                            NUMBER 13-11-00367-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JOHNNY FONSECA,                                                       Appellant,

                                           v.

THE STATE OF TEXAS,                                                   Appellee.


                    On appeal from the 25th District Court
                        of Gonzales County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
               Memorandum Opinion by Justice Perkes
      Appellant, Johnny Fonseca, appeals his conviction for aggravated assault with a

deadly weapon, a second degree felony. See TEX. PENAL CODE ANN. § 22.02 (West

2011). A jury found appellant guilty and assessed punishment at 27 years confinement

in the Texas Department of Criminal Justice, Institutional Division.      By two issues,

appellant argues that the trial court erred by: (1) not admitting testimony of potentially
exculpatory information that the State objected to on hearsay grounds; and (2) denying

appellant’s motion for mistrial. We affirm.

                      I. FACTUAL AND PROCEDURAL BACKGROUND1

        Fernando Gloria was shot in the left side of his chest, requiring extensive medical

treatment. Although Fernando testified that he did not remember any details of the

shooting, his wife, Yvonne Macias, testified that she and Fernando had been standing

and talking outside the house of Fernando’s brother, Jaime Gloria, at about midnight, and

Fernando was shot after appellant approached the house and lifted his right hand, as if

pointing, which immediately preceded the gunshots. Jaime Gloria testified that he saw

appellant exit a vehicle in which he had been a passenger and start shooting.

        John Gloria, another brother of Fernando, testified that he was outside the house

when he saw appellant get out of a vehicle holding a handgun. According to John, none

of the persons accompanying appellant nor of the family and friends at Jaime’s house

possessed a gun. He testified that appellant “just aimed toward the house, and he shot.”

Kathryn Macias, who was dating Jaime Gloria at the time, testified she clearly saw

appellant produce a handgun “from behind his back and start shooting.” She stated

appellant then ran back to the vehicle in which he had been riding, and the car “took off.”

        John called 9-1-1, upon discovering that Fernando was shot. Police officers

responded to the scene, followed by EMS. Fernando was taken to a hospital, where

doctors attended to him for almost two weeks before finally discharging him.



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           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.
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      The jury returned a guilty verdict for the offense of aggravated assault, and this

appeal followed.

                         II. EXCLUSION OF HEARSAY EVIDENCE

      By his first issue, appellant contends the trial court erred by not admitting certain

testimony from Police Captain James Allen Taylor of the City of Gonzales Police

Department.        Specifically,   appellant’s   attorney   asked   Captain    Taylor    on

cross-examination whether the Luling Police Department had contacted him. The State

objected on hearsay, improper foundation, and relevance grounds.              Outside the

presence of the jury, appellant’s attorney conducted a voir dire examination of Captain

Taylor.

      During the voir dire examination, Captain Taylor testified that an investigator at the

Luling Police Department had contacted him and informed him that “one of their officers

had made a traffic stop and had gotten information that they [sic] may have possibly been

involved in the shooting here in Gonzales.” Captain Taylor confirmed that he reviewed

photographs of text messages related to the traffic stop, but testified that he could not

recall the contents of the text messages. After the voir dire examination, the trial court

sustained the State’s hearsay objection.

      Appellant asserts the trial court erred in not admitting Captain Taylor’s testimony,

arguing the statements in the text messages fall under the excited utterance exception to

hearsay. This contention, however, was not presented to the trial court. In order to

have evidence admitted under a hearsay exception, it is the responsibility of the

proponent, not the trial court, to specify the exception. See Reyna v. State, 168 S.W.3d


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173, 177 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845–46 (Tex. Crim.

App. 2002). Appellant’s failure to give the trial judge an opportunity to rule on the

argument now presented precludes appellant from making the argument for the first time

on appeal. See Johnson v. State, 925 S.W.2d 745, 750 (Tex. App.—Fort Worth 1996,

writ ref’d). Since appellant’s argument does not comport with his complaint at trial,

appellant has preserved nothing for review. See TEX. R. APP. P. 33.1(a). We overrule

appellant’s first issue.

                           III. DENIAL OF MOTION FOR MISTRIAL

       By his second issue, appellant argues the trial court reversibly erred by denying

the motion for mistrial that he requested after a witness, under questioning by the State,

testified that appellant was previously incarcerated. We disagree.

A.     Standard of Review

       We review the trial judge’s denial of appellant’s motion for mistrial under an abuse

of discretion standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010);

Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus Christ 2010, pet. ref’d). We

review the evidence in the light most favorable to the trial court’s ruling. Ocon v. State,

284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We will uphold the trial court’s ruling as

long as it is within the zone of reasonable disagreement. Coble, 330 S.W.3d at 292;

Ocon, 284 S.W.3d at 884; Espinosa, 328 S.W.3d at 38.

B.     Applicable Law

       A mistrial is an extreme remedy, and “[o]nly in extreme circumstances, where the

prejudice is incurable, will mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77


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(Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court’s remedy for improper

conduct that is ‘so prejudicial that expenditure of further time and expense would be

wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999)). “Therefore, a mistrial should be granted only in the cases where the ‘reference

was clearly calculated to inflame the minds of the jury or was of such damning character

as to suggest it would be impossible to remove the harmful impression from the juror’s

minds.’” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Rojas v.

State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)).            Otherwise, sound discretion

normally requires the trial judge to consider less drastic alternatives. Torres v. State,

614 S.W.2d 436, 442 (Tex. Crim. App. 1981) (panel op.).

       Regarding a witness’s reference to a defendant’s prior incarceration, the Texas

Court of Criminal Appeals has previously held:

       [O]ur research also reveals that error will not necessarily be reflected in
       every unresponsive answer by a State's witness which implicates a
       reference to the fact that a defendant has been “sent to” or incarcerated in
       the penitentiary. Even where such prejudicial information is inadvertently
       placed before a jury, the general rule is still that an instruction by the trial
       judge to the jury to disregard such answer will be sufficient to cure any
       unresponsive answer.

Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (quoting Williams v. State,

643 S.W.2d 136, 138 (Tex. Crim. App. 1982)); see Fuller v. State, 827 S.W.2d 919, 926

(Tex. App.—Houston [1st Dist.] 1992, no pet.) (citations omitted); see also Ovalle v. State,

13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (holding that a prompt instruction to disregard

will cure a witness’s inadvertent reference to an extraneous offense).




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C.     Discussion

       Appellant moved for mistrial based on the following excerpt from the State’s

cross-examination of Joe Fonseca, appellant’s nephew:

       Q:      You don’t want to see him [appellant] get in trouble, do you?

       A:      No, sir, I don’t.

       Q:      You don’t want to see him go to prison?

       A:      No. He’s been there for almost half his life already.

       Outside the presence of the jury, appellant’s counsel urged for mistrial because

“the prejudicial effect [of the reference to appellant’s prior incarceration] on my client at

this time in this trial was so severe, that there’s no way that he can get a fair trial in front of

these jurors . . . .” Appellant’s attorney acknowledged that the question was not intended

to elicit the complained-of response.        Counsel, however, decided not to pursue an

instruction to disregard for fear that such an instruction would emphasize the testimony,

rather than cure it. The trial court denied appellant’s motion for mistrial.

       Appellant contends that the trial court abused its discretion by not granting his

motion for mistrial because the incarceration “reference at this stage of the trial was so

highly prejudicial and incurable . . . .” We are not so persuaded. The question, which

the State asked of other defense witnesses, was not designed to elicit the non-responsive

answer, and appellant does not contend that it was. The answer to the question was not

calculated to inflame the minds of the jury; the reference was made by appellant’s

nephew. See Wilson v. State, 90 S.W.3d 391, 395 (Tex. App.—Dallas 2002, no pet.)

(“The witness’s reference to [the defendant’s] previous incarceration was not so


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calculated to inflame the minds of the jury . . . .”). Nor was the statement of “such

damning character” that it “would be impossible to remove the harmful impression from

the juror’s minds” through an instruction to disregard. See Young, 283 S.W.3d at 878;

Ladd, 3 S.W.3d at 567; Wilson, 90 S.W.3d at 395.

       That appellant opted against requesting the instruction to disregard does not, by

the process of elimination of curative measures, constrain the trial court to grant

appellant’s motion for mistrial. See Hunter v. State, 481 S.W.2d 806, 807 (Tex. Crim.

App. 1972) (upholding trial court’s denial of defendant’s mistrial motion because,

although the defendant did not request an instruction for the jury to disregard, such

instruction could have cured any harm). We overrule appellant’s second issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.


                                                   GREGORY T. PERKES
                                                   Justice

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

Delivered and filed the
28th day of March, 2013.




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