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Gomez v. State

Court of Appeals of Texas, Second District, Fort Worth

June 21, 2018






         In three issues, Appellant Mauricio Gomez appeals his conviction for family-violence assault. See Tex. Penal Code Ann. § 22.01 (West Supp. 2017). We affirm.


         This case arises from a domestic dispute between Appellant and his wife, Lien Lam. In the evening of February 22, 2013, Lam ran to her neighbor Raquel Ruiz's house and rang her doorbell. Ruiz testified at trial that when she answered the door, Lam was crying, she appeared nervous and panicky, and there was "fresh blood" on her face. According to Ruiz, Lam told her that Appellant had beaten her up by grabbing her hair and forcing her head into the toilet a couple times. Ruiz also testified that Lam told her that Appellant threatened to kill Lam-a threat that Lam apparently did not take lightly, because Appellant had allegedly stabbed a mattress with a knife during the incident. Ruiz and her husband called 911.

         On the other hand, Lam testified that she remembered very little about the night of February 22. Testifying through an interpreter-Lam primarily spoke Vietnamese and could not read or write in English-Lam recalled that Appellant had been drinking that night, that he became angry when he discovered that some of his money was missing, and that he accused her of taking it. She also remembered running to Ruiz's house. Because of her lack of memory, the State also offered Lam's statement to her daughter. At the time Lam gave her statement, Lam's daughter wrote out the statement in English, read it back to Lam in Vietnamese, and then Lam signed it.

         The statement read:

I came home from work when I notice that my husband has been drinking (but I don't know when.) My daughter, Sanya [illegible] he was crying. I asked why they are crying. He said "nothing." I went to the kitchen & took away his whiskey shot. He keeps wanting it back, I denied it, then he went in the shower. He came back after the shower, looked in his wallet, & accused the family of taking his money. He said, "Whoever took it better give it back to me before I kill everyone." I got so scared, I ran out the back door, he grabbed me, pull[ed] me back, and bang my head . . . against the ground. I finally ran out through the backdoor to the front yard. He got into his truck & left. About 30 mins later, he came back & continues . . . talking about his money. He wanted to hit me, so I ran to my neighbor's house. That's when he left again. My neighbor . . . Carlos called the cops. I wanted to call, but I thought, "I always keep calling the cops . . . I don't know if I should."

         Officer Gary McCraw responded to the 911 dispatch. Officer McCraw offered testimony related to previous allegations of family violence at Appellant's residence:

         [State]. Okay. Did you do a family violence investigation on February 22nd of 2013?

A. I did.
Q. And where was that located at?
A. The assault had occurred at [Appellant's address].
Q. Okay. And what did you know going into that call?
A. I was familiar with the household, as I had worked previous family violence calls there in the past before this.

         Appellant's attorney immediately requested a bench conference, and one was held off the record. The jury was then excused, and the trial court spoke with Officer McCraw directly, on the record. The trial court admonished Officer McCraw, through a series of questions, that he should not have mentioned previous family violence calls involving Appellant. Appellant's counsel moved for a mistrial; the trial court denied the motion. The trial court offered to give an instruction to the jury to disregard Officer McCraw's statement, but Appellant's counsel declined the offer, explaining that she felt such an instruction would draw too much attention to Officer McCraw's statement.

         Once the jury returned, Officer McCraw continued testifying. He recounted how Lam appeared "[v]ery excited, very upset" that night and appeared to have been crying. He testified that Appellant was not on the scene when he arrived but the couple's children and grandchild, ranging in age from 2 to 18 years old, were at the house and some of them had witnessed the altercation. Officer McCraw interviewed both Lam and Ruiz on the scene but stated that neither of them had made any allegation that Appellant put Lam's head in the toilet.

         Officer McCraw also identified photographs depicting the couple's home and Lam's injuries that were admitted into evidence. In the photos of Lam, blood is visible on her sweater and on her hands and an injury to the top of her head is also visible.[1] Photos of the inside of the house depicted blood droplets on the floor of the kitchen and leading out the back door.

         Appellant was charged with aggravated assault with a deadly weapon. In addition to the above-described evidence and testimony, Appellant's prior conviction for family-violence assault in March 2011 was admitted into evidence. The jury found Appellant guilty of felony family-violence assault and assessed a nine-year sentence.


         Appellant brings three issues on appeal. In his first issue, he argues that the trial court erred by denying his motion for mistrial. In his second issue, he argues that the trial court erred by admitting Exhibit 2-Lam's written statement-because it was inadmissible hearsay. And in his third issue, Appellant argues that his trial counsel was deficient to the extent that he was denied effective assistance of counsel.

         I. Denial of mistrial

         In his first issue, Appellant argues that the trial court erred by denying his motion for mistrial following Officer McCraw's statement that he was familiar with Appellant's household because he "had worked previous family violence calls there in the past before this." Although there is no objection in the record to Officer McCraw's statement, immediately following the statement, Appellant's counsel requested a bench conference. The conference that followed was held off the record, but judging from the trial court's statements and questions of Officer McCraw immediately afterward, the trial court understood Appellant's objection as relating to inadmissible evidence of extraneous offenses.[2] See Tex. R. Evid. 404(b). This is also the argument Appellant puts forth on appeal, and the State does not dispute that this was the concern expressed by Appellant during the conference.

         At the conclusion of the conference, the trial court-without ruling on any objection-denied Appellant's motion for mistrial. But the trial court also offered to instruct the jury to disregard Officer McCraw's statement, an offer that Appellant's counsel declined, expressing a desire to avoid drawing more attention to the statement. Instead, the following instruction was included in the jury charge: "If you have heard evidence of offenses committed by the defendant other than the one he is on trial for, you may not consider those as evidence of guilt in this case."

         Assuming, without deciding, that Appellant's motion for mistrial was sufficient to preserve error for review, [3] we review the trial court's denial of the motion for mistrial for an abuse of discretion and will uphold the ruling if it is within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010), cert. denied, 564 U.S. 1020 (2011). The remedy of a mistrial is intended for a "narrow class of highly prejudicial and incurable errors"-those that would render any further expenditure of time and expense in trying the case wasteful and futile. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). It is "an extreme remedy that should be granted only if residual prejudice remains after less drastic alternatives have been explored." Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim. App. 2016) (citing Ocon v. State, 284 S.W.3d 880, 884-85 (Tex. Crim. App. 2009). Evaluating whether a mistrial should have been granted is similar to performing a harm analysis. Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). Factors to consider include (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) certainty of conviction absent the misconduct. Id. (citing Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004)).

         Officer McCraw admitted to the trial court that he had been instructed prior to testifying not to mention anything about any other case regarding Appellant- thus indicating that the comment was not the result of prosecutorial misconduct. And after Officer McCraw was admonished by the trial court to avoid any reference to "any other offenses that might have occurred with [Appellant]," he made no further mention of such extraneous offenses. No details were provided regarding the "previous family violence calls" Officer McCraw had responded to at the residence. The limited nature of Officer McCraw's statement therefore weighed against a mistrial. See Vickery v. State, Nos. 2-04-422-CR, 2-04-423-CR, 2005 WL 2244730, at *5 (Tex. App.-Fort Worth 2005, pet. ref'd) (mem. op., not designated for publication) (upholding denial of mistrial where witness's statement was isolated, did not provide any particular details, and was not the result of prosecutorial misconduct).

         And although Appellant's counsel rejected the trial court's offer to instruct the jury to disregard Officer McCraw's statement during trial, the jury was nevertheless instructed in the court's charge to disregard any evidence of extraneous offenses. Based on our review of the record, we have not found any indication that the jury ignored such instruction. See Miles v. State, 204 S.W.3d 822, 827-28 (Tex. Crim. App. 2006) (concluding that, in the absence of evidence to the contrary, it is assumed that the jury ...

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