NO. 12-10-00014-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PETE ARMANDO AYALA,

APPELLANT ' APPEAL FROM THE 173RD

V. ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS, ' HENDERSON COUNTY, TEXAS

APPELLEE

MEMORANDUM OPINION

Pete Armando Ayala appeals his conviction for murder. In his sole issue, he 

contends that the trial court abused its discretion in denying his motion for mistrial. We 

affirm.

BACKGROUND

Appellant was charged by indictment with the offense of murder by shooting 

Johnny Brown with a firearm, thereby causing his death. Appellant pleaded not guilty. 

At trial during the testimony of one of the witnesses, Johnny Brown’s mother, a 

nonwitness, exclaimed “Oh, my Johnny, my baby, my baby” when she viewed graphic 

photographs of her deceased son. The jury heard her outcry. Defense counsel made a 

“bystander’s bill” whereby he explained that the victim’s mother “was either throwing 

up, or vomiting, or gagging, or whatever it was” while crying hysterically. She was 

escorted from the courtroom, and was thereafter taken on a stretcher from the courthouse 

by ambulance, although it is unclear whether the jury was aware of that fact. The 

interruption by the victim’s mother lasted approximately one minute.

The court immediately called a recess and removed the jury from the courtroom 

while Appellant’s counsel and the State further discussed the outburst. Appellant’s 

counsel moved for a mistrial, which the trial court denied. Appellant also asked for an 

instruction to disregard, which the court provided to the jury as follows:
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I’ll instruct you that you are, of course as far as your duty as jurors in 

this case goes, you are not to consider the grief of the victim’s mother, 

and, of course, when the time comes for you to deliberate, you won’t 

consider it for any purpose in your deliberations.

Appellant was subsequently convicted of murder, and the jury assessed 

punishment at forty years of imprisonment. He timely appealed.

DENIAL OF MISTRIAL BASED ON BYSTANDER OUTBURST

In his sole issue, Appellant argues that the trial court abused its discretion in 

denying his motion for mistrial based on the outburst by the victim’s mother. 

Standard of Review and Applicable Law

The denial of a motion for mistrial is reviewed under an abuse of discretion 

standard. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). The denial of 

the motion for mistrial must be upheld if the ruling was within the zone of reasonable 

disagreement. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). The 

complaining party has the burden to show that the jury was prejudiced by the bystander’s 

conduct. Alfaro v. State, 224 S.W.3d 426, 432 (Tex. App.—Houston [1st Dist.] 2006, no 

pet.). 

To show that external influences on the jury such as a bystander outburst created 

reversible error, the defendant must demonstrate actual or inherent prejudice. See 

Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996). Actual prejudice occurs 

when the jurors articulate “a consciousness of some prejudicial effect.” Id. Inherent 

prejudice, which is rare and “reserved for extreme situations,” occurs when “an 

unacceptable risk is presented of impermissible factors coming into play.” Id. In other 

words, bystander conduct that interferes with normal trial proceedings will not result in 

reversible error unless the defendant shows “a reasonable probability that the conduct or 

expression interfered with the jury’s verdict. Id.

“Instructions to the jury are generally considered sufficient to cure improprieties 

that occur during trial,” and it is “generally presume[d] that a jury will follow the [trial 

court’s] instructions.” Gamboa, 296 S.W.3d at 580; see also Brown v. State, 92 S.W.3d 

655, 661 (Tex. App.—Dallas 2002) (holding outburst from victim’s father telling jury to 

“[g]ive my son justice, please[,]” cured by trial court’s instruction to jury to disregard 

remark), aff'd on other grounds, 122 S.W.3d 794 (Tex. Crim. App. 2003); Matthews v. 

State, 960 S.W.2d 750, 757 (Tex. App.—Tyler 1997, no pet.) (holding outburst by 
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victim’s brother during defense counsel’s cross-examination of state’s witness not so 

prejudicial as to preclude cure by instruction when trial court admonished jury not to 

consider the statement).

Discussion

Appellant neither presented evidence of actual prejudice such as a juror’s affidavit 

nor argues in his brief that the outburst of the victim’s mother actually prejudiced him. 

See Alfaro, 224 S.W.3d at 432-33 (holding no actual prejudice shown when defendant 

failed to secure affidavit or testimony of jurors as to whether outside influence of 

bystander outburst had a prejudicial effect on jurors’ consciousness). Instead, Appellant 

contends that the nature of the outburst as a whole resulted in sufficient inherent 

prejudice to warrant a mistrial. 

Appellant relies on Stahl v. State to support his inherent prejudice argument, but 

the outcome there was premised on prosecutorial misconduct. See Stahl v. State, 749 

S.W.2d 826, 826-27 (Tex. Crim. App. 1988); see also Alfaro, 224 S.W.3d at 433 n.4 

(distinguishing the unique circumstances in Stahl). More specifically, in Stahl, the 

prosecutor called the victim’s mother to the stand knowing that she was prone to 

emotional outbursts, and asked her to identify a photograph of her dead son. Id. at 828. 

She burst into tears and yelled at the defendant. Id. at 827. Although the trial court 

instructed the jury to disregard that evidence, the prosecutor nonetheless repeatedly 

referred to the incident in closing argument, leading to the conclusion that the prosecutor 

“actually orchestrated the original outburst.” Id. at 826-27. Such circumstances are 

absent in the instant case, and Appellant specifically stated that he does not allege any 

prosecutorial misconduct. 

In Gamboa, a family member of the victim shouted, “[Y]ou did this for 200 

dollars?” This dramatic accusatory outburst is more prejudicial than the expression of 

grief by the victim’s mother in the instant case. Yet, the court of criminal appeals held 

that “nothing in the record suggests that the outburst was of such a nature that the jury 

could not ignore it and fairly examine the evidence in arriving at a verdict.” Gamboa, 

296 S.W.3d at 580. 

Based on the record before us, Appellant has not shown by reasonable probability 

that the “extravagant expression of grief” of the victim’s mother is one of those rare and 

extreme situations in which a bystander outburst interfered with the jury’s verdict. 

Finally, Appellant has not demonstrated that the trial court’s instruction to disregard 
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failed to cure any prejudice. Therefore, the trial court did not abuse its discretion in 

overruling Appellant’s motion for mistrial. Appellant’s sole issue is overruled.

DISPOSITION

We affirm the judgment of the trial court.

 JAMES T. WORTHEN 

 Chief Justice

Opinion delivered July 7, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)