                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-14-00042-CR


                        FRANCISCO JAVIER PEDRAZA, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 69th District Court
                                      Moore County, Texas
                      Trial Court No. 4903, Honorable Ron Enns, Presiding

                                        January 16, 2015

                               MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Francisco Javier Pedraza, appeals the trial court’s judgment by which

he was convicted of continuous sexual abuse of a young child and sentenced to life

imprisonment as punishment.1           On appeal, he contends that the State’s attorney

improperly commented on the presumption of innocence. He also contends that the

cumulative effect of that error and several other errors concerning the trial court’s

admission of evidence were harmful. We will affirm.


      1
          See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014).
                                   Motion for Mistrial


      Appellant first contends that the trial court erred by denying his motion for mistrial

made in connection with the following exchange:


      STATE’S ATTORNEY: You haven’t taken responsibility for it; have you?

      APPELLANT: Responsibility [for] what?

      DEFENSE COUNSEL: Objection, Your Honor.                 That’s an improper
      question. It’s assuming the defendant is guilty.

      STATE’S ATTORNEY: Yes, I do assume he’s guilty, and that’s a question
      I can ask.

      DEFENSE COUNSEL: That’s a speaking objection as well.

      THE COURT: I’ll sustain both objections.           You may ask your next
      question.

      DEFENSE COUNSEL: Objection, Your Honor. The statement by counsel
      that she assumes he’s guilty changes the burden of proof in this case and
      we ask for a mistrial.

      THE COURT: I will overrule that objection. I’m going to instruct the jury to
      disregard the statement of counsel about any assumption that she has
      that somebody is guilty. You may proceed.

      Mistrial is an extreme remedy that is reserved for a very narrow classification of

circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284

S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is used to halt proceedings when

the error involved makes the expenditure of further time and expense wasteful and

futile. Id. A trial court’s decision to deny a motion for mistrial is reviewed under an

abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.

2010); Ocon, 284 S.W.3d at 884. The denial of a motion for mistrial must be upheld if it

was within the zone of reasonable disagreement. See Coble, 330 S.W.3d at 292; Ocon,

284 S.W.3d at 884.


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         The decision to grant a mistrial is governed by the particular facts of the case.

Ocon, 284 S.W.3d at 884. “Only in extreme circumstances, where the prejudice is

incurable, will a mistrial be required.” Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.

App. 2007) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en

banc)). “[O]rdinarily, any injury from improper jury argument is obviated when the court

instructs the jury to disregard, unless the remark is so inflammatory that its prejudicial

effect cannot reasonably be removed by such an admonishment.” Long v. State, 823

S.W.2d 259, 269–70 (Tex. Crim. App. 1991) (en banc) (quoting Bower v. State, 769

S.W.2d 887, 907 (Tex. Crim. App. 1989) (en banc), and reviewing motion for mistrial

based on prosecutor’s comment in same manner as one based on improper jury

argument). If the trial court’s instruction can be said to have removed the prejudicial

effect of the improper question or remark, no error will result from denial of the motion

for mistrial. See Richards v. State, 912 S.W.2d 374, 378 (Tex. App.—Houston [14th

Dist.] 1995, pet. ref’d). In determining whether an exception exists to the general rule

that an instruction renders the error harmless, again, we look at the “particular and

unique facts” of each case. See Williams v. State, 643 S.W.2d 136, 138 (Tex. Crim.

App. [Panel Op.] 1982).


         Assuming for the sake of our analysis that defense counsel’s objection to the

State’s comment was rightly sustained because the comment was error, we look to

whether the trial court’s denial of defense counsel’s motion for mistrial was reversible

error.    We note that immediately after the trial court sustained defense counsel’s

objection and denied his motion for mistrial, the trial court sua sponte instructed the jury

with regard to the comment from the State’s attorney: “I’m going to instruct the jury to



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disregard the statement of counsel about any assumption that she has that somebody is

guilty. You may proceed.”


       As the State points out in its brief to this Court, it could hardly be shocking to the

jury that the State’s attorney believed appellant to be guilty; surely, if the State believed

otherwise, it would not be prosecuting appellant for the offenses charged. Nonetheless,

the statement is an irresponsible one and care should be taken to keep the State’s

attorney’s personal opinion out of the matter. Here, though, the trial court took prompt

action without placing too much emphasis on the comment and redirected the jury to

disregard that comment.      Additionally, the jury was later charged properly on the

presumption that appellant is innocent and the proper placement of the burden of proof

beyond a reasonable doubt on the shoulders of the State. The trial court’s instructions

were sufficient to render harmless any error presented by the State’s comment

regarding her assumption of appellant’s guilt.       See Long, 823 S.W.2d at 269–70;

Richards, 912 S.W.2d at 377–78. Though unprofessional, the State’s comment was not

of such character as to suggest the impossibility of withdrawing the impression

produced on the minds of the jury. See Richards, 912 S.W.2d at 378. Based on the

record as it stands before us, we are able to say that the instruction removed the

prejudicial impact of the State’s comment, and we, therefore, cannot say the trial court

abused its discretion by denying the motion for mistrial. We overrule appellant’s first

point of error.




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                                     Cumulative Error


       Appellant next contends that error associated with the State’s improper

comment, when considered with a variety of alleged evidentiary errors, constituted

cumulative reversible error.


Standard of Review


       We review the trial court’s decision to exclude or admit evidence for an abuse of

discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en

banc) (citing Marras v. State, 741 S.W.2d 395, 404 (Tex. Crim. App. 1987) (en banc)).

The test for abuse of discretion is whether the trial court acted without reference to any

guiding rules and principles. Id. at 380. We will uphold the trial court’s ruling “so long

as the result is not reached in an arbitrary or capricious manner.” Id. Further, we will

sustain the trial court’s decision if that decision is correct on any theory of law applicable

to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (en banc).


Statement to Responding Officer


       Appellant contends that complainant A.P.’s statement to police officer Cammi

Clark that appellant raped her was not an excited utterance and was, therefore,

inadmissible hearsay. We look to the evidence that, when the statement was made to

officer Clark, Clark had been called in response to a report that ten-year-old A.P. was

planning on running away from home. Clark testified that A.P. was crying, upset, and

“very emotional” when she told Clark that her father had raped her. We cannot say that

the trial court abused its discretion when it admitted Clark’s testimony over appellant’s

hearsay objection. Further, any error in the admission of Clark’s testimony would be

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harmless in light of the fact that A.P. testified to the very same facts later. See Lane v.

State, 151 S.W.3d 188, 192–93 (Tex. Crim. App. 2004) (holding that any error in

admission over hearsay objection of the victim’s out-of-court statements was harmless

when same evidence was introduced several times elsewhere without objection).


Post-examination Statements to Sexual Assault Nurse Examiner


      Appellant agrees that sexual assault nurse examiner Becky O’Neill was the

properly identified outcry witness and that most of her testimony is admissible because

she was such. There is testimony, however, that appellant maintains was outside the

scope of O’Neill’s capacity to testify as an outcry witness. That testimony revolves

around A.P.’s statements to O’Neill that A.P. was glad to have told about the abuse but

that she feared what would happen to her father now. Appellant contends that O’Neill,

as the outcry witness, could only testify to A.P.’s statements describing the alleged

offense and cites in support of his contention Gallegos v. State, 918 S.W.2d 50, 56

(Tex. App.—Corpus Christi 1996, pet. ref’d).


      However, O’Neill was also the sexual assault nurse examiner who examined A.P.

and, as such, was qualified to testify to A.P.’s statements as they related to the proper

medical diagnosis and treatment. See TEX. R. EVID. 803(4) (providing exception to the

hearsay rule for “[s]tatements made for purposes of medical diagnosis or treatment and

describing medical history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment”).       The State responds that A.P.’s

statements reveal her fragile state of mind and also speak to the need for further

medical treatment for A.P. in the form of counseling.        Indeed, O’Neill’s testimony

                                            6
regarding A.P.’s statement not only spoke to the source of A.P.’s injuries but also was

relevant to developing a plan for follow-up medical treatment for her. See Burns v.

State, 122 S.W.3d 434, 438–39 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)

(concluding that challenged testimony from examining doctor regarding reason for not

reporting abuse earlier was relevant to victim’s “emotional issues” and “would help

determine her future course of treatment”). We cannot say that the trial court abused its

discretion by admitting the challenged portion of O’Neill’s testimony.


Social Media Post


       Appellant posted a dirty joke on social media on the day of or the day after the

date of an alleged instance of assault of one of his daughters, and the State sought to

admit the post.     Appellant objected at trial that the post was irrelevant and more

prejudicial than probative. At trial and on appeal, the State contends that the joke,

posted at a time very near one of the alleged assaults, was relevant to appellant’s state

of mind.


       “Relevant evidence” means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence. TEX. R. EVID. 401. “Although

relevant, evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.” TEX.

R. EVID. 403. When called on to analyze evidence in light of a Rule 403 objection, the

trial court must balance the following considerations: (1) the inherent probative force of

the proffered evidence along with (2) the proponent’s need for that evidence against (3)

                                             7
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).


         The substance of the posted joke has, according to the State’s theory of

admissibility, some—albeit minimal—probative value in that it could be said to be

relevant to intent. Perhaps the timing of the post is the most valuable aspect of the

evidence in that regard.    The State maintains that, because appellant denied the

allegations that he sexually assaulted his daughters, it had a great need for the

evidence to undermine his alternative theory of why the daughters were making the

accusations. The State had other, more probative evidence, however, in the form of the

daughters’ testimony and medical evidence. The State’s need for the only somewhat

probative evidence was minimal. Appellant contends that the State confused the issue

to which the dirty joke was relevant by emphasizing that one of appellant’s daughters

might have had access to the joke on his social media page. This fact, appellant

maintains, could have misled the jury and suggested that the jury rendered its verdict on

an improper basis: that appellant was a careless father who permitted his daughter

access to a dirty joke on social media. Much more likely, however, is that the jury was

able to assign the proper value to the social media post as it considered the entirety of

the evidence before it. Though the parties spend a fair amount of time at the bench



                                            8
arguing about the admissibility of the evidence, neither party spent an extraordinary

length of time on the topic before the jury. All things considered, the evidence was

probably of minimal value and minimal prejudice; it was, at least, within the zone of

reasonable disagreement to find that it is admissible.


       Even if we were to assume otherwise—that admission of the social media post

was erroneous—such error would have been harmless in light of the other evidence

before the trial court, including direct testimony from the complainants and evidence

from the sexual assault examination. Our review of the record gives us fair assurance

that any assumed error associated with the social media post would not have influenced

the jury, or it would have had but a slight effect. See Taylor v. State, 268 S.W.3d 571,

592 (Tex. Crim. App. 2008); see also TEX. R. APP. P. 44.2(b) (providing that “[a]ny

[nonconstitutional] error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded”).


       With that, we overrule appellant’s second point of error relating to the cumulative

effect of the admission of certain items of evidence.


                                        Conclusion


       Having overruled both of appellant’s points of error, we affirm the judgment of the

trial court. See TEX. R. APP. P. 43.2(a).


                                                  Mackey K. Hancock
                                                      Justice


Do not publish.



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