AFFIRM and Opinion Filed April 11, 2013
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00293-CR
EDUARDO ORTEGA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F09-35217-I
MEMORANDUM OPINION Before Justices Lang-Miers, Murphy, and Fillmore Opinion by Justice Fillmore A jury convicted Eduardo Ortega of indecency with a child by contact and sentenced him
to twenty years’ imprisonment. In his sole issue, Ortega contends the trial court erred by
refusing to declare a mistrial after a witness testified about extraneous offenses. We affirm the
trial court’s judgment. We issue a memorandum opinion in this case because the law to be
applied is well settled. See TEX. R. APP. P. 47.2(a), 47.4.
Background
Ortega’s niece, A.S., was twenty-two years old at the time of trial. A.S. testified that
when she was nine or ten years old, she spent the night at Ortega’s house. She and several other
children were sleeping in the living room when Ortega entered the room and touched her with his
hand, under her clothes, on her chest and vagina. Ortega left the room when A.S. began to cry. A.S. did not tell anyone about the incident because she did not think anyone would
believe her. In 2007, when A.S. was seventeen, she told her fiancé what had happened. A.S.’s
fiancé encouraged her to tell her mother what had happened and, that same day, A.S. did so.
A.S.’s mother became upset and immediately left to confront Ortega about A.S.’s outcry. A.S.’s
mother testified that, when she confronted Ortega, he began to cry, asked for forgiveness, and
said he did not “mean to hurt nobody, harm nobody.” He also said he was willing to participate
in counseling or therapy. A.S.’s mother did not contact the police immediately because it was
difficult for her to accept “it had happened.” At some point, A.S. also told her science teacher
about the incident. A.S. testified that, after her outcry, Ortega apologized to her “for what he
did.”
Detective Steven Lee testified that he was assigned to the case in January 2009. He
interviewed A.S. in February 2009 and Ortega in July 2009. During the hour-long interview,
Ortega was “very emotional” and cried. Detective Lee asked Ortega if A.S. was “making this
up,” and Ortega said he did not know. Ortega also said A.S. had not done anything wrong and
he did not believe she “was doing this for monetary reasons.” Ortega did not answer when Lee
asked if he was innocent.
The State also presented the testimony of the clinical supervisor of the Dallas Children’s
Advocacy Center to explain why children often delay making outcries of abuse. Additionally,
the State offered a recording and English transcription of a jail telephone call between Ortega
and his wife. In the call, Ortega advised his wife to make sure that A.S. and her mother did not
appear at trial because “they will send me for years.”
Ortega testified in his defense and denied molesting A.S. He admitted that he apologized
to A.S.’s mother when she confronted him, but testified he did not know at that time what A.S.
2 was accusing him of doing. He denied telling A.S.’s mother that he was willing to get treatment.
He denied apologizing to A.S., and stated he told A.S. only that he “was sorry that all this was
happening.” He also said that when he was interviewed by Detective Lee, he was not aware of
the specific allegations against him. He acknowledged telling Detective Lee that he was not
denying anything.
The jury convicted Ortega of indecency with a child by contact and sentenced him to
twenty years’ imprisonment.
Analysis
In his sole issue, appellant argues the trial court erred by denying a mistrial after
Detective Lee, under questioning by the State, referenced extraneous offenses. During his
testimony, Detective Lee said he waited for four months after interviewing Ortega to file a case,
which led to the following exchange:
[PROSECUTOR]: And there was also a delay between the time that you actually - - once you finally did talk to the defendant on July 15th, to when the case was actually filed in November. And why was that?
[DETECTIVE LEE]: It was explained to me by the family there were other victims in the family, that there were several.
[DEFENSE COUNSEL]: May we approach, Your Honor?
(Off-the-record bench conference.)
[DEFENSE COUNSEL]: Objection, Your Honor. Violation of a pretrial motion that was filed and ruled on by the Court.
[TRIAL COURT]: Overruled.
[DEFENSE COUNSEL]: May I make - - note my exception. I move for a mistrial.
[TRIAL COURT]: Okay. Denied. Let’s move on.
3 (emphasis added). The prosecutor then passed the witness. After Detective Lee finished
testifying, the trial recessed for lunch. Immediately after the lunch recess, the trial court revisited
the issue:
[TRIAL COURT]: Ladies and gentlemen, before the break, the [d]efense attorney had made an objection to a response of Detective Lee, and it’s the one where he asked for a mistrial, and I overruled the objection.
But after thinking about it over the lunch hour, I’ll sustain the objection.
[DEFENSE COUNSEL]: And, Judge, just now that the objection is sustained, I’m going to ask that the jury be instructed to - -
[TRIAL COURT]: Okay.
[DEFENSE COUNSEL]: Anything to do with anything extraneous had nothing to do with this case.
[TRIAL COURT]: All right. Go ahead and disregard the response.
The trial court denied defense counsel’s request for a mistrial.
Ortega argues the trial court erred by denying the motion for mistrial because Detective
Lee’s testimony constituted inadmissible and incurable evidence of an extraneous offense.
When the trial court sustains an objection and instructs the jury to disregard but denies a
defendant’s motion for mistrial, the issue is whether the trial court abused its discretion by
denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004); see also
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 3030
(2011). We uphold the trial court’s ruling if it was within the zone of reasonable disagreement.
Id. “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be
required.” Hawkins, 135 S.W.3d at 77; see also Ocon v. State, 284 S.W.3d 880, 884–85 (Tex.
Crim. App. 2009) (mistrial is extreme remedy and should be granted “‘only when residual
prejudice remains’ after less drastic alternatives are explored” (quoting Barnett v. State, 161
4 S.W.3d 128, 134 (Tex. App.—Fort Worth, 2005), aff’d, 189 S.W.3d 272 (Tex. Crim. App.
2006)).
Whether a witness’s improper reference to an extraneous offense warrants a mistrial
depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999); see also Ocon, 284 S.W.3d at 884. An instruction to disregard will ordinarily cure error
associated with a witness’s improper reference to an extraneous offense committed by the
defendant. Young v.
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AFFIRM and Opinion Filed April 11, 2013
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00293-CR
EDUARDO ORTEGA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F09-35217-I
MEMORANDUM OPINION Before Justices Lang-Miers, Murphy, and Fillmore Opinion by Justice Fillmore A jury convicted Eduardo Ortega of indecency with a child by contact and sentenced him
to twenty years’ imprisonment. In his sole issue, Ortega contends the trial court erred by
refusing to declare a mistrial after a witness testified about extraneous offenses. We affirm the
trial court’s judgment. We issue a memorandum opinion in this case because the law to be
applied is well settled. See TEX. R. APP. P. 47.2(a), 47.4.
Background
Ortega’s niece, A.S., was twenty-two years old at the time of trial. A.S. testified that
when she was nine or ten years old, she spent the night at Ortega’s house. She and several other
children were sleeping in the living room when Ortega entered the room and touched her with his
hand, under her clothes, on her chest and vagina. Ortega left the room when A.S. began to cry. A.S. did not tell anyone about the incident because she did not think anyone would
believe her. In 2007, when A.S. was seventeen, she told her fiancé what had happened. A.S.’s
fiancé encouraged her to tell her mother what had happened and, that same day, A.S. did so.
A.S.’s mother became upset and immediately left to confront Ortega about A.S.’s outcry. A.S.’s
mother testified that, when she confronted Ortega, he began to cry, asked for forgiveness, and
said he did not “mean to hurt nobody, harm nobody.” He also said he was willing to participate
in counseling or therapy. A.S.’s mother did not contact the police immediately because it was
difficult for her to accept “it had happened.” At some point, A.S. also told her science teacher
about the incident. A.S. testified that, after her outcry, Ortega apologized to her “for what he
did.”
Detective Steven Lee testified that he was assigned to the case in January 2009. He
interviewed A.S. in February 2009 and Ortega in July 2009. During the hour-long interview,
Ortega was “very emotional” and cried. Detective Lee asked Ortega if A.S. was “making this
up,” and Ortega said he did not know. Ortega also said A.S. had not done anything wrong and
he did not believe she “was doing this for monetary reasons.” Ortega did not answer when Lee
asked if he was innocent.
The State also presented the testimony of the clinical supervisor of the Dallas Children’s
Advocacy Center to explain why children often delay making outcries of abuse. Additionally,
the State offered a recording and English transcription of a jail telephone call between Ortega
and his wife. In the call, Ortega advised his wife to make sure that A.S. and her mother did not
appear at trial because “they will send me for years.”
Ortega testified in his defense and denied molesting A.S. He admitted that he apologized
to A.S.’s mother when she confronted him, but testified he did not know at that time what A.S.
2 was accusing him of doing. He denied telling A.S.’s mother that he was willing to get treatment.
He denied apologizing to A.S., and stated he told A.S. only that he “was sorry that all this was
happening.” He also said that when he was interviewed by Detective Lee, he was not aware of
the specific allegations against him. He acknowledged telling Detective Lee that he was not
denying anything.
The jury convicted Ortega of indecency with a child by contact and sentenced him to
twenty years’ imprisonment.
Analysis
In his sole issue, appellant argues the trial court erred by denying a mistrial after
Detective Lee, under questioning by the State, referenced extraneous offenses. During his
testimony, Detective Lee said he waited for four months after interviewing Ortega to file a case,
which led to the following exchange:
[PROSECUTOR]: And there was also a delay between the time that you actually - - once you finally did talk to the defendant on July 15th, to when the case was actually filed in November. And why was that?
[DETECTIVE LEE]: It was explained to me by the family there were other victims in the family, that there were several.
[DEFENSE COUNSEL]: May we approach, Your Honor?
(Off-the-record bench conference.)
[DEFENSE COUNSEL]: Objection, Your Honor. Violation of a pretrial motion that was filed and ruled on by the Court.
[TRIAL COURT]: Overruled.
[DEFENSE COUNSEL]: May I make - - note my exception. I move for a mistrial.
[TRIAL COURT]: Okay. Denied. Let’s move on.
3 (emphasis added). The prosecutor then passed the witness. After Detective Lee finished
testifying, the trial recessed for lunch. Immediately after the lunch recess, the trial court revisited
the issue:
[TRIAL COURT]: Ladies and gentlemen, before the break, the [d]efense attorney had made an objection to a response of Detective Lee, and it’s the one where he asked for a mistrial, and I overruled the objection.
But after thinking about it over the lunch hour, I’ll sustain the objection.
[DEFENSE COUNSEL]: And, Judge, just now that the objection is sustained, I’m going to ask that the jury be instructed to - -
[TRIAL COURT]: Okay.
[DEFENSE COUNSEL]: Anything to do with anything extraneous had nothing to do with this case.
[TRIAL COURT]: All right. Go ahead and disregard the response.
The trial court denied defense counsel’s request for a mistrial.
Ortega argues the trial court erred by denying the motion for mistrial because Detective
Lee’s testimony constituted inadmissible and incurable evidence of an extraneous offense.
When the trial court sustains an objection and instructs the jury to disregard but denies a
defendant’s motion for mistrial, the issue is whether the trial court abused its discretion by
denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004); see also
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 3030
(2011). We uphold the trial court’s ruling if it was within the zone of reasonable disagreement.
Id. “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be
required.” Hawkins, 135 S.W.3d at 77; see also Ocon v. State, 284 S.W.3d 880, 884–85 (Tex.
Crim. App. 2009) (mistrial is extreme remedy and should be granted “‘only when residual
prejudice remains’ after less drastic alternatives are explored” (quoting Barnett v. State, 161
4 S.W.3d 128, 134 (Tex. App.—Fort Worth, 2005), aff’d, 189 S.W.3d 272 (Tex. Crim. App.
2006)).
Whether a witness’s improper reference to an extraneous offense warrants a mistrial
depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999); see also Ocon, 284 S.W.3d at 884. An instruction to disregard will ordinarily cure error
associated with a witness’s improper reference to an extraneous offense committed by the
defendant. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam); Ovalle v.
State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam). We presume the jury followed
the trial court’s instruction to disregard testimony in absence of evidence that it did not. Ladd, 3
S.W.3d at 567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)); State v.
Boyd, 202 S.W.3d 393, 402 (Tex. App.—Dallas 2006, pet. ref’d). A mistrial is required only
when the improper question or evidence is clearly prejudicial to the defendant and is of such a
character as to suggest the impossibility of withdrawing the impression produced on the minds of
the jurors. Young, 283 S.W.3d at 878; Ladd, 3 S.W.3d at 567; Kemp v. State, 846 S.W.2d 289,
308 (Tex. Crim. App. 1992). In determining whether a prejudicial event was so harmful as to
warrant a mistrial, we consider (1) the severity of the misconduct, (2) curative measures, and (3)
the certainty of conviction absent the misconduct. Ramon v. State, 159 S.W.3d 927, 929 (Tex.
Crim. App. 2004); White v. State, No. 02-11-00511-CR, 2013 WL 627031, at *8 (Tex. App.—
Fort Worth Feb. 21, 2013, no pet. h.).
Assuming Detective Lee’s testimony improperly referred to extraneous offenses
committed by Ortega, we cannot conclude it amounted to the sort of clearly inflammatory
evidence or extreme circumstance that would warrant a mistrial. Detective Lee’s response
implies there were reports of other victims without giving any details or even affirmatively
5 stating there were other victims. The record does not demonstrate the prosecutor’s question was
calculated to inflame the minds of the jury; rather, the question was designed to explain why
Detective Lee waited four months after interviewing Ortega to file charges against Ortega. The
State did not ask any follow-up questions and did not mention any other potential victims again
during the guilt-innocence phase of the trial.
Further, the trial court ultimately sustained Ortega’s objection and directed jurors to
disregard Detective Lee’s answer. The trial court also instructed the jury in the charge that it
could consider extraneous-offense evidence only if it believed beyond a reasonable doubt that
Ortega committed such acts and then only for specific purposes. There is nothing in the record
to indicate the jury did not follow the trial court’s instructions.
Finally, the jury had before it A.S.’s testimony about the incident, her mother’s testimony
regarding Ortega’s response when she confronted him, the detective’s testimony regarding his
interview of Ortega, and an expert’s testimony to explain the delayed outcry. Considering this
evidence, and in particular crediting A.S.’s testimony, the State’s case was strong, and nothing in
the record suggests the jury would have not have convicted Ortega absent Detective Lee’s
reference to extraneous offenses.
Given the strength of the evidence against Ortega, the trial court’s instruction to the jury
to disregard the testimony, and the tangential nature of that testimony, we conclude the trial court
did not abuse its discretion by denying Ortega’s request for a mistrial. We resolve Ortega’s sole
issue against him.
6 We affirm the trial court’s judgment.
/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE
Do Not Publish TEX. R. APP. P. 47 120293F.U05
7 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EDUARDO ORTEGA, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-12-00293-CR V. Trial Court Cause No. F09-35217-I. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang-Miers and Murphy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered April 11, 2013.