Opinion
No. 4-05-00611-CR
Delivered and Filed: June 14, 2006. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-4015A, Honorable Philip Chavarria, Jr., Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The underlying offense arose from an incident of "road rage," involving a vehicle in which defendant, Alfredo Ortiz, was a passenger and another vehicle in which the complainant was a passenger. While both cars were stopped at an intersection, gun shots were fired from defendant's car. Although no witness saw defendant fire a gun, the complainant saw defendant on the car's passenger side before the shots were fired and he believed the shots were fired from the passenger side. Other witnesses placed defendant in the passenger-side seat holding a gun, seconds before the shots were fired. A jury found defendant, Alfredo Ortiz, guilty of aggravated assault with a deadly weapon. The trial court assessed punishment at forty years' confinement. We affirm.
MOTION FOR MISTRIAL
In a single issue on appeal, defendant asserts the trial court erred in failing to grant his motion for mistrial after the State elicited testimony in violation of the court's ruling on a motion in limine. During the State's case-in-chief, in response to defendant's motion in limine, the trial court prohibited the State from revealing to the jury that the driver of the car in which the complainant was a passenger was hit by gunfire. During direct examination of the complainant, the following colloquy occurred:Q. Okay. After the shots were fired, after they hit your car, Edward continues to drive the car, is that correct?
A. Yes, sir.
Q. And does he eventually pullover?
A. No, sir.
Q. Okay. He — where does he drive to?
A. He just let's the — he got hit
Q. Well
[Defense counsel asks to approach the bench.]
. . .
The court: You can go up there and talk to him, and tell him not [to] say anything [with] regards to — I think that will cure it. You're talking about the
Defense counsel: I think, Your honor, at this time he's already mentioned it.
The court: I don't think the jury heard anything. I think he started to say but he didn't.
Defense counsel: I think for purposes of the record I think at this time I'd have to request a mistrial because I think we were very clear and the witness should have been instructed. Very clearly it didn't happen.
The court: I'll overrule at this time.On appeal, defendant asserts this testimony was so prejudicial as to inflame the jurors' minds against him because the jury would focus, not on the facts of this case, but on the irrelevant fact that at least one of the gun shots actually hit another person. Defendant complains that the error was compounded because the court offered no curative instruction. The State asserts defendant failed to preserve any error by not requesting a curative instruction. We agree with the State. Improperly admitted evidence will seldom call for a mistrial, because in most cases any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). An instruction to disregard normally cures error, except in extreme cases where the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds. Id. Because there was only one isolated reference to the shooting of another individual, we believe any harm could have been cured by an instruction to disregard. Defendant did not ask the trial court to instruct the jury to disregard the testimony and, thus, waived any error. Gilchrest v. State, 904 S.W.2d 935, 938 (Tex.App.-Amarillo 1995, no pet.) (holding any right to mistrial was waived where instruction to disregard was not requested).