COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CASEY ALLEN NEIDHOLT
, Appellant
,

v.

THE STATE OF TEXAS
, Appellee. §
§
§
§
§
§ No. 08

- 11

- 00 3 5 4

- C R

Appeal from the

43 rd Judicial District Court

of Parker County, Texas
(TC# CR11

- 0277 )

O P I N I O N
Casey Allen Neidholt appeals the trial court’s judgment convicting him of the felony

offense of delivery of marih uana in an amount more than 1/4 th of an ounce but less than five
pounds and sentencing him to 15 months ’ confinement in state jail

. In a s ingle issue
, Neidholt

contends that the trial court a bused its discretion by denying his motion for mistrial

. W e affirm

.

FACTUAL AND PROCEDUR AL BACKGROUND

Neidholt ’ s complaint on appeal concerns the testimony of Parker County Deputy Sheriff
Luis Montanez, one the undercover p olice officers involved in purchasing the mari h uana from

Neidholt . When asked by the prosecutor how he came across Neidholt that day , Deputy
Montanez testified, “ We just saw him outside, and took an oppo rtunity. Well, we know that he’ s

been in past inves tigations. ” Deputy Montanez’s comment prompted defense counsel to ask for a2

bench conference. At the bench conference, the following colloquy took place:
[DEFENSE COUNSEL]: For purposes of the record, Judge, I think asking this Court

– let me back up. For purposes of the record, as a matter of trial tactic, we’re not going to ask the Court to instruct the jury to disregard . . . Montanez’ volunteered information about having known . . . Neidholt from p rior investigative experience. We believe it would call attention to something unnecessarily. Having said that, because we feel that doing so would be unduly prejudicial to our trial tactic, we would ask the Court to declare a mistrial.
[THE COURT]: You request for a mistrial is denied. The next remedy is to give the jury an instruction to disregard. As I understood what you just said before you requested a mistrial, was that the Defense would not like the Court to do that because it might bring mo re attention, rather than help the jury, if you will; is that essentially correct?
[DEFENSE COUNSEL]: That is essentially correct, Your Honor.

MOTION FOR MISTRIAL
Neidholt argues that the trial court should have granted a mistrial because Deputy

Montan ez improperly commented on extraneous offenses when he testified that he knew Neidholt
from “past investigations.” According to Neidholt, Deputy Montanez’ s testimony referring to or
impl ying extraneous offenses was incurable

. The State, on the other hand , contends that Neidholt
failed to preserve his complaint for appellate review by refusing the trial court’s offer to instruct
the jury to disregard when such an instruction would have cured Deputy Montanez’ s improper

comment

. Standard of Review

We review the trial court’s denial of a motion for mistrial for an abuse of discretion. Cob le

v. State , 330 S.W.3d 253, 292 (Tex.Crim.App. 2010), cert. denied , 131 S. Ct. 3030 , 180 L.Ed.2d

846 (2011). If the trial court’s ruling is with in the zone of reasonable disagreement, it must be
uphel d

. Id

.3 Applicable Law
A mistrial is required only in extreme circumstances where the prejudice is incurable.

Hawkins v. State , 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). Prejudice is incurable when the
objectionable m aterial is clearly calculated to inflame the minds of the jury or was of such a

dama ging character as to suggest it would be impossible to remove the harmful impression from
the jurors’ minds. See Ladd v. State , 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) ; Rojas v. St ate , 986 S.W.2d 241, 250 (Tex.Crim.App. 1998). If, however, the prejudice could have been cured by
an instruction to disregard, a trial court does not abuse its discretion in denying a motion for

mistrial when, as here, a party moves for mistrial without a preceding objection or request for
instruction to disregard. Young v. State , 137 S.W.3d 65, 70, 72 (Tex.Crim.App. 2004). An

instruction to di sregard ordinarily renders t estimony referring to or impl ying extraneous offenses

harmless

. Kemp v. State , 846 S.W.2d 289, 308 (Tex.Crim. App. 1992 ).

Discussion

Neidholt has failed to establish that Deputy Montanez’s c omment referring to or impl ying

extraneous offenses was so prejudicial that it could not have been cured by an instruction to
disregard. Although N eidholt asserts in his brief that Deputy Montanez’s comment was harmful
and prejudicial, and could not have been cured by an instruction, he does not furnish any legal
analysis in support of this assertion

. Neidholt cites one single case
, but fails to explain how it
applies. 1 In other words, Neidholt has not provided a “clear and concise ar gument for the

1 The case Neidholt cites is Archie v. State , 221 S.W.3d 695 (Tex.Crim.App. 2007) . There, the Court of Criminal Appeals held that the court of appeals erred not only in reviewing the trial court’s denial of a motion for mistrial for harm under T EX .R.A PP

. P. 44.2(a), but also in concluding that the trial court’s instruction to disregard the prosecutor’s comment on the defendant’s failure to testify did not cure the prejudicial effect of the comment

. Id

. at 699

- 700. In so holding, the Court nevertheless recognized that “whether a mistrial should have been granted involves, most, if not all, of the same considerations that attend a harm analysis.” Id . at 7 00
, citing Hawkins , 135 S.W.3d at 77

. Applying the three

- factor test articulated in Mosley v. State , 983 S.W.2d 249 (Tex.Crim.App. 1998), the Court concluded that4

contentions made, with appro priate citations to authorities

. . . . ” See T EX .R.A PP

. P. 38.1(i). By
failing to explain how Deputy Montanez’s comme nt was incurable
, Neidholt has inadequately

briefed his issue and , since we have no independent duty to make his a rguments for him, presents
nothing for our review

. Lucio v. State , 351 S.W.3d 878, 8 96 (Tex.Crim.App. 2011); see Busby v.

State , 253 S.W.3d 661, 673 (Tex.Crim.App. 2008) (affirming that court of criminal appeals has no
obligation “to construct and compose” a party’ s “issues, facts, and arguments with appropriate

citations to authorities and to the rec ord”) [I nternal quotes omitted ] ; Cardenas v. State , 30 S.W.3d

384, 393

- 94 (Tex.Crim.App. 2000) (deciding in a capital case that the defendant’ s points
complaining of the lack of a jury instruction on the voluntariness of the defendant’ s statements to
the police, were inadequately briefed “by neglecting to present argument and au thorities” in
support of them). Because Neidholt has not shown that an instruction to disregard would not have

cured Deputy Montanez’s prejudicial comment , the trial court did not abuse its discretion by
denying his motion for mistrial. Accordingly, w e overrule Neidholt’s single issue

.
CONCLUSION

The trial court’s judgment is affirmed

.

March 6 , 2013 YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)

the prosecutor’s improper jury comment did not warrant a mistrial. Id . at 700. As noted ab ove, Neidholt offers no analysis regarding the applicability of Archie to t his case and , as noted below, we have no independent obligation to do so on his behalf.