Jesse James Arispe, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 19, 2025
• Docket: 01-24-00018-CR
• Status: Published

Opinion

Opinion issued August 19, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00018-CR ——————————— JESSE JAMES ARISPE, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court Galveston County, Texas Trial Court Case No. 23-CR-2089

MEMORANDUM OPINION

In this appeal from a robbery conviction, Appellant Jesse James Arispe, Jr.

contends the trial court erred by denying his motion for mistrial based on a specific

portion of a jailhouse phone recording. We affirm. Background

This case involves a dispute over a $100 deposit at a Galveston hotel where

Arispe and a companion stayed. Hotel employee Katy Herrera declined to return the

deposit because someone had purportedly smoked in Arispe’s hotel room in

violation of a no-smoking policy. Herrera testified Arispe said he was going to grab

items from the lobby because she would not return the deposit. Arispe grabbed hotel

items from the lobby. Herrera filmed Arispe’s actions on her phone. Arispe then

handed the items to his companion, went back to where Herrera was recording him,

took her phone, and exited the hotel with the phone. Herrera attempted to recover

her phone by attacking Arispe’s companion in the doorway to the hotel’s lobby,

which drew the three into a physical altercation. Eventually Arispe and his

companion exited the hotel without taking the items.

Arispe was indicted for robbery for intentionally, knowingly, or recklessly

causing bodily injury to Herrera while committing a theft with the intent to obtain

control of property. See TEX. PENAL CODE § 29.02 (providing elements for robbery).

Arispe admitted assaulting Herrera but disputed the theft element of robbery,

claiming that that he had only grabbed the hotel items to draw the attention of a

manager and had no intent to leave with them.

During trial, the State offered into evidence an approximately sixteen-minute

audio recording of a jailhouse phone conversation between Arispe and another

2 woman. Regarding the offer, Arispe’s counsel stated, “That’s fine. No objection.”

It is unclear from the record how much of the recording was played for the jury, but

at some point, Arispe’s counsel asked to approach the bench and complained about

Arispe’s statement on the recording, “I don’t even care about taking four years.”

Arispe’s counsel argued this statement pertained to plea negotiations and moved for

a mistrial because it was incurable. The trial court offered to give the jury a limiting

instruction but denied the motion for mistrial, noting that the recording was admitted

without objection. Arispe’s counsel declined the trial court’s offer of a limiting

instruction, believing an instruction would draw more attention to the statement.

The jury convicted Arispe of robbery and assessed punishment at eight years’

confinement, and the trial court entered judgment based on the verdict.

Analysis

In a single issue, Arispe contends the trial court committed reversible error

when it denied his motion for mistrial. The traditional procedure for seeking relief

at trial for a complaint that must be preserved is to (1) object when it is possible,

(2) request an instruction to disregard if the prejudicial event has occurred, and

(3) move for a mistrial if a party thinks an instruction to disregard was not sufficient.

Unkart v. State, 400 S.W.3d 94, 98–99 (Tex. Crim. App. 2013). “A party may skip

the first two steps and request a mistrial, but he will be entitled to one only if a timely

3 objection would not have prevented, and an instruction to disregard would not have

cured, the harm flowing from the error.” Id.

When the State offered the recording into evidence, Arispe’s counsel did not

object, and the trial court admitted the recording into evidence for all purposes. Had

Arispe’s counsel objected to the portion of the recording in which he stated, “I don’t

even care about taking four years,” it would have prevented the jury from hearing

this statement, preventing the alleged harm. Because of this, he was not entitled to

a mistrial, and we overrule his sole issue. See Webb v. State, No. 01-11-00403-CR,

2012 WL 1564298, at *9 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet. ref’d)

(mem. op., not designated for publication) (concluding trial court did not abuse

discretion in denying mistrial regarding recording because appellant did not object

before recording was played for jury).1

1 Even assuming Arispe had properly objected to the subject portion of the recording, he would not have been entitled to a mistrial. His statement, “I don’t even care about taking four years,” was not a concession of guilt for robbery but, in context, was part of his explanation that he would already be eligible for parole with a four- year sentence. Moreover, the evidence supporting the robbery conviction was strong, particularly because video showed Arispe grabbing the hotel items and Herrera’s phone and his statement on the recording that, “She didn’t want to give her the deposit back. So I was just like well, fuck it, I’m gonna take something.” See Hernandez v. State, 454 S.W.3d 643, 649 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (standard of review for determining if trial court abused discretion by denying request for mistrial includes “the severity of the underlying misconduct” and “the certainty of the conviction absent the misconduct”); see also Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (explaining mistrial is “an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors” (internal quotations and citation omitted)).

4 Conclusion

We affirm the judgment of the trial court.

Andrew Johnson Justice

Panel consists of Chief Justice Adams and Justices Caughey and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).