                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-18-00131-CR


                            JESSE ALLAN MARTINEZ, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 32nd Nolan County, Texas
                    Trial Court No. 12,201, Honorable Glen Harrison, Presiding

                                        September 26, 2018

                                 MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

        What should a trial court do when the defendant appears for trial intoxicated and

purportedly unable to assist in the defense of the case — a mistrial, according to Jesse

Allan Martinez (appellant). Because the trial court did not grant him one, he is purportedly

entitled to have his conviction for burglarizing a building reversed.1 We disagree.




         1 Because this appeal was transferred from the Eleventh Court of Appeals, we are obligated to

apply its precedent when available in the event of a conflict between the precedents of that court and this
Court. See TEX. R. APP. P. 41.3.
       We review a trial court’s denial of a motion for mistrial under the standard of abused

discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Dekneef v. State,

379 S.W.3d 423, 430 (Tex. App.—Amarillo 2012, pet. ref’d). Thus, the decision must be

upheld if it falls within the zone of reasonable disagreement. Dekneef v. State, 379

S.W.3d at 430. In assessing whether it does, we must remember several things. First,

the evidence before the trial court at the time it acted is viewed in a light most favorable

to the decision. Id. Second, a mistrial is appropriate only in extreme circumstances.

Ocon v. State, 284 S.W.3d at 884. Thus, it should be granted only when the residual

prejudice remains after less drastic alternatives are explored. Id. at 884-85. Requesting

less drastic remedies is not a prerequisite, but when the litigant fails to seek them, we will

not interfere with the ruling if the problem could have been cured by one. Id. at 885. With

this said, we turn to the issue at hand.

       After voir dire and the selection of a jury, the trial court noticed that appellant was

engaging in conduct that led it to ask if he was “under the influence of any drugs or

medications or alcohol or anything that would interfere with your understanding?”

Appellant responded by saying that he was simply experiencing a lack of sleep. Further

inquiry by the court led it to order that appellant undergo urinalysis and recess the trial

until the following day.        The test revealed the presence of amphetamine,

methamphetamine, and ecstasy.          1Given the test results, the trial court desired to

converse with appellant when trial resumed the next morning to determine if he was

capable of actively participating in the trial. If he was not, then a mistrial would be

entertained, according to the court.




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        Appellant and the trial court engaged in a rather extended discourse the following

day. During it, the court asked if he was aware of the test results and when he last took

the drugs for which he tested positive. Appellant acknowledged his awareness of the

results but denied having voluntarily taken the drugs. He also denied being on any

prescribed medications and attempted to explain why he was acting the way he did and

his concerns about his attorney.2 His protestations about not having voluntarily taken

drugs prior to trial continued through trial, though he did concede that someone may have

slipped something into his drinks consumed at a party held for him a day or two earlier.

Though he rambled somewhat at times, appellant spoke cogently, or so the trial judge

could have reasonably concluded. Furthermore, his answers to the trial court’s questions

were logically responsive even though the veracity of some of them could be viewed with

some skepticism.

        The same can be said of his conversation with the trial court while the latter

admonished him about the pitfalls of personally testifying. Again, appellant not only spoke

cogently and denied being under the influence of intoxicants but also evinced an

understanding of his rights and the pitfalls faced in taking the witness stand. Ultimately,

the trial court 1) found appellant competent to both stand trial and personally testify, 2)




        2Appellant’s counsel represents to us, via the appellant’s brief, that appellant lacked the ability to
communicate with his trial attorney due to the intoxication. An equally, if not more likely, inference from the
circumstances of record would be that this purported lack of communication or desire to heed counsel’s
advice stemmed not from any effect of drugs but appellant’s rather apparent lack of confidence in his trial
attorney. As he told the trial court: 1) “I’m wanting him [i.e. defense counsel] to understand my side the
way I understand his”; 2) [h]onestly, he’s telling me that I’m guilty already”; and 3) “I’m trying to tell him over
and over that -- why? And -- and explaining it to him. In other words, there’s no defense.”


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proceeded with trial, and 3) denied the motions for mistrial made by appellant’s counsel

throughout the proceeding.3

        Viewing the record in a light most favorable to the trial court’s decision, it supports

the trial court’s finding that appellant was competent to converse with his attorney,

understand the proceedings, and assist in his own defense. A defendant opting to testify

and questioning the capability of his attorney is not synonymous with being intoxicated.

Those may or may not be wise choices but man often acts rashly even when sober. So,

there being evidence supporting the trial court’s finding of competence, it had no

obligation to order a mistrial.

        More importantly, though, appellant acknowledged in his brief that “a trial on

competency was not needed because Appellant’s intoxication was temporary, not

something that a competency trial would find persisting after a few days from the

drug consumption.” (Emphasis added). Being a “temporary” condition that would not

persist “after a few days,” it would seem that a remedy less drastic than a mistrial may

have been available to appellant. It consisted of a continuance. Appellant made effort to

neither request one below or explain here why it would not have cured whatever prejudice

he faced. Nor do we see why continuing the trial for a day or two could not have been a

viable means to remedy the “temporary” condition. This being so and because appellant

did not first ask for one, we will not interfere with the trial court’s ruling. See Wood v.

State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (describing a continuance as “a much

less drastic remedy” to mistrial and concluding that because the appellant failed to seek


         3 When conversing with appellant while admonishing him about testifying, the trial court observed:

1) “[b]ut as far as your education, you seem to be able to talk to me fine and we understand each other,”
and 2) “you and I have been able to talk to each other and understand what we’re saying, so I’m not seeing
anything there that would prevent -- prevent you from testifying as far as a competency issue.”

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one to obtain purportedly needed evidence, the trial court did not abuse its discretion

when denying the mistrial).

      In sum, the decision to deny a mistrial fell within the zone of reasonable

disagreement and, therefore, was not an instance of abused discretion. We overrule

appellant’s sole issue and affirm the judgment.



                                                            Brian Quinn
                                                            Chief Justice


      Do not publish.




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