MEMORANDUM OPINION No. 04-10-00287-CR
Ruben GONZALES, Jr., Appellant
v.
The STATE of Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 09-0578-CR Honorable W.C. Kirkendall, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: July 13, 2011
AFFIRMED
A jury found Ruben Gonzales, Jr. guilty of committing assault causing bodily injury to a
family member. Gonzales pleaded “true” to enhancement allegations, and the jury assessed his
punishment at thirty-five years imprisonment. Gonzales appeals his conviction, claiming: (1) the
trial court abused its discretion by denying his request for a mistrial; (2) the trial court abused its
discretion in admitting extraneous offense evidence; and (3) he received ineffective assistance of
counsel. We affirm the trial court’s judgment. 04-10-00287-CR
BACKGROUND
Senaida Vasquez and Gonzales had been dating for nearly five months when the couple
got into an altercation. Gonzales punched Vasquez in the face and body. Gonzales was indicted
for assault causing bodily injury to a family member, enhanced by his previous felony
convictions. Gonzales entered a plea of not guilty and proceeded to trial. The jury found
Gonzales guilty of the charged offense. Gonzales pleaded “true” to the enhancement allegations,
and the jury assessed Gonzales’s punishment at thirty-five years imprisonment.
MOTION FOR MISTRIAL
In his first issue, Gonzales argues the trial court erred when it denied his motion for a
mistrial. We review a trial court’s decision to deny a mistrial under an abuse of discretion
standard. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). “In reviewing a trial
court’s ruling on a motion for mistrial, an appellate court must uphold the trial court’s ruling if it
was within the zone of reasonable disagreement.” Archie v. State, 221 S.W.3d 695, 699 (Tex.
Crim. App. 2007).
“A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that
expenditure of further time and expense would be wasteful and futile.’” Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999)). It is required “[o]nly in extreme circumstances, where the prejudice is incurable.”
Id. Prejudice is incurable when conduct is “calculated to inflame the minds of the jury or was of
such damning character as to suggest it would be impossible to remove the harmful impression
from the jurors’ minds.” Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998).
When “analyzing whether the prejudicial event is so harmful that the case must be
redone, we consider (1) the prejudicial effect, (2) the curative measures taken, and (3) the
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certainty of conviction absent the prejudicial event.” Austin v. State, 222 S.W.3d 801, 815 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). A prompt instruction to disregard will usually
cure any prejudice resulting from a witness’s improper reference to a defendant’s criminal
history. See, e.g., Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (“Ordinarily, a
prompt instruction to disregard will cure error associated with an improper question and answer,
even one regarding extraneous offenses.”); Ladd, 3 S.W.3d at 571 (concluding an instruction to
disregard cured witness’s improper reference to defendant’s multiple juvenile arrests); Whitaker
v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (determining an instruction to disregard a
witness’s statement about extraneous offense was sufficient to cure error); Kemp v. State, 846
S.W.2d 289, 308 (Tex. Crim. App. 1992) (holding a witness’s reference to the defendant as
having “recently been released from the penitentiary” cured by instruction to disregard); Nobles
v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (concluding a witness’s remark that
defendant “didn’t want to go back to prison” was cured by prompt instruction to disregard).
During defense counsel’s cross-examination of the complainant, counsel began
questioning Vasquez about where Gonzales was living at the time of the offense. When asked
whether Gonzales was living with his sister and receiving mail at his mother’s house, Vasquez
remarked “that’s what was reported to his parole officer.” Defense counsel immediately moved
for a mistrial based upon the witness’s reference to Gonzales’s parole officer. The trial court
overruled defense counsel’s request for a mistrial, but granted counsel’s alternative request for an
instruction to disregard. When trial recommenced, the trial court instructed the jury as follows:
Ladies and Gentlemen of the Jury, as I told you earlier, from time to time, the lawyers are called upon to make objections, and I’m required to make rulings. And I am ordering that the Jury not consider for any purpose the last answer of the witness.
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Gonzales argues the trial court abused its discretion in refusing to grant a mistrial because
Vasquez’s remark about Gonzales’s parole officer was so prejudicial that it was impossible for
the jury to disregard it. After considering the particular facts of this case, we see nothing in the
record that suggests Vasquez’s testimony was so “highly prejudicial and incurable” that the trial
court erred in denying the motion for mistrial.
First, the record shows that the jury was already on notice that Gonzales had at least one
prior conviction when the complainant testified. The record reveals the trial court notified the
jury at the start of Gonzales’s trial that “the State and the Defendant have entered into a
stipulation that the Defendant . . . is the same person who was previously convicted of an offense
against a member of [his] family . . . on November 28, 2001.” Second, the complained of
testimony was unsolicited and there was no further mention of Gonzales’s parole status during
the guilt-innocence phase of the trial. Third, the trial court’s instruction to disregard was prompt,
unequivocal, and forceful. Finally, there was ample evidence to establish Gonzales’s guilt aside
from the prejudicial event. The complainant gave detailed testimony about Gonzales’s assault,
including that Gonzales had hit her “with his closed fist on the side of [her] face and on [her]
face and arm and parts of [her] body.” In addition, the jury heard testimony from Maria
Cavallos, Vasquez’s daughter, that she could hear Vasquez and Gonzales arguing and fighting
when she came to see her mother that day. Cavallos further told the jury that her mother’s face
was “real red” and that her mother was “crying and upset” when she saw her mother. The jury
further heard testimony from the investigating officer that the injuries he observed on Vasquez
were consistent with the complainant being hit or punched by Gonzales. Under the
circumstances, we believe the trial court acted reasonably in concluding its instruction to
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MEMORANDUM OPINION No. 04-10-00287-CR
Ruben GONZALES, Jr., Appellant
v.
The STATE of Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 09-0578-CR Honorable W.C. Kirkendall, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: July 13, 2011
AFFIRMED
A jury found Ruben Gonzales, Jr. guilty of committing assault causing bodily injury to a
family member. Gonzales pleaded “true” to enhancement allegations, and the jury assessed his
punishment at thirty-five years imprisonment. Gonzales appeals his conviction, claiming: (1) the
trial court abused its discretion by denying his request for a mistrial; (2) the trial court abused its
discretion in admitting extraneous offense evidence; and (3) he received ineffective assistance of
counsel. We affirm the trial court’s judgment. 04-10-00287-CR
BACKGROUND
Senaida Vasquez and Gonzales had been dating for nearly five months when the couple
got into an altercation. Gonzales punched Vasquez in the face and body. Gonzales was indicted
for assault causing bodily injury to a family member, enhanced by his previous felony
convictions. Gonzales entered a plea of not guilty and proceeded to trial. The jury found
Gonzales guilty of the charged offense. Gonzales pleaded “true” to the enhancement allegations,
and the jury assessed Gonzales’s punishment at thirty-five years imprisonment.
MOTION FOR MISTRIAL
In his first issue, Gonzales argues the trial court erred when it denied his motion for a
mistrial. We review a trial court’s decision to deny a mistrial under an abuse of discretion
standard. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). “In reviewing a trial
court’s ruling on a motion for mistrial, an appellate court must uphold the trial court’s ruling if it
was within the zone of reasonable disagreement.” Archie v. State, 221 S.W.3d 695, 699 (Tex.
Crim. App. 2007).
“A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that
expenditure of further time and expense would be wasteful and futile.’” Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999)). It is required “[o]nly in extreme circumstances, where the prejudice is incurable.”
Id. Prejudice is incurable when conduct is “calculated to inflame the minds of the jury or was of
such damning character as to suggest it would be impossible to remove the harmful impression
from the jurors’ minds.” Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998).
When “analyzing whether the prejudicial event is so harmful that the case must be
redone, we consider (1) the prejudicial effect, (2) the curative measures taken, and (3) the
-2- 04-10-00287-CR
certainty of conviction absent the prejudicial event.” Austin v. State, 222 S.W.3d 801, 815 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). A prompt instruction to disregard will usually
cure any prejudice resulting from a witness’s improper reference to a defendant’s criminal
history. See, e.g., Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (“Ordinarily, a
prompt instruction to disregard will cure error associated with an improper question and answer,
even one regarding extraneous offenses.”); Ladd, 3 S.W.3d at 571 (concluding an instruction to
disregard cured witness’s improper reference to defendant’s multiple juvenile arrests); Whitaker
v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (determining an instruction to disregard a
witness’s statement about extraneous offense was sufficient to cure error); Kemp v. State, 846
S.W.2d 289, 308 (Tex. Crim. App. 1992) (holding a witness’s reference to the defendant as
having “recently been released from the penitentiary” cured by instruction to disregard); Nobles
v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (concluding a witness’s remark that
defendant “didn’t want to go back to prison” was cured by prompt instruction to disregard).
During defense counsel’s cross-examination of the complainant, counsel began
questioning Vasquez about where Gonzales was living at the time of the offense. When asked
whether Gonzales was living with his sister and receiving mail at his mother’s house, Vasquez
remarked “that’s what was reported to his parole officer.” Defense counsel immediately moved
for a mistrial based upon the witness’s reference to Gonzales’s parole officer. The trial court
overruled defense counsel’s request for a mistrial, but granted counsel’s alternative request for an
instruction to disregard. When trial recommenced, the trial court instructed the jury as follows:
Ladies and Gentlemen of the Jury, as I told you earlier, from time to time, the lawyers are called upon to make objections, and I’m required to make rulings. And I am ordering that the Jury not consider for any purpose the last answer of the witness.
-3- 04-10-00287-CR
Gonzales argues the trial court abused its discretion in refusing to grant a mistrial because
Vasquez’s remark about Gonzales’s parole officer was so prejudicial that it was impossible for
the jury to disregard it. After considering the particular facts of this case, we see nothing in the
record that suggests Vasquez’s testimony was so “highly prejudicial and incurable” that the trial
court erred in denying the motion for mistrial.
First, the record shows that the jury was already on notice that Gonzales had at least one
prior conviction when the complainant testified. The record reveals the trial court notified the
jury at the start of Gonzales’s trial that “the State and the Defendant have entered into a
stipulation that the Defendant . . . is the same person who was previously convicted of an offense
against a member of [his] family . . . on November 28, 2001.” Second, the complained of
testimony was unsolicited and there was no further mention of Gonzales’s parole status during
the guilt-innocence phase of the trial. Third, the trial court’s instruction to disregard was prompt,
unequivocal, and forceful. Finally, there was ample evidence to establish Gonzales’s guilt aside
from the prejudicial event. The complainant gave detailed testimony about Gonzales’s assault,
including that Gonzales had hit her “with his closed fist on the side of [her] face and on [her]
face and arm and parts of [her] body.” In addition, the jury heard testimony from Maria
Cavallos, Vasquez’s daughter, that she could hear Vasquez and Gonzales arguing and fighting
when she came to see her mother that day. Cavallos further told the jury that her mother’s face
was “real red” and that her mother was “crying and upset” when she saw her mother. The jury
further heard testimony from the investigating officer that the injuries he observed on Vasquez
were consistent with the complainant being hit or punched by Gonzales. Under the
circumstances, we believe the trial court acted reasonably in concluding its instruction to
disregard was effective to cure any prejudice resulting from the complainant’s parole status
-4- 04-10-00287-CR
remark. See Aliff v. State, 627 S.W.2d 166, 172 (Tex. Crim. App. 1982) (determining jury
instruction was sufficient to cure error after the State’s witness testified that he had “talked with
[the defendant’s] Houston County Probation Officer.”). We therefore hold the trial court did not
abuse its discretion in denying Gonzales’s motion for mistrial and overrule his first issue on
appeal.
EXTRANEOUS OFFENSE EVIDENCE
In his second issue, Gonzales argues the trial court abused its discretion in admitting
extraneous offense evidence concerning several other complaints Vasquez had made to the
police about him. During the State’s redirect examination of Vasquez, the following exchange
occurred:
Q. Now, Senaida, when we’re talking about the — Counsel asked you about a time when Officer Guerra was at your residence, and that you stated that this Defendant was no longer living there.
A. Uh-huh.
Q. That was actually not the date that we’re talking about in this indictment. That was on February 12th of 2009, correct?
A. Like I said, there were several reports made.
Q. That was after. But the time you talked to Officer Guerra was after this assault, correct? When . . . the officer was at your house speaking to you about whatever it is that happened, it was after this assault occurred, correct?
A. I’m not sure.
Q. Okay.
Defense Counsel thereafter stated: “Your Honor, I object and move to strike any comments
about other reports made.” The trial court overruled defense counsel’s objection and motion to
strike Vasquez’s remark.
-5- 04-10-00287-CR
To preserve a complaint for appeal, a party must lodge a timely and specific objection
and obtain an adverse ruling. TEX. R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex.
Crim. App. 2008). An objection is timely if it comes at the earliest opportunity or as soon as the
ground for the objection becomes apparent. Moore v. State, 999 S.W.2d 385, 403 (Tex. Crim.
App. 1999). An objection made after the prosecutor has elicited testimony typically comes too
late. Cruz v. State, 238 S.W.3d 381, 385 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d);
Angelo v. State, 977 S.W.2d 169, 177 (Tex. App.—Austin 1998, pet. ref’d). Here, Gonzales
failed to preserve his complaint for appellate review because his objection to Vasquez’s
testimony came too late. It was incumbent on Gonzales to timely object to Vasquez’s testimony
about the other reports, but he waited until after the prosecutor had elicited other testimony from
Vasquez to do so.
In addition, the record demonstrates that prior to the aforementioned statement by
Vasquez a similar statement came into evidence without an objection from Gonzales:
Q. And isn’t it true that you didn’t tell the officer anything about getting hit about your body that day?
A. There were so many reports that were made —
“‘An error [if any] in the admission of evidence is cured where the same evidence comes in
elsewhere without objection.’” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)
(citation omitted); see Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“In addition,
a party must object each time the inadmissible evidence is offered or obtain a running
objection.”). Given these circumstances, Gonzales cannot establish reversible error on appeal.
Gonzales’s second issue on appeal is therefore overruled.
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INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, Gonzales claims he received ineffective assistance of counsel. A claim
of ineffective assistance of counsel entails two components. State v. Morales, 253 S.W.3d 686,
696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). An
appellant claiming ineffective assistance of counsel must establish both that his trial counsel
performed deficiently and that the deficiency prejudiced him. Id. For appellant to meet his
burden, he must prove his attorney’s representation fell below the standard of prevailing
professional norms and that there is a reasonable probability that, but for the attorney’s
deficiency, the result of the proceeding would have been different. Tong v. State, 25 S.W.3d
707, 712 (Tex. Crim. App. 2000). The Strickland standard applies to claims of ineffective
assistance both during the guilt/innocence and punishment phases of trial. Hernandez v. State,
988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
Our review of counsel’s representation is highly deferential, and we indulge a strong
presumption that counsel’s conduct falls within a wide range of reasonable representation.
Morales, 253 S.W.3d at 696; Tong, 25 S.W.3d at 712. We review the effectiveness of counsel in
light of the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Direct appeal is usually an
inadequate vehicle for raising an ineffective assistance of counsel claim because the record is
generally undeveloped. Id. at 813-14. Moreover, “trial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.” Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003). “Absent such opportunity, an appellate court should
not find deficient performance unless the challenged conduct was ‘so outrageous that no
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competent attorney would have engaged in it.’” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (citation omitted).
Gonzales contends he received ineffective assistance of counsel because defense counsel
failed to: (1) properly question the venire panel about their possible prejudices; (2) object to the
admission of several exhibits; (3) present evidence on mitigation during punishment; and (4)
introduce exculpatory evidence during trial. The record, however, is insufficient to support
Gonzales’s claims. Gonzales did not file a motion for new trial so no hearing was conducted to
explore defense counsel’s reasoning and trial strategy. To know defense counsel’s reasoning
concerning the aforementioned matters would require us to speculate, which we cannot do.
Without affirmative evidence in the record to overcome the presumption of reasonable
assistance, we are not persuaded by Gonzales’s claim of ineffective assistance of counsel. 1
Gonzales’s third issue is overruled.
CONCLUSION
Based on the forgoing, the judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
1 See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (recognizing trial counsel’s failure to object to certain procedural mistakes or improper evidence does not necessarily constitute ineffective assistance of counsel); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (declining to find counsel ineffective for failing to call witnesses during guilt-innocence and punishment stages where appellant did not demonstrate such witnesses were available or how he would benefit from their testimony); Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.—San Antonio 2002, no pet.) (“The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel.”); Salas v. State, No. 04-98-00895- CR, 2001 WL 578575, at *3 (Tex. App.—San Antonio May 31, 2001, pet. ref’d) (not designated for publication) (concluding counsel’s failure to introduce exculpatory evidence did not constitute ineffective assistance where there was nothing in the record to explain counsel’s rationale); White v. State, 999 S.W.2d 895, 898 (Tex. App.—Amarillo 1999, pet. ref’d) (stating that where a topic is broached and explored by others, defense counsel need not traverse those territories to be effective).
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