in

this case after reviewing the facts and speaking to the witnesses[, he] contacted [Steer].”

       Following this testimony and outside the presence of the jury, Steer’s counsel

informed the trial court that he anticipated that the evidence was going to show that this

detective talked to Steer in jail and that Steer invoked his Fifth Amendment right at that

time. The trial court commented, “Well, he hasn’t gotten that far yet.” Steer’s counsel

urged that “[e]ven calling someone to say that they went to speak to someone” violated

that person’s “right to remain silent” and even “[i]f [the detective] doesn’t say what

happened next, the next logical inference is that Mr. Steer didn’t talk to him.” The trial
                                             6
court replied, “You’re going to have to show me some case law on that . . . .” Steer’s

counsel requested an instruction “[t]o disregard the last statement of the detective,” and

the trial court instructed the jury to “disregard that last answer from the detective.”

Steer’s counsel also moved for a mistrial. However, the trial court did not rule on this

motion. Instead, it said,

       Well, I’ll carry it but you got to show me that you’re entitled to it. . . . I don’t
       think that you’re entitled to it at this point but you might be able to find a case
       that says otherwise. . . . I mean, you can have time to research that
       tonight. I don’t have to make a decision right this minute but we got a jury
       in the box, we got a witness sitting here . . . .

Although the trial court provided Steer’s counsel with an opportunity to research the

matter, Steer did not reurge this motion.

       After both sides rested and closed, Steer’s counsel did move for a mistrial, but this

time the motion was based on the “cumulative error” of the presence of the prosecutor’s

file and the detective’s testimony. The trial court denied this motion.

       On appeal, Steer suggests that the trial court overruled his motion for mistrial that

challenged Detective Trujillo’s testimony. We disagree. It is clear from the record that

the trial court did not rule on Steer’s motion for mistrial based only on the detective’s

testimony.

       “To preserve a complaint for appellate review, the complaining party must make a

timely, specific request that the trial court refuses.” Brewer, 367 S.W.3d at 253; see TEX.

R. APP. P. 33.1. The error alleged on appeal must comport with the complaint submitted

to the trial court. See TEX. R. APP. P. 33.1(a); Heidelberg v. State, 144 S.W. 3d 535, 537

(Tex. Crim. App.) (“The legal basis of a complaint raised on appeal cannot vary from that

raised at trial.”). Steer did not preserve error because the trial court did not rule on his
                                                7
request for a mistrial following the detective’s challenged testimony. See Brewer, 367

S.W.3d at 253. And Steer’s “cumulative-error” motion at the conclusion of the evidence

was not a timely request and did not comport with the issue before us. See id.

       Even assuming that the trial court denied this motion for mistrial and Steer

preserved error, we presume that the jury followed the trial court’s instruction to disregard

the challenged testimony.        See Drake v. State, 123 S.W.3d 596, 604 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref'd) ("When objectionable testimony is elicited,

inadvertently or deliberately, an appellate court presumes the jury will follow instructions

to disregard the evidence.") (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim.

App. 1987) (en banc)). On this basis, then, we conclude that the trial court did not abuse

its discretion in denying this motion for mistrial. See Webb, 232 S.W.3d at 112.

       We overrule Steer’s second issue.

                                    III.   CONCLUSION

       We affirm the trial court’s judgment.


                                                                NELDA V. RODRIGUEZ
                                                                Justice

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

Delivered and filed the
16th day of May, 2013.




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