Affirmed and Opinion filed December 19, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00799-CR

                   JAIME HERNANDEZ VIDAL, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 209th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1160815

                                OPINION
      Appellant Jaime Hernandez Vidal appeals his conviction for recklessly
causing serious bodily injury to a child, asserting the trial court erred by denying
his request for an instruction regarding defense of a third person, by denying his
request for a hearing on his motion for new trial regarding prosecutorial
misconduct, and by denying his motion for a mistrial. We affirm.
                           I. FACTUAL AND PROCEDURAL BACKGROUND
         In the early morning, appellant and Maria Martinez1 were involved in a
collision of two trucks near Martinez’s mother’s home, where Martinez was living.
Both of Martinez’s young sons, Juan Carlos and Nathaniel, sustained injuries from
the collision. Nathaniel, the complainant in this case, was five years old at the time
of the incident and suffered extensive injuries. After police investigated, appellant
was charged with recklessly causing serious bodily injury to a child, to which he
pleaded “not guilty.”
         At a jury trial, the State presented evidence from Martinez and law
enforcement officers. Martinez testified that she noticed appellant’s truck in the
carport as she was returning home from visiting her new boyfriend. As she turned
into the driveway, appellant turned on the headlights and accelerated his truck
toward her truck. She quickly reversed her truck out of the driveway and began
driving away with appellant following behind. Shortly thereafter, appellant’s truck
hit Martinez’s truck multiple times, pushing her truck into a ditch. Martinez and
her two children were then transported to the hospital.
         Appellant testified that the evening before the incident Martinez telephoned
him three times. According to appellant, during those calls she informed him that
a car was following her and she needed his help. He proceeded to her home to
render assistance and waited several hours for her to arrive. Eventually, he saw
Martinez’s truck and a dark-colored car arrive. Martinez attempted to pull her
truck into the driveway, but she was unable to do so because of appellant’s truck.
Instead, she pulled out and began driving away. Appellant was inconsistent as to
whether the dark-colored car or Martinez approached the house first, but appellant
consistently stated that eventually the dark-colored car fled the area with Martinez

1
    Martinez is also referred to as “Connie” throughout the proceedings.

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in pursuit. According to appellant, he joined the pursuit to obtain the license plate
number of the dark-colored car and confront the driver. Appellant testified that
while pursuing the dark-colored car, Martinez moved onto the left-hand side of the
street and he took that as an indication to pass her. According to appellant, the
trucks somehow collided while he was passing her.
      Before the trial court charged the jury, appellant requested an instruction
regarding defense of a third person. The trial court denied appellant’s request.
The jury found appellant guilty of recklessly causing serious bodily injury to a
child and assessed punishment at two years’ confinement. Appellant moved for a
new trial, requesting a hearing on the motion. The trial court did not hold a
hearing, and appellant’s motion for new trial was overruled by operation of law.
Appellant timely filed this appeal, raising three issues.
                            II. ISSUES AND ANALYSIS
A.    Did the trial court err in failing to charge the jury on defense of a third
      party?

      In his first issue, appellant argues the trial court erred by denying his request
for an instruction regarding defense of a third person. The trial court must submit
a requested defensive instruction to the jury if there is some evidence, from any
source, on each element of the defense that, if believed by the jury, would support
a rational inference that that element is true. See Shaw v. State, 243 S.W.3d 647,
657–58 (Tex. Crim. App. 2007).          In determining whether a defense is thus
supported, the trial court judge must rely on her own judgment, formed in the light
of common sense and experience, as to the limits of rational inference from the
facts proven. Id. at 658. If a defense is supported by the evidence, then the
defendant is entitled to an instruction on that defense, even if the evidence
supporting the defense is weak or contradicted, and even if the trial court judge is
of the opinion that the evidence is not credible. Id. But, the evidence must be such
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that it will support a rational jury finding as to each element of the defense;
otherwise, the trial court commits no error in refusing a requested instruction. See
id.; Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).
      Texas Penal Code section 9.33, entitled “Defense of Third Person,” provides
as follows:
      A person is justified in using force or deadly force against another to
      protect a third person if:

      (1) under the circumstances as the actor reasonably believes them to
      be, the actor would be justified under Section 9.31 or 9.32 in using
      force or deadly force to protect himself against the unlawful force or
      unlawful deadly force he reasonably believes to be threatening the
      third person he seeks to protect; and

      (2) the actor reasonably believes that his intervention is immediately
      necessary to protect the third person.

Tex. Penal Code § 9.33 (West 2013). The trial court denied appellant’s request
that the jury be charged regarding this defense. But, this defense does not apply
under certain circumstances. See Tex. Penal Code § 9.05 (West 2013); Hayes v.
State, 161 S.W.3d 507, 508–09 (Tex. Crim. App. 2005). Texas Penal Code section
9.05, entitled “Reckless Injury of Innocent Third Person,” provides as follows:
      Even though an actor is justified under this chapter in threatening or
      using force or deadly force against another, if in doing so he also
      recklessly injures or kills an innocent third person, the justification
      afforded by this chapter is unavailable in a prosecution for the
      reckless injury or killing of the innocent third person.

Tex. Penal Code § 9.05. The case under review involves a prosecution for the
reckless injury of Nathaniel, an innocent third person. Presuming, without
deciding, that appellant’s driving of his truck was a “use of force” against the
driver of the dark-colored car to protect Martinez and that the two subsections of
section 9.33 also were satisfied, the trial court still did not err in denying
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appellant’s request for an instruction under section 9.33 because appellant was
being prosecuted for the reckless injury of an innocent third person. 2 See id.;
Hayes, 161 S.W.3d at 508–09; Banks v. State, 955 S.W.2d 116, 118–19 (Tex.
App.—Fort Worth, 1997, no pet.). Accordingly, we overrule appellant’s first
issue.
B.       Did the trial court abuse its discretion by denying appellant’s request
         for a hearing on his motion for new trial?

         In his second issue, appellant asserts that the prosecuting attorney was guilty
of prosecutorial misconduct by sponsoring a witness (Martinez) that he knew was
going to lie and in suborning perjury by Martinez. Appellant contends that this
alleged prosecutorial misconduct deprived him of due process and denied him his
right to a fair trial in violation of the constitutions of the United States and Texas.
Under this issue, appellant asserts that the trial court erred by denying his request
for a hearing on his motion for new trial. In addressing this complaint, we presume
for the sake of argument that: (1) appellant was able to preserve error regarding the
prosecutorial-misconduct claim in his motion for new trial without having voiced
this complaint during trial; and (2) appellant timely presented his motion for new
trial to the trial court. See Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App.
2008) (addressing presentment requirement).
         In analyzing this issue, we address whether the trial court abused its
discretion by failing to conduct a hearing on appellant’s motion for new trial. We
review a trial court’s denial of a hearing on a motion for new trial and its denial of
a new trial under an abuse-of-discretion standard, in which we reverse only if the
decision was so clearly wrong as to fall outside the zone within which reasonable

2
 Even absent application of Texas Penal Code section 9.05, we still would conclude that the trial
court did not err in denying appellant’s request for an instruction under Texas Penal Code section
9.33.

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persons might disagree. See Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App.
2009); Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.—Houston [14th Dist.]
2013, no pet.); Stokes v. State, 298 S.W.3d 428, 431 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d). Absent such an abuse of discretion, an appellate court is
not justified in reversing the trial court’s judgment. Smith, 286 S.W.3d at 339.
      To be entitled to a hearing on a motion for new trial, the movant must raise
one or more matters not determinable from the record and establish the existence
of reasonable grounds showing that he could be entitled to relief. Id. Thus, as a
prerequisite to a hearing when the grounds in the motion are based on matters not
already in the record, the motion must be supported by an affidavit, either of the
defendant or someone else, specifically setting out the factual basis for the claim.
Id.   The affidavit need not establish a prima facie case, or even reflect all
components required to establish relief. Id. It is sufficient if a fair reading of the
affidavit gives rise to reasonable grounds that could entitle the movant to relief. Id.
Affidavits that are conclusory in nature and unsupported by facts do not provide
the requisite notice of the basis for the relief sought; thus, in such circumstances no
hearing is required. Stokes, 298 S.W.3d at 431.
      During its direct examination of Martinez, the State adduced evidence that
Martinez gave several prior inconsistent statements on multiple occasions. On
cross-examination, appellant’s counsel questioned her about these statements.
During this portion of the cross-examination, Martinez contradicted some of her
direct-examination testimony by denying that she had made some of the prior
inconsistent statements.
      In his motion for new trial, appellant asserted that Martinez “committed the
felony offense of Perjury [during] her testimony before the jury” and that the
assistant district attorney trying the case was aware that Martinez would commit
perjury, and condoned and encouraged her perjured testimony. In the motion,
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appellant asserts that the assistant district attorney committed subornation of
perjury. We conclude that this motion was based on matters not already in the
record, and therefore, for appellant to have been entitled to a hearing, the motion
must have been supported by an affidavit in which the affiant specifically set out
the factual basis for this prosecutorial-misconduct complaint. See Smith, 286
S.W.3d at 339; Stokes, 298 S.W.3d at 431.
       Although appellant repeated the assertions that Martinez gave perjured
testimony and that the prosecutor knew, condoned, and encouraged the allegedly
perjured testimony, appellant did not provide any factual support for those
conclusions in his motion. Appellant did not specify which portions of Martinez’s
testimony he contended constituted perjury. Nor did he provide any evidence that
the prosecutor knew Martinez would make the allegedly perjured statements. In
support of the motion, appellant attached an affidavit from his trial counsel, which
stated, in its entirety:
       I am the attorney for the Defendant in this cause, I have read the
       above Motion for a New Trial and the contents therein are made and
       believed to be true to the best of my knowledge based upon my
       observations in the trial of this case.

Presuming for the sake of argument that appellant submitted a valid affidavit,
appellant did no more than make various conclusory statements. A fair reading of
the affidavit of appellant’s counsel does not give rise to reasonable grounds that
could entitle appellant to relief. See Smith, 286 S.W.3d at 339; Stokes, 298 S.W.3d
at 431. Accordingly, the trial court did not abuse its discretion in failing to grant
appellant a hearing on his motion for a new trial.
       Appellant argues in the alternative that this court may reverse the trial
court’s judgment based upon “obvious prosecutorial misconduct” from Martinez’s
statements and from other evidence in the record. To the extent that appellant


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asserts prosecutorial misconduct for the first time on appeal and not based upon the
trial court’s ruling on his motion for new trial or request for hearing on that
motion, we conclude appellant failed to preserve error in the trial court. See Neal
v. State, 150 S.W.3d 169, 175–80 (Tex. Crim. App. 2004) (holding appellant could
not raise prosecutorial vindictiveness claim for the first time on appeal); Temple v.
State, 342 S.W.3d 572, 603, n.10 (Tex. App.—Houston [14th Dist.] 2010) (holding
appellant failed to preserve error in trial court regarding alleged prosecutorial
misconduct), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013). To the extent that
appellant asserts that the trial court abused its discretion in denying his motion for
new trial, we find no error in this ruling.
      For the foregoing reasons, we overrule appellant’s second issue.
C.    Did the trial court err in denying appellant’s motion for mistrial?
      In his third issue, appellant asserts that the trial court erred in denying his
motion for mistrial. We review a trial court’s denial of a motion for mistrial under
the abuse-of-discretion standard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009). Under this standard, we view the evidence in the light most
favorable to the trial court’s ruling and uphold the ruling if it falls within the zone
of reasonable disagreement. Id. A mistrial is a remedy intended for extreme
circumstances, when prejudice is incurable and less drastic alternatives have been
explored. See id. In determining whether a prejudicial event was so harmful as to
warrant reversal on appeal, we consider the prejudicial effect, any curative
measures taken, and the certainty of conviction absent the prejudicial event. See
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
      Martinez testified without objection that appellant, while driving his truck at
a high rate of speed, chased her truck, repeatedly hit her truck, and pushed it into a
ditch. She also testified that she initially lied about the incident because she was
afraid of appellant. During her testimony, Martinez also stated that immediately
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after the collision, while she was waiting for the ambulance, appellant said to her,
“[Y]ou better not say nothing or I’m going to finish you and the kids off.” Before
trial, the court apparently had prohibited Martinez from making this statement at
trial.
         Appellant argues that the trial court abused its discretion in refusing to grant
his motion for a mistrial because the statement was so prejudicial that it was
impossible for the jury to disregard. He also asserts that the trial court’s efforts to
cure the prejudicial statement only served to entrench it in the jurors’ minds.
Following Martinez’s statement, the trial court judge promptly instructed the jurors
to disregard the statement and asked whether they could comply.                No juror
expressed difficulty. Generally, a prompt instruction to disregard by the trial court
will cure error associated with improper testimony referring to or implying
extraneous offenses, unless it appears the evidence was so clearly calculated to
inflame the minds of the jury or is of such a damning character as to suggest it
would be impossible to remove the harmful impression from the juror’s minds.
See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). Martinez’s
statement did not rise to the level of an “extreme circumstance” that was
“incurable.” See Ocon, 284 S.W.3d at 884. Under the circumstances presented, we
conclude that any potential prejudice associated with Martinez’s statement was
cured by the trial court’s instruction to disregard. See Kemp, 846 S.W.2d at 308;
Martinez v. State, 844 S.W.3d 279, 284 (Tex. App.—San Antonio 2007, pet ref’d).
The trial court did not abuse its discretion in denying appellant’s motion for
mistrial.     See Kemp, 846 S.W.2d at 308; Martinez, 844 S.W.3d at 284.
Accordingly, we overrule appellant’s third issue.
                                    III. CONCLUSION
         The trial court did not err in failing to instruct the jury on the defense of a
third party or in denying appellant’s motion for mistrial. The trial court did not
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abuse its discretion in denying appellant’s request for a hearing on his motion for
new trial. Accordingly, we affirm the judgment.




                                      /s/    Kem Thompson Frost
                                             Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Publish — TEX. R. APP. P. 47.2(b).




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