Affirmed as Modified; Opinion Filed August 2, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00786-CR

                               ROY GUTIERREZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F-1800091-K

                              MEMORANDUM OPINION
                           Before Justices Bridges, Brown, and Nowell
                                   Opinion by Justice Nowell

       Roy Gutierrez appeals his conviction for aggravated sexual assault. After the jury found

him guilty, Gutierrez pleaded true to a single enhancement paragraph, and the jury assessed

punishment at life in prison. In three issues, Gutierrez argues the trial court abused its discretion

by overruling his motions for mistrial regarding allegedly improper questions during punishment

testimony and his motion to suppress his comments to a police officer after he requested a lawyer.

The State brings a cross-point arguing the judgment should be modified in several respects. We

conclude the trial court did not abuse its discretion in the challenged rulings and that the judgment

should be modified as requested. We modify the trial court’s judgment and affirm as modified.

                                          BACKGROUND

       The complainant, J.H., went to a bar in Deep Ellum where her friend, Christian Belew, was
working as a photographer. When she arrived, Belew noticed that J.H. was very intoxicated and

belligerent. He knew she was a heavy drinker and used Xanax, but he had never seen her that

intoxicated before. Belew tried to get J.H. to sit in a chair near the stage while he worked, but she

fell off the chair. He helped her to her feet and they went outside. Belew twice called for an Uber

driver to take her home, but J.H. refused to leave. After about twenty minutes trying to get J.H. to

go home, Belew went back inside the bar to finish his work, leaving J.H. outside.

       Multiple surveillance cameras in the area recorded appellant with J.H. after Belew went

back inside the bar. J.H. testified she did not remember Belew taking her outside because she

blacked out. When she awoke, she did not know where she was, but appellant had her pinned to

the ground. She tried to yell and get away, but he choked her and told her to be quiet. He then

penetrated her vagina with his penis without her consent and forced her to perform oral sex on

him. J.H. tried to text her father and brother for help, but appellant noticed, grabbed her phone,

and threw it away. J.H. eventually managed to break free and climb over a nearby fence. Jazmon

McTear saw J.H. yelling for help and called 911. An ambulance transported J.H. to the hospital

for treatment and a sexual assault examination.

       The police located the crime scene using the GPS function on J.H.’s phone. They recovered

her shoe, phone, wallet, and lip gloss.

       Appellant was eventually arrested for the offense. The arresting officers took him to the

police department where Detective Allan Holmes interviewed appellant about the events that

evening. Holmes also executed a search warrant for appellant’s DNA. Forensic testing was

performed on the evidence, including the DNA collected from J.H. and appellant.

       At trial, the State offered a redacted copy of appellant’s recorded interview with Holmes.

Appellant moved to suppress the evidence claiming he had earlier invoked his right to counsel

when he was first arrested. The trial court denied the motion and admitted the redacted recording.

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The jury found appellant guilty of aggravated sexual assault.

          Appellant pleaded true to a single enhancement paragraph alleging he was previously

convicted of aggravated assault. During the punishment phase of trial, the State presented evidence

of three other sexual assaults committed by appellant against other individuals. Holmes testified

about his knowledge of a string of extraneous sexual assaults in the Deep Ellum area, which

included the three victims who testified at trial. Appellant twice moved for a mistrial during

Holmes’s testimony. The trial court denied both motions. The jury assessed punishment at life in

prison.

                                              DISCUSSION

   A. Denial of Motions for Mistrial

          In his first and second issues, appellant argues the trial court erred by overruling his

motions for mistrial regarding Holmes’s testimony at the punishment phase.

          We review a trial court’s ruling on a motion for mistrial for an abuse of discretion and will

uphold the ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d

253, 292 (Tex. Crim. App. 2010). “Ordinarily, a prompt instruction to disregard will cure error

associated with an improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.

Crim. App. 2000). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial

be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). “A mistrial is an

appropriate remedy in ‘extreme circumstances’ for a narrow class of highly prejudicial and

incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Whether an error

requires a mistrial is determined by the particular facts of the case. Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999). “A mistrial is required only when the improper question is clearly

prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing

the impression produced on the minds of the jurors.” Id. In determining whether the trial court


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abused its discretion in denying the mistrial, we consider the severity of the misconduct

(prejudicial effect), any curative measures taken, and the certainty of conviction absent the

misconduct. Hawkins, 15 S.W.3d at 77.

       After three witnesses testified during the punishment phase about their sexual assaults, the

State recalled Detective Holmes. In questioning Holmes about one of the sexual assaults, the

prosecutor asked Holmes if the victim cooperated with police after the incident. Holmes testified

the events occurred before he was working in the department and he did not know “exactly how

that worked.” When he was asked if he knew what happened to that case, appellant objected to

hearsay and lack of personal knowledge. The trial court sustained the objection and instructed the

jury to disregard, but denied appellant’s request for a mistrial.

       After establishing that Holmes was aware of other cases of sexual assault involving

different victims, the following exchange occurred:

       PROSECUTOR: And in these cases, would you characterize them or at least the
       Dallas Police Department’s opinion of the victims at that time as being vulnerable?

       DEFENSE: Your Honor, once, again, this is all hearsay. Everything that’s involved
       in here is hearsay.

       THE COURT: Sustained.

       DEFENSE: Ask the jury to disregard.

       THE COURT: Disregard.

       DEFENSE: Motion for mistrial.

       THE COURT: Denied.

       Appellant argues questioning Holmes about extraneous offenses of which he had no

personal knowledge and about the Dallas Police Department’s opinion of the extraneous offenses

was so prejudicial the harm could not be cured by a mere instruction to disregard. We disagree.

       The prejudicial effect of the questions asked of Holmes is minimal. He was simply asked

about one case and what the department’s opinion was of the victims in general. Neither question
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was answered due to appellant’s objection and the trial court’s ruling and instruction to disregard.

The jury had already heard the testimony of the three victims about their cases and Holmes’s

testimony about the prior treatment of sexual assault cases against certain types of victims by the

Dallas Police Department. In addition, the trial court promptly instructed the jury to disregard the

question after sustaining appellant’s objections. We presume jurors followed the trial court’s

instructions and nothing in the record suggests otherwise. See Coble, 330 S.W.3d at 292. “The

asking of an improper question will seldom call for a mistrial, because, in most cases, any harm

can be cured by an instruction to disregard.” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.

2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Finally, the three

victims gave detailed accounts of the sexual assaults against them. Evidence was presented that

appellant was indicted for aggravated sexual assault against one of those victims, placed on

deferred adjudication for a lesser included offense, and later adjudicated guilty of that offense. He

pleaded true to that conviction in his plea to the enhancement paragraph. Given the evidence in

the record, there is no indication that the jury was heavily influenced by the two questions asked

of Holmes.

       We conclude the trial court did not abuse its discretion by denying the motions for mistrial.

We overrule appellant’s first and second issues.

   B. Denial of Motion to Suppress

       In his third issue, appellant argues the trial court erred by denying his motion to suppress

his recorded interview with Holmes. He argues he invoked his right to counsel before his interview

by his comments to the police officers who arrested him.

       We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We review the trial

court’s factual findings for an abuse of discretion, but review the trial court’s application of the


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law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

afford almost complete deference to the trial court’s determination of historical facts, “especially

if those are based on an assessment of credibility and demeanor.” Brodnex, 485 S.W.3d at 436

(quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). We give the same deference

to the trial court’s conclusions with respect to mixed questions of law and fact that turn on

credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review

mixed questions of law and fact that do not turn on credibility and demeanor as well as purely

legal questions de novo. Brodnex, 485 S.W.3d at 436. We will uphold the trial court’s decision if

it is correct under any applicable theory of law. Id. When, as in this case, the trial court does not

make express findings of fact, we view the evidence in the light most favorable to the trial court’s

rulings, and will assume it made implicit findings that are supported by the record. Turrubiate, 399

S.W.3d at 150.

        When a suspect asks for a lawyer, interrogation must cease until counsel has been provided

or the suspect initiates further communication with the police. Davis v. State, 313 S.W.3d 317, 339

(Tex. Crim. App. 2010). To trigger law enforcement’s duty to terminate the interrogation, a

suspect’s request for counsel must be clear, and the police are not required to attempt to clarify

ambiguous remarks. Id. Whether a statement referring to a lawyer constitutes a clear request for

counsel depends on the statement itself and the totality of the circumstances surrounding the

statement. Id. The test is objective: whether the suspect “articulate[d] his desire to have counsel

present sufficiently clearly that a reasonable police officer in the circumstances would understand

the statement to be a request for an attorney.” Id. (quoting State v. Gobert, 275 S.W.3d 888, 892–

93 (Tex. Crim. App. 2009)). If the accused’s invocation of the right to counsel is clear, his

responses to further questioning may not be used to cast doubt retrospectively on the clarity of his

initial request. Id.

                                                –6–
       Holmes testified appellant was arrested by DART police and turned over to Dallas police

for transport to Dallas Police Department headquarters. Holmes spoke with appellant at the police

station and recorded the interview. At the beginning of the recording, Holmes read appellant his

Miranda rights and asked if appellant would talk with him. Appellant said he would talk, but

refused to sign the written Miranda warning. Holmes then interviewed appellant about the incident.

Appellant never requested an attorney during the recorded interview. Holmes also testified that

none of the officers who transferred appellant to the police station told him that appellant asked

for an attorney.

       Appellant’s counsel told the trial court that appellant’s request for an attorney was made to

the officers who arrested him, not to Holmes. The trial court asked if those officers were available

to testify. The prosecutor represented that he had spoken with each of the officers and they all said

no statements were made. The trial court stated:

       THE COURT: So there’s no statements made. There’s no written statements from
       him. He doesn’t make any. The first time he started talking to the police is here. He
       was asked if he wants to talk. He says, yes. It’s on video. He says, I don’t need to
       sign that because I’m a sovereign entity.

       Appellant testified that he asked the two police officers escorting him to the police station

if he could get his contacts out of his phone. When they refused, he said, “[S]o I can’t make any

phone calls at all, not even call an attorney?” Appellant said the officers again refused to allow

him to make a call.

       Based on the credibility and demeanor of the witnesses, the trial court could have

disbelieved appellant’s testimony in whole or in part that he made the statement to the escorting

officers. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (in a suppression hearing

“the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony

is not controverted”), modified on other grounds by State v. Cullen, 195 S.W.3d 696, 699 (Tex.

Crim. App. 2006). Holmes testified that none of the officers informed him that appellant had
                                                –7–
requested an attorney. Holmes also testified that appellant agreed to speak with him after Holmes

read the Miranda warnings, which is confirmed in the recording.

       Even accepting that appellant made the statement to the police officers, appellant’s

statement about whether he could make a phone call, even to an attorney, was ambiguous. His

statement merely confirmed he was not permitted to make a phone call at that time, “not even [to]

call an attorney.” The trial court could have reasonably concluded that the totality of the

circumstances shows appellant was not clearly and unambiguously requesting counsel.

Appellant’s statement, both by the language used and viewed in the context of the totality of the

circumstances, was not a clear and unambiguous assertion of the right to counsel. See Davis, 313

S.W.3d at 338–41 (defendant’s statement during police interview, “I should have an attorney,” did

not expressly invoke right to counsel under circumstances presented). And, after specifically being

advised of his right to have an attorney by Holmes, appellant never requested an attorney. We

conclude the trial court did not abuse its discretion by denying the motion to suppress. We overrule

appellant’s third issue.

   C. Modification of the Judgment

       In its cross-point, the State contends the judgment incorrectly reflects the appellant’s plea

and the finding on the enhancement paragraph and the statute for the offense. Appellant also notes

these inaccuracies in the judgment. The State also contends the judgment does not correctly reflect

the applicability of sex offender registration under chapter 62 of the code of criminal procedure.

We agree the record shows the judgment is incorrect in these respects. We have the power to

modify an incorrect judgment to make the record speak the truth when we have the necessary

information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–

28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,

pet. ref’d). Accordingly, we sustain the State’s cross-point.


                                                –8–
                                          CONCLUSION

       We modify the trial court’s judgment to reflect the statute for the offense is section 22.021

of the penal code, appellant’s plea to the enhancement paragraph is true, the finding on the

enhancement paragraph is true, and that sex offender registration requirements apply to appellant.

We affirm the judgment as modified.




                                                  /Erin A. Nowell/
                                                  ERIN A. NOWELL
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
180786F.U05




                                               –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 ROY GUTIERREZ, Appellant                           On Appeal from the Criminal District Court
                                                    No. 4, Dallas County, Texas
 No. 05-18-00786-CR         V.                      Trial Court Cause No. F-1800091-K.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Bridges and Brown participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

           Section to be modified                     Replace existing text with:
           Plea to 1st Enhancement Paragraph          True
           Findings on 1st Enhancement Paragraph      True
           Statute for Offense                        22.021 Penal Code

We further Modify the judgment to state “Sex Offender Registration Requirements do apply to
the Defendant. TEX. CODE CRIM. PROC. ANN. ch. 62.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 2nd day of August, 2019.




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