Elias Duarte Jr. v. The State of Texas Appeal from 389th District Court of Hidalgo County (memorandum opinion)

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NUMBER 13-16-00198-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ELIAS DUARTE JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 389th District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Longoria Memorandum Opinion by Justice Benavides By six issues, which we address below as five, appellant Elias Duarte challenges his conviction for aggravated sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. §§ 12.32, 22.011 (West, Westlaw through 2017 1st C.S.). Duarte alleges that: (1) the trial court committed jury charge error by not instructing jury members that they must be unanimous and (2) by defining certain words that are not defined in the Texas Penal Code; (3) the trial court committed error by denying his motions for mistrial regarding trial testimony; (4) the errors addressed above lead to overall cumulative error; (5) the trial court committed error by assessing attorney’s fees to Duarte; and (6) the evidence was legally insufficient to support the conviction. We affirm as modified. I. BACKGROUND1 Duarte was charged by indictment with three counts of aggravated sexual assault of a child under the age of fourteen. See id. Count one involved penetration of complainant L.M.’s sexual organ by Duarte’s finger, count two involved penetration of L.M.’s mouth with Duarte’s sexual organ, and count three involved penetration of L.M.’s sexual organ by Duarte’s sexual organ. See id. The State waived and abandoned count one prior to trial and proceeded only on counts two and three. At trial, the evidence showed that L.M. accused Duarte, her mother’s paramour, of sexually assaulting her twice, once at the apartment the family shared and once along a canal bank located in Weslaco. Shortly after Duarte was arrested, L.M. recanted her allegations and told her mother, J.R., that the abuse did not occur and L.M. was instead angry at Duarte for confiscating her cellular phone. The State elicited testimony from L.G., L.M.’s grandmother and first outcry witness, who stated that L.M. told her that Duarte “raped her.” L.G. then notified law enforcement officers. L.G. did not receive additional details from L.M. and stated L.M. never told her that the abuse did not occur. L.M. testified that she first told her cousin, A.R., that she was sexually abused and Duarte “raped her.” L.M. stated that she made allegations against Duarte because she In order to protect the complainant’s identity, we will use her initials and her family members’ initials throughout this memorandum opinion. See generally TEX. R. APP. P. 9.8. 1 2 wanted her cell phone returned, after her parents took it away from her as punishment for texting and messaging with older high school boys. During trial, L.M. recanted her allegations of abuse during the State’s case-in-chief. Although L.M. stated none of the incidents occurred and were lies during the State’s questioning, she did also relate details of the two incidents of abuse. In response to the State’s questions regarding the first incident, L.M. testified that the incident happened at a canal near Weslaco after Duarte picked her up from a friend’s house where she had been working on a school project. Upon leaving, Duarte drove them to a canal embankment, stopped the vehicle, came around to the passenger side of the vehicle where L.M. was sitting, told her to pull down her pants, and penetrated her sexual organ with his sexual organ. L.M. stated when Duarte was finished, she pulled up her pants and they went home. According to L.M., the second incident occurred at their apartment. L.M. related that Duarte came into her bedroom and woke her around three in the morning. She stated Duarte told her to come with him and took her into his bedroom. L.M. explained that her mother was sleeping on the living room sofa that particular morning. L.M. testified Duarte told her to take off her pajama pants and sit down on him while he was not wearing any clothes. L.M. stated his “private part” touched her “private part” and Duarte told her to move back and forth on him “like [she was] rocking.” She laid down on the bed and said Duarte got on top of her as she was crying, and she knew his sexual organ was inside her sexual organ. After the incident was finished, L.M. went to the bathroom, where her mother saw L.M. and asked why she was awake. 3 L.M. testified that she later told her mother the allegations were untrue and she only made them up to get her cell phone returned. L.M. agreed that no one told her to recant the allegations and she “hates talking about it.” On cross-examination, L.M. reiterated the details she gave at the Children’s Advocacy Center (CAC) regarding the incidents were untrue and she was telling the truth in court. L.M.’s mother, J.R., testified that she was initially enraged when she heard L.M.’s outcry, but now doubts L.M.’s truthfulness. J.R. stated that upon hearing what L.M. told L.G., she confronted Duarte at their home, but he told her the accusations were false and stayed calm. J.R. testified that Duarte’s behavior is normally aggressive when confronted by her, so it made her leery of believing L.M. J.R. claimed L.M. is a “compulsive liar” and had been diagnosed with “mental health issues” beginning at the age of three which include “attention deficient disorder and depression.” J.R. admitted that she still has doubts about the truthfulness of the allegations because they were initially made, but she wanted to leave the determination of true or false up to a jury. Investigator Albert Ponce with the Weslaco Police Department confirmed that J.R. was irate when he first arrived to J.R.’s apartment but calmed down over time. Investigator Ponce further stated that J.R. came to him following Duarte’s arrest and was adamant that L.M. lied. Investigator Ponce stated that J.R. wanted to drop the charges, but he told her it was up to the State. Investigator Ponce believed J.R.’s statement corroborated information L.M. gave during her CAC interview. The CAC interviewer Sarah Munguia also testified as an outcry witness. Munguia explained how she conducts interviews with children and does not know the facts prior to her interview. L.M. told Munguia during the interview that “Dad raped me.” Munguia stated 4 L.M. gave her details about the incident at the canal and drew pictures of the canal layout as L.M. spoke about what had occurred. L.M. told Munguia that Duarte sexually assaulted her and when Duarte had finished, he wiped himself off with a rag, and then wiped her off with a rag. L.M. also talked to Munguia about the incident at the apartment and told Munguia that Duarte penetrated her while L.M. was on top of him. Munguia testified that L.M. relayed details of Duarte pushing her head down and forcing her to put his sexual organ into her mouth. L.M. told Munguia after the oral sex, she laid on the bed, was crying, and Duarte asked her if “she liked it” while he was on top of L.M. Munguia testified that part of her job was to evaluate a child’s demeanor and that L.M.’s demeanor went from talkative and smiling when they were first speaking to quiet with a slouched posture when talking about the assaults. Duarte testified in his defense and stated he did not do what he was accused of doing. He told the trial court he was shocked by the allegations, cooperated with the law enforcement agencies involved, and no one forced L.M. to recant her allegations. The jury acquitted Duarte of count two of the indictment and convicted him on count three. The trial court assessed punishment at thirteen years imprisonment in the Texas Department of Criminal Justice–Institutional Division and a $10,000 fine. This appeal followed. II. SUFFICIENCY OF THE EVIDENCE By his sixth issue, which we will address first, Duarte challenges the sufficiency of the evidence supporting his conviction. A. Standard of Review When evaluating a sufficiency challenge, the reviewing court views the evidence in 5 the light most favorable to the verdict to determine whether a rational jury could find the defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). In order to have reversal of a conviction on a claim of insufficiency of the evidence, Duarte must show that no rational jury could have found all the elements of the offense beyond a reasonable doubt. See Brooks, 323 S.W.3d at 902. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and a reviewing court is not to substitute its judgment as to facts for that of the jury as shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly stated in the record. Id. A reviewing court must measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. In order to have reversal of a conviction on a claim of insufficiency of the evidence, Duarte must show that no rational jury could have found all the elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 902. 6 B. Applicable Law and Discussion A person commits an offense of aggravated sexual assault of a child if he: (a) intentionally or knowingly, (b) causes, (c) the penetration of the sexual organ of a child, (d) under the age of fourteen. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A). Duarte argues that because L.M. recanted her testimony before and during trial and stated that she fabricated the allegations in an attempt to retrieve her cell phone, that L.M.’s statements should be considered impeachment testimony, and that her statements should not be considered in support of the guilty verdict. Duarte also points this Court’s attention to the jury charge instruction relating to impeachment testimony. However, we are bound to consider legal sufficiency analysis under a hypothetically correct jury charge, not the charge that was given by the trial court. See Villarreal, 286 S.W.3d at 327. Based on a hypothetically correct jury charge, we must determine if the evidence supported the conviction. See id. Although L.M. recanted her testimony during trial, she also provided details regarding the penetration incidents. Besides L.M.’s testimony, both L.G. and Munguia, who were both outcry witnesses, testified as to the details of the sexual assaults as L.M. had told them. “It is well established that outcry testimony is substantive evidence of guilt that is sufficient to support a conviction beyond a reasonable doubt.” Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d). “Furthermore, when a witness recants prior testimony, it is up to the fact finder to determine whether to believe the original statement or the recantation.” Id. “A factfinder is fully entitled to disbelieve a witness’s recantation.” Id. 7 Based on the evidence and testimony presented, even considering L.M.’s recantation, we hold that there was legally sufficient evidence presented at trial to support the jury’s finding of guilt under a hypothetically correct jury charge. See Villarreal, 286 S.W.3d at 327. We overrule Duarte’s sixth issue. III. JURY CHARGE ERROR By his first and second issues, Duarte alleges the trial court committed jury charge error by (1) not including a jury unanimity instruction in the jury charge and (2) by defining “penetration” and “female sexual organ” as those words are not defined in the Texas Penal Code. A. Standard of Review “In analyzing a jury-charge issue, our first duty is to decide if error exists.” Rodriguez v. State, 456 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2014, pet ref’d.) (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)). Only if error is found, do we then consider whether an objection to the charge was made and analyze for harm. Id. “The degree of harm necessary for reversal depends upon whether the error was preserved.” Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). If the “defendant never presents a proposed jury instruction (or fails to object to the lack of one), any potential error in the charge is reviewed only for ‘egregious harm’ under Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008). As in this case, when an “appellant d[oes] not object to the charge, the error does not result in reversal ‘unless it was so egregious and created such harm that appellant was denied a fair trial.’” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (quoting Almanza, 8 686 S.W.2d at 171). “Errors that result in egregious harm are those that affect the ‘very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Warner, 245 S.W.3d at 461–62 (quoting Hutch, 922 S.W.2d at 171). The failure to preserve jury-charge error is not a bar to appellate review but rather establishes the degree of harm necessary to the reversal. Warner, 245 S.W.3d at 461. To establish harm, the “appellant must have suffered actual, rather than theoretical, harm.” Id. Neither the State nor the appellant bears the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). “When assessing harm based on the particular facts of the case, we consider: (1) the charge; (2) the state of the evidence[,] including contested issues and the weight of the probative evidence; (3) the parties’ arguments; and (4) all other relevant information in the record.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (quoting Hutch, 922 S.W.2d at 171). B. Applicable Law 1. Unanimity Instruction “Texas law requires that a jury reach a unanimous verdict about the specific crime that the defendant committed.” Id. “This means that the jury ‘must agree upon a single and discrete incident that would constitute the commission of the offense alleged.’” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). “The unanimity requirement ensures the jury agrees on the factual element underlying the charged offense, not that it merely agrees that a statute was violated.” Ansari v. State, 511 S.W.3d 262, 265 (Tex. App.—San Antonio 2015, no pet.). A non-unanimous verdict can occur when the State charges one offense and presents evidence that the defendant committed that offense on multiple separate occasions. See Cosio, 353 S.W.3d at 772. 9 “Guaranteeing unanimity is ultimately the responsibility of the trial judge because the judge must instruct the jury on the law applicable to the case.” Id. at 776. “The trial judge is therefore obligated to submit a charge that does not allow for the possibility of a non-unanimous verdict.” Id. Even when the “State is not required to elect [which alleged incident they are submitting to the jury], the trial judge must craft a charge that ensures that the jury’s verdict will be unanimous based on the specific evidence presented in the case.” Id. To “guarantee unanimity in this context, we have stated that the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.” Id. 2. Definitions in the Jury Charge The code of criminal procedure article 36.14 requires that instructions to the jury be limited to setting forth the law applicable to the case and that they not express any opinions as to the weight of the evidence. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2017 1st C.S.). Under article 36.14, the trial court is required to give the jury a written charge “setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in [its] charge calculated to arouse the sympathy or excite the passions of the jury.” Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14). “As a general matter, definitions for terms that are not statutorily defined are not considered to be ‘applicable law’ under Article 36.14, and it is thus generally impermissible for the trial court to define those terms in the jury instructions.” Green v. Texas, 476 10 S.W.3d 440, 445 (Tex. Crim. App. 2015). “Consistent with the terms of Article 36.14, we have explained that jurors should be permitted to ‘freely read [undefined] statutory language to have any meaning which is acceptable in common parlance.’” Id. (quoting Kirsch, 357 S.W.3d at 650 (alternation in original)). Although it is generally impermissible to instruct on the meaning of terms that are not statutorily defined, an exception to that general rule exists “for terms which have a known and established legal meaning, or which have acquired a peculiar and appropriate meaning in the law, as where the words used have a well-known common meaning.” Kirsch, 357 S.W.3d at 652. An “instruction, albeit facially neutral and legally accurate, may nevertheless constitute an improper comment on the weight of the evidence.” Id. at 651. C. Discussion 1. Unanimity Instruction The jury charge contained the following language: You are instructed that the allegation that the offense was committed on or about May 29, 2015, does not bind the State to any one particular date but may include any day prior to September 24, 2015, the day the indictment was filed, and within the statute of limitations. There is no statute of limitations for Aggravated Sexual Assault of a Child. ... Your verdict must be unanimous, and after you have reached a unanimous verdict, the Presiding Juror will certify thereto by signing the appropriate form attached to this charge. The jury charge in this case did not include an instruction to the jury that they must agree on one incident of criminal conduct in order to convict Duarte of aggravated sexual assault. See id. We conclude that the jury charge erroneously permitted a non-unanimous verdict based on the evidence presented at trial. The trial court failed to instruct the jury 11 in the jury charge that it needed to unanimously base its verdict on a single offense among those presented. See Flores v. State, 513 S.W.3d 146, 157 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Having determined that the jury charge was erroneous and Duarte’s trial counsel failure to object to the jury charge, we evaluate whether Duarte suffered egregious harm based on the charge. See Oursbourn, 259 S.W.3d at 174. “An egregious harm determination must be based on a finding of actual rather than theoretical harm.” Cosio, 353 S.W.3d at 777. When a jury charge allows for a non-unanimous verdict, there are “two legally significant components for purposes of our analysis—jury charge error and a state constitutional and statutory unanimity violation.” See id. at 776. The Texas Court of Criminal Appeals has held that “the constitutional component is subject to the constitutional harm standard under the Texas Rule of Appellate Procedure 44.2(a) when it was properly preserved by a timely and specific objection at trial.” Id. Failure to object to the unanimity error in the jury charge forfeits the constitutional unanimity component of the complaint. See id. Here, Duarte did not object to the lack of a unanimity instruction and therefore, has waived any constitutional violation. Next, we consider the four factors to determine if actual egregious harm is found: a. Jury Charge We first look at the charge itself. “As the Court of Criminal Appeals has repeatedly held, generic language regarding unanimity in the overall verdict is insufficient to ensure a unanimous verdict on a single incident.” Gomez v. State, 498 S.W.3d 691, 697 (Tex. App.—Houston [1st Dist.] 2016, no pet.); see Arrington, 451 S.W.3d at 841 (noting that 12 even several generic requirements of unanimity cannot ensure a unanimous verdict when there is evidence of multiple incidents). Similar to Gomez, despite raising only one count of vaginal penetration by Duarte’s sexual organ, the State presented evidence of two separate criminal episodes involving vaginal penetration by Duarte’s sexual organ. Nothing in the jury charge required the jury to agree unanimously that the State had proven one particular criminal episode beyond a reasonable doubt. See Gomez, 498 S.W.3d at 697. We find this factor weighs in favor of egregious harm. See Arrington, 451 S.W.3d at 841. b. State of the Evidence Next, we look to the state of the evidence to determine whether the evidence made it more or less likely that the jury charge caused Duarte actual harm. See id. Here, L.M. testified the abuse occurred, family members and the forensic interviewer confirmed details of the L.M.’s story, and the Duarte denied the allegations. See id.; Ashton v. State, ___S.W.3d___, ___, 2017 WL 1281423, *9 (Tex. App.—Houston [1st Dist.] April 6, 2017, no pet.). Even though L.M. recanted her allegations during her testimony, she still gave specific details of the alleged criminal episodes on direct examination. Family members testified regarding what L.M. told them and her demeanor. The forensic interviewer relayed the details L.M. spoke about, and Duarte testified denying the allegations against him. The jury was inclined to believe or disregard L.M.’s recantation. It is apparent that the jury disregarded L.M.’s recantation because it found Duarte guilty on count three. Because the jury was entitled to either believe or disregard L.M.’s recantation, as well as Duarte’s claim of innocence, and clearly disregarded that testimony, we find this factor weighs against a finding of egregious harm. See Arrington, 451 S.W.3d at 841. 13 c. Argument of Parties Under this factor, we look to whether any statements made by the State, appellant, or the court during the trial exacerbated or ameliorated error in the charge. See id. at 844. The State did discuss the two separate criminal episodes in its closing argument, but it did not misinform the jury regarding the law. See Gomez, 498 S.W.3d at 698–99. Neither the State nor Duarte told the jurors that they must be unanimous about which criminal episode constituted each offense. See Arrington, 451 S.W.3d at 844. This factor, therefore, is neutral. d. All Other Relevant Information Although Duarte was acquitted of count two, the oral penetration of L.M. by his sexual organ, we still find that to be a relevant factor in this analysis. Count two and count three alleged oral and vaginal penetration of L.M. relating to the same criminal episode. By the jury finding Duarte not guilty of count two, but guilty of count three, it is apparent that the jury chose not to believe L.M.’s recantation. In finding Duarte guilty of count three, the jury necessarily disbelieved Duarte’s defensive evidence. See id. at 842. This factor weighs against egregious harm. e. Consideration of the Four Factors We find that the factors weigh against a finding of egregious harm. Even though the charge contained error, the jury was inclined to disregard L.M.’s recantation and Duarte’s defensive evidence, and it is apparent from the record that the jury did. Without a finding of actual harm to Duarte, we overrule his first issue. 2. Definitions in Jury Charge Additionally, the jury charge contained the following complained-of definitions: 14 One of the elements in this case is “penetration.” The burden is upon the State to prove each and every element of the offense, if any, beyond a reasonable doubt. You are instructed that penetration is complete, however, slight. .... “Female sexual organ” means and includes the vulva or tissue immediately surrounding the vagina and female genitalia or any parts between the labia of the female genitalia. Here, similar to Green, we find that the terms “penetration” and “female sexual organ” are “common terms that have not acquired a technical meaning” and should be interpreted by the jury according to common usage. Green, 476 S.W.3d at 445. “We conclude that the jury was free to assign those terms any meaning that is acceptable in common parlance, and the trial court’s provision of non-statutory definitions instructing the jury to apply particular definitions was improper.” Id. Including non-statutory definitions in the jury charge was error and the State conceded the error in its brief. Again, because Duarte did not object to the jury charge, we now must determine if he was harmed egregiously by the jury charge error. See Oursbourn, 259 S.W.3d at 174. Finding error, we again look to the four factors to determine if there was actual harm: (1) the jury charge as a whole; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) any other relevant factors. See Green, 476 S.W.3d at 446. a. Jury Charge We first look at the charge itself. We have already determined that it was error for the trial court to include non-statutory definitions within the jury charge. See Green, 476 S.W.3d at 445. Additionally, the trial court included the following instructions in the jury charge: 15 Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. .... You must concern yourselves solely with the question of guilt or innocence of the Defendant under these written instructions without regard to any possible punishment imposed by law for the offense charged. The trial court also instructed the jury to disregard any “remarks, rulings, or actions of the presiding judge” as any indication of guilt or innocence of Duarte. Even though the definitions of the terms were extraneous language, the definitions were less detailed definitions than were given in Green. See id. However, the definitions did not cause harm to Duarte because “as an element of the offense, the jury’s attention would already have been focused on the meaning of the phrase ‘penetration of the sexual organ’ and the instructions could not have harmfully impacted Duarte on this basis. See id. As in Green, we further find the “extraneous instructions were neutral and benign in the sense that they merely described the common meanings of the terms, and given that the jury already would have been focused on the evidence of penetration in light of the fact that it was an element of the offense, we do not find that the erroneous instructions themselves weigh in favor of a finding of harm.” Id. at 448. We find this factor weighs against egregious harm. b. State of the Evidence and Argument of Parties Next, we look to the state of the evidence and whether any statements made by the State, appellant, or the court during the trial exacerbated or ameliorated error in the charge to determine whether the evidence made it more or less likely that the jury charge caused Duarte actual harm. See id. at 446. The evidence focused on whether penetration of the female sexual organ of L.M. had occurred, but we must consider that Duarte’s defensive 16 theory was that L.M. fabricated her allegations and no sexual acts occurred. The jury heard the evidence from L.M. and her recantation, as well as the State’s additional witnesses, as well as Duarte’s denial of guilt, and made its determination on who was credible. The state of the evidence and the jury’s rejection of Duarte’s defensive evidence weighs against egregious harm. The arguments of counsel also weigh against a finding of egregious harm. The State focused on L.M.’s testimony and why she would have felt pressured to recant her testimony. Duarte’s counsel focused on L.M.’s lack of credibility and why she alleged to have recanted her testimony. The jury was entitled to believe or disbelieve the testimony, and it was clear from the verdict that they disbelieved L.M.’s recantation and Duarte’s evidence. No excessive emphasis was placed on the definitions of “penetration” or “female sexual organ.” Therefore, we weigh this factor against egregious harm. c. All Other Relevant Information The jury clearly understood the allegations in count three by finding Duarte guilty. Additionally, the jury necessarily disbelieved Duarte’s defensive evidence. See id. at 842. This factor weighs against egregious harm. d. Consideration of the Four Factors The inclusion of the definitions of “penetration” and “female sexual organ” was error by the trial court, but we find each of the four factors weigh against a finding of actual, egregious harm. We overrule Duarte’s second issue. IV. MOTION FOR MISTRIAL PROPERLY DENIED By his third issue, Duarte alleges the trial court committed error by denying his motion for mistrial. 17 A. Standard of Review “An appellate court reviews a trial court’s ruling on a motion for mistrial . . . using an abuse-of-discretion standard of review. We view the evidence in the light most favorable to the trial court’s ruling and uphold the trial court’s ruling if it was within the zone of reasonable disagreement.” Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). “We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or unreasonable.” Id. “Thus, a trial court abuses its discretion in denying a [motion for mistrial] only when no reasonable view of the record could support the trial court’s ruling.” Id. However, “although a reviewing court may be required to accord great deference to the ruling of a trial court granting a mistrial, that trial court’s ruling is not insulated from appellate review.” Pierson, 426 S.W.3d 763, 774 (Tex. Crim. App. 2014). “A trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances.” Ex parte Garza, 337 S.W.3d at 909. A trial court abuses its discretion when it declares a mistrial “without first considering the availability of less drastic alternatives and reasonably ruling them out.” Id. “The trial court need not expressly articulate the basis for the mistrial on the record in order to justify it to a reviewing court, so long as manifest necessity is apparent from the record.” Id. at 909–10. However, “when a trial judge grants a mistrial despite the availability of a less drastic alternative, there is no manifest necessity and he abuses his discretion.” Hill, 90 S.W.3d at 313. B. Applicable Law A mistrial is a severe remedy, and “[o]nly in extreme circumstances, where the 18 prejudice is incurable, will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that expenditure of further time and expense would be wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Id. “Because it is an extreme remedy, a mistrial should be granted ‘only when residual prejudice remains’ after less drastic measures are explored.” Ocon v. State, 283 S.W.3d 880, 884–85 (citing Hawkins, 135 S.W.2d at 77). “Though requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not first request a lesser remedy, we will not reverse the court’s judgment if the problem could have been cured by the less drastic alternatives.” Id. A defendant’s complaint may take three forms: (1) a timely, specific objection, (2) a request for an instruction to disregard, and (3) a motion for mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc). An objection serves as a preemptive measure because “it informs the judge and opposing counsel of the potential for error” and “conserves judicial resources by prompting the prevention of foreseeable, harmful events.” Id. “An instruction to disregard attempts to cure any harm or prejudice resulting from events that have already occurred.” Id. “Where the prejudice is curable, an instruction eliminates the need for a mistrial, thereby conserving the resources associated with beginning the trial process anew.” Id. “Like an instruction to disregard, a mistrial serves a corrective function.” Id. “A grant of a motion for mistrial should be reserved for those cases in which an objection could not have prevented, and an instruction to disregard 19 could not cure the prejudice stemming from an event at trial—i.e., where an instruction would not leave the jury in an acceptable state to continue the trial.” Id. Although the traditional method to voice a complaint has been to: (1) object when possible; (2) request an instruction to disregard; and (3) then to move for a mistrial, “this sequence is not essential to preserve complaints for appellate review.” Id. “The essential requirement is a timely, specific request that the trial court refuses.” Id. “If an objectionable event occurs before a party could reasonably have foreseen it, the omission of an objection will not prevent appellate review.” Id. at 70. An instruction to disregard is essential only when it would enable the continuation of the trial by an impartial jury. Id. “But if the instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal.” Id. “Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal.” Id. In determining if the trial court abused its discretion in denying a motion for mistrial, we evaluate the factors laid out in Mosley v. State. 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc). We balance the following factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures (cautionary instructions given by the judge), and (3) the certainty of the conviction assessed absent the misconduct (strength of evidence supporting the conviction). See Franklin v. State, 459 S.W.3d 670, 682 (Tex. App.— Texarkana 2015, pet. denied). C. Discussion 1. Investigator Ponce Duarte complains of testimony given by Investigator Ponce and Sarah Wong with 20 CPS. During the State’s questioning, the following occurred: (jury present) State: Did you have evidence to believe that a crime had not occurred? Inv. Ponce: No, ma’am. I—I sat through the CAC interview and there was no indication that she was lying. ... Duarte: Judge, I’m going to object to the witness’s testimony that there was no indication of lying. That’s not possible. ... Duarte: I’m trying to think of the legal objection. He cannot testify to the mental capacity of the child. That is my legal objection. I’d ask the Court to grant my objection, ask for a mistrial and ask the jury to disregard that statement that he made. Trial Court: What part? Duarte: Where—that the—in his mind the child was telling the truth. ... (outside the presence of the jury) Duarte: Judge, he can testify to his observations, but he cannot testify whether the child is telling the truth or not. That is for the jury to determine. He cannot testify. Trial Court: I actually agree with you, okay? Ultimately, he’s not here to determine the veracity, that’s for the jury and it’s in the province of the jury. He will not be able to testify as to whether he believes he’s—she’s telling the truth. He can talk about the observations, whether she was consistent; talk about the observations, whether she was crying; talk about the observations of whether she was angry; talk about his observations, but ultimately to determine veracity, that is the province of the jury. All right. You ready to go? 21 Duarte: Yes. Judge. Are you going to instruct the jury that they disregard the truthfulness statement that he said of the child? Trial Court: If you would like me to, I will instruct them to disregard and I’ll deny your mistrial. ... Trial Court: However, I will have to say what I’m—they’re supposed to disregard. Do you really want me to go there? Because I will repeat what he said in order for them to know what to disregard. ... Trial Court: I can only ask them to disregard what he said, not the way your interpretation is. Do you really want me to repeat it for them? Duarte: No, Judge. Trial Court: Okay. Do you want me to make a ruling on the record concerning your mistrial? Duarte: Yes, Judge. Trial Court: It’s denied. Do you want me to do that in front of the jury? Duarte: No, Judge. I just wanted to make sure I preserved error. ... Trial Court: Then I’m going to have [the court reporter] repeat it and tell them to disregard it and then make the ruling on the mistrial in front of them on the record. Duarte: That’d be fine, Judge. ... (jury present) Court Reporter repeats Investigator Ponce’s statement. Trial Court: You are to disregard that statement and the motion for mistrial is denied. Okay. Go ahead. 22 2. Sarah Wong During her testimony, Wong was asked about the CPS investigation that occurred out of L.M.’s allegations: State: So you met with them in July, 2015. At this time, had they already gone through an investigation with CPS? Wong: Yes. State: And had there been a determination as to any findings? Wong: Yes. State: All right. And what was that finding? Wong: The findings were reason to believe for the sexual abuse of L.M. State: So what does reason to believe mean? Wong: That there was enough evidence that there was a sexual abuse. Duarte: Judge, I’m going to object to that; speculation, ask the jury to disregard that. Trial Court: Sustained. Duarte: And ask for a mistrial. Trial Court: The jury is to disregard the last statement. The trial court did not make a ruling on the motion for mistrial. The trial court sustained Duarte’s objection to both Investigator Ponce and Sarah Wong’s testimony and adopted a “less drastic measure” by giving the jury an instruction to disregard the testimony. Ex parte Garza, 337 S.W.3d at 909. Here, the trial court was put on notice by the objection. Because an instruction to disregard eliminates the need for a mistrial, the issuance of an instruction is presumed to effectively cure any taint. See 23 Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1998). “It is an abuse of discretion to grant a mistrial where less drastic means are available.” State v. Doyle, 140 S.W.3d 890, 893–94 (Tex. App.—Corpus Christi 2004, pet. ref’d). We hold the trial court did not err by issuing an instruction to disregard and denying the motion for mistrial. Duarte’s third issue is overruled. V. CUMULATIVE ERROR By his fourth issue, Duarte alleges that the multiple errors committed by the trial court constituted cumulative error and entitle him to a reversal. “Though it is possible for a number of errors to cumulatively rise to the point where they become harmful, we have never found that ‘non-errors may in their cumulative effect cause error.’” Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (quoting Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)); see Jenkins v. State, 493 S.W.3d 583, 613 (Tex. Crim. App. 2016). Though we found that the jury charge contained error, we concluded that the error was harmless. We have not found any other error. We overrule Duarte’s fourth issue. VI. ATTORNEY’S FEES By his fifth issue, Duarte alleges the trial court erred by assessing attorney’s fees against him. A. Applicable Law and Discussion The trial court has the authority to assess attorney's fees against a criminal defendant who received court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West, Westlaw through 2017 1st C.S.). But once a criminal defendant has been determined to be indigent, he “is presumed to remain indigent for the remainder of the 24 proceedings unless a material change in his financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West, Westlaw through 2017 1st C.S.). Before attorney's fees may be imposed, the trial court must make a determination supported by some factual basis in the record that the defendant has the financial resources to enable him to offset in part or in whole the costs of the legal services provided. See Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.) (citations omitted). If the record does not show that the defendant’s financial circumstances materially changed, the evidence will be insufficient to support the imposition of attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553–557 (Tex. Crim. App. 2010). Duarte was determined to be indigent and was appointed trial counsel. There is no evidence in the record to support a material change in Duarte’s financial circumstances. See Meyer, 309 S.W.3d at 553. The State concedes that Duarte remained indigent and that the trial court improperly assessed attorney’s fees against him. We sustain Duarte’s fifth issue and modify the judgment to allow for the deletion of attorney’s fees. See TEX. R. APP. P. 43.2(b); Meyer, 309 S.W.3d at 553. VII. CONCLUSION We affirm the judgment of the trial court as modified. GINA M. BENAVIDES, Justice Do not publish. TEX. R. APP. P. 47.2 (b). Delivered and filed the 9th day of November, 2017. 25

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