## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00202

- CR

__________

_ ________________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas Trial Court No. 159 1914D
Before Sudderth, C.J.; Wallach and Walker, JJ. M emorandum Opinion by Justice Walker 

### R OBERT 

### W

AYNE 

### U PTON 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. INTRODUCTION Ap pellant Rob e rt Wayne Upton was convicted by a jury of assault of a family member ( enhanced with a prior con viction) and sente nced to fifteen years in prison. Up ton appea ls his conviction, cl aiming that the trial court erred by denying his request for a mistrial. We af

firm.
II. BACKGROUND Upton started dating Sonia in 2010 when they were both married to other people. Eventua ll y, both of them got divorced and their relationship became more
serious. After the two moved in together , Upton became more controlling. H e constantly wanted to know where Sonia was, he did not like her to do anything with
other peop le, and he disappro ved of her friends and family

. Upton a lso went through her phone and work

- related ema il s and somehow lost $300,000 of Sonia ’ s money due

to failed business ventures and di shonest s chemes

. Violenc e began in 2013. Ups et that Sonia would not meet him at a bar, Upton
broke into thei r home (where Sonia had ba r r icaded herself), dragged Sonia by the hair,
hit her, slammed her face into the flo or, and cho ked her. L ater, during a trip to the
Vir gin Islands, Upton punched her in the stomach

— several times

. She f lew home in agony only to f

i nd out in an emergency room on her return that she had suffered a broken rib, pun ctured s p leen, and internal bleeding.3

The subject incident occurred in April 2019, on a day when Sonia and Upton
attended the Fort Worth Arts Fes tiva l

. To avoid the long lines at the women ’ s

rest r oom, Sonia decided to use t he men ’ s faci lity

. This enraged Upton , and he berated
Sonia as they got in the car to leave. Sonia ’ s refu sal to react made him even angrier, so he punched her in t he head. Th is continued, and S onia tried to defend h erself

— going so far as to try to jump out of the moving car. Upton prevented her from doing so, telling Sonia, “ You ’ re going to die tonight, Bitch. ” Sonia fough t back, and Upton eventually pulled the car over.
So nia was able to get out of the car as Upton continued to curse at her, ordering her to get back in. She stayed on the ground, screaming for help, until she
saw a man on a bike an d begged for his help. Another cyclis t s aw her and dialed 911. The police and an ambulance arrived at the sa me time. Sonia suffered a broken nose, bl a ck and s wollen eyes, c ontusions , and bit e marks all over her body

. Her face hurt continually, she coul d n o t s leep, and she had a
constant headache. The police officer who arr ived at the scene described Sonia as
covered in blo od and had a left eye that was swollen shut. Upton was arrested. Upton testified and claimed that he a c ted in self

- defense. According to Upton :

• T he pair got in to an argument at the art s festi val whic h resulted in Sonia punching Upton in the nose.

• When they got to th e car, Son i a started yelling at Upton about money and his in fid elity.4

• Sonia again began punching Upton, who pulled out his ph one and tried to dial 9 1 1.

• Sonia kicked the phone out o f his hand and started kicking him.

• Upto n grabbed Sonia ’ s l eg and bit it. He was trying to hold h er down w hen Sonia bit Upton ’ s pinky finger.

• Upton

—

who was still driving

— had to pull over to get Sonia to release his finger.

• Upton s aid he head

- butt e d Sonia (in response to h er biting his finger) which apparently resulted i n her broken nose.
III. T HE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING UPTON ’ S EXTRANEO US

- OFFENSE

- RELATED

MISTRIAL REQUEST On appeal, Upton complains that the trial c o urt wrongly denied his request for
a mistrial after the State questi oned him about a pending assault case in Collin County. Because any potentially adverse answer was admissible, we hold that the trial court did

no t abuse its discre tion in denying a mist r ial

. A. U PTON ’ S M ISTRIAL R EQU E ST During cr o ss

- exa mination, the State asked Upton several questions about women he had slept with while he was in a re lationship with Sonia. The last question
in this s eries con clude d with a woman named Joanne. The prosec u tor then asked:

“ S o afte r you were arrested for [the assault on Sonia] , then you assault Joanne and have a pending case in Denton County for

- – Collin County for beating her up,
correct? ” Defense cou nsel immediatel y objected, and the trial court sustained that5

ob j ection

. Counsel then asked the court to instruct the jury to disregard. After a
bench con ference conce rnin g the admi ssibility of a prior unadjudicated assault against Joanne

— and the trial court ’ s refusal to admit that evidence

— defe n se cou nsel ag a in requested an instruction to disregard. The trial court so instructed the jury, but it
denied counsel ’ s subsequent request for a mistrial. Upton now complains that th e trial court ’ s denial of his mistrial request was i n error . B. S TANDARD OF R EVIEW
W e review the denial of a motion for mistrial for an abuse of discretion. Archie
v. State , 221 S.W.3d 695, 699 ( Tex. Crim. App. 2007). A mistrial is a device used to halt trial proceedings when error i s so pr ejudicial that expenditu re of further time an d

ex pense would be wasteful and futile. Young v. State , 283 S.W.3d 854, 878 (Tex. Crim. App. 2009 )

. A mistrial is appropriate only when the record re veals highly prejudicial
and incurable error. Simpso n v. St ate , 119 S.W.3d 262, 272 (Tex. Crim. App. 200 3 )

. The court of criminal appeals has recognized that “[o]rdinarily, a prompt instruction to disregard will cure error associated with an improper que stion and answer.” Ovalle
v. State , 13 S.W.3d 774, 7 8 3 (Tex . Crim. App. 2000)

. Therefore, a trial court s hould grant a mistrial only when an improper question about inadmissible extraneous offenses is “clearly prejudicial to the defendant and is of such charact er as to suggest the impossibility of withdra w ing th e impression produced on the minds of the juro r s .” 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))

.6 C. A NALY S I S If th e possible answer to a question constitutes admissib l e evid ence, it stands to
reason that the mere asking o f the qu estion would n ot require the granting of a
mistrial. See Callaway v. State , 818 S.W.2d 816, 827 (Tex. App.

— Amarillo 1991, pet. ref’d) (holdi ng that re fusing to declare mistrial cannot be error when d isputed evidence is admissible). Here, because t he pros ecutor ’ s question asked for evidence relevant to Upton ’ s self

- def ense claim, the question itself could not have been irretrievably prejudicia l to Upton, and the trial court did not abuse its di s cretio n in denying his mistrial request
. 1 Upton ’ s de f

e nse was self

- defense. He claimed that the physical fight started because Sonia was upset at his cheating. According to Upton, Sonia punched him in
the nose while they were in the car. After Sonia “ got a significant strike on ” him, Upton threatened to c a ll 911. She then kicked th e phone out of his hand, so he bit Sonia on her leg. Upton said he wa s “ trying to hold her off , ” but Sonia grabbed on to

1 Du r in g testimony the following day, the trial court reconsidered its decision to ba r evidence of the Collin County assault on Joan n e , det ermining that it was rel evant to rebut Upton ’s self

- defense claim. Upton objected to this ruling , but he does not assign er ror to it in his brief. Therefore, we limit our analysis t o the trial court ’s refus al to declare a mis tri a l the previous day. See Coleman v. State , No. 02

- 18

- 00471

- CR, 2020 WL 241975, at * 4 (Tex. App.

— Fort Worth Jan. 16, 2020, no pet.) (mem

. op., not d es ignated for publication) (noting that defendant “ cabins our review to the issue of the refusal to grant hi s motio ns for mistrial . . . [and] d oes not assign error based on the claim that the trial court erroneously overruled any objections that he asser t ed to the admission of any specific extraneous

- offense eviden c e under Texas Rules of Evidence 401, 403, or 40 4 (b) ” ).7

h i s pink y and bit it. Upton said he “ freaked out a little bit ” and head

- butted her. In
resp onse to a que s t

ion from defense counsel, Upton said that head

- butting her was the only way he could get his hand back from Sonia. 2
Evi dence of other violent acts are admissible to refute a defens ive theory.
Halliburton v. State , 528 S.W.2d 216, 218 (Tex. Crim. App

. 1 9 75) ; Atlas v. State , No. 02

- 15

- 00380

- CR, 2017 WL 2813162, at * 4 (Tex. App.

— Fort Worth June 29, 2017, pet. ref’d) ( m em. op ., not designated for publication) (holding that defendant who claimed
self

- defense “ opened the door ” to testim ony he had previousl y a ssaulted the vic tim

“ without physical provocatio n ” ). “Extraneo us

- offense evidence is not inadmissible
under Rule 4 0 4(b) w

hen it is offered to rebut an affirmative defense or a defensive issue that negates one of the elements of the crime.” Casey v. St a te , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
T he prosecutor ’ s question about the Collin County assault on J o anne c alled for
evidence which was relevant to rebut Upton ’ s claim of self

- defense. Accordingly, the
trial court could not have abused its dis c re tion 3 in refusing to declare a mistrial in
response to the aski n g of that question.

2 Upton ’ s defense was no secre t

— defense counsel spent a considerable amount of time during jury selection explaining the law of sel f

- defens e t o the panel.

3 There is no question that a mi strial is not required as a response to a questi on calling for relevant and admissible evidence. But, even if t he State ’ s question had been improper, the trial court ’ s prompt instruction to disregard it wou l d have been sufficient to “ cure error ” associated with the question

. See Ovalle , 13 S.W.3d at 783

. Further, there is no danger that the State ’ s question about Upton ’ s prior as sault was8

Having overruled Upton ’ s s ole point , we affirm the trial court ’ s j udgment. /s/ Br ian Walker
Brian Walker J u stice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : July 27, 2023

s o clearly prejudicial as to render the instru ction fruitless. See K e mp v. State , 846 S.W.2d 289, 308 (Tex. Crim. App. 1 992) (holding an instruction to d isregard is sufficient “unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be im possib le to re move the harmful impression from the jury ’ s mind ” ).