Opinion issued August 20, 2013




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00974-CR
                           ———————————
                         HUGO ROMERO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1253992



                         MEMORANDUM OPINION

      A jury convicted appellant Hugo Romero of possession with intent to deliver

400 grams or more of a controlled substance, cocaine. See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.102(3)(D), 481.112(f) (West 2010). The jury also found that he
used or exhibited a deadly weapon during the commission of that offense, and it

assessed punishment at imprisonment for 50 years and a $125,000 fine. In his sole

issue, Romero challenges the trial court’s denial of his motion for mistrial after the

prosecutor referenced the results of a ballistics test which were inadmissible

hearsay.   Because the prosecutor’s statement was not the kind of extreme,

prejudicial statement that could not have been cured by the trial court’s instruction

to disregard, we affirm.

                                    Background

      Houston police officers responded to a call regarding a shooting at a

residence leased by appellant Hugo Romero and his friend Julian Lozano. In front

of the house, a car had crashed into a parked school bus. Inside, they found

Enrique Berman shot to death, lying on the kitchen floor. After searching the

house, the officers found over 440 grams of cocaine in Romero’s bedroom.

      Romero was charged with murder and with possession with intent to deliver

over 400 grams of a controlled substance. The murder charge was severed and

Romero was prosecuted for the drug offense. Berman’s death was not mentioned

until the punishment phase of the trial, after the jury had found Romero guilty.

      Romero did not deny shooting Berman, but he said that it was an accident.

He testified that he had started talking to Berman about guns and retrieved

Lozano’s gun. When Romero showed the gun to Berman, Romero dropped it.


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According to his testimony, he caught the gun and must have inadvertently touched

the trigger. Berman’s girlfriend, Rosalinda Machado, was present and immediately

afterward she saw Romero standing with the gun in his hand. Romero then went to

Lozano’s room, woke him, and told him that “there’s been an accident.” Lozano

called 9-1-1 after he determined that Romero had not called for help. Lozano

testified that Romero asked him to “help him out” and “get rid of the gun.”

Romero started “walking around like a zombie” and moving around clothes in his

car. Then Romero attempted to leave in his car, but he collided with a school bus.

      Supporting the contention that the shooting was an accident, both Romero

and Lozano testified that Romero was inexperienced with guns. Romero, Lozano,

and Machado all agreed that there was no argument or disagreement between

Romero and Berman and that they were good friends. Machado testified that

Romero had been friendly and cordial to Berman and her before the shooting,

offering them beer. Romero admitted that he did not check to see if the gun was

loaded, but he advanced the theory that the revolver had been modified to have a

“hairline trigger pull.”

      A homicide detective involved in the case testified that the gun was a

revolver that required “quite a bit of pressure” to depress the trigger to fire it. He

also testified that the fact that the revolver was loaded could be determined even

with the cylinder closed because “the edge[s] of the rims on the bullets” would be

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visible.   On cross-examination of the detective, Romero’s attorney sought to

emphasize the detective’s lack of credentials to offer an opinion about the gun:

       DEFENSE COUNSEL: . . . You’re not an expert in weapons, right?

       DETECTIVE: I am not an expert, no.

       DEFENSE COUNSEL: So, therefore, you send it out to get it tested
       and get a ballistics report, correct?

       DETECTIVE: Yes.

       DEFENSE COUNSEL: You didn’t do the ballistics report or the
       ballistics test?

       DETECTIVE: I did not personally.

On redirect, the prosecutor asked the detective about the ballistics testing first

referenced by Romero’s attorney:

       PROSECUTOR: Defense counsel asked if you were an expert in
       ballistics, and you said no. Is that why you had the gun tested by
       experts in ballistics?

       DETECTIVE: Yes.

       PROSECUTOR: And, as you stated on direct examination, is that
       why you checked to make sure that those experts were able to
       conclude that the gun was working properly?

       DETECTIVE: Yes.

       DEFENSE COUNSEL: Objection, Your Honor, hearsay.

       COURT: Sustained.

       DEFENSE COUNSEL:            Instruct the jury to disregard his last
       response, Judge.


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      COURT: The jury will disregard.

      DEFENSE COUNSEL: Move for a mistrial, Judge.

      COURT: Denied.

      After finding that Romero exhibited a deadly weapon during the commission

of the offense, the jury assessed his punishment as 50 years in prison and a fine of

$125,000. In his sole issue on appeal, Romero challenges trial court’s denial of his

motion for mistrial.

                                      Analysis

I.    Waiver

      The State argues that Romero has waived his sole argument on appeal

because his defense counsel failed to timely object to the prosecutor’s question

eliciting hearsay. Hearsay is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” TEX. R. EVID. 801(d). In order to be considered timely, the

objection must be made at the first opportunity or as soon as the basis of the

objection becomes apparent. Aguilar v. State, 26 S.W.3d 901, 905–06 (Tex. Crim.

App. 2000); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). If

possible, a timely objection should be made before the evidence is improperly

admitted. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Jasso

v. State, 112 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).


                                          5
      Here, the objection was made as soon as reasonably possible. The basis for

the objection, that the prosecutor stated the conclusions of the ballistics experts,

was clear in only the second half of the prosecutor’s question:

      PROSECUTOR: And, as you stated on direct examination, is that
      why you checked to make sure that those experts were able to
      conclude that the gun was working properly?

      DETECTIVE: Yes.

      DEFENSE COUNSEL: Objection, Your Honor, hearsay.

Before the prosecutor said “were able to conclude,” it was not apparent whether

the prosecutor was merely asking the detective to again confirm that he had sent

the revolver to ballistics testing by “experts.” Defense counsel’s objection follows

immediately on the heels of the detective’s short, one-word answer. From the

transcript, we cannot conclude that the defense counsel waited or hesitated in

making the objection; in fact, it may have been contemporaneous with the

detective’s one-word answer.

      The record does not clearly demonstrate an untimely objection. Although

the standard for a timely objection is both demanding and unforgiving, Jasso, 112

S.W.3d at 813, it also recognizes that it is not always possible to object before

evidence is offered. See Ethington, 819 S.W.2d at 858. When it is not possible to

object before admission, as here when the objectionable remark came at the end of

a short question, the objection is timely as long as counsel “objected as soon as the


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objectionable nature of the evidence became apparent” and moved to strike the

evidence. Id. In this case, defense counsel did both. He objected immediately

after the detective’s one-word response, rather than waiting for any additional

questions to be asked and answered or allowing lengthy testimony to continue. See

Lagrone, 942 S.W.2d at 618 (“Appellant did not object until the prosecutor’s

question had been asked and answered, and the prosecutor had passed the

witness.”); Ethington, 819 S.W.2d at 857–58 (defense objected to prosecutor’s

initial question about an armed robbery, but then never objected to multiple

subsequent questions and answers concerning the details of the planned armed

robbery); Jasso, 112 S.W.3d at 813 (police officer’s answer mentioned that

objectionable lie-detector test was administered, but no objection until after a

subsequent question and answer about the test); Jones v. State, 111 S.W.3d 600,

604 (Tex. App.—Dallas 2003, pet. ref’d) (“Jones did not object until after the

officer’s last response . . . . However, the basis for Jones’s objection became

apparent after the State’s first question.”).

      Accordingly, we conclude that Romero has not waived his complaint on

appeal for failure to make a timely objection.

II.   Denial of motion for mistrial

      When a trial court denies a defendant’s motion for mistrial after sustaining

an objection and instructing the jury to disregard, the dispositive issue is the denial


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of a mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).

We review the trial court’s refusal to grant a mistrial for an abuse of discretion.

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Bryant v. State, 340

S.W.3d 1, 12 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We view the

evidence in the light most favorable to the trial court’s ruling, upholding the ruling

if it was within the zone of reasonable disagreement. Bokemeyer v. State, 355

S.W.3d 199, 202 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Wead v.

State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).                Only in extreme

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

Hawkins, 135 S.W.3d at 77. “[O]rdinarily, a prompt instruction to disregard will

cure error associated with an improper question and answer.” Simpson v. State,

119 S.W.3d 262, 272 (Tex. Crim. App. 2003); see also Russeau v. State, 171

S.W.3d 871, 885 (Tex. Crim. App. 2005).

      Although we do not conduct the usual harm analysis in deciding whether the

trial court abused its discretion, “whether a mistrial should have been granted

involves most, if not all, of the same considerations that attend a harm analysis.”

Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (quoting Hawkins,

135 S.W.3d at 77). In determining whether a trial court abused its discretion in

denying a mistrial, we apply a version of the three-part Mosley test tailored for

punishment proceedings. Id. (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.

                                          8
Crim. App. 1998)). We balance three factors: (1) the severity of the misconduct

(the statements’ prejudicial effect), (2) curative measures (the efficacy of any

cautionary instruction by the judge), and (3) the certainty of the punishment

assessed absent the misconduct (the likelihood of the same punishment being

assessed). Hawkins, 135 S.W.3d at 77; see Archie, 221 S.W.3d at 700.

      Romero argues that the question about the ballistics test was highly

prejudicial because it related to whether he intentionally shot Berman, although

other evidence was presented supporting the theory that it was an accident.

Relying on Crawford v. State, 603 S.W.2d 874 (Tex. Crim. App. 1980), Romero

contends that the court’s instruction to disregard was insufficient to remove the

impression left by the question because it was the “only evidence on the status of

the actual weapon.”     In Crawford, however, the improper statement at issue

directly repudiated the defense’s central theory and introduced improper past

conduct evidence.     While addressing the defense’s theory of self-defense or

manslaughter in that murder case, the complainant’s son testified that the

defendant had previously attempted to poison the victim. See id. at 876.

      The disclosure in this case that the gun was “working properly” was not a

severely prejudicial statement in the same sense as the statement in Crawford. The

defense theory that the gun’s trigger had been modified was only one piece of

evidence related to whether the shooting was an accident, and it was not the main

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focus of the evidence about Romero’s intent.        The jury was presented with

uncontradicted testimony that Romero was inexperienced with guns, that he had

failed to determine if the gun was loaded, that he and Berman were “good friends,”

and that there was no dispute or disagreement between them. Furthermore, the

substance of the inadmissible statement was that the revolver was “working

properly.” This did not tend to prove or disprove either the officer’s claim that

“quite a bit of pressure” on the trigger was necessary to fire the revolver or

Romero’s suggestion that the gun had been modified. Accordingly, the prejudicial

effect of the prosecutor’s reference to a ballistics report stating that the gun was

working properly was not great.

      Furthermore, the disclosure did not expose any new information about

Romero’s prior bad acts or offenses. See Bryant, 340 S.W.3d at 13. Instead it

merely referred to a ballistics report first brought up by the defense. This kind of

statement was not a clearly calculated attempt to “inflame the minds of the jury.”

See Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988) (describing

incurable improper questions). Thus, we conclude that the prosecutor’s statement

was not “of such character as to suggest the impossibility of withdrawing the

impression produced on the minds of the jurors.” Russeau, 171 S.W.3d at 885;

Ladd v. State, 3 S.W.3d 547, 566–67 (Tex. Crim. App. 1999) (mistrial not required




                                        10
when prosecution revealed defendant was smoking crack cocaine on the night of

murder and terminated from employment a few months before).

      Because the statement about the gun was not so inflammatory as to leave an

indelible impression on the jury, the trial court’s immediate instruction to disregard

the testimony should have been effective to cure any harm that resulted from the

improper question.     We presume that the jurors followed the trial court’s

instruction to disregard the prosecutor’s statement. See Wesbrook v. State, 29

S.W.3d 103, 116 (Tex. Crim. App. 2000); Waldo v. State, 746 S.W.2d 750, 754

(Tex. Crim. App. 1988). The comment that the gun was working properly does not

amount to such an extreme circumstance that would warrant a mistrial despite the

curative instruction. See Hawkins, 135 S.W.3d at 77, 84–85.

      Finally, the punishment range for possession of more than 400 grams of

cocaine is imprisonment for a term between 15 and 99 years, and a fine not to

exceed $250,000. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.112.

Romero’s punishment was well within the punishment range: 50 years and a fine

of $125,000. A deadly weapon finding is authorized upon sufficient evidence that

a defendant “used or exhibited” a deadly weapon during the commission of or

flight from a felony offense. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(2).

A firearm is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West

Supp. 2012). The effect of the deadly-weapon finding is that Romero will not be

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eligible for parole until he has served one-half of his sentence or 30 years,

whichever is less. See TEX. GOV’T CODE ANN. § 508.145(d)(1) (West 2012).

      Although he said it was accidental, Romero admitted that he shot Berman.

In addition to the issue of Romero’s intent, the jury heard evidence concerning

other issues that would bear on an appropriate sentence for Romero. This evidence

included the fact that Romero apparently did not try to get help for Berman, and

instead he attempted to flee. Other evidence relevant to punishment included

testimony that Romero was a hard worker with good character. The jury also

heard the testimony of Berman’s father that his passing had caused great sorrow to

his family, particularly affecting him, his wife, and Berman’s children.

Considering the totality of this evidence and the relatively slight focus on the issue

of the trigger-pull during the punishment phase of the trial, there is no reason to

conclude that the punishment the jury assessed would have been any different if

the question concerning the ballistics test had not been asked. See Archie, 221

S.W.3d at 700 (upholding decision that, “due to the strength of the State’s

punishment case, it is likely that the same punishment would have been assessed

regardless of the improper comment”). Likewise, due to the strength of the State’s

case supporting the deadly weapon finding, it is likely that the jury would have

made the same finding regardless of the prosecutor’s improper question.




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      Considering that the statement was not highly prejudicial, that curative

measures are presumed to have been effective and followed by the jury, and that

there is no reason to conclude that the punishment would have been any different,

we conclude that the trial court did not abuse its discretion in denying Romero’s

motion for mistrial.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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




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