Ernest G. Sanchez v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00510-CR
Ernest Guedea SANCHEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-6310A
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: July 25, 2001

AFFIRMED

Ernest Sanchez was charged with aggravated assault. A jury found him guilty of the lesser offense of assault and sentenced him to one year, with a recommendation of community supervision. The trial court suspended the sentence and placed Sanchez on community supervision for two years. Sanchez appeals, arguing he was improperly denied the opportunity to present evidence of the complainant's propensity for violence and the trial court abused its discretion in denying his motion for mistrial. We disagree and affirm.

Sanchez argues the trial court erred by precluding him from introducing evidence the complainant had previously been convicted of deadly conduct. The trial court granted the State's motion in limine concerning the conviction; however, Sanchez did not offer the evidence during trial nor secure a ruling on the admissibility of the evidence. He thus failed to preserve any error for review. Tex. R. App. P. 33.1; see Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) ("[A] ruling on a State's motion in limine that excludes defense evidence is subject to reconsideration throughout trial and [] to preserve error an offer of the evidence must be made at trial.").

Sanchez also contends the trial court abused its discretion by failing to grant a mistrial after the State attempted to question a defense witness about a pending indictment. The prosecutor started to ask the witness, "[I]sn't it true that you are currently under indictment --." Sanchez immediately objected, requested an instruction to disregard, and moved for a mistrial. After a brief bench conference, the trial court denied Sanchez' motion for mistrial and instructed the jury to disregard the State's question. The matter was not mentioned again. A motion for mistrial should only be granted "when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant." Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). After reviewing the record, we conclude the State's partial question to the witness was not "clearly calculated to inflame the minds of the jury or [] of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind." Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918 (1993). The trial court did not abuse its discretion in denying the motion for mistrial, and we affirm the trial court's judgment.

Sarah B. Duncan, Justice

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