                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00304-CR


ALEX DARRELL MAYS                                  APPELLANT

                                   V.

THE STATE OF TEXAS                                        STATE


                                  AND


                           NO. 02-10-00354-CR


EX PARTE ALEX DARRELL MAYS


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        FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                      MEMORANDUM OPINION1

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    1
     See Tex. R. App. P. 47.4.
                                 I. INTRODUCTION

      In this consolidated appeal, appellant Alex Darrell Mays appeals his

conviction for sexual assault. Mays also appeals the trial court’s denial of his

“Motion for Release Pending Appeal.” We will affirm.

                                 II. BACKGROUND

      Lisa Flannigan2 and Mays were friends. On the evening of September 20,

2008, Lisa arranged for her young daughter to stay with her mother while she

spent some time at Mays’s apartment watching television. According to Lisa’s

testimony, when she attempted to leave, Mays walked her to her car and took

her cell phone from her. To her surprise, Mays began to scroll through her

phone. Mays took the phone with him to his apartment. Lisa said she followed

him because she wanted her phone back.

      Once they were both in the doorway, Mays grabbed Lisa by her throat and

pushed her into his apartment. According to Lisa, she tripped and fell to the floor

as Mays began to repeatedly punch her. Lisa freed herself from Mays, grabbed

her cell phone, and went into the bathroom and closed the door. Mays then

forced his way into the bathroom. Lisa’s mother called her cell phone at this

time. Lisa was able to answer, but said that she could not say much: “I was able

to answer . . . And I tried to tell [my mother] real quick what was going on, who I



      2
       The record reflects that the complainant’s name is a pseudonym. We are
using that same pseudonym.


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was with, but by that time [Mays] had snatched my phone and threw it against

the wall.” Mays began to hit her again.

      According to Lisa, she told Mays to “just let [her] go home.” Mays told her

to shut up and threatened to punch her in her mouth. He also told her “if he was

going to jail, it was going to be worth it.” Lisa averred that Mays then told her that

he could kill her if he wanted and that no one would ever be able to find her.

Mays demanded that Lisa remove her clothes, motioned for her to go to his

bedroom, and had sexual intercourse with her.         Lisa said that she complied

because she was scared of “getting beat up again, for everything.” Mays then

told Lisa to take a shower in order to get his DNA off her. Lisa again complied.

The next morning, Lisa begged Mays to let her go. He let her go. After she got

home and saw her mother, Lisa went to the hospital with a friend.

      During the State’s direct examination of Lisa, the following exchange

occurred:

      [Prosecutor]: Where was he hitting you at?

      [Lisa]: Everywhere. He just kept hitting and just punching me. He didn't
      have to do that. . . . Why would you do that?

      [Defense Counsel]: Your Honor, we’re going to -- Judge, we’re going to
      object to the nonresponsiveness -- to the nonresponsiveness as well as --

      [Lisa]: How can you defend somebody like that?

      [Trial Court]: Okay. Ladies and gentlemen --

      [Defense Counsel]: Judge --




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      [Trial Court]: Just a moment. . . . Ladies and gentlemen, I’m going to
      excuse you to the jury room. Please remember the Court’s instructions.
      Thank you.

      [Lisa]: (Inaudible Outburst).

      [Trial Court]: Do not say another word.

      Outside the jury’s presence, defense counsel made a formal objection.

The trial court sustained the objection. Defense counsel asked that when the

jury returned, the trial court instruct them to disregard Lisa’s outburst. The trial

court agreed. Defense counsel then moved for a mistrial. The trial court denied

the motion. The trial court then instructed Lisa not to address the defendant and

also instructed the State to talk to Lisa about her decorum. The trial court then

took a ten minute recess.

      Once the jury returned, the trial court immediately instructed the jury:

      Ladies and gentlemen of the jury, at the time you were being
      excused, there was an objection that was made by the Defense to a
      nonresponsive response given to a question. I sustained the
      objection. Furthermore, you are instructed that the last comments
      coming from the witness stand, you are to disregard.

      The trial continued.    The State called Lisa’s mother.        Lisa’s mother

discussed her phone call to Lisa that night. Although unable to testify to what

Lisa and Mays said, Lisa’s mother said that she heard enough from a “man’s”

voice and Lisa’s voice during the brief call that she was disturbed. She called the

police and filed a report. Lisa’s mother also repeatedly attempted to call Lisa

after that call, both that night and the next morning. But Lisa did not answer until

the next morning. When Lisa’s mother finally did see Lisa that next morning, she


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said that Lisa was distraught and covered in scratches and bruises.           Lisa’s

mother averred that Lisa went to the hospital with a friend.

      The sexual assault nurse, who examined Lisa, also testified and described

Lisa’s injuries to the jury. The State also introduced numerous photos of Lisa,

depicting the scratches and bruises she sustained that night.

      The jury found Mays guilty of sexual assault, assessed punishment at ten

years’ confinement and recommended that the sentence be suspended and that

Mays be placed on community supervision for ten years. The trial court entered

judgment accordingly.

      As a condition of community supervision, the trial court ordered Mays to

serve thirty days’ confinement in jail. Mays’s confinement began on July 1, 2010.

On August 16, 2010, Mays filed “Defendant’s Motion for Release Pending

Appeal.” The trial court denied the motion. The record does not reflect when

Mays was released from jail, but both parties agree that Mays spent more than

thirty days in jail, that he eventually was released, and that he now lives with his

family in Jasper, Texas. This consolidated appeal followed.

                                  III. DISCUSSION

      A.    Outburst During Trial

      In his first issue, regarding cause number 02-10-00304-CR, Mays

contends that the trial court erred by denying his motion for a mistrial after Lisa

made her emotional outburst in front of the jury in which she directed comments




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to Mays and his counsel. The State argues that the trial court cured the error by

instructing the jury to disregard the outburst.

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

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

2010), cert. denied, --- S. Ct. ----, No. 10-1271, 2011 WL 1481330 June 20,

2011). We uphold the trial court’s ruling if it was within the zone of reasonable

disagreement.    Id.   An outburst from a courtroom bystander or witness that

interferes with the normal proceedings of a trial will not result in reversible error

unless the defendant shows that a reasonable probability exists that the conduct

interfered with the jury’s verdict. Id.; Stahl v. State, 749 S.W.2d 826, 829 (Tex.

Crim. App. 1988) (citing Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App.

1985), cert. denied, 479 U.S. 871 (1986)).        In the context of outbursts from

courtroom bystanders or witnesses, the trial judge’s instructions to disregard are

generally considered sufficient to cure the impropriety, because it is presumed

that the jury will follow those instructions. Gamboa v. State, 296 S.W.3d 574,

580 (Tex. Crim. App. 2009).

      In this case, we conclude that Mays fails to prove that a reasonable

probability exists that Lisa’s comments interfered with the jury’s verdict. The

State introduced numerous pictures of Lisa, depicting the injuries sustained

during Mays’s assault on her. Lisa testified to the brutal manner in which Mays

violently attacked her. The evidence shows that when Lisa attempted to leave

Mays’s house, he grabbed her cell phone from her. Mays then grabbed her


                                          6
throat and pushed her into his apartment. Mays began to punch Lisa repeatedly.

After Lisa managed to escape Mays’s grasp and hide in the bathroom, Mays

forced his way into the bathroom. When Lisa asked Mays to “let [her] go home,”

Mays responded that he already knew he was going to jail, and “if he was going

to jail, it was going to be worth it.”

         Mays threatened to kill Lisa and explained that he could get away with it.

Lisa testified that after this, the only reason she complied with having sexual

intercourse with Mays was because she was scared that Mays would assault her

again.     Afterwards, Mays required that Lisa shower in order to destroy any

potential DNA evidence.

         During her struggle, Lisa’s mother managed to call Lisa. Although unable

to testify to what Lisa and Mays said, Lisa’s mother heard enough from a “man’s”

voice and Lisa’s voice during the brief call, which eventually disconnected, to call

the police. Lisa’s mother also repeatedly attempted to call Lisa after that call, but

Lisa did not answer until the next morning. When Lisa’s mother finally did see

Lisa the next morning, Lisa was distraught and covered in scratches and bruises.

Lisa’s mother testified that Lisa went to the hospital with a friend after she saw

her.

         In light of the facts of this case, the nonresponsive statements directed at

the defendant and defense counsel were not so prejudicial that they could not be

cured by the trial court’s thorough instruction, which was given at the most

immediate moment the trial court had to instruct the jury. And we presume the


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jury abided by the instruction.   Id. The trial court’s decision to deny Mays’s

motion for new trial certainly falls within the zone of reasonable disagreement.

See Id. (holding that capital murder defendant not entitled to a mistrial based on

an outburst by the victim’s family member, shouting “You did this for 200

dollars?”, during the testimony of a prosecution witness); see also Brown v.

State, 92 S.W.3d 655, 661 (Tex. App.—Dallas 2002) (holding that victim’s

father’s outburst of “Give my son justice, please[,]” during murder trial cured by

trial judge’s instructions to disregard his comment), aff’d on other grounds, 122

S.W.3d 794 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 938 (2004); Matthews

v. State, 960 S.W.2d 750, 757 (Tex. App.—Tyler 1997, no pet.) (holding that

outburst by manslaughter victim’s brother contradicting defense attorney’s

question about whether the victim’s car stereo was on was cured by the judge’s

instruction to disregard). We hold that the trial court did not abuse its discretion

when it denied Mays’s motion for mistrial. We overrule Mays’s first issue.

      B.    Trial Court’s Denial of Mays’s Motion to Release Him from
            Incarceration

      In his second and third issues, regarding cause number 02-10-00354-CR,

Mays contends that the trial court erred by denying his motion to release him

pending this appeal and incarcerating him beyond thirty days as a condition of

his community supervision. Through various arguments, Mays contends that the

incarceration violated his due process and equal protection rights.           Mays

acknowledges that since the filing of this appeal in relation to the trial court’s



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denial of his motion, he has posted bail and is now residing with his family in

Jasper, Texas.

      We conclude that Mays’s second and third issues are moot. See Ex parte

Bennet, 818 S.W.2d 199, 200 (Tex. App.—Houston [14th Dist.] 1991, no pet.)

(holding that when the premise of a habeas corpus application is destroyed by

later events, the legal issues raised therein are rendered moot); see also

Ex parte Guerrero, 99 S.W.3d 852, 853 (Tex. App.—Houston [14th Dist.] 2003,

no pet.) (holding that an appeal of a denial of an application for release is

rendered moot when appellant posts bond and is released from custody). Thus,

we dismiss Mays’s second and third issues as moot.

                                 IV. CONCLUSION

      Having overruled Mays’s first issue and having dismissed his second and

third issues as moot, we affirm the trial court’s judgment and order.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 18, 2011




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