                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00184-CR


OSCAR GARCIA LOPEZ                                                        APPELLANT

                                          V.

THE STATE OF TEXAS                                                           STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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      A jury convicted Appellant Oscar Garcia Lopez of burglary of a habitation

with intent to commit aggravated assault with a deadly weapon and assessed his

punishment at fifty years’ confinement. In a single point, Lopez argues that the

trial court erred by denying his motion for a mistrial. We will affirm.

      Cynthia Mendoza and her daughter visited David Miramontez at his house

on February 14, 2008. Mendoza was married to Lopez at the time, but they had
      1
       See Tex. R. App. P. 47.4.
been separated for several years, and Mendoza was seven months pregnant

with Miramontez’s baby. Just after Mendoza and Miramontez sat down on the

couch, Lopez—uninvited—walked through the front screen door, came towards

Miramontez, pulled a knife out of his pocket, and began stabbing Miramontez.

Miramontez managed to run out of the house, but Lopez chased him down and

continued stabbing him before fleeing the scene.       Miramontez survived the

attack, despite suffering approximately fourteen to seventeen stab wounds.

Police apprehended Lopez two years later.

      During trial, the State questioned Mendoza on redirect about an incident

that occurred in 2007 involving Lopez and Miramontez.           When the State

questioned Mendoza if she was “aware if [Lopez] was actually convicted of the

offense of aggravated robbery with a deadly weapon,” Mendoza responded

“Yes,” but Lopez objected, asked the trial court to instruct the jury to disregard

the testimony, and moved for a mistrial.      The trial court sustained Lopez’s

objection, instructed the jury to disregard Lopez’s testimony, and denied the

motion for a mistrial.

      Lopez argues in his only point that the trial court erred by denying his

motion for a mistrial because the trial court’s instruction to disregard the

extraneous-offense evidence was insufficient to cure the harm caused by the

introduction of the evidence.

      When the trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether the


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trial court abused its discretion by denying the mistrial. Hawkins v. State, 135

S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme

circumstances—when the prejudice caused by the improper question and

answer is incurable, i.e., “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), cert. denied, 529 U.S. 1070 (2000). In most instances, an

instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d

103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).              We

consider the following factors in determining whether the trial court abused its

discretion by denying a motion for a mistrial: (1) the severity of the misconduct,

(2) curative measures, and (3) the certainty of conviction absent the misconduct.

Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

      Although the State’s question about Lopez’s prior conviction for

aggravated robbery was improper,2 the record does not demonstrate that the

prosecutor’s query was calculated to inflame the minds of the jury, the trial court

immediately instructed the jury to disregard the testimony, the State did not ask

any follow-up questions about the prior conviction, neither side mentioned the

prior conviction during closing arguments, the trial court instructed the jury in the

charge on guilt that it could consider extraneous-offense evidence only if it

      2
        The trial court sustained Lopez’s objection before he even had a chance
to say “extraneous offense.”


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believed beyond a reasonable doubt that Lopez committed such acts, and the

certainty of Lopez’s conviction absent the improper question and answer was

high. See Hawkins, 135 S.W.3d at 77. Accordingly, we hold that the trial court

did not abuse its discretion by denying Lopez’s motion for a mistrial. We overrule

Lopez’s sole point and affirm the trial court’s judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 19, 2012




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