Affirmed and Opinion Filed June 28, 2016




                                                          S
                                           Court of Appeals
                                                              In The


                                    Fifth District of Texas at Dallas
                                                        No. 05-15-01039-CR

                                    GIOVANNI ROMERO MOJICA, Appellant
                                                   V.
                                       THE STATE OF TEXAS, Appellee

                               On Appeal from the County Criminal Court No. 11
                                            Dallas County, Texas
                                    Trial Court Cause No. MA15-57202-N

                                          MEMORANDUM OPINION
                                      Before Justices Bridges, Evans, and O'Neill1
                                              Opinion by Justice Bridges
          Giovanni Romero Mojica appeals his assault conviction with a finding of family

violence.        A jury convicted appellant, and the trial court sentenced him to 135 days’

confinement. In two points of error, appellant complains the trial court erred in denying his two

motions for mistrial. We affirm the trial court’s judgment.

          In June 2015, appellant was charged by information with the offense “assault causes

bodily injury family violence.” At appellant’s subsequent trial before a jury, Leslie Salmeron

testified that, on June 22, 2015 she had been “together” with appellant for eight years, and they

had two daughters. The previous day had been Father’s Day, and appellant and Salmarone

attended a family reunion where appellant drank “the whole time.” Salmarone drove appellant

   1
       The Hon. Michael J. O'Neill, Justice, Assigned
home, arriving at approximately 3:00 a.m. As had been previously agreed, Salmarone called her

aunt to let her know they had made it home safely. Appellant took the phone away from

Salmarone and accused her of cheating on him. Salmarone tried to explain, but appellant threw

the phone at the wall and then picked it up. Appellant noticed a text message Salmarone had

sent earlier to one of her uncles asking if he would be at the family reunion.         Appellant

interpreted the text message as meaning Salmarone was going to meet someone else outside

while appellant was sleeping.     Appellant threw the phone away again and started hitting

Salmarone on her shoulders, in her face, and by her ear. Appellant cornered Salmarone between

a window and a couch, and Salmarone try to cover her head as appellant continued to grab her

and hit her.

       The prosecutor asked Salmarone if there was “any way that [appellant] didn’t mean to”

hit her and if appellant meant to hit her. Salmarone replied that appellant was drunk and

“alcohol – you’re not thinking clear, you know.” Salmeron then volunteered the following: “I

would say, you know – what I could say it’s – he’s a pretty violent person . . . .” Defense

counsel immediately objected, and the jury was removed from the courtroom. Outside the

presence of the jury, defense counsel objected to “impermissible character evidence, and also the

State violating the motion in limine to prevent the witness from testifying about prior acts of

violence or continuing acts of violence, et cetera.” Following admonishments from the trial

court and the prosecutor that Salmeron could not say appellant was a violent person or had

extremely bad temper, defense counsel moved for mistrial. The trial court denied the motion.

       Salmeron continued her testimony, describing how her daughters were awakened by her

screams and came out of their room. Although the girls were watching, appellant continued to

hit Salmeron. Appellant grabbed Salmeron by her ponytail and hit her head against the wall,

making a “hole on the wall.” Appellant “kind of stopped” and told Salmeron that he loved her

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and that he wasn’t “thinking.” Salmeron said “that was enough” and remained silent while

appellant continued to say he loved her. Salmeron attempted to get her daughters to calm down

and go back to sleep in their room. Appellant came in the room, grabbed Salmeron, and said he

was sorry. Appellant locked Salmeron in the room and lay down on the floor outside to prevent

Salmeron from getting out or trying to get help. Salmeron waited until appellant fell asleep and

escaped the room through a bathroom. Salmeron was able to reassemble her cell phone, but it

was damaged and only allowed Salmeron to send two texts to her mother: one asking if her

mother was awake and another saying she needed to talk to her mother and “it was urgent.”

Salmeron fell asleep for a while. Her phone rang at 8:00 a.m., but she was unable to answer the

call. Salmeron’s mother and father came over to the house because they had gotten her texts.

After talking with Salmeron, her mother called police.

       On cross-examination, defense counsel questioned Salmeron about appellant’s drinking.

Salmeron testified appellant “had been drinking constantly” on the night of the assault. Defense

counsel asked if it was fair to say Salmeron “was not terribly excited about remaining with

[appellant].” Salmeron answered she was with appellant because she loved him. Defense

counsel did not ask another question, and Salmeron continued: “I lived with him eight years. I

suffered a whole bunch of things. I’ve lived family violence pretty much, you know . . . .”

Defense Counsel objected and asked to approach the bench.          Following an off-the-record

conversation at the bench, defense counsel said she wanted to talk about appellant’s alcohol

abuse and Salmeron’s feelings about it. Salmeron testified having two daughters did not change

appellant’s drinking, and she tried to help him but she “realized maybe [appellant] lost hope.”

Again, defense counsel did not ask a question following this testimony and only responded

“Okay.” Salmeron continued:

       And having my kids to see a whole lot of things, you know, that just – it’s not
       good for me and it’s not good for my kids, you know, to see how he acts and what
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       he does to me, it – for me it hurts, you know, to see my kids watching him, you
       know, how – how he drinks and when he gets abusive with me.

Defense counsel again objected and asked to approach the bench. Outside the presence of the

jury, defense counsel asked for a mistrial and argued Salmeron was testifying to extraneous acts

during her eight-year relationship with appellant. The trial court ruled as follows:

       Okay. I’m gonna deny your mistrial basically – based on the fact that I believe
       your questions are what elicited that response from her on both occasions. And I
       would just caution you if you proceed with this line of questioning to be as clear
       as possible and not allow her – I think the last question – the last statement came
       out because she was allowed to just continue to ramble off of one question that
       you asked her, so.

After admonishing Salmeron to only talk about “just that incident,” the trial court advised

defense counsel that “the issue” they were having was that defense counsel was asking Salmeron

“things in the past that are very related – closely related to the prior abusive acts in the past.”

The trial proceeded, and the jury ultimately found appellant guilty of assault with a finding of

family violence. This appeal followed.

       In two issues, appellant argues the trial court erred in denying his two motions for

mistrial. We note that, in both complained-of instances, appellant did not ask for an instruction

to disregard but immediately asked for a mistrial. When a party’s first action is to move for

mistrial, as this appellant’s was, the scope of appellate review is limited to the question whether

the trial court erred in not taking the most serious action of ending the trial; in other words, an

event that could have been prevented by timely objection or cured by instruction to the jury will

not lead an appellate court to reverse a judgment on an appeal by the party who did not request

these lesser remedies in the trial court. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.

2004). The party who fails to request an instruction to disregard will have forfeited appellate

review of that class of events that could have been “cured” by such an instruction. Id.




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       Generally, a prompt instruction to disregard will cure a witness’s inadvertent reference to

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

(citing Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)). Unless the extraneous

offense is so calculated to inflame the minds of a jury or is of such a nature as to suggest the

impossibility of withdrawing the impression produced, an instruction to disregard can cure any

improper impression. Id. (citing Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992)).

       Here, appellant moved for a mistrial after Salmarone said appellant was “a pretty violent

person” and again after Salmarone said she had “lived family violence.” There is an inference to

be made that appellant was “pretty violent” to her and Salmarone “lived family violence” during

the eight years she lived with appellant. However, Salmarone did not refer to any extraneous

acts of violence or explicitly link appellant’s violent nature to acts of violence against her or

explicitly state she had “lived family violence” during the entire eight years she was with

appellant. We conclude Salmarone’s statements were not so calculated to inflame the minds of

the jury or of such a nature as to suggest the impossibility of withdrawing the impression

produced. Id. (citing Gardner v. State, 730 S.W.2d 675, 696–97 (Tex. Crim. App. 1987)).

Therefore, an instruction to disregard would have cured any improper impression left by

Salmarone’s statements. See id. Under these circumstances, the trial court did not err by

denying appellant’s two motions for mistrial. See Young, 137 S.W.3d at 70. We overrule

appellant’s first and second points of error.

       We affirm the trial court’s judgment.

                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)

151039F.U05

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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GIOVANNI ROMERO MOJICA, Appellant                  On Appeal from the County Criminal Court
                                                   No. 11, Dallas County, Texas
No. 05-15-01039-CR        V.                       Trial Court Cause No. MA15-57202-N.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Evans and O'Neill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered June 28, 2016.




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