Narvaez v. State

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ANDREW MICHAEL NARVAEZ, Appellant v. THE STATE OF TEXAS, Appellee

No. 09-21-00331-CR

Court of Appeals of Texas, Ninth District, Beaumont

November 9, 2022

Do Not Publish

Submitted on October 19, 2022

On Appeal from the County Court at Law No. 4 Montgomery County Texas Trial Cause No. 20-351742

Before Kreger, Horton & Johnson, JJ.

MEMORANDUM OPINION

LEANNE JOHNSON JUSTICE

Appellant Andrew Michael Narvaez (Appellant or Narvaez) was charged by an amended information with the misdemeanor offense of reckless driving. See Tex. Transp. Code Ann. § 545.401. Appellant elected to appear pro se at trial despite admonishments by the trial court, and the trial court appointed "standby counsel" for Appellant to confer with if Appellant wanted counsel during trial. Appellant pleaded "not guilty," and a jury found him guilty as charged. The trial court sentenced Appellant to thirty days of confinement and assessed a $200 fine. Narvaez appealed.

In one issue, Appellant argues that the trial court abused its discretion in denying Appellant's motion for a mistrial when an extraneous offense was introduced before the jury during the guilt/innocence phase of the trial.^[1] According to Appellant's brief, "Appellant did not object immediately to the 404(b) violation probably because as a pro se defendant, he probably did not understand the import of the offending testimony." According to Appellant, as a pro se defendant, he "was unsure of the correct manner in which to challenge the introduction of the inadmissible extraneous conduct evidence[,]" and "then turned to 'stand by' counsel to argue the point and ultimately make a motion for mistrial." Appellant argues that defense counsel proceeded to formally object to the admission under Texas Rules of Evidence 401, 402, 403, and 404(b). Appellant concedes that the non-redacted exhibit mistakenly played at trial was not admitted for appellate purposes and that only a redacted exhibit was admitted and sent back to the jury. Finding no error, we affirm.

Background and Testimony Related to the Stated Issue

The trial court granted that portion of the State's motion in limine that required the defense establish, outside the presence of the jury, the admissibility of any evidence of "testimony regarding the marijuana found in the defendant's vehicle or regarding the defendant's comments to others on the marijuana and paraphernalia in his vehicle" before mentioning or introducing such evidence before the jury. Prior to voir dire and outside the presence of potential jurors, the trial court asked the parties if there was anything in the motion in limine that needed to be addressed specific to voir dire, and the prosecutor responded:

Just any mention of marijuana since the State is not moving forward on that charge. We would just ask the Court to admonish the defendant not to mention any feelings on marijuana since that's not relevant to this case.

The State called Shannon Acosta, an investigator with the Montgomery County District Attorney's Office, to testify. During Acosta's testimony, the State introduced Exhibit 5, a recording of a call made by Narvaez from jail, and the exhibit was admitted into evidence without objection. The reporter's record shows that during the recording which was played for the jury at one point in the call Narvaez mentioned he had also been arrested for marijuana, and at that point the State promptly stated:

(STATE'S EXHIBIT NO. 5 PLAYING)

[Prosecutor]: I am moving to strike that from the record.

THE COURT: Granted.

The State continued its direct examination of Acosta, and then the State rested its case, the defense rested its case, and the trial court recessed the jury and began to discuss the jury charge. Thereafter, the following exchange between Appellant's standby counsel, the trial court, the prosecutor, and Appellant then transpired:

[Appellant's Standby Counsel]: Judge, the defendant has agreed to allow me to present this motion for him. So I'll - - and it's in regards to the phone calls from jail, made reference to being arrested for marijuana. That is a pending case against the defendant.

But the first request would be to ask for a jury instruction to disregard the statement. And even if the Court were to grant that, I believe the - - that would not cure the error.

THE COURT: Which I did. I think you made a motion to strike and - -

[Prosecutor]: Yes, Your Honor.

[Appellant's Standby Counsel]: And we would say that is not curative of the issue, Judge. And we'd, first of all, object to the admission as being irrelevant, more prejudicial than probative, and a violation of Rule 404(b), Texas Rules of Evidence. And given the Court did sustain the objection, we would submit to the Court that that does not cure the error; and, therefore, we'd ask for a mistrial.

THE COURT: Okay. The - - the motion for mistrial is denied.

[Prosecutor]: What's actually in evidence on the CD is a redacted jail call. What I did was I accidentally played the wrong jail call from off of my computer because I preloaded all media onto my computer because, as the Court is aware, media takes forever to - - if it's inserted from a CD takes forever to load. So I did, by pure accident, play the unredacted portion of the jail call, which is why I asked for a motion to - - why I moved for the record to be stricken of that last portion.

But again, what is in actual evidence on the CD itself is a redacted jail call.

THE COURT: So what goes back to the jury is the redacted jail call without the - - [Prosecution]: Yes. And we are happy to allow Mr. Narvaez to listen to that to make sure it's redacted.

THE COURT: All right. So the motion for mistrial is denied.

It's the Court's thought that we can - - . . . the charge could include an extraneous offense charge which basically says if anything has been presented to the jury that hasn't been proved beyond a reasonable doubt bears no weight if - - if both parties believe that that's appropriate. . . .

MR. NARVAEZ: I mean, I guess I'm kind of held up because we did talk about this prior to coming in that we wouldn't mention anything about it. It was a huge ordeal and here we are.

THE COURT: I know. I think - - at this point, the motion for mistrial is denied. I will include an extraneous offense [jury] charge that would address that which basically tells the jury if there's any evidence of any other crimes being committed, unless the State proves it beyond a reasonable doubt, you can't consider it for any purpose.

MR. NARVAEZ: That's fair.

Standard of Review

We review the trial court's denial of a motion for mistrial for an abuse of discretion, viewing the evidence in the light most favorable to the trial court's ruling, and considering only those arguments before the court at the time of the ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must uphold the ruling if it was within the zone of reasonable disagreement. Id. A mistrial is the appropriate remedy only when the objected-to events are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. See Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004).

A mistrial is required only in extreme circumstances where the prejudice is incurable because it "is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); see also Ocon, 284 S.W.3d at 884. Because a mistrial is an extreme remedy, "a mistrial should be granted 'only when residual prejudice remains' after less drastic alternatives are explored." Ocon, 284 S.W.3d at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).

To preserve an issue for appellate review, the defendant must make a timely request, objection, or motion stating specific grounds for the ruling he desires the trial judge to make and obtain a ruling on the objection. Tex.R.App.P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). The objection must be made at the earliest possible opportunity, and "[a] motion for mistrial is timely only if it is made as soon as the grounds for it become apparent." Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007); see also King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Analysis

Once a defendant...