                                   NUMBER 13-07-234-CR

                                 COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


SAMANTHA BARBERA,                                                             Appellant,

                                                     v.

THE STATE OF TEXAS,                                                            Appellee.


                      On appeal from the 411th District Court
                          of San Jacinto County, Texas.


                              MEMORANDUM OPINION

                   Before Justices Rodriguez, Garza, and Vela
                     Memorandum Opinion by Justice Vela

      A jury found appellant, Samantha Barbera, guilty of the offense of injury to a child,1

and the trial court assessed punishment at four years in prison. By two issues, Barbera



      1
       See T EX . P EN AL C OD E A N N . § 22.04(a)(3) (Vernon Supp. 2008).
argues the trial court erred in denying her request for a limiting instruction and in denying

her motion for mistrial. We affirm.

                                   I. Factual Background

       Barbera does not challenge the legal or factual sufficiency of the evidence to

support her conviction. Because the background and facts are pertinent to the issues,

however, we shall review the applicable facts.

A. State’s Evidence

       On May 8, 2006, thirteen-year-old S.P. and her eight-year-old brother went to a

grocery store in Shepherd, Texas to buy some sugar for their mother, Michelle Hoffpauir.

When they left the store, they saw Barbera, naked, getting out of a car. She yelled and

cussed at S.P., and the children told their mother what had happened. Hoffpauir and S.P.

went to the store and saw Barbera, now wearing clothes, going into the store. Hoffpauir

asked Barbera if she had cussed at S.P. S.P. testified that at this point, Barbera “started

coming at me; and my mom stepped in her way. And when she did, she hit my mom in the

chest. Well, then, my mom, like, shoved her away; and when she did that, her and my

mom started getting into it.”     Barbera’s boyfriend, Brian Vancauwenbergh, grabbed

Hoffpauir from behind and held her while Barbera hit her. When S.P. tried to pull Barbera

away, Brian “backhanded” S.P. on the mouth, and Barbera slapped and hit S.P.’s face.

Finally, Lois Graves, an employee at the store, started hitting Brian with her phone. Unable

to break up the fight, Graves called the police, and the assailants left in their car.

       Graves did not see either Brian or Barbera hit S.P. However, Graves testified that

“[S.P.] was red-faced like she, you know, may have been slapped or hit. . . .” S.P. said that

Barbera had slapped her with an open hand and hit her with a closed fist. As a result, she

suffered a “busted” lip and bruised jaws. Hoffpauir testified that Brian slapped S.P. and
                                           2
that Barbera “started fighting with [S.P.] and hitting her.” She testified that, “I know she

[Barbera] was hitting her [S.P.] all over, but mostly she was hitting her in the face.” She

said that S.P. suffered a bruise on her jawline, several bruises on her arms, and her mouth

“had gotten busted . . . .”

B. Appellant’s Evidence

       Brian Vancauwenbergh testified he and Barbera had been swimming together at

Dolen River Bridge prior to their encounter with Hoffpauir. They stopped at the store to

grab a couple of beers before going to Brian’s house. He testified that a “fight broke out”

between Barbera and Hoffpauir, but he did not see Barbera strike S.P. He denied slapping

S.P.

       Barbera did not testify.

                                        II. Discussion

A. Limiting Instruction

       By issue one, Barbera argues the trial court erred in denying her request for a

limiting instruction. During the State’s direct-examination of Lois Graves, the prosecutor

asked her: “And did you have a chance to witness an assault happening outside of your

store that same day?” She replied: “I went to put the beer back into the cooler, and I was

going to look–.” At that point, the court held a bench conference during which counsel told

the court that the prosecutor was about to elicit evidence of an extraneous offense.

Counsel requested the court to immediately give the jury a limiting instruction that “they [the

jury] have to find beyond a reasonable doubt that she [Barbera] committed the other

offense before they can consider it for any purpose.” The court denied the request, and

Graves testified she saw Brian holding Hoffpauir’s arms back while Barbera punched and

hit her.
                                              3
        A defendant is entitled to an instruction limiting the jury's use of an extraneous

offense not only in the jury charge but also at the time the evidence is admitted, if such an

instruction is timely requested by the accused. Rankin v. State, 974 S.W.2d 707, 713 (Tex.

Crim. App. 1996); see also TEX . R. EVID . 105(a).2                      However, extraneous evidence

constituting the “same transaction contextual evidence” is admissible without a limiting

instruction. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). “Such

extraneous offenses are admissible to show the context in which the criminal act occurred.”

Id.; Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980). This evidence is

considered res gestae, under the reasoning that events do not happen in a vacuum, and

the jury has the right to hear what happened immediately prior to and subsequent to the

commission of that act so that it may realistically evaluate the evidence. Wesbrook, 29

S.W.3d at 115.

        In this case, Barbera’s conduct of hitting and punching Hoffpauir is res gestae

because it happened immediately prior to Barbera’s act of slapping and hitting S.P.

Accordingly, the evidence is “same transaction contextual evidence”3 and is admissible




        2
          Rule of Evidence 105(a) provides that, when evidence which is adm issible for only a lim ited purpose
is adm itted, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury
accordingly; but, in the absence of such request the court's action in adm itting such evidence without lim itation
shall not be a ground for com plaint on appeal.” T EX . R. E VID . 105(a).

        3
          See W esbrook v. State, 29 S.W .3d 103, 115 (Tex. Crim . App. 2000) (holding evidence that defendant
com m itted three other hom icides on night of charged hom icide constituted sam e transaction contextual
evidence); W yatt v. State, 23 S.W .3d 18, 26 (Tex. Crim . App. 2000) (holding evidence that defendant sexually
assaulted child before sm othering child constituted sam e transaction contextual evidence); Moreno v. State,
195 S.W .3d 321, 327 (Tex. App.–Houston [14th Dist.] 2006, pet. ref'd) (holding evidence that defendant
com pleted several other drug deals in days before charged offense constituted sam e transaction contextual
evidence); Nguyen v. State, 177 S.W .3d 659, 667 (Tex. App.–Houston [1st Dist.] 2005, pet. ref'd) (holding
evidence that defendant was involved in hom icide was sam e transaction contextual evidence to charged
offense of insurance fraud); Heiman v. State, 923 S.W .2d 622, 626 (Tex. App.–Houston [1st Dist.] 1995, pet.
ref'd) (holding evidence that defendant injected cocaine into him self and victim at tim e of offense of indecency
with child constituted sam e transaction contextual evidence).


                                                        4
without a limiting instruction.4 See Wesbrook, 29 S.W.3d at 115. Issue one is overruled.

B. Motion for Mistrial

        In issue two, Barbera argues the trial court erred in denying her request for a mistrial

when Deputy Chad Whitten gave improper opinion testimony that she had committed the

offense of injury to a child. During the guilt-innocence stage, the prosecutor questioned

Deputy Whitten, the lead investigator in this case, as follows:

        Q.       Now, Officer, based on your investigation did an offense happen
                 against [S.P.] that day?

        A.       Yes it did.

        Q.       What was that offense?

        A.       Injury to a child.

        At this point, counsel objected, stating “[t]hat’s a conclusion, a legal conclusion.”

The trial court sustained the objection and upon counsel’s request, instructed the jury as

follows: “The jury is instructed to disregard the last statement of this witness.” The court

denied counsel’s motion for a mistrial.

1. Applicable Law

        We review the denial of a motion for mistrial under an abuse of discretion standard.

Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Davis v. State, 177

S.W.3d 355, 363 (Tex. App.–Houston [1st Dist.] 2005, no pet.). Under this standard, an



         4
           Even though the trial court did not provide a lim iting instruction contem poraneous with the adm ission
of the testim ony, the court did provide a lim iting instruction in its guilt-innocence charge:

        The State has introduced evidence of extraneous crim es or bad acts other than the one
        charged in the indictm ent in this case. This evidence was adm itted only for the purpose of
        assisting you, if it does, for the purpose of showing the defendant’s m otive, opportunity,
        intent, preparation, plan, knowledge, identity, or absence of m istake or accident, if any. You
        cannot consider the testim ony unless you find and believe beyond a reasonable doubt that
        the defendant com m itted these acts, if any were com m itted.


                                                        5
appellate court must uphold the trial court's ruling as long as the ruling was within the zone

of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).

A mistrial is a device used to halt trial proceedings when error is so prejudicial that

expenditure of further time and expense would be wasteful and futile. Wood v. State, 18

S.W.3d 642, 648 (Tex. Crim. App. 2000); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.

App. 1999). When objectionable testimony is elicited, inadvertently or deliberately, an

appellate court presumes a jury will follow instructions to disregard the evidence. Drake

v. State, 123 S.W.3d 596, 604 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d); see

Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). Thus, a trial court properly

exercises its discretion to declare a mistrial when, due to the error, an impartial verdict

cannot be reached or a conviction would have to be reversed on appeal due to “an obvious

procedural error.” Wood, 18 S.W.3d at 648. When, as here, the trial court instructs the

jury to disregard, but denies a defendant's motion for a mistrial, the issue is whether the

trial court abused its discretion in denying a mistrial. Hawkins, 135 S.W.3d at 77. In

determining whether the trial court abused its discretion in denying the mistrial, we balance

three factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures;

and (3) the certainty of conviction absent the misconduct. Id. at 75. Only in extreme

circumstances, when the prejudice is incurable or the comment is “so prejudicial that

expenditure of further time and expense would be wasteful and futile,” will a mistrial be

required. Id. at 77.

2. Analysis

       a. Prejudicial Effect

       The prosecutor asked Deputy Whitten whether, based on his investigation, “an



                                              6
offense happened against [S.P.] that day?” He answered affirmatively, but he did not

connect Barbera to the offense. Moreover, the prosecutor did not ask, and Deputy Whitten

did not say, whether he thought Barbera was guilty of the offense of injury to a child. Thus,

Deputy Whitten’s testimony had little, if any, prejudicial effect.

       b. Curative Measure

       The trial court instructed the jury to disregard Deputy Whitten’s “last statement.-”

We ordinarily assume that an instruction to disregard cures any harm flowing from the

error. Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000). Beyond that general

assumption, however, we note that Deputy Whitten’s testimony was not so inflammatory

that an instruction to disregard it could not have cured the error.

       c. Certainty of Conviction Absent the Misconduct

       S.P. testified that Barbera slapped and hit her in the face. As a result, she suffered

a “busted” lip and bruised jaws. Hoffpauir testified: “I know she [Barbera] was hitting her

[S.P.] all over, but mostly she was hitting her in the face.” Hoffpauir said that S.P. suffered

a bruise on her jawline, several bruises on her arms, and her mouth “had gotten busted .

. . .” Graves did not see anyone hit S.P., but she testified that “[S.P.] was red-faced like

she, you know, may have been slapped or hit. . . .” Brian did not see Barbera strike S.P.,

and he denied slapping her.

       Absent Deputy Whitten’s complained-of response, the certainty of conviction is

strong. After balancing the three Hawkins factors, we hold that any possible harm caused

by Deputy Whitten’s testimony was cured by the trial court’s instruction and that the trial

court did not err by denying the motion for mistrial. See Drake, 123 S.W.3d at 603-04

(holding that jury could follow instruction to disregard State’s reference to defendant’s



                                              7
“many burglaries”); see also Ladd, 3 S.W.3d at 567 (grant of a mistrial is proper “when

error is so prejudicial that expenditure of further time and expense would be wasteful and

futile”). Issue two is overruled.

                                     IV. Conclusion

       We affirm the trial court’s judgment.




                                                   ROSE VELA
                                                   Justice


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

Memorandum Opinion delivered and
filed this 28th day of August, 2008.




                                               8
