                               NO. 12-10-00014-CR

                        IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
PETE ARMANDO AYALA,
APPELLANT                                        '    APPEAL FROM THE 173RD

V.                                               '    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                              '    HENDERSON COUNTY, TEXAS
APPELLEE
                              MEMORANDUM OPINION
          Pete Armando Ayala appeals his conviction for murder. In his sole issue, he
contends that the trial court abused its discretion in denying his motion for mistrial. We
affirm.
                                      BACKGROUND
          Appellant was charged by indictment with the offense of murder by shooting
Johnny Brown with a firearm, thereby causing his death. Appellant pleaded not guilty.
At trial during the testimony of one of the witnesses, Johnny Brown’s mother, a
nonwitness, exclaimed “Oh, my Johnny, my baby, my baby” when she viewed graphic
photographs of her deceased son. The jury heard her outcry. Defense counsel made a
“bystander’s bill” whereby he explained that the victim’s mother “was either throwing
up, or vomiting, or gagging, or whatever it was” while crying hysterically. She was
escorted from the courtroom, and was thereafter taken on a stretcher from the courthouse
by ambulance, although it is unclear whether the jury was aware of that fact. The
interruption by the victim’s mother lasted approximately one minute.
          The court immediately called a recess and removed the jury from the courtroom
while Appellant’s counsel and the State further discussed the outburst. Appellant’s
counsel moved for a mistrial, which the trial court denied. Appellant also asked for an
instruction to disregard, which the court provided to the jury as follows:
                I’ll instruct you that you are, of course as far as your duty as jurors in
                this case goes, you are not to consider the grief of the victim’s mother,
                and, of course, when the time comes for you to deliberate, you won’t
                consider it for any purpose in your deliberations.


         Appellant was subsequently convicted of murder, and the jury assessed
punishment at forty years of imprisonment. He timely appealed.

                 DENIAL OF MISTRIAL BASED ON BYSTANDER OUTBURST
         In his sole issue, Appellant argues that the trial court abused its discretion in
denying his motion for mistrial based on the outburst by the victim’s mother.
Standard of Review and Applicable Law
         The denial of a motion for mistrial is reviewed under an abuse of discretion
standard. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). The denial of
the motion for mistrial must be upheld if the ruling was within the zone of reasonable
disagreement. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). The
complaining party has the burden to show that the jury was prejudiced by the bystander’s
conduct. Alfaro v. State, 224 S.W.3d 426, 432 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
         To show that external influences on the jury such as a bystander outburst created
reversible error, the defendant must demonstrate actual or inherent prejudice.               See
Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996). Actual prejudice occurs
when the jurors articulate “a consciousness of some prejudicial effect.” Id. Inherent
prejudice, which is rare and “reserved for extreme situations,” occurs when “an
unacceptable risk is presented of impermissible factors coming into play.” Id. In other
words, bystander conduct that interferes with normal trial proceedings will not result in
reversible error unless the defendant shows “a reasonable probability that the conduct or
expression interfered with the jury’s verdict. Id.
         “Instructions to the jury are generally considered sufficient to cure improprieties
that occur during trial,” and it is “generally presume[d] that a jury will follow the [trial
court’s] instructions.” Gamboa, 296 S.W.3d at 580; see also Brown v. State, 92 S.W.3d
655, 661 (Tex. App.—Dallas 2002) (holding outburst from victim’s father telling jury to
“[g]ive my son justice, please[,]” cured by trial court’s instruction to jury to disregard
remark), aff'd on other grounds, 122 S.W.3d 794 (Tex. Crim. App. 2003); Matthews v.
State, 960 S.W.2d 750, 757 (Tex. App.—Tyler 1997, no pet.) (holding outburst by
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victim’s brother during defense counsel’s cross-examination of state’s witness not so
prejudicial as to preclude cure by instruction when trial court admonished jury not to
consider the statement).
Discussion
       Appellant neither presented evidence of actual prejudice such as a juror’s affidavit
nor argues in his brief that the outburst of the victim’s mother actually prejudiced him.
See Alfaro, 224 S.W.3d at 432-33 (holding no actual prejudice shown when defendant
failed to secure affidavit or testimony of jurors as to whether outside influence of
bystander outburst had a prejudicial effect on jurors’ consciousness). Instead, Appellant
contends that the nature of the outburst as a whole resulted in sufficient inherent
prejudice to warrant a mistrial.
       Appellant relies on Stahl v. State to support his inherent prejudice argument, but
the outcome there was premised on prosecutorial misconduct. See Stahl v. State, 749
S.W.2d 826, 826-27 (Tex. Crim. App. 1988); see also Alfaro, 224 S.W.3d at 433 n.4
(distinguishing the unique circumstances in Stahl). More specifically, in Stahl, the
prosecutor called the victim’s mother to the stand knowing that she was prone to
emotional outbursts, and asked her to identify a photograph of her dead son. Id. at 828.
She burst into tears and yelled at the defendant. Id. at 827. Although the trial court
instructed the jury to disregard that evidence, the prosecutor nonetheless repeatedly
referred to the incident in closing argument, leading to the conclusion that the prosecutor
“actually orchestrated the original outburst.” Id. at 826-27. Such circumstances are
absent in the instant case, and Appellant specifically stated that he does not allege any
prosecutorial misconduct.
       In Gamboa, a family member of the victim shouted, “[Y]ou did this for 200
dollars?” This dramatic accusatory outburst is more prejudicial than the expression of
grief by the victim’s mother in the instant case. Yet, the court of criminal appeals held
that “nothing in the record suggests that the outburst was of such a nature that the jury
could not ignore it and fairly examine the evidence in arriving at a verdict.” Gamboa,
296 S.W.3d at 580.
       Based on the record before us, Appellant has not shown by reasonable probability
that the “extravagant expression of grief” of the victim’s mother is one of those rare and
extreme situations in which a bystander outburst interfered with the jury’s verdict.
Finally, Appellant has not demonstrated that the trial court’s instruction to disregard
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failed to cure any prejudice. Therefore, the trial court did not abuse its discretion in
overruling Appellant’s motion for mistrial. Appellant’s sole issue is overruled.

                                       DISPOSITION
       We affirm the judgment of the trial court.


                                                                JAMES T. WORTHEN
                                                                    Chief Justice


Opinion delivered July 7, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                   (DO NOT PUBLISH)




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