                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


                                                            §
    AL EARNEST BROWN,                                              No. 08-11-00347-CR
                                                            §
                                   Appellant,                         Appeal from the
                                                            §
    v.                                                          396th Judicial District Court
                                                            §
    THE STATE OF TEXAS,                                          of Tarrant County, Texas
                                                            §
                                   Appellee.                         (TC# 1201261D)
                                                            §


                                                 OPINION

          Al Earnest Brown appeals the trial court’s judgment convicting him of the sexual assault of

Lauren Zelt and sentencing him to 60 years’ imprisonment. In three issues, Brown contends that

the trial court erred by denying his motion for mistrial and his request to represent himself and by

refusing to instruct the jury on a lesser-included offense. We affirm.

                          FACTUAL AND PROCEDURAL BACKGROUND

          While Zelt slept at Brown’s home, he sexually assaulted her by penetrating her vagina with

his finger. Brown photographed the assault and had the photographs developed.1 After he was

assigned to investigate, Fort Worth Police Officer Mark Bowman contacted Zelt, who informed

him initially that she did not want to press charges against Brown. At trial, Bowman testified that

1
    Brown also took photographs of Zelt’s exposed vagina.
Zelt revealed to him that she was hesitant to press charges against Brown because she was

“nervous about” Brown’s “past.” Defense counsel objected to Bowman’s testimony on the basis

that it impermissibly referred to “extraneous bad acts, previous bad acts.” The trial court

sustained the objection and instructed the jury to disregard this portion of Bowman’s testimony.

The trial court, however, denied defense counsel’s request for a mistrial.

       After the State’s first witness was sworn in at punishment, but before the witness could

testify, Brown complained to the trial court that he was dissatisfied with his counsel for failing to

object to the witness’s presence. Brown also informed the court that he wanted to argue several

motions he had drafted because the court had not yet ruled on two pending matters. The trial

judge admonished Brown that his counsel had no duty to take action on frivolous motions. The

following colloquy then ensued:

       [BROWN]: I’d like – at this time I’d like to fire my attorney.

       [THE COURT]: Well, I understand, but –

       [BROWN]: Because I’d like to represent myself at this time so I can file my
       motion in my name, Al Earnest Brown.

       [THE COURT]: Now that the trial has begun –

       [BROWN]: Yes, sir.

       [THE COURT]: – you are not allowed to fire your lawyer during the middle –

       [BROWN]: I would like to represent myself with him being co-defendant (sic) to
       me.

       [THE COURT]: Okay.

Brown then argued why his motions should be granted. After denying each motion, the trial

judge told Brown that the trial was “going forward” and instructed the State to proceed.


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                                  MOTION FOR MISTRIAL

       In his first issue, Brown asserts that the trial court should have granted a mistrial because

Officer Bowman improperly interjected “adverse and inadmissible [extraneous] matters” by

testifying that Zelt told him that she was scared of Brown, “given his past.” Although the trial

court sustained Brown’s objection at trial that Bowman’s statement violated the trial court’s order

in limine and admonished the jury to disregard the statement, Brown complains on appeal that the

trial court’s denial of his request for a mistrial was erroneous because Bowman’s statement was so

prejudicial as to be incurable. We disagree.

                                       Standard of Review

       We review the trial court’s denial of a motion for mistrial for an abuse of discretion. Coble

v. State, 330 S.W.3d 253, 292 (Tex.Crim.App. 2010), cert. denied, --U.S.--, 131 S.Ct. 3030, 180

L.Ed.2d 846 (2011). If the trial court’s ruling is within the zone of reasonable disagreement, it

must be upheld. Id.

                                         Applicable Law

       A mistrial is required only in extreme circumstances where the prejudice is incurable.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). Prejudice is incurable when the

objectionable material is clearly calculated to inflame the minds of the jury or was of such a

damaging character as to suggest it would be impossible to remove the harmful impression from

the jurors’ minds. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Rojas v. State,

986 S.W.2d 241, 250 (Tex.Crim.App. 1998).

       To determine whether prejudice is incurable, we apply a three-factor balancing test.

Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119


                                                3
S.Ct. 1466, 143 L.Ed.2d 550 (1999). We look at: (1) the severity of the misconduct (the

magnitude of the prejudicial effect of the remark); (2) the curative measures taken (the efficacy of

any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct

(the strength of the evidence supporting the conviction). Id.

       An instruction to disregard ordinarily renders testimony referring to or implying

extraneous offenses harmless. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992).

Further, the trial judge’s instructions to the jury to disregard are generally considered sufficient to

cure the improper testimony because we presume the jury will follow the judge’s instructions.

Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009).

                                             Discussion

       Brown has failed to establish that Officer Bowman’s comment concerning Zelt’s initial

hesitancy in pressing charges was so prejudicial as to be incurable. Brown maintains that this

testimony “was neither relevant to nor explanative of any material contested issue of fact or law,

other than showing [generally] [his criminal propensities].” Brown’s argument is unpersuasive.

When analyzed under the three-factor test articulated in Mosley, it is evident that Officer

Bowman’s testimony is not so prejudicial as to be incurable.

       First, the magnitude of the prejudicial effect of Officer Bowman’s statement was minimal.

Although Officer Bowman’s statement can be construed as referring to or implying extraneous

offenses, the fact remains that it did not reveal any specific or particular extraneous offense.

Moreover, the trial court found that Bowman “blurted” his statement without being elicited to do

so by the State.

       Second, Brown is unable to show the trial court’s instruction to disregard was not effective


                                                  4
in curing the prejudice from Officer Bowman’s testimony. As noted above, an instruction to

disregard ordinarily renders testimony referring to or implying extraneous offenses harmless. See

Kemp, 846 S.W.2d at 308. Therefore, we must presume that the trial court’s admonishment was

effective. See Coble, 330 S.W.3d at 292. Brown does not point to anything in the record that

rebuts this presumption. See Gamboa, 296 S.W.3d at 580. Further, during the guilt or innocence

phase of his trial, Brown testified to having been previously convicted of various offenses in Texas

and Oklahoma. Arguably, if prejudice occurred due to Officer Bowman’s remark, it is subsumed

by Brown’s testimony concerning his prior criminal history.

       Third, the certainty of Brown’s conviction absent Officer Bowman’s inadvertent remark is

high. As Brown himself points out in his brief, Officer Bowman’s testimony explaining why Zelt

initially hesitated in pressing charges was not relevant to proving whether he sexually assaulted

her. However, the evidence proving that Brown sexually assaulted Zelt was so strong as to be

overwhelming. Officer Bowman testified that when he interviewed Brown, Brown admitted to

taking the photographs of Zelt’s vagina as she lay sleeping. Brown’s live-in-girlfriend at the time

testified that Brown showed her photographs of him “doing things to [Zelt]” while Zelt was

sleeping and admitted to photographing Zelt. Brown testified that when Fort Worth Police

Detective Kerry Adcock interviewed him, he admitted to Detective Adcock that he had penetrated

Zelt’s vagina with his finger and taken photographs of her. According to Brown, Zelt had given

him permission to do so. Zelt testified that she had not given Brown permission.

       In support of his argument that his conviction should be overturned because the extraneous

offenses to which Bowman alluded were not relevant to any issue in the case but served only to

show his criminal propensity, Brown cites twelve cases addressing the erroneous admission of


                                                 5
extraneous-offense evidence under Rules of Evidence 404(b) and its harmfulness under Rules of

Appellate Procedure 44.2(b). See, e.g., Pavlacka v. State, 892 S.W.2d 897 (Tex.Crim.App.

1994); Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1991)(opin. on reh’g); Bass v. State,

222 S.W.3d 571 (Tex.App.--Houston [14th Dist.] 2007), rev’d, 270 S.W.3d 557 (Tex.Crim.App.

2008); Johnson v. State, 84 S.W.3d 726 (Tex.App.--Houston [1st Dist.] 2002, pet. ref’d).

Brown’s reliance on these cases is misplaced. The issue in this case is not whether the trial court

erred in admitting extraneous offense-evidence over objection, as it was in the cases cited by

Brown, but whether the trial court erroneously denied a request for mistrial after sustaining an

objection to extraneous offense-evidence and instructing the jury to disregard. In his brief,

Brown neither addresses the issue nor cites any relevant authority.

       We conclude that the trial court did not abuse its discretion by denying Brown’s motion for

mistrial. Brown’s first issue is overruled.

                           RIGHT OF SELF-REPRESENTATION

       In his second issue, Brown argues that the trial court violated his right to represent himself

at punishment as guaranteed by the U.S. and Texas Constitutions and the Texas Code of Criminal

Procedure.   See U.S. CONST. amends. VI, XIV; TEX.CONST. art. I, §§ 10, 19; TEX.CODE

CRIM.PROC.ANN. arts. 1.04, 1.05, 1.051, 26.04 (West 2005 & West Supp. 2012). The State

contends that the trial court did not curtail Brown’s right to represent himself because Brown never

asserted the right clearly and unequivocally. We agree.

                                       Standard of Review

       We review the factual issue of whether a defendant has clearly and unequivocally invoked

the right to self-representation for abuse of discretion. DeGroot v. State, 24 S.W.3d 456, 457-58


                                                 6
(Tex.App.--Corpus Christi 2000, no pet.). In so doing, we view the evidence in the light most

favorable to the trial court’s ruling and will imply any findings of fact supported by the record and

necessary to affirm the trial court’s ruling when, as here, the trial court did not make explicit

findings. Chadwick v. State, 309 S.W.3d 558, 561 (Tex.Crim.App. 2010).

                                          Applicable Law

       A defendant has a constitutional right to proceed without counsel when he voluntarily and

intelligently elects to do so. U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; Faretta v.

California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); Williams v. State, 252

S.W.3d 353, 356 (Tex.Crim.App. 2008). To invoke the right of self-representation, the defendant

must clearly and unequivocally assert it. Hathorn v. State, 848 S.W.2d 101, 123 (Tex.Crim.App.

1992). In determining whether the right was clearly and unequivocally asserted, a defendant’s

statement cannot be taken alone or out of context. DeGroot, 24 S.W.3d at 458. However, a

defendant’s mere dissatisfaction with appointed counsel or a request for hybrid representation

does not establish a clear and unequivocal assertion of the right of self-representation. See

Saldaña v. State, 287 S.W.3d 43, 55 (Tex.App.--Corpus Christi 2008, pet. ref’d); Cain v. State,

976 S.W.2d 228, 235-36 (Tex.App.--San Antonio 1998, no pet.). Once a defendant asserts his

right to self-representation clearly and unequivocally, the trial court must admonish him about the

dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835, 955 S.Ct. at 2541;

Birdwell v. State, 10 S.W.3d 74, 78 (Tex.App.--Houston [14th Dist.] 1999, pet. ref’d).

Thereafter, if the defendant persists in seeking to proceed pro se, the trial court must allow him to

do so. Burgess v. State, 816 S.W.2d 424, 428-29 (Tex.Crim.App. 1991).

                                            Discussion


                                                 7
        As shown above, Brown never made a clear and unequivocal request to represent himself.

When Brown’s request to represent himself is viewed in context, and not in isolation, it is evident

that his request is one for hybrid representation: to be allowed to argue several motions drafted by

him and to have appointed counsel help represent him.2 Brown’s dissatisfaction with appointed

counsel for failing to prosecute motions drafted by him and his request for hybrid representation

did not establish a clear and unequivocal assertion of his right to self-representation. See

Saldaña, 287 S.W.3d at 55; Cain, 976 S.W.2d at 235-36.                       In the absence of a clear and

unequivocal assertion of his right to self-representation, the trial court did not abuse its discretion

by denying Brown’s request. Brown’s second issue is overruled.

                      CHARGE ERROR: LESSER-INCLUDED OFFENSE

        In his third and final issue, Brown contends that the trial court erred by refusing to instruct

the jury on the lesser-included offense of improper photography. We disagree.

                                              Standard of Review

        We review charge error on appeal by determining whether error occurred, and if so,

whether that error caused sufficient harm to require reversal. Ngo v. State, 175 S.W.3d 738,

743-44 (Tex.Crim.App. 2005). The degree of harm required for reversal depends on whether the

defendant preserved error at trial. Id. at 743. When, as here, the defendant preserves error at trial

by timely objection, the record must establish only “some harm” to obtain reversal. Id.

                                                Applicable Law

        The Code of Criminal Procedure states, in part, that “[a]n offense is a lesser included

2
  The Court of Criminal Appeals has held that there is no constitutional right in Texas to hybrid representation;
however, a trial court has the discretion to allow standby counsel. Landers v. State, 550 S.W.2d 272, 280
(Tex.Crim.App. 1977)(opin. on reh’g); Webb v. State, 533 S.W.2d 780, 784 n.2 (Tex.Crim.App. 1976); see also
McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984)(stating there is no constitutional
right to hybrid representation).
                                                         8
offense if . . . it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged[.]” TEX.CODE CRIM.PROC.ANN. art. 37.09(1)(West 2006).

To determine if a defendant is entitled to an instruction on a lesser-included offense, we apply a

two-prong test. Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011).

        First, the lesser-included offense must include the proof necessary to establish the offense

charged. Id. at 68. In other words, the lesser-included offense is necessarily included in the

offense charged only where the statutory elements of the lesser-included offense are a subset of the

elements of the charged offense. In ascertaining whether this is the case, “we . . . compare the

statutory elements and any descriptive averments in the indictment for the greater offense with the

statutory elements of the lesser offense.” Id. We are mindful that “the evidence produced at trial

does not determine the lesser-included offense[].” Id. Second, some evidence must exist “from

which a rational jury could acquit the defendant of the greater offense while convicting him of the

lesser-included offense.” Id. “The evidence must establish the lesser-included offense as ‘a

valid rational alternative to the charged offense.’” Id., citing Segundo v. State, 270 S.W.3d 79,

90-91 (Tex.Crim.App. 2008). In making this decision, “[w]e review all of the evidence presented

at trial.” Id.

                                               Discussion

        Improper photography is not a lesser-included offense of sexual assault by digital

penetration. A person commits the offense of improper photography if he “photographs . . . a

visual image of another at a location that is not a bathroom or private dressing room without the

other person’s consent; and with intent to arouse or gratify the sexual desire of any person.”

TEX.PENAL CODE ANN. § 21.15(b)(1)(West 2011). As charged in the indictment in this case, a


                                                     9
person commits the offense of sexual assault by digital penetration if he “intentionally or

knowingly . . . causes the [digital] penetration of the . . . sexual organ of another person by any

means, without that person’s consent . . . [knowing] the other person is unconscious or physically

unable to resist . . . [or] . . . [knowing] the other person is unaware that the sexual assault is

occurring.” Id. at § 22.011(a)(1)(A) & (b)(3),(5)(West 2011). In comparing the elements of the

offenses of sexual assault and improper photography, it is evident that they do not share analogous

actus reuses. The actus reus of sexual assault by digital penetration is the penetration of the

victim’s sexual organ without the victim’s consent. In contrast, the actus reus of improper

photography is photographing the victim for sexual gratification without the victim’s consent.

Because the proof establishing improper photography is not subsumed by the proof establishing

sexual assault by digital penetration, the State was not required to prove the offense of improper

photography to prove the offense of sexual assault by digital penetration. Brown has thus failed

to show that if he is guilty, he is guilty only of improper photography. We therefore conclude that

the trial court did not err in refusing to instruct the jury on the lesser-included offense of improper

photography.

       Brown asserts, by operation of Section 21.15(d) of the Penal Code, improper photography

is a lesser-included offense of sexual assault. Section 21.15(d) provides that “[i]f conduct that

constitutes an offense under [the statute criminalizing improper photography] also constitutes an

offense under any other law, the actor may be prosecuted under [the statute criminalizing improper

photography] or the other law.” TEX.PENAL CODE ANN. § 21.15(d). Brown’s argument is

unpersuasive, however, because it ignores Article 37.09 of the Code of Criminal Procedure, which

sets forth the four statutory factors employed in determining whether an offense constitutes a


                                                  10
lesser-included offense of the offense charged. See TEX.CODE CRIM.PROC.ANN. art. 37.09 (West

2006).3 As established above, when evaluated under Article 37.09(1), improper photography is

not a lesser-included offense of sexual assault.

           Brown’s third and final issue is overruled.

                                                        CONCLUSION

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



March 28, 2013
                                                         YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




3
    In its entirety, Article 37.09 reads:

An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense
charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person,
property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its
commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
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