Opinion issued December 16, 2014.




                                    In The

                           Court of Appeals
                                    For The

                       First District of Texas
                         ————————————
                           NO. 01-13-00901-CR
                           NO. 01-13-00902-CR
                           NO. 01-13-00903-CR
                        ———————————
               IGNACIO MARTIN GONZALEZ, Appellant
                                      V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 184th District Court
                          Harris County, Texas
             Trial Court Case Nos. 1377914, 1377915, 1377916
                                   OPINION

      A jury convicted Ignacio Martin Gonzalez of three counts of aggravated

sexual assault of a child younger than age 14.1 In three issues, Gonzalez asks this

Court to reverse his conviction and remand the case for new trial. First, Gonzalez

asserts that the trial court erred by admitting the complainant’s medical records.

Second, he argues that, to the extent his attorney failed to preserve the first issue

for appeal, he was denied effective assistance of counsel. Third, he contends that

the trial court erred by denying his motion for a mistrial after an improper

impeachment. We affirm.

                                    Background

      Gonzalez had an ongoing relationship with the mother of the complainant,

B.R., a seven-year-old boy. 2 Eventually, Gonzalez moved into an apartment with

B.R. and B.R.’s mother. Subsequently, B.R.’s mother noticed strange changes in

B.R.’s behavior. One day, B.R.’s mother stepped out of the shower to discover

Gonzalez next to B.R. Gonzalez’s pants were unzipped; B.R.’s mouth was red and

covered in saliva; both appeared startled. B.R.’s mother accused Gonzalez of

sexually assaulting B.R.

      Several medical personnel treated B.R., including Dr. William Schmidt, a

psychotherapist. B.R. told Dr. Schmidt that Gonzalez had abused him. During the

1
      TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B) (West Supp. 2014).
2
      To protect the complainant’s identity, he will be referred to as B.R.

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course of his therapy, B.R. also discussed an encounter with two mating dogs that

reminded him of Gonzalez. Dr. Schmidt diagnosed B.R. with Post-Traumatic

Stress Disorder (“PTSD”).

      The State charged Gonzalez with three counts of aggravated sexual assault

of a child. 3 During trial, B.R. testified that Gonzalez sexually assaulted him. His

mother testified about B.R.’s changes in behavior and her discovery of the abuse.

An emergency-room nurse testified that she examined B.R. and that B.R. told her

about the sexual assault. The State offered the emergency-room medical records

(with inadmissible hearsay redacted) into evidence; Gonzalez did not object to

those records as tendered. Subsequently, the State called a sexual-abuse

investigator, who testified that B.R. also told her about the assaults.

      Finally, the State announced that it intended to call Dr. Schmidt as a witness

and introduce his records of B.R.’s treatment. Pursuant to an agreement between

the parties, the State redacted certain inadmissible portions of the records. Before

Dr. Schmidt took the stand, and outside the presence of the jury, Gonzalez objected

to the admission of Dr. Schmidt’s redacted records. He argued that they were

highly prejudicial or that, in the alternative, the portion related to the dogs was


3
      Gonzalez was initially charged with one count of aggravated assault of a child.
      The jury could not reach a unanimous verdict, and the trial court declared a
      mistrial. Subsequently, Gonzalez was charged with three counts of aggravated
      assault of a child. This appeal is from the second trial.


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highly prejudicial and thus inadmissible. The trial court denied the objection.

Counsel re-urged the objection when the State offered the records; the trial court

again overruled the objection and admitted the records.

      During Gonzalez’s case-in-chief, he called his son to be a character witness.

On cross-examination, the State asked his son about three prior marijuana

convictions. The trial court sustained an improper-impeachment objection and

instructed the jury to disregard. At Gonzalez’s request, the court gave the jury a

second, sterner instruction to disregard the improper impeachment. Gonzalez then

moved for a mistrial. The trial court denied the motion.

      The jury convicted Gonzalez on all three counts. Gonzalez timely appealed.

                    Admissibility of B.R.’s Medical Records

      In his first issue, Gonzalez challenges the trial court’s decision to admit the

records of Dr. Schmidt, a testifying expert, related to B.R.’s treatment for PTSD.

Gonzalez objected that the entire set of records were irrelevant or created a danger

of unfair prejudice that substantially outweighed their probative value. See TEX. R.

EVID. 401–403. He also made an alternative objection on the same legal grounds to

a page in the records that describes B.R. observing mating dogs and thinking about

Gonzalez.




                                         4
A.    Standard of review

      We review a trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,

pet. dism’d). We will uphold the trial court’s ruling unless it falls outside the “zone

of reasonable disagreement.” Tillman, 354 S.W.3d at 435; accord Walker, 321

S.W.3d at 22. If the trial court’s evidentiary ruling is reasonably supported by the

record and correct on any theory of applicable law, we will uphold the decision. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Tarley v. State, 420

S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

B.    Objection to the entire set of records

      We begin by examining Gonzalez’s objection to the entire set of Dr.

Schmidt’s records, determining what, if any, probative value they have, and then

weighing their probative value against the danger of unfair prejudice.

      1.     Probative value

      Evidence may not be admitted for consideration by the jury unless it is

relevant, i.e., if it is probative of a fact of consequence to the determination of the

action. TEX. R. EVID. 401–402; Brown v. State, 757 S.W.2d 739, 740 (Tex. Crim.

App. 1988). Generally, during the guilt/innocence phase of a trial, evidence of the

complainant’s medical injuries, including psychological trauma, is probative only



                                          5
of the occurrence of the harm. Thus, if the defense concedes that the complainant

was harmed, evidence of the injuries generally is not admissible. Brown, 757

S.W.2d at 740–41.

      In Brown v. State, the prosecution sought to admit evidence that a rape

victim suffered intense psychological trauma from the assault. Id. at 740. The

defendant denied that he was the rapist, but he did not deny that the complainant

had been raped. Id. at 740–41. The Court of Criminal Appeals found that the

evidence was not relevant to the guilt/innocence determination because it provided

no information on the identity of the rapist, and only furthered the undisputed

contention that the complainant was raped. Id.

      In Yatalese v. State, this Court held that the rule in Brown allowed the State

to admit evidence of a child-complainant’s psychological trauma in the

guilt/innocence phase of a trial for aggravated sexual assault of a child. 991

S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). In that case,

the defendant denied that the assault occurred. The trial court did not abuse its

discretion by admitting evidence that the complainant’s behavior changed

drastically after the alleged assault because this evidence tended to support the

assertion that the assault occurred, a disputed fact of consequence to the

guilt/innocence determination. Id.




                                         6
      This case is more similar to Yatalese than Brown. In Brown, the defense

conceded both that the victim was traumatized and that she was traumatized

because of rape. Here, Gonzalez used evidence that B.R.’s mother hit B.R. to

explain B.R.’s trauma. Thus, while both parties agree that B.R. was traumatized,

they disagree about the cause of the trauma.

      The question before us is: Are Dr. Schmidt’s records merely probative of

B.R.’s psychological harm or are they also probative of the injury that caused the

harm? We conclude that they tend to show not only that B.R. was traumatized, but

that sexual assault, not maternal abuse, caused B.R.’s trauma. B.R.’s treatment

included “revisiting experiences of sexual abuse.” Another part of the records state

that “[B.R.] does not know why [Gonzalez] touched him in his private area . . . he

remains sad because of what happened to him.” The records reveal that B.R. feels

embarrassed and ashamed because Gonzalez, a man he trusted, sexually abused

him. They also reflect B.R.’s anger at his family for failing to protect him from

Gonzalez. Dr. Schmidt specifically tailored B.R.’s therapy to “[a]cknowledge and

resolve trauma associated with allegation of overt sexual behavior with mother’s

paramour, [Gonzalez].” Thus the records are probative of whether the assaults

occurred and whether Gonzalez was the assailant.

      Gonzalez argues that the records are irrelevant victim-impact evidence. He

relies on Miller-El v. State to support this contention. 782 S.W.2d 892, 895 (Tex.



                                         7
Crim. App. 1990). In Miller-El, the Court of Criminal Appeals ruled that, in a

guilt/innocence phase of an attempted-murder trial, evidence of a victim’s future

suffering was not probative of whether an assailant intended to kill the victim. Id.

The records in this case, however, do not concern B.R.’s future suffering, but

rather document the present harm caused by the sexual assault. Regardless, the

issue in this case is whether the records are probative of the actus reus, not of the

mens rea, which was the issue in Miller-El. Id. Thus, Miller-El does not apply.

      Because the records are probative of contested facts that are of consequence

to the determination of Gonzalez’s guilt or innocence, our holding in Yatalese

controls; the records are relevant.

      2.     Prejudicial effect

      Relevant evidence is nonetheless inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. The

mere fact that evidence adversely affects a defendant’s case does not by itself

create a danger of unfair prejudice. Moreno v. State, 409 S.W.3d 723, 729 (Tex.

App.—Houston [1st Dist.] 2013, pet. ref’d). “Virtually all evidence that a party

offers will be prejudicial to the opponent’s case, or the party would not offer it.”

Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). There is no danger

of unfair prejudice unless the evidence has “an undue tendency to suggest a

decision on an improper basis, commonly an emotional one.” Id.



                                         8
      In evaluating the relative probative value and unfairly prejudicial effect of

evidence, the trial court

      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.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). In this

case, the records do contain extraneous, irrelevant details. Some of these details

may be unfairly prejudicial; one example is the record of B.R. thinking of

Gonzalez while looking at two mating dogs. Further, any evidence of sexual

misconduct involving children is inherently distressing.

      Although the records invite some danger of unfair prejudice, this danger

must substantially outweigh probative value of the evidence; otherwise, the records

are admissible. See Casey, 215 S.W.3d at 882. This case turned on what caused

B.R.’s trauma, and these records clearly point to sexual assault by Gonzalez. Thus,

the evidence has a strong probative force. Although other witnesses provided

substantial evidence of Gonzalez’s guilt, only Dr. Schmidt diagnosed and treated

B.R. for PTSD, and thus his records are uniquely probative of the cause of B.R.’s

trauma. Considering the strong and unique probative force of the records, we



                                         9
conclude that the trial judge’s decision to admit the records was not an abuse of

discretion. See TEX. R. EVID. 403.

C.    Alternative objection

      As discussed above, Gonzalez also objected, in the alternative, to a page of

the treatment records describing B.R.’s reaction to seeing two mating dogs.

Assuming, without deciding, that the trial court abused its discretion by admitting

that page, Gonzalez must show that any error was not harmless. Alexander v. State,

740 S.W.2d 749, 765 (Tex. Crim. App. 1987). Error is harmless unless there is a

“reasonable probability that [the error] might have contributed to the conviction or

affected punishment.” Id.

      Gonzalez does not meet this requirement. Neither side emphasized the

entry—it was never mentioned in Dr. Schmidt’s testimony or in closing argument.

More importantly, B.R.’s reaction to the dogs comprised only an insignificant part

of the substantial evidence of Gonzalez’s guilt. The other records of Dr. Schmidt

indicated that B.R. was sexually traumatized by Gonzalez. Two other medical

personnel testified that B.R. told them about the sexual assaults. B.R. gave

testimony describing how Gonzalez would tie him up and sexually assault him.

B.R.’s mother testified that B.R. had severe behavioral problems and was afraid to

be alone. She also testified that she caught Gonzalez with his pants unzipped next

to B.R., who had saliva on his mouth. Because the entry was not emphasized and



                                        10
because it was such an insignificant addendum to the substantial evidence of

Gonzalez’s guilt, any error in its admission was harmless.

      Because Gonzalez does not demonstrate reversible error with respect to

either of his objections, we overrule Gonzalez’s first issue.

                         Ineffective Assistance of Counsel

      In his second issue, Gonzalez contends that, to the extent that his lawyer

failed to preserve his objections to Dr. Schmidt’s records, he was denied the

effective assistance of counsel. We evaluate claims of ineffective assistance of

counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984). Under Strickland, a defendant must show that

(1) counsel’s performance fell below an objective standard of reasonableness, and

(2) but for counsel’s unprofessional error, there is a reasonable probability that the

result of the proceedings would have been different. Id. at 687–94, 104 S.Ct. at

2064–68; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      To satisfy the second prong of the Strickland test, defendant must show that,

if the issue were preserved, there would be a reasonable probability that an

appellate court would rule in his favor. Ex Parte Moore, 395 S.W.3d 152, 158

(Tex. Crim. App. 2013). Here, both parties agree that Gonzalez’s attorney properly

objected to Dr. Schmidt’s records. But we do not need to reach the preservation

issue because, as discussed in our analysis of Gonzalez’s first issue, there is no



                                          11
reversible error in the admittance of Dr. Schmidt’s records into evidence. See id.

We overrule Gonzalez’s second issue.

                           Denial of Motion for Mistrial

      In his third issue, Gonzalez contends that the trial court erred by denying his

request for a mistrial after the improper impeachment of his son with prior

misdemeanor marijuana convictions. He urges that the convictions left an

“indelible mark” on the jury’s evaluation of the son’s credibility that was not cured

by the trial court’s prompt instruction.

A.    Standard of review

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “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). A prompt instruction from the trial judge is usually enough to cure the

error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115

(Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined

by the particular facts of the case. Ladd, 3 S.W.3d at 567.

      When we review an action on a motion for mistrial, “[d]eterminations of

historical fact and assessment of witness credibility and believability are left

almost entirely to the discretion of the trial judge, and where there is conflicting



                                           12
evidence there is no abuse of discretion if the motion is overruled.” Hughes v.

State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). An appellate court views the

evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007). The ruling must be upheld if it is within

the zone of reasonable disagreement. Id.

B.    Instruction to disregard

      The witness, Gonzalez’s son, testified that Gonzalez was a loving, caring

parent, both as a father to the witness and as a surrogate father to B.R. On cross-

examination, the State improperly impeached Gonzalez’s son with several

misdemeanor marijuana convictions. Gonzalez objected to the impeachment, but

only after the witness admitted to the prior convictions. The trial court sustained

the objection, and then instructed the jury to “disregard the last question and

answer and consider it for no purpose.” At the request of defense counsel, the trial

court added an additional instruction: “Possession of marijuana is not a crime of

moral turpitude and this is not permitted for purposes of impeachment . . . it is not

allowed in determining credibility. The question should not have been asked.”

Gonzalez then moved for a mistrial, which the court denied.

      To determine if the trial court abused its discretion by denying a mistrial

motion after a prompt instruction to disregard, we use the three-factor test

announced in Mosley v. State, 983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998).



                                           13
We look to three factors: (1) the severity of the misconduct, (2) the measures

adopted to cure the misconduct, and (3) the certainty of conviction absent the

misconduct. Carballo v. State, 303 S.W.3d 742, 748 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d); see also Archie v. State, 340 S.W.3d 734, 740 (Tex. Crim.

App. 2011) (applying the Mosley factors to the denial of a motion for mistrial).

       Turning to the first factor, we examine “the severity of the misconduct, or in

other words, the magnitude of the prejudicial effect of the prosecutor’s

[misconduct].” Archie, 340 S.W.3d at 740. The prosecutor’s impeachment was

clearly improper. See TEX. R. EVID. 609(a). She inappropriately emphasized the

inadmissible convictions by asking the witness if he had been convicted “three

times” and then listing for the jury each conviction date in a second improper

question. She further underscored the improper impeachment by saving it for the

very end of her cross examination. These actions magnified the prejudicial effect

of the error.

       With respect to the second factor, “the reviewing court considers the

character of the measures adopted to cure the misconduct.” Archie, 340 S.W.3d at

741. Gonzalez contends that the judge’s prompt action could not have cured the

taint left in the jurors’ minds by the improper impeachment. We disagree. An

instruction to disregard is presumed effective unless the particular facts imply

otherwise. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). In this



                                         14
case, the trial court sustained Gonzalez’s objection, and then instructed the jury to

disregard twice. In its second instruction, the trial court repeated the need for the

jury to disregard, explained why the law required the jury to ignore the

convictions, and clearly assigned error to the State. These facts support the

presumption that the instruction to disregard was effective.

      In examining the third factor, “the reviewing court looks to the certainty of

conviction absent the misconduct.” Archie, 340 S.W.3d at 741. Gonzalez asserts

that, absent the improper impeachment, conviction was far from certain because

his entire defense was based on his credibility as established through his son. But

Gonzalez’s defense relied on more than just evidence of his good character; it also

pointed out the lack of forensic evidence and offered the misconduct of B.R.’s

mother as an alternate explanation for B.R.’s trauma. These arguments by the

defense are wholly unscathed by the improper impeachment. Further, although the

prosecutor should not have brought the marijuana convictions to the jury’s

attention, the convictions do not speak to the quality of the witness’s relationship

to Gonzalez, which was the substance of his testimony. Finally, as discussed in our

analysis of Gonzalez’s first issue, there was substantial evidence of Gonzalez’s

guilt. Therefore, we conclude that there was a high probability of conviction absent

the improper impeachment.




                                         15
      Although the prosecutor magnified the prejudicial effect of the improper

impeachment, the error was swiftly dealt with by the trial court, and a guilty

verdict was very likely even without the misconduct. While we do not condone the

prosecutor’s actions, we hold that the trial court did not abuse its discretion by

denying the motion for mistrial. Accordingly, we overrule Gonzalez’s third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Harvey Brown
                                             Justice


Panel consists of Justices Massengale, Brown, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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