Court of Appeals of Texas, Second District, Fort Worth
THE 367TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; MEIER and GABRIEL, JJ.
SUDDERTH CHIEF JUSTICE
three issues, Appellant Mauricio Gomez appeals his conviction
for family-violence assault. See Tex. Penal Code
Ann. § 22.01 (West Supp. 2017). We affirm.
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.
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
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."
Gary McCraw responded to the 911 dispatch. Officer McCraw
offered testimony related to previous allegations of family
violence at Appellant's residence:
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.
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.
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.
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. Photos of the inside of the house depicted
blood droplets on the floor of the kitchen and leading out
the back door.
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.
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.
Denial of mistrial
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. 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.
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."
without deciding, that Appellant's motion for mistrial
was sufficient to preserve error for review,  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.
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
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 ...