Affirmed and Opinion Filed June 28, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-01039-CR GIOVANNI ROMERO MOJICA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 11 Dallas County, Texas Trial Court Cause No. MA15-57202-N



### MEMORANDUM OPINION Before Justices Bridges, Evans, and O'Neill 1 Opinion by Justice Bridges Giovanni Romero Mojica appeals his assa ult conviction with a finding of family violence. A jury convicted appellant, and the trial court sentenced him to 135 days’ confinement. In two points of e rror, appellant complains the tria l court erred in denying his two motions for mistrial. We affi rm the trial court’s judgment. In June 2015, appellant was charged by info rmation with the offense “assault causes bodily injury family violence.” At appellant’s subsequent trial before a jury, Leslie Salmeron testified that, on June 22, 2015 she had been “togethe r” with appellant for eight years, and they had two daughters. The previous day had been Father’s Day, and appellant and Salmarone attended a family reunion where appellant drank “the whole time.” Salmarone drove appellant

1 The Hon. Michael J. O'Neill, Justice, Assigned–2– home, arriving at approximately 3:00 a.m. As ha d been previously agreed, Salmarone called her aunt to let her know they had made it home sa fely. Appellant took the phone away from Salmarone and accused her of cheating on him. Sa lmarone tried to explain, but appellant threw the phone at the wall and then picked it up. Ap pellant noticed a text message Salmarone had sent earlier to one of her uncles asking if he would be at the family reunion. Appellant interpreted the text message as meaning Salmarone was going to meet someone else outside while appellant was sleeping. Appellant thre w the phone away again and started hitting Salmarone on her shoulders, in her face, and by her ear. Appellant cornered Salmarone between a window and a couch, and Salmarone try to cover her head as appellant continued to grab her and hit her. The prosecutor asked Salmarone if there wa s “any way that [appellant] didn’t mean to” hit her and if appellant meant to hit her. Salmarone replie d that appellant was drunk and “alcohol – you’re not thinking clear, you know.” Salmeron then volunteered the following: “I would say, you know – what I could say it’s – he’s a pretty viol ent person . . . .” Defense counsel immediately objected, and the jury wa s removed from the courtroom. Outside the presence of the jury, defense counsel objected to “impermissible character evidence, and also the State violating the motion in limine to prevent th e witness from testifying about prior acts of violence or continuing acts of violence, et cetera.” Followi ng admonishments from the trial court and the prosecutor that Salmeron could not say appellant was a violent person or had extremely bad temper, defense counsel moved for mistrial. The trial court denied the motion. Salmeron continued her testimony, describi ng how her daughters were awakened by her screams and came out of their room. Although the girls were watching, appellant continued to hit Salmeron. Appellant grabbed Salmeron by he r ponytail and hit her h ead against the wall, making a “hole on the wall.” Appe llant “kind of stopped” and told Salmeron that he loved her–3– and that he wasn’t “thinking.” Salmeron said “that was enough” and remained silent while appellant continued to say he loved her. Sa lmeron attempted to get her daughters to calm down and go back to sleep in their room. Appellant came in the room, grabbed Salmeron, and said he was sorry. Appellant locked Salmeron in the ro om and lay down on the floor outside to prevent Salmeron from getting out or trying to get help. Salmeron waited until appellant fell asleep and escaped the room through a bathroom. Salmeron was able to reassemble her cell phone, but it was damaged and only allowed Salmeron to send two texts to her mother: one asking if her mother was awake and another saying she needed to talk to her mother and “it was urgent.” Salmeron fell asleep for a while. Her phone rang at 8:00 a.m., but she wa s unable to answer the call. Salmeron’s mother and father came over to the house because they had gotten her texts. After talking with Salmeron, he r mother called police. On cross-examination, defense counsel ques tioned Salmeron about appellant’s drinking. Salmeron testified appellant “had been drinking c onstantly” on the night of the assault. Defense counsel asked if it was fair to say Salmeron “w as not terribly excited about remaining with [appellant].” Salmeron answered she was with appellant because she loved him. Defense counsel did not ask another question, and Salmeron continued: “I lived with him eight years. I suffered a whole bunch of things. I’ve lived fa mily violence pretty much, you know . . . .” Defense Counsel objected and asked to appro ach the bench. Following an off-the-record conversation at the bench, defense counsel said she wanted to talk about appellant’s alcohol abuse and Salmeron’s feelings about it. Salmer on testified having two daughters did not change appellant’s drinking, and she tried to help him but she “rea lized maybe [appellant] lost hope.” Again, defense counsel did not ask a questio n following this testimony and only responded “Okay.” Salmeron continued: And having my kids to see a whole lot of things, you know, th at just – it’s not good for me and it’s not good for my kids, you know, to see how he acts and what–4– he does to me, it – for me it hurts, you know, to see my kids watching him, you know, how – how he drinks and wh en he gets abusive with me. Defense counsel again objected and asked to a pproach the bench. Outside the presence of the jury, defense counsel asked for a mistrial and argued Salmeron was testifying to extraneous acts during her eight-year re lationship with appellant. The trial court ruled as follows: Okay. I’m gonna deny your mistrial basical ly – based on the fact that I believe your questions are what elicited that response from her on both occasions. And I would just caution you if you proceed with th is line of questioni ng to be as clear as possible and not allow her – I think th e last question – the last statement came out because she was allowed to just continue to ramble off of one question that you asked her, so. After admonishing Salmeron to only talk about “j ust that incident,” the trial court advised defense counsel that “the issue” they were ha ving was that defense counsel was asking Salmeron “things in the past that are very related – closely related to the prior abusive acts in the past.” The trial proceeded, and the jury ultimately found appellant guilty of assault with a finding of family violence. This appeal followed. In two issues, appellant argues the trial court erred in denying his two motions for mistrial. We note that, in both complained-of in stances, appellant did not ask for an instruction to disregard but immediately asked for a mistrial . When a party’s first action is to move for mistrial, as this appellant’s was, the scope of appellate review is limited to the question whether the trial court erred in not taking the most seriou s action of ending the tria l; in other words, an event that could have been prev ented by timely objection or cured by instruction to the jury will not lead an appellate co urt to reverse a judgment on an appe al by the party who did not request these lesser remedies in the trial court. Young v. State , 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). The party who fails to request an instruc tion to disregard will have forfeited appellate review of that class of even ts that could have been “cure d” by such an instruction. Id.–5– Generally, a prompt instruction to disregard will cure a witness’s inadvertent reference to an extraneous offense. Wilson v. State , 90 S.W.3d 391, 395 (Tex. App.—Dallas 2002, no pet.) (citing Ovalle v. State , 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)). Unless the extraneous offense is so calculated to inflame the minds of a jury or is of such a nature as to suggest the impossibility of withdrawing the impression produ ced, an instruction to disregard can cure any improper impression. Id. (citing Kemp v. State , 846 S.W.2d 289, 308 (Tex. Crim. App. 1992)). Here, appellant moved for a mistrial after Sa lmarone said appellant was “a pretty violent person” and again after Salmarone said she had “lived family violence.” There is an inference to be made that appellan t was “pretty violent” to her and Salmarone “lived family violence” during the eight years she lived with appellant. Howeve r, Salmarone did not refer to any extraneous acts of violence or explicitly link appellant’s violent nature to acts of violence against her or explicitly state she had “lived family violen ce” during the entire eight years she was with appellant. We conclude Salmarone’s statements were not so calculated to inflame the minds of the jury or of such a nature as to suggest the impossibility of withdrawing the impression produced. Id. (citing Gardner v. State , 730 S.W.2d 675, 696–97 (Tex. Crim. App. 1987)). Therefore, an instruction to disregard woul d have cured any improper impression left by Salmarone’s statements. See id. Under these circumstances, th e trial court di d not err by denying appellant’s two motions for mistrial. See Young , 137 S.W.3d at 70. We overrule appellant’s first and s econd points of error. We affirm the trial court’s judgment.

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. P. 47.2(b) 151039F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–6– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GIOVANNI ROMERO MOJICA, Appellant
No. 05-15-01039-CR V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 11, Dallas County, Texas Trial Court Cause No. MA15-57202-N. Opinion delivered by Justice Bridges. Justices Evans and O'Neill participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered June 28, 2016.