## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00045

- CR

MICHAEL LASHUN BROWN , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CR19

- 00278

Before Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Chief Justice Morriss

________________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION A Cooke County 1 jury convicted Michael Lashun Br own of aggr avated sexual assault of a child and assessed a sentence of life imprisonment. In his sole point of error on appeal, Brown argues that the trial court erred twice by failing to grant a mistrial after sustaining his objections
to testimony b y J ane, 2 the vi c tim, and by Julie Galloway , a forensic interviewer , hinting at extraneous offenses. 3 W e conclude that the trial court did not abuse its discretion by finding that

a mistrial was unwarranted after its prompt instructi on s to disregard both in sta nc es of tes t imony alluding to extraneous offense s . As a result , we affirm the trial court ’ s judgment.
Jane ’ s testimony alluding to extraneous offenses came after Jane ’ s testi mony that , while her mother was at work, Brown made her smoke cr ack and sexually abused her ev ery day for approximate l y two and a half years when she was between the ages of seven and ten. When the
State asked her if Brown said anything to her “ about people that knew about [the abuse], ” Jane testified that Brown “ told [h er] that a couple of oth er peo ple knew, and not to w orry, he was doing it to them, too. ” On hearing this, Brown immediately objected that Jane ’ s statement improperly revealed an extraneous offense . T he State responded , “ That was not what I w as expecting her to say. I ag ree. I mean, I think they should d isregard that, Your Honor. ” In the jury ’ s presence, the trial court sustained Brown ’ s objection and instructed the jury “ to disregard

1 Originally appealed to the Second Court of Appeals, this case was trans ferred to this Cou rt by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX
. G OV ’ T C ODE A NN
. § 73.001. We follow the p recedent of the Second Co urt of Appeals in deciding this case. See T EX
. R. A PP
. P. 41.3.

2 We use a pse udonym to protect the victim’s identity. See T EX
. R. A PP
. P. 9.10.

3 In companion cases number ed 06

- 21

- 000 46

- CR and 06

- 21

- 0 00 4 7

- CR, Brown appeals two other con victions for aggravated sexual assault of a child. We dispose of those c a ses in separate opinions.3

that last statement by the witness. ” Brown moved for a mistrial, which the trial cour t denie d

. T he St a te then clarifi e d the question by asking Jane if Brown told her that her mother knew about the abuse , and Jane said, “ He told me that my mom knew what was going on. ” Galloway testified after Jane

. Galloway ’ s complained

- of te sti mony came after her narrative during which s he recount ed Jane ’ s statements to her that Brown sexually abused her every day while she lived with him and that Brown had threatened to kill her if she told anyone. According to Galloway, Jane said “ [Brown] had

. . . s tuck his pri vate in her mouth , ” ha d “ st [u] ck his private in her privates , ” and had ma de her bleed. When Galloway volunteered that “ [Jane] told [her]

. . . he had also done it to her friend , ” the trial court sus taine d Brown ’ s objection. Brown asked for and r ecei v ed an i nstruction to the j u ry to disregard the offending statement, but his motion for a mistrial was denied.

“ A mistrial is appropriate only when the record reveals highly prejudicial and incurable

err or. ” M

cBurnett v. State , 629 S.W.3d 660, 662 (Tex

. A pp.

— Fort Worth 2021, pet

. r ef ’ d) (quoting Simpson v. State , 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) )

. “ O rdinarily, a prompt instruction to disregard will cure error associated with an improper questi on and answer. ” Id

. (quoting Ovalle v. State , 13 S. W .3d 774, 783 (Tex. Crim. A p p. 2000) )

. Declaring a mistrial is essential “ only when an improper question or answer is ‘ clearly prejudicial to the defendant and is of such character as to suggest the impo ssibili ty of withdrawing the impression produc ed on
t he minds o f the jurors. ’” Id. (quoting Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App . 1999) ) )

.4

“ We review the denial of a motion for mis trial for abuse of discretion, viewing the

ev iden c e in the light most favor a b le to the trial court ’ s ruling and considering only the arguments before the court at the time of its ruling. ” Id. at 663 (citing Ocon v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009 ) ). “ We must u phold the trial court ’ s ru l ing if i t is within the z o n e of reasonable disagreement. ” Id

. (citing Ocon , 284 S.W.3d at 884 ). Brown argues that the trial court should have granted his motions for mistria l. Bec ause our review of the relevant factors leads us to believe that this c a se did not present an “ ex t r eme circumstance []

. . . where the prejudice [was] incurable , ” we disagree. See Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
T he Stat e argue s that Brown forfeited this point of error by later offering the same
i n formation in a recorded s t a tement of Jane ’ s forensic interview. We disagree. The admission of the recorded statement occurred after both of Brown ’ s motions for mistrial had be en

overruled. During cross

- examination of Galloway

— which was after Jane ’ s tes t imony , after the trial co u r t had overruled Brown ’ s motion for mistrial during Jane ’ s testimony , and after rejection of the motion for mistrial durin g Galloway ’ s testimony

— Brown offered the recording of Jane ’ s forensic interview “ [f]or purposes of optional completeness . . . up to t h e point where [Jane] talks about supposedly him assaulting another girl, ” but later decided to “ just offer the whole thin g. ” As a result, the entire intervi ew was admitted for the jury. Because , when a ddressing the denial of m o tion s for mistrial , we “ c o n sider[] only the arguments before the court at the time of its ruling ”

— and consider the validity of the tri al court ’ s ruling as of the time it was dec ided

— we5

conclude that Galloway did not forfeit his po int of error by later off e ring the interview into

e v i dence. See McBurnett , 629 S.W.3d at 663. In evaluating whether a mistrial was necessary, we should consider “ (1) the severity of the misconduct, (2) measur es adopted to cure the misconduct, and (3) cer tainty of conviction abse n t the misconduct. ” Gomez v . State , 552 S.W.3d 422, 428 (Tex. App.

— For t Worth 2018 , no pet. ) ( citing Archie v. State , 221 S.W.3d 695, 700 (Tex. Crim. App. 2007 ) (citing Ramon v. Stat e , 159 S.W.3d 927, 929 (Tex. Crim. App. 2004)) )

. As for the first factor involving the severity of t he misconduct, the State asked wh ether Brown told Jane that her mother knew about the abuse , presumably to provide a reason for a delayed outcry . W hen Jan e responded , “ that a couple of other people kne w, and [that]

. . . he

was doing it to them, too , ” t h e State was surprised by that sta tem ent. Galloway ’ s statement was volunteered at the end of a lengthy narrative describing stat ements Jane m ade about Brown ’ s abuse

. Because the State did not question Jane or Galloway expressly a bout any potential
extran e o us offens e or pose quest ions in a way calculated to elicit such testimony , there was no misconduct by the State

. A s for the sec ond factor addressing the measures adopted to cure th e misconduct, the trial court promptly sustai n ed Brown ’ s objections in t h e jury ’ s presence. “ [T] he trial judge ’ s prompt sustaining of counsel ’ s objection conveyed the appropriate message th at the witnes s ’ s comment

. . . was not to be considered. ” See Roj as v. State , 986 S.W.2d 241, 250 (Tex. Crim. A pp. 1998)

. The trial cou r t also instructed the jur y to disregard Jane and Galloway ’ s allusion s to extraneous6

offenses . In such a circumstance, we ordinaril y “ presume that the jury followed the trial court ’ s i nstruction. ” Wells v. State , 558 S.W.3d 661, 670 (Tex. App.

— F ort Worth 2 017 , pet. ref ’ d )

. For example, in Phillips v. State , the Fourteenth Court of A ppeals in Houston found that a trial court ’ s instr uction to disregard the testimony of a child victim w as sufficient to remove prejudice from her al l usion to an extraneous of f e nse when she testified t hat she “ finally told [her] mother after [ her ] sister confessed of something. ” Phillips v. S tate , 13 0 S.W .3d 343, 348 (Tex. App.

— Houston [14th Dist.] 2004), a ff ’ d , 193 S.W.3d 904 (Tex. Crim. App. 2006)

. Finding the child victim ’ s remark “ inadvertent and is olated, ” the Fourteenth Court of Appeals concluded that the comment was no t “ so emotionally inflamm atory ” that it could not be cured by the trial
court ’ s ins truction. Id. Similarly, the utterances fro m J ane and Galloway were b r i ef, unsolicited , and unspecific. Also, Jane ’ s testimony that Brown said others knew about the abuse and that he

“ was doing it to them ” did not prove that an extraneous offense had oc curred but suggested that Brown made the stat e ment to discourage Jane f r o m coming forward

. In this case, “ given the vague nature of the comment[s], ” we find no abuse of discretion in t he trial court ’ s c onclusion that sustaining Brown ’ s objections in front of the jury and providing a prompt instructi o n to disregard w ere prope r curative measure s . Id. ; s ee McBurnett , 629 S.W.3d at 662 ; see a lso Rojas , 986 S.W.2d at 250

. As for the thir d factor, the like lihood of conviction absent the offending testimony f avors the trial court ’ s decision to deny a mi s trial. “ I t is well estab l i shed that the uncorroborat ed testimony of a child victim alone can be sufficient to support a conviction of aggr avated sexual

assa ult of a child. ” Perez v. State , 562 S.W.3d 676, 689 (Tex. App.

— Fort Worth 2018 , pet.7

ref ’ d ) . He r e, Jane ’ s testimony, whic h was corroborated by her gr andmother 4 and Galloway, was sufficient for the trial cou rt to have found that a convi ction was certain even without the allusion s to extraneous offenses. After reviewing the relevant factors, we fin d that the trial court did n ot abuse its discretion by denying Brown ’ s motion s for mistrial. As a result, we overrule this point of error

a nd affirm the tria l court ’ s judgment.

Josh R. Morriss, III Chief Jus tice Date Submitted : February 2 , 202 2 Date Dec i d ed : March 15 , 2022
Do Not Publish

4 Jane made an outcr y after she moved in with her grandmother. Jane’s gr andmother testified about Jane’s outcry of sexu al abuse by Brown.