                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00195-CR

JUSTIN LEE BRINEGAR,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1942-C1


                      MEMORANDUM O P I N I O N


      Appellant Justin Brinegar was charged in a two-count indictment with the felony

offenses of aggravated sexual assault of a child and indecency with a child by contact.

The indictment also alleged a prior felony conviction in an enhancement allegation and

a second prior felony conviction in a habitual allegation. A jury found Brinegar guilty of

aggravated sexual assault of a child but could not reach a verdict on the charge of
indecency with a child by contact.1 After a bench trial on punishment, the trial court

assessed life imprisonment. Brinegar appeals, asserting four issues. We will affirm.

           Because Brinegar does not challenge the sufficiency of the evidence, we will only

briefly recite the background of the offenses. S.B., the victim, was Brinegar’s daughter

and was age three at the time of the offenses, which were alleged to have occurred in the

summer of 2009 when S.B. came to Texas from Arkansas to visit Brinegar. Detective

Scaramucci of the McLennan County Sheriff’s Office testified that he received a telephone

report in November 2009 from Jodi, the victim’s mother, but he then lost contact with

Jodi until February 2012. Detective Scaramucci obtained records from S.B.’s therapist and

arranged a forensic interview of S.B. by the Sheriff’s Office of Pulaski County, Arkansas.

The gist of S.B.’s outcry was that Brinegar had her perform oral sex on him.

           S.B., who was age eight at the time of trial, testified, as did her grandfather, her

therapist, and her half-sister Jordin.               The State also called Dr. William Carter, a

psychologist, who testified about the dynamics of child sex-abuse cases. On cross-

examination, Dr. Carter was asked about false outcries and examples of an “overzealous”

caseworker and a parent in a bad relationship and how those adults can push a child sex-

abuse case.

           After the State rested, Brinegar called his eighteen-year-old daughter Casie, who

was S.B.’s half-sister and was present in 2009 when S.B. had visited and the offenses had

allegedly occurred. Casie testified that there were no changes in S.B.’s behavior during




1
    The trial court declared a mistrial on the charge of indecency with a child by contact.

Brinegar v. State                                                                             Page 2
that visit and that she was with S.B. the entire time. On cross-examination, she repeated

that Brinegar was never alone with S.B. unless she (Casie) was using the bathroom, and

she said that S.B. was lying and that she never saw her father do anything to S.B.

        After the defense rested, the trial court held a hearing on the proposed testimony

of R.W., the State’s rebuttal witness, who also was Brinegar’s daughter. The State argued

that the defense had opened the door to extraneous-offense evidence by suggesting that

S.B.’s accusations were fabricated and that R.W. was being called to rebut that defensive

theory under Rule of Evidence 404(b) and to show Brinegar’s propensity under article

38.37 of the Code of Criminal Procedure. The trial court then ordered a voir-dire

examination of R.W.

        On voir dire, R.W., who was age twenty-two at the time of trial, testified that she

had learned that Brinegar was her father when she was fifteen. As a result, she went to

his residence for a weekend visit. During that visit, R.W. woke up to find that Brinegar’s

mouth was touching her vagina and that his fingers were also in her vagina. R.W. said

that on a second occasion, when she was seventeen, she and her grandfather had

witnessed an automobile accident while driving through Waco, and that led to her having

to stay overnight with Brinegar. Again, she awoke to Brinegar touching her again, and

her pants had been taken off while she was sleeping. She said that Brinegar told her, “Sex

is just sex, no matter who you have it with.”

        The trial court ruled that the first incident was admissible under article 38.37 and

that under Rule 404(b), only Brinegar’s statement during the second incident was

admissible. Brinegar objected on the basis that this evidence was a violation of his

Brinegar v. State                                                                     Page 3
constitutional rights and that under Rule of Evidence 403, the prejudicial effect of the

evidence outweighed its probative value. The trial court overruled Brinegar’s objections,

and R.W. testified to these events in front of the jury in accordance with the trial court’s

rulings, but she added that for the first incident, she and Brinegar were sleeping in the

same bed.

        In his first and second issues, Brinegar asserts that section 2 of article 38.37 is

unconstitutional because (1) it allows the State to introduce evidence of a defendant’s

character to prove that he acted in conformity with that character and (2) because it

violates due process.2

        Neither party’s brief addresses preservation of Brinegar’s first two issues.

“Because preservation of error is a systemic requirement on appeal, a court of appeals

should review preservation of error regardless of whether the issue was raised by the

parties.” Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2005). To preserve a

complaint for appellate review, a party must have presented to the trial court a timely

request, objection, or motion “with sufficient specificity to make the trial court aware of

the complaint, unless the specific grounds were apparent from the context.” TEX. R. APP.

P. 33.1(a)(1)(A). “The requirement that complaints be raised in the trial court (1) ensures

that the trial court will have an opportunity to prevent or correct errors, thereby

eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees

that opposing counsel will have a fair opportunity to respond to complaints; and (3)


2
  The Fourteenth Court of Appeals recently held that section 2 of article 38.37 is constitutional against a
due-process challenge. See Harris v. State, --- S.W.3d ---, ---, 2015 WL 4984560, at *4-6 (Tex. App.—Houston
[14th Dist.] Aug. 20, 2015, pet. filed).

Brinegar v. State                                                                                    Page 4
promotes the orderly and effective presentation of the case to the trier of fact.”

Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006).

        The specificity requirement is met if the complaint made at trial was clear enough

so as to permit the trial judge to take corrective action when the complaint was made.

Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009). The purpose of requiring a

specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of

the objection and give him or her the opportunity to rule on it; and (2) to give opposing

counsel the opportunity to respond to the complaint. Resendez v. State, 306 S.W.3d 308,

312 (Tex. Crim. App. 2009). A general or imprecise objection may be sufficient to preserve

a complaint for appeal, but only if the legal basis for the objection is obvious to the court

and to opposing counsel. Miles v. State, 312 S.W.3d 909, 911 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d) (citing Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App.

2006)); see also Clark v. State, 65 S.W.3d 333, 339 (Tex. Crim. App. 2012) (stating that, for a

complaint to be obvious without having been explicitly stated and still satisfy the

purposes of requiring a specific objection, there must be statements or actions in the

record that clearly indicate what the judge and opposing counsel understood the

argument to be). A complaint is not preserved if the legal basis of the complaint on appeal

varies from the complaint at trial. Lovill, 319 S.W.3d at 691–92.

        After the State’s voir dire of R.W., Brinegar’s trial counsel objected as follows to

the admission of R.W.’s proposed testimony:

               So, Your Honor, my objection would be that is an improper use of
        an extraneous offense. It violates the Defendant’s constitutional rights, and I
        would ask that the Court exclude the statement, especially - - specifically

Brinegar v. State                                                                         Page 5
        based on a 403 balancing test. I believe that the prejudicial effect of
        something like this far outweighs any probative value that it has to this jury.
        There has been no testimony to rebut the Defense’s case that calls any of
        what this witness has to say into question. [Emphasis added.]

        Counsel’s objection that section 2 of article 38.37 “violates the Defendant’s

constitutional rights” is plainly not specific. See Lovill, 319 S.W.3d at 692 (“While not

always required, when a legal claim is rarely urged, like this one, the complaining party

should invoke the controlling federal and state constitutional provisions or use key legal

phrases to ensure that the trial judge is informed of the particular complaint. She could

have used the words selective prosecution or equal protection under the law or cited the

Equal Protection Clause. But Lovill did none of this.”); Emery v. State, 881 S.W.2d 702,

712 n.17 (Tex. Crim. App. 1994) (“Because appellant does not specify what laws or

constitutional provisions are implicated, he has not preserved his state law claim.”).

        For example, the defendant in Harris objected in the trial court to section 2 of article

38.37 “under the due process clause of the Fifth and Fourteenth Amendment to the U.S.

Constitution, Article I, Section 19 of the Texas Constitution, and Article I, Section 1.04 of

the Texas Code of Criminal Procedure.” Harris, --- S.W.3d at ---, 2015 WL 4984560, at *3.

Because Brinegar’s first two issues were not preserved for appellate review, they are

overruled.

        In issue three, Brinegar argues that the trial court erred in finding that the

probative value of R.W.’s testimony was not substantially outweighed by the danger of

unfair prejudice. See TEX. R. EVID. 403.

        In its seminal decision in Montgomery v. State, the Court of Criminal Appeals
        identified four non-exclusive factors to be considered in determining

Brinegar v. State                                                                         Page 6
        whether evidence should be excluded under Rule 403. Those factors were:
        (1) the probative value of the evidence; (2) the potential to impress the jury
        in some irrational, yet indelible, way; (3) the time needed to develop the
        evidence; and, (4) the proponent’s need for the evidence.

        More recently, the Court has looked to the language of Rule 403 and
        restated the pertinent factors.

           [A] trial court, when undertaking a Rule 403 analysis, must balance
           (1) the inherent probative force of the proffered item of evidence along
           with (2) the proponent’s need for that evidence against (3) any
           tendency of the evidence to suggest decision on an improper basis, (4)
           any tendency of the evidence to confuse or distract the jury from the
           main issues, (5) any tendency of the evidence to be given undue
           weight by a jury that has not been equipped to evaluate the probative
           force of the evidence, and (6) the likelihood that presentation of the
           evidence will consume an inordinate amount of time or merely repeat
           evidence already admitted. Of course, these factors may well blend
           together in practice.

        Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
        (footnotes omitted).

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (footnote and

citations omitted).

        Rule 403 “envisions exclusion of evidence only when there is a ‘clear disparity

between the degree of prejudice of the offered evidence and its probative value.’” Id. at

322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)). We review

the trial court’s determination under Rule 403 for an abuse of discretion. Mozon v. State,

991 S.W.2d 841, 847 (Tex. Crim. App. 1999). As long as the trial court’s ruling is within

the “zone of reasonable disagreement,” there is no abuse of discretion. See Newton, 301

S.W.3d at 317 (citing De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009)).




Brinegar v. State                                                                        Page 7
        By eliciting evidence about false outcries and Casie’s testimony that S.B. was lying,

Brinegar posited a defensive theory of fabrication by S.B., his eight-year-old daughter,

about a sexual assault by him when she was age three. Therefore, in addition to rebutting

a fabrication theory, the testimony of R.W., another daughter, of Brinegar’s sexual assault

of her was highly probative of whether Brinegar could have committed such an act

against S.B., along with being evidence of Brinegar’s character and that the act was

performed in conformity with his character, as allowed by section 2 of article 38.37.

Considering this and the other above factors, we cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by R.W.’s testimony and its

probative value. Thus, the trial court did not abuse its discretion by overruling Brinegar’s

Rule 403 objection to R.W.’s testimony. We overrule issue three.

        Brinegar’s fourth issue asserts that the trial court erred in denying his motion for

mistrial after S.B.’s grandfather Joe twice referred to the fact that Brinager had been in

jail. The denial of a motion for mistrial, which is appropriate for “highly prejudicial and

incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson v. State,

119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting 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).

        [T]he question of whether a mistrial should have been granted involves
        most, if not all, of the same considerations that attend a harm analysis. A
        mistrial is the trial court’s remedy for improper conduct that is “so
        prejudicial that expenditure of further time and expense would be wasteful
        and futile.” In effect, the trial court conducts an appellate function:
        determining whether improper conduct is so harmful that the case must be
        redone. Of course, the harm analysis is conducted in light of the trial court’s
        curative instruction. Only in extreme circumstances, where the prejudice is
        incurable, will a mistrial be required.

Brinegar v. State                                                                         Page 8
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); see also Archie v. State, 221

S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Thus, the appropriate test for evaluating

whether the trial court abused its discretion in overruling a motion for mistrial is a

tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex.

Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. “The Mosley factors are: (1) the

prejudicial effect, (2) curative measures, and (3) the certainty of conviction absent the

misconduct. Id.; see Mosley, 983 S.W.2d at 259.

        Outside the jury’s presence, S.B.’s grandfather Joe testified that while S.B.’s mother

(Joe’s daughter) was in rehab, Brinegar called him to arrange another visitation with S.B.,

and Joe refused, stating “You know what you did was wrong.” Brinegar responded, “I

know what I did was wrong … I can’t go back to jail.” Brinegar added that he would

quit bothering them about S.B. if they would not prosecute him. The trial court ruled that

Joe could not mention Brinegar’s prior incarceration before the jury but could testify to

the rest of the telephone conversation, and that is how Joe testified before the jury.

        On cross-examination, defense counsel asked about the gap in time that occurred

after Jodi’s initial report to Texas law enforcement:

        Q. Okay, so there was this whole kind of gap of time while nothing really
        happened in the investigation where - - I guess while Jodi was in - - in jail
        or in the treatment facility - - you weren’t calling the police or trying to do
        anything to further - -

        A. At that time … they told us that he [Brinegar] was incarcerated. He
        would be there for a long time and that they would not do anything about
        this case until he got out.



Brinegar v. State                                                                         Page 9
        Q. Okay, so you weren’t calling and - - and trying to press anything at that
        point?

        A. It would not do any good. I mean he was - -

        A short time later, defense counsel asked Joe about his allegation that Brinegar had

kept S.B. longer than he was supposed to and would not let her return to Arkansas and

that they were having trouble locating Brinegar:

        Q. And you said at that time or at least at the time in 2009 when [S.B.] was
        down here, you all had trouble getting ahold of anybody from law
        enforcement who would help find [S.B.] because - -

        A. At that time?

        Q. Because this is her dad?

        A. Yeah, right. They had told us that - - that Texas laws are different than
        Arkansas laws as far as custody.

        Q. And there weren’t any court orders or a divorce at that time yet?

        A. Not at that time, but she [Jodi] was trying to go through a divorce process
        and have him served, and while he [Brinegar] was incarcerated she tried to
        have him served twice.

        No objections were made to Joe’s references to Brinegar’s incarceration. Upon the

completion of Joe’s testimony, court adjourned for the day. Before testimony began the

next day, the trial court held a bench conference regarding Joe’s testimony and reviewed

the previous day’s ruling on what Joe could say about his telephone conversation with

Brinegar and then Joe’s responses to the subsequent questions on cross-examination.

Observing the testimony, the trial court remarked that Joe’s references to Brinegar’s

incarceration were inadvertent and that Brinegar had not objected so as not to call further

attention to the matter. Defense counsel agreed with the trial court’s characterization and

Brinegar v. State                                                                        Page 10
asked for a mistrial on the basis of Joe’s “non-responsive answers.” The trial court denied

the motion for mistrial. No instruction to disregard was requested.

        A complaint regarding the admission of evidence may take three forms: (1) a

timely, specific objection; (2) a request for an instruction to disregard; and (3) a motion

for mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Generally, failure

to object and to request an instruction to disregard fails to preserve the complaint for

appellate review. Id. at 70. In this case, the trial court agreed that objecting and

requesting an instruction to disregard would have drawn attention to the matter. We

will thus assume without deciding that the mistrial ruling was preserved.

        A witness’s inadvertent reference to an extraneous offense would only necessitate

a mistrial where that reference was clearly calculated to inflame the minds of the jury or

was of such damning character as to suggest it would be impossible to remove the

harmful impression from the jurors’ minds. See Rojas v. State, 986 S.W.2d 241, 250 (Tex.

Crim. App. 1998); Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); see also Young

v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009).

        From the context of Joe’s answers to defense counsel’s questions that led to Joe’s

references to Brinegar’s prior incarceration, it is clear the Joe’s references were not

calculated to inflame the minds of the jury. Rather, he was attempting to explain why

there had been a time gap in the investigation and why there were no custody orders.

Furthermore, applying the Mosley factors, we conclude that Joe’s inadvertent references

were not “so prejudicial that expenditure of further time and expense would be wasteful



Brinegar v. State                                                                   Page 11
and futile.” We cannot say that the trial court erred in failing to grant a mistrial and

overrule issue four.

        Having overruled all of Brinegar’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 5, 2015
Do not publish
[CRPM]




Brinegar v. State                                                                   Page 12
