                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00168-CR

MIGUEL GABINO MEJIAS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F44572


                          MEMORANDUM OPINION


      Miguel Gabino Mejias pled guilty to the offense of aggravated assault with a

deadly weapon—family violence and elected to have a jury decide his punishment. See

TEX. PENAL CODE ANN. § 22.02(b)(1) (West 2011). After a hearing, the jury assessed

Mejias’ punishment at 60 years in prison and a $10,000 fine. Because the trial court did

not err in denying Mejias’ motion for mistrial and did not err in overruling his objection

to the introduction of two photographs, the judgment is affirmed.
                                      BACKGROUND

        Early Easter morning in 2010, Mejias and his wife, Armida, had a fight. Mejias

punched and broke the headboard of their bed. When Armida told him to leave the

house, he injected himself with illegal steroids. Mejias eventually left but returned a

short time later through the garage attached to the house and broke down the back

door. Again Armida told Mejias to leave. He complied but again returned and kicked

in the glass door to the kitchen. Mejias slapped Armida, knocking her to the ground.

He then grabbed a large kitchen knife and stabbed Armida in the chest, abdomen, and

arm—cutting her internal mammary artery, lower lobe of the left lung, heart,

diaphragm, and liver. Mejias would not allow Armida to leave the house and did not

seek medical attention for her for at least 20 minutes before he finally called 911.

Armida was flown to John Peter Smith Hospital in Fort Worth. She survived her

injuries.

                                         MISTRIAL

        In his first issue, Mejias contends the trial court erred in denying his motion for

mistrial after sustaining an objection to testimony from a State’s witness regarding an

extraneous offense.

        When the trial court sustains the defense’s objection, grants the requested

instruction to disregard, but denies the motion for mistrial, the proper issue is whether

the refusal to grant the mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d


Mejias v. State                                                                      Page 2
72, 76-77 (Tex. Crim. App. 2004). In deciding whether to grant a motion for mistrial,

however, the trial court effectively conducts an appellate function:                     determining

whether improper conduct is so harmful that the case must be redone. Id. at 77. Only in

extreme circumstances, where the prejudice is incurable, will a mistrial be required.

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A prompt instruction to

disregard will ordinarily cure any prejudice 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).1 Accord Marshall v. State, 210 S.W.3d 618, 628-629 (Tex. Crim.

App. 2006); Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004); Rojas v. State,

986 S.W.2d 241, 250 (Tex. Crim. App. 1998).

        Mayra Escobar was called by the State to testify about her prior relationship with

Mejias. When she was asked about whether Mejias ever made any statements that he

would harm her, she stated that Mejias threatened to kill her or her daughter or her

family if Mayra ever called the police or left Mejias. Mayra then stated that Mejias

would also think of gruesome ways to harm her, such as: “he said he would kind of

almost like a pulley system, where he would do like a fish lure to the eyelids.” After

this statement, Mejias asked to approach the bench. Mayra’s testimony about this

incident was continued outside the presence of the jury where she further explained

this system:

1The Ovalle opinion viewed the instruction to disregard as a means to cure “error.” However, in light of
Hawkins, we view it as curing “prejudice.”

Mejias v. State                                                                                  Page 3
               <it would be like fish hooks from your eyelids tied to the back of
        your foot so, like you have to blink, it would pull you, or if you moved
        your leg, something to be tearing and just basically torture.

        After argument by both parties, a request by Mejias for an instruction to

disregard, and a request for a mistrial, the trial court ruled that he would instruct the

jury to disregard the witness’ last answer and deny the motion for mistrial. When the

jury was brought back into the courtroom, the trial court promptly sustained Mejias’

objection and instructed the jury to “disregard the witness’ last answer and not consider

that answer for any purpose in this case.”

        After reviewing the record, we find the answer is not so extreme that prejudice, if

any, could not be cured by the instruction to disregard such as to require a mistrial,

especially compared to Mayra’s more explicit description of Mejias’ threat outside the

presence of the jury.2 Accordingly, the trial court did not abuse its discretion in denying

Mejias’ motion for mistrial. Mejias’ first issue is overruled.



2 Both Mejias and the State review the potential prejudice of Mayra’s answer in light of the factors
pronounced in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). The Court of Criminal
Appeals in Mosley adopted factors to use to evaluate whether the trial court abused its discretion in
denying a motion for mistrial for improper argument during the guilt/innocence phase of a trial. Id. 240-
259. In Hawkins, the Court of Criminal appeals tailored the Mosley factors to evaluate the denial of a
motion for mistrial resulting from improper argument in the punishment phase of the trial. Because the
Court of Criminal Appeals has not adopted the Mosley/Hawkins factors in evaluating the denial of a
motion for mistrial pursuant to any reason other than improper argument, such as the improper
introduction of extraneous offenses, we do not use those factors in our review of Mejias’ first issue. We
recognize that in 2006, this Court twice evaluated the denial of a motion for mistrial for the improper
introduction of extraneous evidence using the Mosley factors. See England v. State, No. 10-05-00021-CR,
2006 Tex. App. LEXIS 2524 (Tex. App.—Waco Mar. 29, 2006, pet. ref’d) (not designated for publication);
Perez v. State, 187 S.W.3d 110 (Tex. App.—Waco 2006, no pet.). The Mosley type review and analysis
conducted in those cases was inappropriate based on the nature of the issues in those proceedings, and
we do not follow them in this proceeding.

Mejias v. State                                                                                   Page 4
                                     PHOTOGRAPHS

        In his second issue, Mejias argues that the trial court erred in admitting

photographs of Armida while in the hospital. Specifically, he argues that the trial court,

after balancing the various Rule 403 factors set out in Montgomery v. State, should have

reasonably concluded that the probative value of the photos was substantially

outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Montgomery v. State,

810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g).

        In evaluating the photos in light of the Montgomery factors, Mejias contends the

probative value of the photos was inherently weak because they did not portray any of

the wounds to Armida; the State did not have a great need for the evidence because

Mejias pled guilty and the nature and severity of the wounds was not depicted in the

photos; the photos had a tendency to influence the jury on an improper basis by

arousing the jury’s sympathy for Armida and anger toward Mejias for placing her in the

hospital; and the photos were graphic and could have easily confused the jury by

distracting the jury from the main issue of the case; that being, a proper punishment.

        The two photos about which Mejias complains were of Armida, lying in a

hospital bed. The photos depict her attached to a ventilator with I-Vs in her arm and

with a brace on her neck. The admissibility of photographs over an objection is within

the sound discretion of the trial court. Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim.

App. 2010). After considering the Montgomery factors relevant to a Rule 403 analysis


Mejias v. State                                                                     Page 5
and the factors specific to the review of the admission of photographs as set out in

Narvaiz,3 we find that the trial court did not abuse its discretion in admitting the photos

over Mejias’ Rule 403 objection.4 Mejias’ second issue is overruled.

                                              CONCLUSION

        Having overruled each of Mejias’ issues on appeal, we affirm the judgment of the

trial court.




                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis concurs with a note)*
Affirmed
Opinion delivered and filed July 12, 2012
Do not publish
[CRPM]

      * “(Footnote 2 is unnecessary to the analysis, noting or disposition of this
appeal.)”




3 Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992) (the number of photographs, the size,
whether they are in color or are black and white, whether they are gruesome, whether any bodies are
clothed or naked, and whether the body has been altered by autopsy).

4This is especially so in light of Armida’s reluctance to testify about the severity of her injuries and other
pictures about which Mejias does not complain on appeal which depict Armida lying on the floor
covered in blood.

Mejias v. State                                                                                        Page 6
