                                      NO. 07-10-0115-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                             PANEL E

                                        AUGUST 23, 2011




                                GAVINO DURON, APPELLANT

                                                 v.

                            THE STATE OF TEXAS, APPELLEE



             FROM THE COURT-AT-LAW NO. SEVEN OF TRAVIS COUNTY;

         NO. C-1-CR-08-500442; HONORABLE ELISABETH A. EARLE, JUDGE



Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.1


                                  MEMORANDUM OPINION

       Following a jury trial, Appellant, Gavino Duron, was convicted of assault with

bodily injury and sentenced to two hundred-fifty days confinement.2 In a single issue,




1
 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code
Ann. § 75.002.(a)(1) (West 2005).
2
 The offense of assault with bodily injury is a Class A misdemeanor. See Tex. Penal Code Ann. §
22.01(a) & (b) (West 2011).
Appellant asserts the trial court abused its discretion by denying his motion for a mistrial

after a witness violated a pretrial motion in limine. We affirm.


                                            Background


        On April 30, 2008, an Assistant County Attorney of Travis County filed an

information3 charging Appellant with intentionally, knowingly and recklessly causing

bodily injury to Sarah Vasquez by striking her on and about the head with his hand and

seizing her on and about her torso, also with his hand, on or about December 2, 2007.

Prior to trial, Appellant filed a Motion in Limine, requesting "the State's attorney and the

State's witnesses not to allude to . . . [a]ny evidence of, details of, or references or

allusions to the [Appellant} assaulting witness Anjelica [sic] Ramos on prior occasions."

That motion was granted. A jury trial on the merits was conducted February 25, 2010.


        At trial, the State produced four witnesses: Angelica Ramos,4 Sarah Vasquez,

Officer Mark Jelesijevic, and Detective Robert Holsonback. Their testimony established

that, on December 2, 2007, Ramos, two of her children and Sarah Vasquez

accompanied Appellant to a restaurant. Before they were seated, Appellant became

upset over a remark by Ramos and left the restaurant. Because Appellant was upset,

Ramos decided to drive him home.


        After dropping her children off at their grandmother's house, Ramos proceeded to

drive Appellant home.        Appellant was seated in the right front passenger seat and
3
 Although the Information named the defendant as "Gabino Duron," motions filed by Appellant, the
Charge of the Court and the Judgment reflect "Gavino Duron." We express no opinion as to the correct
name of Appellant.
4
 Ramos testified that she had a prior relationship with Appellant for approximately six years and had two
children by him.


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Vasquez was seated behind Ramos in the back seat. En route, Ramos returned her

boyfriend's phone call and Appellant became angry. He leaned over Ramos and told

her that, if she didn't give him her phone, he was going to hit her.


       Vasquez, who had been quiet up to this point, interjected that Appellant was not

going to hit her friend and that he needed to back off. Appellant then turned around in

his seat facing Vasquez and threatened her. When Appellant started coming toward the

back seat, Vasquez held her hand up to his face and told him he needed to back away.

Appellant then hit Vasquez in her forehead as she fought back.         Ramos drove as

quickly as possible to Appellant's apartment while this scuffle continued. When they

arrived at Appellant's apartment, Appellant opened the passenger door, grabbed

Vasquez by her arms and tried to pull her from the back seat to the front seat and out of

the car. Eventually, Appellant stopped, spit in Vasquez's face and ran to his apartment.

Afterwards, Vasquez felt dizziness and confusion.


       When they arrived at Ramos's apartment, there was a big bump shaped like an

egg in the center of Vasquez's forehead.         The police were called.   Officer Mark

Jelesijevic took an oral statement from Vasquez and photographed her injuries.

Detective Robert Holsonback later obtained a written statement from Vasquez and

charged Appellant with assault causing bodily injury.


       During the State's direct examination of Ramos, the following exchange

occurred:


       STATE:        So [Appellant] got into your personal space?

       RAMOS:        Oh, yeah. He completely leaned right over me.


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       STATE:           Would you consider that threatening, what he was doing
                        towards you?

       RAMOS:           I considered it a threat right off the bat when he told me he
                        was going to hit me.

       STATE:           Did you think he might follow through?

       RAMOS:           Yes, ma'am. He always has.


       At that point, Appellant's counsel objected to the testimony as violating the prior

motion in limine and requested that the court instruct the jury to disregard the last

statement. The court granted that request, whereupon Appellant's counsel immediately

moved for a mistrial. After instructing the jury to disregard the statement, and receiving

their assurance that they could, the trial proceeded without a formal ruling on counsel's

motion for mistrial.5


       At the trial's conclusion, the jury found Appellant guilty of assault causing bodily

injury and Appellant was sentenced by the court to two hundred-fifty days confinement.

This appeal followed.




5
The record reflects the following:

       COURT: All right. At this point in time, I'm going to ask you to disregard the last
       statement made by this witness [Ramos]. And if you feel like you cannot disregard that, I
       need to know at this point. So I can rely that each of you can disregard that last
       comment made by the witness as struck from the record; is that correct?

       JURY: (Nodding heads).

       COURT: All right. Hearing everyone saying they can agree, so we can proceed. Thank
       you.

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                                        Discussion


       In his single issue, Appellant contends the trial court abused its discretion by

failing to grant a mistrial after Ramos testified that Appellant always followed through on

his threats. Appellant asserts Ramos's testimony was highly prejudicial and incurable.

The State asserts that any prejudice to Appellant due to Ramos's testimony was cured

by the trial court's instruction.


       A trial court's denial of a motion for mistrial is reviewed for an abuse of discretion

and must be upheld if it was within the zone of reasonable disagreement. Ocon v.

State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009). A mistrial halts trial proceedings

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

wasteful and futile; Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), and should

be granted "only when residual prejudice remains" after less drastic alternatives are

explored. Barnett v. State, 161 S.W.3d 128, 134 (Tex.App.--Fort Worth 2005), aff'd, 189

S.W.3d 272 (Tex.Crim.App. 2006).


       Whether a witness's improper reference to an extraneous offense warrants a

mistrial depends on the particular facts of the case. Ladd, 3 S.W.3d at 567. A mistrial

is required only when the improper question or evidence is clearly prejudicial to the

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

impression produced in the minds of the jurors. Young v. State, 283 S.W.3d 854, 878

(Tex.Crim.App. 2009) (per curiam), cert. denied, ___ U.S. ___, 130 S.Ct. 1015, 175

L.Ed.2d 622 (2009). An instruction to disregard will ordinarily cure error associated with

a witness's improper reference to an extraneous offense committed by the defendant.



                                             5
Id. at 878; Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (en banc)

(instruction by trial judge to disregard will suffice to cure an inadmissible reference to or

implying of extraneous offenses). Further, we presume the jury followed the trial court's

instruction to disregard testimony in the absence of evidence that it did not. Ladd, 3

S.W.3d at 567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987));

State v. Boyd, 202 S.W.3d 393, 402 (Tex.App.--Dallas 2006, pet. ref'd).


       Considering the facts of this case, we conclude the trial court did not abuse its

discretion by denying Appellant's motion for mistrial. The jury heard testimony from two

witnesses that Appellant assaulted Vasquez and viewed photographs taken by police

shortly after the incident documenting Vasquez's injuries and corroborating their

testimony. Nothing in the record suggests the jury would have reached a different

verdict absent the complained-of statement.           Further, the implied reference to

Appellant's prior threats and the certainty with which he carried them out was brief, did

not contain any substantive facts, was not repeated by the State, and was followed by a

prompt instruction to disregard. Although Appellant asserts otherwise, nothing in the

record suggests the reference to his prior threats was so "highly prejudicial and

incurable" that the trial court erred by denying his motion for mistrial. See Simpson v.

State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 542 U.S. 905, 124

S.Ct. 2837, 159 L.Ed.2d 270 (2004). See also Gardner v. State, 730 S.W.2d 675, 697

(Tex.Crim.App. 1987) ("The bare fact [that appellant had been to the penitentiary],

unembellished, was not so inflammatory as to undermine the efficacy of the trial court's

instruction to disregard it.") Having reviewed the record, we cannot say the trial court's




                                             6
ruling was outside the zone of reasonable disagreement.         Accordingly, we overrule

Appellant's sole issue.


                                      Conclusion


      The trial court's judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice




Do not publish.




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