In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00331-CR __________________
ANDREW MICHAEL NARVAEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________
On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 20-351742 __________________________________________________________________
MEMORANDUM OPINION
Appellant Andrew Michael Narvaez (Appellant or Narvaez) was charged by
an amended information with the misdemeanor offense of reckless driving. See Tex.
Transp. Code Ann. § 545.401. Appellant elected to appear pro se at trial despite
admonishments by the trial court, and the trial court appointed “standby counsel” for
Appellant to confer with if Appellant wanted counsel during trial. Appellant pleaded
“not guilty,” and a jury found him guilty as charged. The trial court sentenced
Appellant to thirty days of confinement and assessed a $200 fine. Narvaez appealed.
1 In one issue, Appellant argues that the trial court abused its discretion in
denying Appellant’s motion for a mistrial when an extraneous offense was
introduced before the jury during the guilt/innocence phase of the trial. 1 According
to Appellant’s brief, “Appellant did not object immediately to the 404(b) violation
probably because as a pro se defendant, he probably did not understand the import
of the offending testimony.” According to Appellant, as a pro se defendant, he “was
unsure of the correct manner in which to challenge the introduction of the
inadmissible extraneous conduct evidence[,]” and “then turned to ‘stand by’ counsel
to argue the point and ultimately make a motion for mistrial.” Appellant argues that
defense counsel proceeded to formally object to the admission under Texas Rules of
Evidence 401, 402, 403, and 404(b). Appellant concedes that the non-redacted
exhibit mistakenly played at trial was not admitted for appellate purposes and that
only a redacted exhibit was admitted and sent back to the jury. Finding no error, we
affirm.
Background and Testimony Related to the Stated Issue
The trial court granted that portion of the State’s motion in limine that required
the defense establish, outside the presence of the jury, the admissibility of any
1 According to Appellant’s brief, Appellant was originally charged with both reckless driving and possession of marijuana (class B misdemeanor) and the marijuana case was dismissed on the same day as his conviction for the reckless driving. The information for the possession of marijuana charge and the dismissal of that charge are not part of our appellate record. 2 evidence of “testimony regarding the marijuana found in the defendant’s vehicle or
regarding the defendant’s comments to others on the marijuana and paraphernalia in
his vehicle” before mentioning or introducing such evidence before the jury. Prior
to voir dire and outside the presence of potential jurors, the trial court asked the
parties if there was anything in the motion in limine that needed to be addressed
specific to voir dire, and the prosecutor responded:
Just any mention of marijuana since the State is not moving forward on that charge. We would just ask the Court to admonish the defendant not to mention any feelings on marijuana since that’s not relevant to this case.
The State called Shannon Acosta, an investigator with the Montgomery
County District Attorney’s Office, to testify. During Acosta’s testimony, the State
introduced Exhibit 5, a recording of a call made by Narvaez from jail, and the exhibit
was admitted into evidence without objection. The reporter’s record shows that
during the recording which was played for the jury at one point in the call Narvaez
mentioned he had also been arrested for marijuana, and at that point the State
promptly stated:
(STATE’S EXHIBIT NO. 5 PLAYING)
[Prosecutor]: I am moving to strike that from the record.
THE COURT: Granted.
The State continued its direct examination of Acosta, and then the State rested its
case, the defense rested its case, and the trial court recessed the jury and began to 3 discuss the jury charge. Thereafter, the following exchange between Appellant’s
standby counsel, the trial court, the prosecutor, and Appellant then transpired:
[Appellant’s Standby Counsel]: Judge, the defendant has agreed to allow me to present this motion for him. So I’ll - - and it’s in regards to the phone calls from jail, made reference to being arrested for marijuana. That is a pending case against the defendant. But the first request would be to ask for a jury instruction to disregard the statement. And even if the Court were to grant that, I believe the - - that would not cure the error.
THE COURT: Which I did. I think you made a motion to strike and - -
[Prosecutor]: Yes, Your Honor.
[Appellant’s Standby Counsel]: And we would say that is not curative of the issue, Judge. And we’d, first of all, object to the admission as being irrelevant, more prejudicial than probative, and a violation of Rule 404(b), Texas Rules of Evidence. And given the Court did sustain the objection, we would submit to the Court that that does not cure the error; and, therefore, we’d ask for a mistrial.
THE COURT: Okay. The - - the motion for mistrial is denied.
...
[Prosecutor]: What’s actually in evidence on the CD is a redacted jail call. What I did was I accidentally played the wrong jail call from off of my computer because I preloaded all media onto my computer because, as the Court is aware, media takes forever to - - if it’s inserted from a CD takes forever to load. So I did, by pure accident, play the unredacted portion of the jail call, which is why I asked for a motion to - - why I moved for the record to be stricken of that last portion. But again, what is in actual evidence on the CD itself is a redacted jail call.
THE COURT: So what goes back to the jury is the redacted jail call without the - -
4 [Prosecution]: Yes. And we are happy to allow Mr. Narvaez to listen to that to make sure it’s redacted.
THE COURT: All right. So the motion for mistrial is denied. It’s the Court’s thought that we can - - . . . the charge could include an extraneous offense charge which basically says if anything has been presented to the jury that hasn’t been proved beyond a reasonable doubt bears no weight if - - if both parties believe that that’s appropriate. . . .
MR. NARVAEZ: I mean, I guess I’m kind of held up because we did talk about this prior to coming in that we wouldn’t mention anything about it. It was a huge ordeal and here we are.
THE COURT: I know. I think - - at this point, the motion for mistrial is denied. I will include an extraneous offense [jury] charge that would address that which basically tells the jury if there’s any evidence of any other crimes being committed, unless the State proves it beyond a reasonable doubt, you can’t consider it for any purpose.
MR. NARVAEZ: That’s fair.
Standard of Review
We review the trial court’s denial of a motion for mistrial for an abuse of
discretion, viewing the evidence in the light most favorable to the trial court’s ruling,
and considering only those arguments before the court at the time of the ruling. Ocon
v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must uphold the ruling
if it was within the zone of reasonable disagreement. Id. A mistrial is the appropriate
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00331-CR __________________
ANDREW MICHAEL NARVAEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________
On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 20-351742 __________________________________________________________________
MEMORANDUM OPINION
Appellant Andrew Michael Narvaez (Appellant or Narvaez) was charged by
an amended information with the misdemeanor offense of reckless driving. See Tex.
Transp. Code Ann. § 545.401. Appellant elected to appear pro se at trial despite
admonishments by the trial court, and the trial court appointed “standby counsel” for
Appellant to confer with if Appellant wanted counsel during trial. Appellant pleaded
“not guilty,” and a jury found him guilty as charged. The trial court sentenced
Appellant to thirty days of confinement and assessed a $200 fine. Narvaez appealed.
1 In one issue, Appellant argues that the trial court abused its discretion in
denying Appellant’s motion for a mistrial when an extraneous offense was
introduced before the jury during the guilt/innocence phase of the trial. 1 According
to Appellant’s brief, “Appellant did not object immediately to the 404(b) violation
probably because as a pro se defendant, he probably did not understand the import
of the offending testimony.” According to Appellant, as a pro se defendant, he “was
unsure of the correct manner in which to challenge the introduction of the
inadmissible extraneous conduct evidence[,]” and “then turned to ‘stand by’ counsel
to argue the point and ultimately make a motion for mistrial.” Appellant argues that
defense counsel proceeded to formally object to the admission under Texas Rules of
Evidence 401, 402, 403, and 404(b). Appellant concedes that the non-redacted
exhibit mistakenly played at trial was not admitted for appellate purposes and that
only a redacted exhibit was admitted and sent back to the jury. Finding no error, we
affirm.
Background and Testimony Related to the Stated Issue
The trial court granted that portion of the State’s motion in limine that required
the defense establish, outside the presence of the jury, the admissibility of any
1 According to Appellant’s brief, Appellant was originally charged with both reckless driving and possession of marijuana (class B misdemeanor) and the marijuana case was dismissed on the same day as his conviction for the reckless driving. The information for the possession of marijuana charge and the dismissal of that charge are not part of our appellate record. 2 evidence of “testimony regarding the marijuana found in the defendant’s vehicle or
regarding the defendant’s comments to others on the marijuana and paraphernalia in
his vehicle” before mentioning or introducing such evidence before the jury. Prior
to voir dire and outside the presence of potential jurors, the trial court asked the
parties if there was anything in the motion in limine that needed to be addressed
specific to voir dire, and the prosecutor responded:
Just any mention of marijuana since the State is not moving forward on that charge. We would just ask the Court to admonish the defendant not to mention any feelings on marijuana since that’s not relevant to this case.
The State called Shannon Acosta, an investigator with the Montgomery
County District Attorney’s Office, to testify. During Acosta’s testimony, the State
introduced Exhibit 5, a recording of a call made by Narvaez from jail, and the exhibit
was admitted into evidence without objection. The reporter’s record shows that
during the recording which was played for the jury at one point in the call Narvaez
mentioned he had also been arrested for marijuana, and at that point the State
promptly stated:
(STATE’S EXHIBIT NO. 5 PLAYING)
[Prosecutor]: I am moving to strike that from the record.
THE COURT: Granted.
The State continued its direct examination of Acosta, and then the State rested its
case, the defense rested its case, and the trial court recessed the jury and began to 3 discuss the jury charge. Thereafter, the following exchange between Appellant’s
standby counsel, the trial court, the prosecutor, and Appellant then transpired:
[Appellant’s Standby Counsel]: Judge, the defendant has agreed to allow me to present this motion for him. So I’ll - - and it’s in regards to the phone calls from jail, made reference to being arrested for marijuana. That is a pending case against the defendant. But the first request would be to ask for a jury instruction to disregard the statement. And even if the Court were to grant that, I believe the - - that would not cure the error.
THE COURT: Which I did. I think you made a motion to strike and - -
[Prosecutor]: Yes, Your Honor.
[Appellant’s Standby Counsel]: And we would say that is not curative of the issue, Judge. And we’d, first of all, object to the admission as being irrelevant, more prejudicial than probative, and a violation of Rule 404(b), Texas Rules of Evidence. And given the Court did sustain the objection, we would submit to the Court that that does not cure the error; and, therefore, we’d ask for a mistrial.
THE COURT: Okay. The - - the motion for mistrial is denied.
...
[Prosecutor]: What’s actually in evidence on the CD is a redacted jail call. What I did was I accidentally played the wrong jail call from off of my computer because I preloaded all media onto my computer because, as the Court is aware, media takes forever to - - if it’s inserted from a CD takes forever to load. So I did, by pure accident, play the unredacted portion of the jail call, which is why I asked for a motion to - - why I moved for the record to be stricken of that last portion. But again, what is in actual evidence on the CD itself is a redacted jail call.
THE COURT: So what goes back to the jury is the redacted jail call without the - -
4 [Prosecution]: Yes. And we are happy to allow Mr. Narvaez to listen to that to make sure it’s redacted.
THE COURT: All right. So the motion for mistrial is denied. It’s the Court’s thought that we can - - . . . the charge could include an extraneous offense charge which basically says if anything has been presented to the jury that hasn’t been proved beyond a reasonable doubt bears no weight if - - if both parties believe that that’s appropriate. . . .
MR. NARVAEZ: I mean, I guess I’m kind of held up because we did talk about this prior to coming in that we wouldn’t mention anything about it. It was a huge ordeal and here we are.
THE COURT: I know. I think - - at this point, the motion for mistrial is denied. I will include an extraneous offense [jury] charge that would address that which basically tells the jury if there’s any evidence of any other crimes being committed, unless the State proves it beyond a reasonable doubt, you can’t consider it for any purpose.
MR. NARVAEZ: That’s fair.
Standard of Review
We review the trial court’s denial of a motion for mistrial for an abuse of
discretion, viewing the evidence in the light most favorable to the trial court’s ruling,
and considering only those arguments before the court at the time of the ruling. Ocon
v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must uphold the ruling
if it was within the zone of reasonable disagreement. Id. A mistrial is the appropriate
remedy only when the objected-to events are so emotionally inflammatory that
curative instructions are not likely to prevent the jury from being unfairly prejudiced
5 against the defendant. See Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App.
2004).
A mistrial is required only in extreme circumstances where the prejudice is
incurable because it “is of such character as to suggest the impossibility of
withdrawing the impression produced on the minds of the jurors.” Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999); see also Ocon, 284 S.W.3d at 884.
Because a mistrial is an extreme remedy, “a mistrial should be granted ‘only when
residual prejudice remains’ after less drastic alternatives are explored.” Ocon, 284
S.W.3d at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App.
2005)).
To preserve an issue for appellate review, the defendant must make a timely
request, objection, or motion stating specific grounds for the ruling he desires the
trial judge to make and obtain a ruling on the objection. Tex. R. App. P. 33.1(a)(1);
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). The objection must be made at the
earliest possible opportunity, and “[a] motion for mistrial is timely only if it is made
as soon as the grounds for it become apparent.” Griggs v. State, 213 S.W.3d 923,
927 (Tex. Crim. App. 2007); see also King v. State, 953 S.W.2d 266, 268 (Tex. Crim.
App. 1997); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).
6 Analysis
Once a defendant in a criminal proceeding elects to represent himself, he is
held to the same standards as an attorney. Johnson v. State, 760 S.W.2d 277, 279
(Tex. Crim. App. 1988); Borne v. State, 593 S.W.3d 404, 414 (Tex. App.—
Beaumont 2020, no pet.); McCray v. State, 861 S.W.2d 405, 408-09 (Tex. App.—
Dallas 1993, no pet.). Judges are not required to make objections or otherwise assist
in the defense of a pro se defendant. See McKaskle v. Wiggins, 465 U.S. 168, 184
(1984); McCray, 861 S.W.2d at 408. Accordingly, a pro se defendant must present
a timely and specific request, objection, or motion to preserve a complaint for
appellate review. See Tex. R. App. P. 33.1(a)(1); Boyd v. State, 811 S.W.2d 105, 113
(Tex. Crim. App. 1991). A party’s failure to object to the trial court’s action waives
any error on appeal. Boyd, 811 S.W.2d at 113.
We note that our appellate record does not include the complained-of
statement played at trial.2 Even assuming that the statement was related to the arrest
for marijuana as alluded to by Appellant’s standby counsel at the time he objected
and moved for mistrial, based on the record before us, we conclude that Appellant
failed to make a timely objection or motion for mistrial because Appellant did not
2 The appellant bears the burden to bring forward on appeal a sufficient record to show the error committed by the trial court. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) (“The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal.”); Greenwood v. State, 823 S.W.2d 660, 661 (Tex. Crim. App. 1992). 7 object at the earliest possible opportunity or make his motion for mistrial as soon as
the grounds for it became apparent, which would have been when the complained-
of statement in the recording was played at trial. See Griggs, 213 S.W.3d at 927;
King, 953 S.W.2d at 268; Turner, 805 S.W.2d at 431. Instead, Appellant waited until
after Acosta had finished testifying, after both sides had rested, and while the parties
were discussing the jury charge to object and make his motion for mistrial. Because
Appellant failed to make a timely objection or motion for mistrial, he waived the
alleged error. See Griggs, 213 S.W.3d at 927 (where the grounds for appellant’s
motion for mistrial first became apparent during a witness’s testimony but appellant
failed to move for mistrial until after the witness had concluded his testimony, the
motion was untimely and failed to preserve the complaint for appeal.). We overrule
Appellant’s issue and affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on October 19, 2022 Opinion Delivered November 9, 2022 Do Not Publish
Before Kreger, Horton & Johnson, JJ.