Reset A A Font size: Print

Court of Appeals of Texas, Houston (14th Dist.).


NO. 14-16-00430-CR

Decided: May 25, 2017

Panel consists of Justices Christopher, Busby, and Jewell.


A jury convicted appellant Jorge Antonio Gallardo of capital murder, and the trial court sentenced him to life in prison without parole. In a single issue, appellant asserts that the trial court erred in denying his motion for mistrial following testimony from an investigator that revealed that the investigator had interviewed appellant. We affirm.


On the afternoon of October 30, 2014, Cassandra Rodas opened the door to the home shared by her, Jesus Rodriguez, and their ten month-old baby, admitting appellant and another friend of Rodriguez's, Mario Turcios. Appellant and Turcios had arrived at the house separately, but around the same time. Turcios heard appellant tell Rodriguez that appellant was there to buy marijuana. Appellant, Turcios, and Rodriguez went into a bedroom that Rodriguez used as a music studio and listened to music; Rodas went into a nearby bedroom with the baby. Turcios stepped away to use the bathroom and Rodas was in the other bedroom when they heard a gunshot. Turcios returned to the music studio, saw Rodriguez, apparently deceased, in an office chair, and saw appellant inside the room near Rodriguez. Turcios saw that appellant had a black handgun.

Appellant told Turcios and Rodas that Rodriguez had shot himself. Appellant pointed a black handgun at Turcios and Rodas and demanded: “Where's the stuff? Where's the stuff? Where's the money[?]” Rodas was “in shock[,]” and told appellant, “Just get whatever you want ․ Just take it.” Appellant attempted to open a safe in the studio, but was unsuccessful and began “flipping everything around ․ just throwing stuff out [sic] the closet ․ around the room.”

Turcios ran from the house when appellant went into the other bedroom. On his way out, Turcios saw someone wearing a hat sitting in the back seat of appellant's car. Meanwhile, appellant took Rodas's cell phone and had her look for keys to another safe in the bedroom. At appellant's direction, Rodas attempted to open the safe, but was unsuccessful. Rodas threw appellant the keys and backed out of the room while he tried to open the safe. Rodas then ran out of the house with the baby. She saw a tall, unfamiliar Hispanic male enter the home as she was leaving. She ran door-to-door in the neighborhood until someone opened the door and she was able to call 911.

After responding to the scene, officers from the Harris County Sheriff's Office found Rodriguez's body in a chair in an upstairs room of the house he shared with Rodas. In the same room, they found a bag, a heat sealer, and marijuana in a sealed baggie. With a key from a key ring found underneath Rodriguez's chair, officers were able to open the safe in the studio and found, among other things, a gallon bag containing marijuana, several bags of small white pills that were later determined to be Xanax, ammunition, more than 4,500 in American dollars, and over 50,500 in Mexican pesos. An autopsy revealed a single, fatal gunshot wound to the back of Rodriguez's head behind his left ear; the medical examiner opined that the wound was caused by a gunshot fired from more than two feet away.

A grand jury indicted appellant for the capital murder of Rodriguez, specifically, murder committed in the course of committing robbery. See Tex. Penal Code § 19.03(a)(2). Appellant pleaded “not guilty,” and a jury trial followed. After hearing the evidence, the jury found appellant guilty as charged in the indictment. Because the State did not seek the death penalty, the trial court sentenced appellant to life in prison without parole. See id. § 12.31(a)(2). This appeal timely followed.


In a single issue, appellant asserts that the trial court erred “by failing to grant a mistrial after sustaining appellant's objection to the lead investigator's nonresponsive answer and giving an instruction to disregard.” We begin our analysis with the standard of review.

Standard of Review. A mistrial is a device used to halt trial proceedings when error occurring during trial is so prejudicial that expenditure of further time and expense would be wasteful and futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A denial of a motion for mistrial is reviewed under an abuse of discretion standard, and we must uphold a trial court's ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). “A mistrial is an appropriate remedy 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) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A mistrial should be granted only when less drastic alternatives fail to cure the prejudice. Id. at 884-85. The determination of whether an error necessitates a mistrial must be made by examining the facts of each case. Ladd, 3 S.W.3d at 567.

With this framework in mind, we turn to appellant's complaint.

Application. Appellant asserts that the trial court erred in denying his motion for mistrial. During appellant's questioning of the lead investigator for the Harris County Sheriff's Office, Deputy Michael Ritchie, the following exchange occurred:

[Defense Counsel]: For example, the defendant's cell phone records? You had his phone number, right?

[Ritchie]: Not necessarily so.

[Defense Counsel]: Well, they gave you what they said was his phone number, right?

[Ritchie]: When I interviewed him, he said he didn't have a phone.

[Defense Counsel]: Now, you can't go into interviewing him. That's not part of this case.

So I object to that, Judge. That was nonresponsive.

[The State]: Objection. It was in response to the question that defense counsel asked.

[Defense Counsel]: I asked him about cell phone records. I didn't ask about him interviewing –

THE COURT: Sustained as to nonresponsive.

[Defense Counsel]: So I ask for a jury instruction.

THE COURT: Jury, you are instructed to disregard that last answer.

[Defense Counsel]: Move for a mistrial.

THE COURT: Overruled.

Appellant urges that Ritchie's “nonresponsive answer injected new and harmful facts” into the trial and that the “jury was necessarily left with the impression that the Appellant's interview would be incriminating and harmful to the defense.” He argues that Ritchie's answer was “calculated to inflame the minds of the jury” and that the trial court's instruction to disregard was “ineffectual.” We disagree for the following reasons.

To begin with, we presume that “instructions to disregard and other cautionary instructions will be duly obeyed by the jury.” Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011). In keeping with this presumption, appellate courts routinely conclude that an instruction to disregard suffices to cure an error when witnesses have offered nonresponsive answers potentially prejudicial to a defendant, including referring to polygraph examinations and prior extraneous offenses. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (stating instruction sufficient in capital murder case where witnesses testified defendant had prior felony conviction in violation of a motion in limine); Richardson v. State, 624 S.W.2d 912, 914-15 (Tex. Crim. App. 1981) (“[W]here a witness gives an unresponsive answer which mentions a polygraph test but does not mention the results of such test, there is no error in failing to grant a mistrial where the objection is sustained and the jury instructed to disregard.”); see also Smith v. State, 491 S.W.3d 864, 873 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (“Unless clearly calculated to inflame the minds of the jury or of such damning character as to make it impossible to remove the harmful impression from the jurors' minds, a witness's reference to a defendant's criminal history or previous incarceration, standing alone, generally is cured by a prompt instruction to disregard.”); Ludwig v. State, 428 S.W.3d 344, 350 (Tex. App.—Amarillo 2014, no pet.) (instruction sufficient even where witness commented on defendant's invocation of Miranda rights); Drake v. State, 123 S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (instruction sufficient where nonresponsive testimony about extraneous offense was not solicited by State, there was no further mention of offense, and the trial court's instruction was immediate).

Here, Ritchie did not allude to a “confession” or to any specific content within the “interview” other than the fact that the defendant, when interviewed, “said he didn't have a phone.” Ritchie did not go into specifics about the content of the interview other than referring to appellant's statement that he did not have a cell phone. And the fact that Ritchie interviewed appellant neither inculpates nor exculpates the appellant. Ritchie mentioned the interview only once, studiously avoiding any further mention of it.

In short, “only in the most egregious cases when there is an extremely inflammatory statement is an instruction to disregard ․ considered an insufficient response by the trial court.” Williams v. State, 417 S.W.3d 162, 176 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (citations and internal quotation omitted). This is not such a case. Appellant's issue is overruled.


Having overruled appellant's sole appellate issue, we affirm the trial court's judgment.

Kevin Jewell Justice

Copied to clipboard