Gilbert Colunga v. the State of Texas ( 2021 )

NUMBER 13-19-00575-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GILBERT COLUNGA,
Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva
Memorandum Opinion by Justice Benavides
Appellant Gilbert Colunga appeals his conviction of aggravated assault causing
serious bodily injury, a second-degree felony enhanced by habitual felony offenses. See
TEX. PENAL CODE ANN. §§ 12.42(d), 22.02. By his sole issue, Colunga argues that the trial
court erred by denying his motion for mistrial. We affirm.
I. BACKGROUND
Colunga was indicted for aggravated assault causing serious bodily injury to his
then-girlfriend, Lisa Ramonas. See id. At trial, Ramonas testified that on February 11,
2018, Colunga repeatedly hit her with his fists until she fell to the floor. The assault lasted
approximately another ten minutes, breaking her nose, lacerating her face, and leaving
several bruises. Colunga provided a video recorded confession to law enforcement, which
was admitted into evidence at trial, wherein he admitted that he hit Ramonas because
she was using witchcraft against him and stated that he accepted responsibility for his
actions.
Colunga’s mother testified at the guilt-innocence phase about what she witnessed
on the night of the assault. The following exchange occurred during cross examination:
[State:] Isn’t it true that you don’t want your son to go to prison?
[Mother:] Of course not.
[State:] Isn’t it true that you know if he’s found guilty there’s at
least a chance he’ll go to prison?
[Mother:] Oh, I know that.
[Defense:] Objection. That’s a punishment question.
[Trial Court:] Sustained.
[Defense:] And at this time I’m gonna ask that the jury be given an
instruction to disregard that last answer and question.
[Trial Court:] The jury will disregard that last answer, and the motion
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for mistrial is denied. You can go ahead and sit down
now.
The jury found Colunga guilty, and the trial court sentenced him to forty years’
imprisonment in the Texas Department of Criminal Justice–Institutional Division. This
appeal followed.
II. MOTION FOR MISTRIAL
Colunga argues that his mother’s statements, coupled with the trial court’s failure
to grant a mistrial, caused a prejudicial error that infringed upon his constitutional right to
a fair trial.
We note that, although the record reflects that the trial court denied a motion for
mistrial, it does not show that Colunga ever made such a motion. To preserve an alleged
error for appeal, an appellant must make a timely request, objection, or motion to the trial
court that “stated the grounds for the ruling that the complaining party sought . . . with
sufficient specificity to make the trial court aware of the complaint, unless the specific
grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). For purposes of
this analysis, we assume but do not decide that the issue is preserved for appeal.
A. Standard of Review
We defer to the trial court’s decision to deny a request for a mistrial so long as it is
reasonable. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). Appellate courts
apply an abuse of discretion standard when reviewing a trial court’s motion for mistrial.
Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011); Webb v. State, 232
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S.W.3d 109, 112 (Tex. Crim. App. 2007). We do not substitute our discretion for that of
the trial court; instead, we analyze if the trial court was arbitrary or unreasonable in its
decision making. Webb, 232 S.W.3d at 112.
B. Applicable Law and Discussion
“A mistrial is a device used to halt trial proceedings where error is so prejudicial
that expenditure of further time and expense would be wasteful and futile.” Guerrero v.
State, 528 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Ladd
v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Mistrial is appropriate only as a last
resort in “extreme circumstances” for a narrow class of highly prejudicial and incurable
errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Because it is an
extreme remedy, a mistrial should be granted only when residual prejudice remains after
less drastic alternatives are explored. Id. at 884–85 (quotation omitted). “Error in the
admission of improper testimony is usually cured by the trial court’s instruction to the jury
to disregard.” Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).
The question of whether a mistrial should have been granted involves largely the
same considerations that attend a harm analysis. Ramon v. State, 159 S.W.3d 927, 929
(Tex. Crim. App. 2004); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We
balance the severity of the misconduct (i.e., the prejudicial effect), any curative measures,
and the certainty of conviction absent the misconduct. Hawkins v. State, 135 S.W.3d 72,
77 (Tex. Crim. App. 2004). Here, we cannot discern any prejudicial misconduct on the
part of the prosecutor or witness. Moreover, curative measures were taken—namely, the
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trial court promptly instructed the jury to disregard the statements. See Martinez, 17
S.W.3d at 692–93; Mosley v. State, 983 S.W.2d at 259. Colunga alleges that the harm
flowing from the statements made by his mother were not remedied by the motion to
disregard. However, Colunga has failed to show any lingering prejudice or anything in the
record indicating that the jury ignored the trial court’s instruction to disregard, so it is
assumed that the jury followed this instruction. See Hinojosa v. State, 4 S.W.3d 240, 253
(Tex. Crim. App. 1999).
Finally, there was ample evidence presented during trial that Colunga would have
been convicted of the assault regardless of the statements. This evidence includes:
Colunga’s video confession that he hit Ramonas because he believed she was using
witchcraft against him and that he accepted responsibility for his actions; testimony from
Ramonas; two emergency room physicians’ testimony of the injuries; physical evidence
(including towels, bedsheets, and clothing) containing Ramonas’s blood; testimony from
the responding officer; and Colunga’s statement that his mother witnessed the assault
from the threshold of the bedroom. This evidence would almost certainly have led the jury
to find him guilty regardless of his mother’s statements. See Hawkins, 135 S.W.3d at 77;
Hinojosa, 4 S.W.3d at 253 (finding abundant physical evidence rendered improper
testimony inconsequential).
Looking at the totality of the circumstances, we conclude that the curative
instruction was sufficient. See Freeman, 340 S.W.3d at 728; Coe 683 S.W.2d at 436. The
trial court did not err in denying the motion for mistrial. We overrule Colunga’s sole issue.
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III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
17th day of June, 2021.
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