COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00184-CR

OSCAR GARCIA LOPEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Oscar Garcia Lopez of burglary of a habitation 

with intent to commit aggravated assault with a deadly weapon and assessed his 

punishment at fifty years’ confinement. In a single point, Lopez argues that the 

trial court erred by denying his motion for a mistrial. We will affirm.

Cynthia Mendoza and her daughter visited David Miramontez at his house 

on February 14, 2008. Mendoza was married to Lopez at the time, but they had 

 

1See Tex. R. App. P. 47.4.
2

been separated for several years, and Mendoza was seven months pregnant 

with Miramontez’s baby. Just after Mendoza and Miramontez sat down on the 

couch, Lopez—uninvited—walked through the front screen door, came towards 

Miramontez, pulled a knife out of his pocket, and began stabbing Miramontez. 

Miramontez managed to run out of the house, but Lopez chased him down and 

continued stabbing him before fleeing the scene. Miramontez survived the 

attack, despite suffering approximately fourteen to seventeen stab wounds. 

Police apprehended Lopez two years later.

During trial, the State questioned Mendoza on redirect about an incident 

that occurred in 2007 involving Lopez and Miramontez. When the State 

questioned Mendoza if she was “aware if [Lopez] was actually convicted of the 

offense of aggravated robbery with a deadly weapon,” Mendoza responded 

“Yes,” but Lopez objected, asked the trial court to instruct the jury to disregard 

the testimony, and moved for a mistrial. The trial court sustained Lopez’s 

objection, instructed the jury to disregard Lopez’s testimony, and denied the 

motion for a mistrial.

Lopez argues in his only point that the trial court erred by denying his 

motion for a mistrial because the trial court’s instruction to disregard the 

extraneous-offense evidence was insufficient to cure the harm caused by the 

introduction of the evidence.

When the trial court sustains an objection and instructs the jury to 

disregard but denies a defendant’s motion for a mistrial, the issue is whether the 
3

trial court abused its discretion by denying the mistrial. Hawkins v. State, 135 

S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme 

circumstances—when the prejudice caused by the improper question and 

answer is incurable, i.e., “so prejudicial that expenditure of further time and 

expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. 

Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). In most instances, an 

instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d 

103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We 

consider the following factors in determining whether the trial court abused its 

discretion by denying a motion for a mistrial: (1) the severity of the misconduct, 

(2) curative measures, and (3) the certainty of conviction absent the misconduct. 

Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. 

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

Although the State’s question about Lopez’s prior conviction for 

aggravated robbery was improper,2the record does not demonstrate that the 

prosecutor’s query was calculated to inflame the minds of the jury, the trial court 

immediately instructed the jury to disregard the testimony, the State did not ask 

any follow-up questions about the prior conviction, neither side mentioned the 

prior conviction during closing arguments, the trial court instructed the jury in the 

charge on guilt that it could consider extraneous-offense evidence only if it 

 

2

The trial court sustained Lopez’s objection before he even had a chance 

to say “extraneous offense.”
4

believed beyond a reasonable doubt that Lopez committed such acts, and the 

certainty of Lopez’s conviction absent the improper question and answer was 

high. See Hawkins, 135 S.W.3d at 77. Accordingly, we hold that the trial court 

did not abuse its discretion by denying Lopez’s motion for a mistrial. We overrule 

Lopez’s sole point and affirm the trial court’s judgment.

BILL MEIER

JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 19, 2012