Affirmed and Majority Memorandum Opinion filed April 21, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00445-CR

ROYLAND S. PRINGLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1488306

M A J O R I T Y M E M O R A N D U M O P I N I O N

Convicted of aggravated sexual assault of an elderly or disabled person and 

sentenced to life imprisonment, appellant Royland S. Pringle complains on appeal 

that the trial court erred (1) in allowing the jury to hear evidence of an extraneous

offense during the punishment phase of trial and (2) in failing to grant a mistrial. 

We affirm. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

A jury found appellant guilty of aggravated sexual assault of an elderly or 

disabled person, Cassey,

1 who was 68 years old and living at an assisted living 

facility at the time of the charged offense. During the punishment phase of trial, the 

State outlined its punishment-phase case, summarizing anticipated testimony from 

two other elderly patients at another local rehabilitation facility about sexualassault complaints they had made against appellant. 

The State first called retired police officer Keith McMurtry, who had served 

for more than 25 years with the Houston Police Department. McMurtry testified 

that in 2013, while working for the sex-crimes unit, he investigated a sexual assault 

of Rosemary, then a patient at Memorial City Health and Rehabilitation Center. 

According to McMurtry, Rosemary first referred to her attacker as “Roy,” and 

“Roy” was the tentative suspect when McMurtry began working on the case. 

McMurtry explained that appellant worked at the facility, and he had identified 

him as a suspect. McMurtry later received another complaint made from another 

elderly patient, Joni, involving the “same location, the same suspect, and the same 

sort of sexual offense.” In the course of his investigation, McMurtry spoke to both 

Rosemary and Joni as well as appellant. McMurtry testified that he placed both 

cases on “inactive” status while awaiting DNA testing results. 

The State called Rosemary to testify. At some points during her testimony, 

she had difficulty communicating, which prompted the trial court to excuse the 

jury while the court assessed whether Rosemary was competent to testify. During 

the competency hearing, Rosemary testified, among other things, that a lie was 

good, truth was bad, and that appellant was not her attacker. The trial court 

1 We use pseudonyms to refer to the complainant and the other two elderly patients who 

testified during the punishment phase of trial.
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declared Rosemary incompetent to testify and excused her. 

Appellant then moved for a mistrial, asserting that there was no way to undo 

the harm of the jury having heard the State’s opening statement, McMurtry’s 

testimony, and then having seen Rosemary first appear on the witness stand and 

then disappear. Appellant’s counsel belatedly asserted a blanket objection to “all 

references to [Rosemary] that have come about in this trial.”

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 The trial court 

denied the motion for mistrial but resolved to give the jury a limiting instruction. 

Appellant’s counsel then objected “to any more testimony regarding 

[Rosemary] since her competency is in question now.” Counsel added, “I think 

that calls into question any other statements, even statements purportedly made for 

the purpose of medical diagnosis or treatment.” The State disagreed, explaining 

that it had planned to call Tiffany Dusang, the sexual assault nurse examiner

(sometimes referred to as a “SANE nurse”) who had performed the forensic 

examination on Rosemary. Before making a ruling, the trial court evaluated the 

admissibility of Dusang’s testimony outside the presence of the jury.

On voir dire examination, Dusang testified that during her examination of 

Rosemary she noted that Rosemary suffered from mental retardation and 

expressive dysphasia. Dusang testified that she was able to communicate with 

Rosemary “in spite of those disabilities.” According to Dusang, Rosemary told her

that “a black man who works there at the hospital came into my room and put his 

ding-a-ling in me. And she pointed to her female genitalia.” Dusang testified that 

consistent with that medical history, Dusang’s physical evaluation of Rosemary

revealed a “one centimeter acute tear at 6:00 o’clock on the labia minora.” Dusang 

conceded she was not aware of the particular individual to whom Rosemary 

2 Appellant’s counsel referred to his objection to McMurtry’s statements as “after the 

fact”. 
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referred or whether Rosemary was referring to appellant. 

Appellant’s counsel re-urged his objection to Dusang’s testimony as not 

being relevant. Appellant’s counsel argued Dusang’s testimony lacked relevance 

because Dusang could not link the “exam or any results to any particular 

perpetrator.” The trial court overruled appellant’s objection to the admission of 

Dusang’s testimony. 

The next morning, before the jury arrived, appellant’s counsel reurged his 

objection to Dusang’s testimony, again asserting, among other grounds, that the 

testimony was irrelevant, stating:

We have no identification by any witness. Now, McMurtry testified 

that there were allegations against my client, but he never showed a 

photo spread to [Rosemary], never got a name from her. He got the 

name from other people at the hospital. So, I mean, that’s all 

secondhand.

The trial court took a recess to consider cases appellant’s counsel had 

presented and the new and re-urged arguments. After the recess the trial court 

announced that it was making the same ruling and then permitted a “running 

objection to any further testimony about [Rosemary] and any testimony from the 

SANE nurse.” 

Dusang testified before the jury, giving essentially the same testimony she 

had given during the voir dire examination. After the trial court excused Dusang, 

the State called Joni. At the request of appellant’s counsel, the trial court excused 

the jury to allow Joni to be seated and called the jury back after Joni was sitting in

the witness stand. Joni was wearing a mask and gloves, which she explained were 

required due to an immune disorder. For reasons not explained in the record, Joni

was not sworn in before the State commenced its questioning. 

During her unsworn testimony Joni identified appellant as her attacker in 
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2013, while she was a patient at Memorial City Health and Rehab Center. Joni

testified that appellant had been assigned as her certified nursing aid, responsible 

for taking care of her, and that he sexually assaulted her during her third encounter

with him.

Before cross-examination, the trial court excused the jury for lunch. During 

that time, appellant’s trial counsel asserted a second motion for mistrial: 

Appellant’s Counsel: Judge, I’d like the record to reflect over the 

break we determined that this witness was not sworn, and I would like 

to object to that. Her testimony to the jury has not been under oath, 

and we’re moving for a mistrial at this time on that basis.

The Court: Motion for mistrial is denied.

Without further discussion Joni was sworn in as a witness and appellant’s 

counsel began cross-examining her. Joni’s testimony on cross-examination was

consistent with her unsworn testimony. Joni identified appellant as her assigned 

nurse and testified that he vaginally sexually assaulted her with his penis. Joni also 

answered questions about the reasons for her delay in reporting the sexual assault.

At the close of the State’s punishment-phase case, the trial court gave the

jury the following limiting instruction on its consideration of the extraneous acts:

All right. Ladies and gentlemen of the jury, please pay attention to 

what I am getting ready to read to you.

You are further instructed that if there is any evidence before you in 

this case regarding the defendant’s committing an alleged offense or 

offenses other than the offense alleged against him in the indictment 

in this case, you cannot consider such evidence for any purpose unless

you find and believe beyond a reasonable doubt that the defendant 

committed such other offense or offenses. 

The trial court also included the limiting instruction in the punishment-phase jury 

charge. 

The jury assessed appellant’s punishment at confinement for life. The trial 
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court sentenced appellant accordingly. 

II.ISSUES AND ANALYSIS

A. Did the trial court reversibly err when it denied appellant’s second motion 

for mistrial, following Joni’s unsworn testimony? 

In his first issue, appellant complains that the trial court reversibly erred 

when it denied his motion for mistrial immediately following his objection to 

Joni’s unsworn testimony. We review the trial court’s denial of a motion for 

mistrial using an abuse-of-discretion standard. Webb v. State, 232 S.W.3d 109, 112 

(Tex. Crim. App. 2007); Veras v. State, 410 S.W.3d 354, 357 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). Under this standard, we view the evidence in 

the light most favorable to the trial court’s ruling and uphold the ruling if it falls 

within the zone of reasonable disagreement. Id. As a reviewing court, we may not 

substitute our judgment for that of the trial court; instead, we determine whether 

the trial court’s decision was arbitrary or unreasonable. Id. A trial court abuses its 

discretion when no reasonable view of the record could support the trial court’s 

ruling. See id. When, as in this case, the party requesting a mistrial does not first 

seek a lesser remedy, we cannot reverse the trial court’s judgment if the alleged 

error could have been cured by a less-drastic alternative. Ocon v. State, 284 

S.W.3d 880, 884–87 (Tex. Crim. App. 2009). 

Because appellant did not request any curative measure before moving for 

mistrial, to sustain appellant’s first issue, we would have to conclude that the 

admission of Joni’s unsworn testimony was incurable and left the trial court but 

one option, to declare a mistrial. See id. Texas Rule of Evidence 603 requires that 

a witness “give an oath or affirmation to testify truthfully” before testifying. Tex. 

R. Evid. 603. Courts have approved various ways of curing this irregularity. One 

approved means of curing a failure to have a witness sworn is through the trial 
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court’s instruction to the jury to disregard the unsworn testimony. See Beck v. 

State, 719 S.W.2d at 214 (providing as an alternate to its finding of waiver, “[i]f it 

can be argued appellant made a timely objection to the failure to swear [the 

witness], then the error was cured by the jury ‘instruction’ not to consider.”). 

Appellant did not request the trial court to give an instruction to disregard Joni’s 

unsworn testimony. A second option for curing a failure to have a witness give an 

oath or affirmation is to permit the witness, under oath, to affirm her previous 

testimony given without an oath. See Beck, 719 S.W.2d at 213. Appellant never 

requested such a curative measure. A third option may be to allow the witness, 

under oath, to affirm her previous testimony and allow the attorneys to ask 

additional questions. See Dennison v. United States, 385 F.2d 905, 907 (5th Cir. 

1967). Appellant did not request this option either. A fourth option may be to test 

the witness under oath away from the jury to determine which curative measures 

would be most appropriate. See Butler v. State, 890 S.W.2d 951, 956 (Tex. App.—

Waco 1995, pet. ref’d) (finding instruction to disregard defendant’s unsworn 

testimony admitting to prior convictions could not cure the error after steps outside 

the presence of the jury to investigate a cure yielded incurable questions of the 

veracity of the unsworn testimony; specifically, defendant testified under oath 

outside the presence of the jury that he would not have admitted to the prior 

conviction had an oath been taken, and he refused to testify again). Appellant did 

not request a hearing to assess whether a cure was feasible. Nor did appellant seek 

any other form of curative measure. 

Because the unsworn testimony from Joni could have been cured by a lessdrastic alternative, the trial court did not abuse its discretion in denying appellant’s

motion for mistrial immediately following his objection to Joni’s unsworn 

testimony. See Ocon, 284 S.W.3d at 884–87; Beck, 719 S.W.2d at 214. We 
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overrule the first issue. 

B. Did the trial court reversibly err in allowing the jury to hear evidence 

related to an extraneous offense against Rosemary?

In his second issue appellant asserts that the trial court abused its discretion 

in failing to perform its gatekeeping function during sentencing regarding the 

evidence of an extraneous offense against Rosemary. 

Section 3(a) of article 37.07 of the Texas Code of Criminal Procedure allows 

the trial court to admit during the punishment phase evidence of any matter the 

court deems relevant to sentencing, including “evidence of an extraneous crime or 

bad act that is shown beyond a reasonable doubt by evidence to have been 

committed by the defendant or for which he could be held criminally responsible, 

regardless of whether he has previously been charged with or finally convicted of 

the crime or act.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). The trial court 

decides the threshold issue of admissibility and may not admit extraneous-offense 

evidence unless the evidence is such that a jury rationally could find beyond a 

reasonable doubt that the defendant committed the offense or could be held 

criminally responsible for the offense. See Smith v. State, 227 S.W.3d 753, 759 

(Tex. Crim. App. 2007). We review this decision by the trial court for an abuse of 

discretion. Thompson v. State, 425 S.W.3d 480, 490 (Tex. App.—Houston [1st 

Dist.] 2012, pet. ref’d). Ultimately, the fact finder decides whether the extraneous 

offense was proven beyond a reasonable doubt. See Palomo v. State, 352 S.W.3d 

87, 94 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). 

Under his second issue, appellant asserts that after the trial court declared 

Rosemary incompetent to testify, the trial court overruled appellant’s objection 

under section 3(a) of article 37.07 of the Texas Code of Criminal Procedure based 

on the lack of evidence to prove that appellant had sexually assaulted Rosemary. 
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We presume for the sake of argument that at this point in the punishment phase, 

the trial court overruled an objection by appellant that the trial court should not 

admit any evidence as to the alleged sexual assault of Rosemary because the 

evidence would not allow a jury rationally to find beyond a reasonable doubt that 

appellant committed the offense or could be held criminally responsible for the 

offense. See Smith, 227 S.W.3d at 759. 

At this point in the punishment phase, the jury already had heard testimony 

from McMurtry that in 2013, while working for the sex-crimes unit, he 

investigated a sexual assault of Rosemary who, at the time, was a patient at 

Memorial City Health and Rehabilitation Center. According to McMurtry, 

Rosemary first referred to her attacker as “Roy.” He explained that “Roy” had 

been identified as a suspect in Rosemary’s case, and that McMurty later took on 

Joni’s case because appellant had been identified as a suspect in Joni’s case at the 

same location and involving the same type of offense. McMurtry stated that he 

traced appellant and identified him with employment records from Memorial City 

Health and Rehabilitation Center, and later interviewed Rosemary, Joni, and 

appellant in reference to the alleged offenses. 

During her testimony outside the hearing of the jury, Dusang testified that

Rosemary suffered from mental retardation and expressive dysphasia, and despite 

these disabilities, Dusang was able to communicate with Rosemary, and Rosemary 

told her about the incident. Dusang testified that her physical evaluation of 

Rosemary revealed injuries consistent with sexual assault. 

Based on the evidence that the trial court had heard at the time of its ruling 

and under the applicable standard of review, we conclude that the trial court did 

not abuse its discretion in overruling appellant’s objection and implicitly 

concluding that the evidence would allow a jury rationally to find beyond a 
10

reasonable doubt that appellant committed the sexual assault of Rosemary. See 

Smith, 227 S.W.3d at 759; Thompson, 425 S.W.3d at 490–91 (concluding that the 

testimony of two arson investigators that the defendant had exclusive access to a 

house in which an intentional fire had been set would allow a jury rationally to 

find beyond a reasonable doubt that the defendant committed the extraneous arson

offense); Palomo, 352 S.W.3d at 94–95 (concluding that the evidence would allow 

a jury rationally to find beyond a reasonable doubt that the defendant committed 

the extraneous arson murder offense). We overrule appellant’s second issue.

Having overruled appellant’s issues, we affirm the trial court’s judgment. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Wise and Hassan. (Hassan, J.,

concurring without opinion.)

Do Not Publish — TEX. R. APP. P. 47.2(b).