IN THE TEXAS COURT OF CRIMINAL APPEALS 

PD­0238­15 

FROM THE FIRST DISTRICT OF TEXAS COURT OF APPEALS 

NO: 01­13­00825­CR 

WILLIAM HERNANDEZ, Petitioner 

v.  

STATE OF TEXAS, Respondent.

Appealed from the 351st District Court, Harris County, Texas  

Trial Court Case Number 1295162 

The Spriggs Law Firm 

1011 S. Jackson Street 

Amarillo, Texas 79101 

Tel. 806 376 7260 

Fax (806) 372­3298 

Email: spriggslawronald@gmail.com

/S/Ronald T. Spriggs

Ronald T. Spriggs 

TSBN 00792853 

Attorney for Petitioner 

William Hernandez 

1 

PD-0238-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/7/2015 1:16:25 PM

Accepted 7/7/2015 3:53:05 PM

ABEL ACOSTA

CLERK
Table of Contents

Cover Sheet..........................................,........................................1

Table of Contents.............................................................................2

Identity of Counsel...........................................................................3

Index of Authority............................................................................4

Statement of Oral Argument................................................................5

Statement of Case............................................................................5

Procedural History...........................................................................5

Grounds for Review.........................................................................5

Argument......................................................................................9

Conclusion..................................................................................12

Certificate of Service.......................................................................13

Certificate of Compliance..................................................................13

2
Identity of Counsel

Honorable Mark Kent Ellis

Judge Presiding

Harris County Criminal Justice Center

1201 Franklin, 14th Floor

Houston, Texas 77002

Phone: (713) 755­5620

Mr. William W. Rucker

Sbot No. 24046765

Ms. Angela Johnson Weltin

Sbot No. 24027033

Assistant District Attorneys

1201 Franklin

Houston, Texas 77002

Phone: 713.755.5800

Attorneys for the State of Texas

Mr. R.P. 'Skip' Cornelius

Sbot No. 04831500

2028 Buffalo Terrace

Houston, Texas 77019­2408

Phone: 713.237.8547

Trial Attorney for the Defendant

Kurt B. Wentz

Sbot No.21179300

5629 Fm 1960 W Ste 115

Houston, Tx 77069

Phone : 281.587.0088

Appellate Attorney for the Defendant

3
Index of Authority

Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)..................................9

Hernandez v. State, 454 S.W.3d 643, 645­47 (Tex. App. 2014)............................4

Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).......................................9

Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009)...................................9

4
Oral Argument

Petitioner requests oral arguments, only if the Court desires it.

Statement of Case

Petitioner ­­ convicted of aggravated robbery and sentenced to life

imprisonment ­­ seeks review of the appellate court decision upholding the

conviction against him.

Procedural History

Trial was held on Sept. 13, 2013. A life sentence was imposed on Sept. 16,

2013.

1

Appeal was taken: opinion delivered on December 2nd 2014.

Grounds for Review:

Whether the appellate court correctly held that inadmissible inculpatory

testimony can be cured with a jury instruction, when the identity of the defendant

is the critical issue at trial.

Facts

For the purpose of this petition, petitioner relies on facts recited in the

appeal. Mrs. Arnold, was home with her husband and her granddaughter, Jennifer.

Mrs. Arnold heard her husband screaming and a crashing sound. She and Jennifer

1 Hernandez v. State, 454 S.W.3d 643, 645­47 (Tex. App. 2014).

5
ran toward the front door, where they saw that two men had kicked in her front

door and were holding guns. One man, who wore a mask, grabbed Jennifer and the

other, who was not wearing a mask, put a gun to Barbara's head. He demanded that

she tell him where they kept their money and take him to the safe, and he

threatened to kill her if she did not. A third man entered the house through the back

door after having chased Mr. Arnold into the backyard. The third man wore a

badge around his neck and black t­shirt with the word “police” on the front.

Mrs. Arnold testified, at trial, that she got a good look at the man who held a

gun. She identified petitioner in court as her assailant; further, she testified to

hearing the three men speaking to each other, mostly in Spanish.

Later that same day, while she was driving to the grocery store with her son,

Mrs. Arnold saw petitioner driving a tan Hummer. She obtained a partial license

plate number on the vehicle and reported it to the police.Based on the license plate

number she had obtained, police officers were eventually able to locate the tan

Hummer, and they detained the people who were riding in it.

The officer who stopped the Hummer believed petitioner had been riding in

the vehicle, but he was unable to detain him. However, he observed petitioner walk

into a nearby apartment.

6
Police testified that Mrs. Arnold incorrectly identified a man in that photo

array as having been involved in the robbery.

Police were able to question petitioner at the apartment and eventually

detained him as well. petitioner was put into a live line­up. Mrs. Arnold identified

petitioner as the man who had held a gun to her head during the robbery and as the

man she had seen driving the Hummer after the robbery.

One of the other two men who were found and detained when police stopped

the Hummer was Eddie Castaneda, who owned the Hummer. Castaneda testified at

trial as an accomplice witness. He admitted that he had gone to the Arnolds' house

with petitioner and two other men. Castaneda testified that he got scared during the

robbery and ran off and that the other men picked him up later. He observed that

one of the other men with him was wearing police gear. Castaneda testified that he

had owned the Hummer for about a month at the time of his arrest and that he was

not the one driving it on the afternoon of the robbery.

Denise Guzman, the mother of petitioner's child, also testified at trial. She

testified that petitioner admitted to having committed a robbery around the same

time the Arnold robbery occurred in order to get money to post bond for her.

On appeal, in his second point of error, petitioner argued that the trial court

abused its discretion in denying his motion for mistrial when Spanish­speaking

7
members of the jury heard the accomplice witness volunteer information regarding

an extraneous offense.

Castaneda testified through an interpreter at trial. During his

cross­examination, the following exchange occurred between Castaneda and

petitioner's attorney:

[attorney]: And you said you weren't wearing any police gear when

this robbery occurred?

[witness]: On this robbery, I had no police gear, sir.

[attorney]: Okay. Okay. And how many robberies do you have

pending right now?

Petitioner's attorney then interrupted Castaneda and asked to approach the

bench. He stated, “I caught most of that [answer] and I don't want the answer

interpreted.” Outside the presence of the jury, the trial court had the answer

interpreted. Castaneda's response was, “I have two aggravated robberies. I

committed two with [petitioner], but I'm fighting the cases.”

petitioner's counsel objected to this answer as non­responsive, and the trial court

sustained his objection. Petitioner's attorney also sought an instruction to disregard

the statement, even though it was never interpreted for the jury, because he was

aware that at least one juror spoke Spanish.

2

2 Emphasis added.

8
The trial court asked the bailiff to determine which jurors, who were waiting

outside the courtroom, spoke Spanish. There were two jurors who spoke Spanish,

and the trial court questioned them, individually, about what they had heard. The

first testified that he spoke Spanish fluently and that he understood Castaneda's

answer “for the most part.” The juror also told the trial court that he had not spoken

to anyone else on the jury about Castaneda's last answer. The trial court

specifically instructed him to disregard that answer, that it could not be considered

evidence in the trial for the present offense, and that he was not to share the answer

with anyone else on the jury. The juror indicated that he understood the instruction

and agreed that he would comply. The trial court repeated the same process with

the second juror, who likewise stated that she had not told any of the other jurors

what Castaneda's last answer was, that she understood the trial court's instruction,

and that she would comply. At that point, petitioner moved for a mistrial, which

the trial court denied.

3

Argument & Authority

Mistrial is a device used to halt trial proceedings when error is so prejudicial

that expenditure of further time and expense would be wasteful and futile.

4

3 See Hernandez v. State, 454 S.W.3d 643, (Tex. App. 2014).

4 Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).

9
Whether a witness's improper reference to an extraneous offense mandates a

mistrial is determined by examining the particular facts of the case. “A mistrial is

5

an appropriate remedy in ‘extreme circumstances' for a narrow class of highly

prejudicial and incurable errors.”

6

In determining whether a trial court abused its discretion in denying a

motion for mistrial, we consider (1) the severity of the underlying misconduct, (2)

any curative measures adopted, and (3) the certainty of the conviction absent the

misconduct. “Ordinarily, a prompt instruction to disregard will cure error

associated with an improper question and answer, even one regarding extraneous

offenses.”

7

Here:

[the court]: My instruction to you is that you disregard the last

answer by the witness and not tell anyone else on the jury what the

answer was. Do you understand my instruction?

8

[the interpreter]: His response was: I have two aggravated robberies. I

committed two with William, but I’m fighting the cases.

9

The problem is that the instruction addressed only the jurors who spoke

spanish and not jurors who understood spanish. An instruction to the entire panel

5 See id.

6 Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009) (quoting Hawkins v.

State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)).

7 Hernandez v. State, 454 S.W.3d 643, 649­50 (Tex. App. 2014).

8 V.4;P.58, L20­23.

9 V.4;P.55;L.22­23.

10
was not impracticable. Or, the trial judge should have told the bailiff to see if any

of the jurors understood the answer given by Castaneda, because (it is common

knowledge) many people in Texas understand Spanish but cannot speak it. The

judge should have told all the jurors that Castaneda's answer cannot be considered

for any reason during deliberations.

The error is extremely prejudicial because some jurors were not under the

instruction. The State should bear the bulk of the responsibility, because he was a

State witness. They called him to the stand for testimony. The State was put on

notice when Defendant filed a Motion In Limine regarding Extraneous Offenses.

The Motion is page 40 of the Clerk’s Record. And it is this attorney’s

understanding from the front of the motion that it was granted. The State knew or

should have known that the witness had pending cases with the defendant. The

State should have cautioned their witness. Moreover, the testimony cannot be

reasonably expected to be withdrawn from the juror's minds because of the alleged

relationship of the petitioner and Castaneda as participants in the offense.

The record demonstrates that the court understood the inflammatory and

unduly prejudicial meaning of Castaneda’s statement took exception to the

statement of Castaneda.

11
[the court]: ­­ you cannot talk about anything regarding another case

with William. Do you understand that?

10

[the court]: So, if you’re asked a question, any question you’re not to

refer to any other offense or any other crime with which you may have

participated in with Mr. Hernandez. Do you understand that?

11

Conclusion

Where inadmissible, unduly prejudicial, testimony is evoked before the

entire jury panel, instructions to disregard should, likewise, be given to the entire

panel. Here, inadmissible testimony was evoked in spanish and instructions to

disregard were given only to Spanish speakers without regard as to whether

non­Spanish speakers understood the testimony.

Prayer

Wherefore premises considered, petitioner asks that the opinion of the

appellate court be reversed and for such other relief has he maybe entitled to in law

or equity.

The Spriggs Law Firm

1011 S. Jackson Street

Amarillo, Texas 79101

Tel. 806 376 7260

Fax (806) 372­3298

Email: spriggslawronald@gmail.com

/S/Ronald T. Spriggs

Ronald T. Spriggs

TSBN 00792853

10 V.4;P.56;L.10­12.

11 V.4;P.56;L.14­17.

12
Attorney for Petitioner

William Hernandez

Certificate of Compliance

I hereby certify that I used the aid of a computer and software to generate

this document. I used 14­point typeface for all text, except for footnotes which are

in 12­point typeface. Further, I certify that this Petition and the brief contain 467

(four­hundred and sixty seven). In making this certificate of compliance, I am

relying on the word counter used by the same the same software used to prepare

the document. The word count excludes words used in following: the caption,

identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, statement of facts,

signature, proof of service, certification, certificate of compliance, and appendix.

/S/ Ronald T. Spriggs

Certificate of Service

I certify that on July 6, 2015 a true and correct copy of this document was

served on the parties listed below in the manner indicated.

/S/ Ronald T. Spriggs

Angela Weltin

District Attorney

713.755.0242 (fax)

13
Opinion issued December 2, 2014 

In The 

Qtourt of ~peals 

For The 

.:first JUstrict of ~exas 

NO. 01-13-00825-CR 

WILLIAM HERNANDEZ, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 351st District Court 

Harris County, Texas 

Trial Court Case No. 1295162 

OPINION 

A jury convicted appellant, William Hernandez, of aggravated robbery and, 

after finding an enhancement paragraph true, assessed his punishment at 

confinement for life. In two points of error, appellant argues that (1) the evidence 

to support his conviction was insufficient because the accomplice witness 
testimony was not adequately corroborated and (2) the trial court abused its 

discretion in denying his motion for mistrial when Spanish-speaking members of 

the jury heard the accomplice witness volunteer information regarding an 

extraneous offense. 

We affirm. 

Background 

The complainant, Barbara Arnold, was home with her husband, Pete Arnold, 

and her granddaughter, Jennifer, when she heard Pete screaming and a sound like a 

car crashing into her house. She and Jennifer ran toward the front door, where they 

saw that two men had kicked in her front door and were holding guns. One man, 

who wore a mask, grabbed Jennifer and the other, who was not wearing a mask, 

put a gun to Barbara's head. He demanded that she tell him where they kept their 

money and take him to the safe, and he threatened to kill her if she did not. A third 

man entered the house through the back door after having chased Pete into the 

backyard. The third man wore a badge around his neck and black t-shirt with the 

word "police" on the front. 

Barbara testified at trial that she got a good look at the man who held a gun 

to her head and threatened her while she was on the floor trying to remember how 

to open the safe. She identified appellant in court as her assailant. Barbara further 

testified that she heard the three men speaking to each other, mostly in Spanish, 

2 
and that she heard two of the men call appellant "Boss." The men began arguing 

among themselves after Jennifer somehow managed to escape the house. Barbara 

told the men that her husband Pete, who had also escaped over the back fence to a 

neighbor's house, had a cell phone and would call the police. The men left before 

she could get the safe open, but they took a variety of items from her home. 

Later that same day, while she was driving to the grocery store with her son 

Van, Barbara saw appellant driving a tan Hummer. Van heard his mother say, 

"Look at him. That's him," and he got a good look at appellant. Barbara obtained 

a partial license plate number on the vehicle and reported it to the police. 

Deputy Marshall K. Seitzinger, who was a police officer with the Houston 

Police Department at the time the Arnolds were robbed, testified that he 

investigated the robbery. He testified that Jennifer reported that the suspects had 

left in a burgundy red Cadillac. The Arnolds described the suspects as three armed 

men wearing police gear and indicated that the men were generally around six feet 

tall and were between twenty-eight and thirty years old. After Barbara obtained 

the partial license plate number for the vehicle she had seen appellant driving after 

the robbery, Deputy Seitzinger put together a black and white photo array 

containing the owner of the vehicle. He testified that Barbara incorrectly identified 

a man in that photo array as having been involved in the robbery. 

3 
However, based on the license plate number she had obtained, police 

officers were eventually able to locate the tan Hummer, and they detained the 

people who were riding in it. Police recovered a semiautomatic pistol and 

ammunition, and clothing items, including a hat and cap that had the word "police" 

on them, a badge, and a mask. The officer who stopped the Hummer believed 

appellant had been riding in the vehicle, but he was unable to detain him. 

However, he observed appellant walk into a nearby apartment. Deputy Seitzinger 

was able to question appellant at the apartment and eventually detained him as 

well. Appellant was put into a live line-up. Deputy Seitzinger admonished 

Barbara and Van both that they were not to make any statements during the live 

line-up and that they would be questioned separately after viewing the suspects in 

the line-up. He testified that Barbara appeared very shaken after viewing the lineup. She identified appellant as the man who had held a gun to her head during the 

robbery and as the man she had seen driving the Hummer after the robbery. In a 

separate interview, Van also identified appellant as the man he had seen driving the 

Hummer. 

One of the other two men who were found and detained when police stopped 

the Hummer was Eddie Castaneda, who owned the Hummer. Castaneda testified 

at trial as an accomplice witness. He admitted that he had gone to the Arnolds' 

house with appellant and two other men, one of whom was named Pedro Marquez, 

4 
in Marquez's Cadillac. Castaneda testified that he got scared during the robbery 

and ran off and that the other men picked him up later. He observed that one of the 

other men with him was wearing police gear. Castaneda testified that he had 

owned the Hummer for about a month at the time of his arrest and that he was not 

the one driving it on the afternoon of the robbery. 

Denise Guzman, the mother of appellant's child, also testified at trial. She 

recognized both Castaneda and Marquez as friends of appellant. She testified that 

appellant was the leader of the group and that the other men referred to appellant as 

"boss." Guzman knew that Marquez drove a burgundy red Cadillac and Castaneda 

drove a Hummer. She also testified that appellant admitted to having committed a 

robbery around the same time the Arnold robbery occurred in order to get money 

to post bond for her. 

The jury found appellant guilty and assessed his punishment at confinement 

for life. 

Accomplice Witness Testimony 

In his first point of error, appellant argues that the evidence to support his 

conviction was insufficient because the accomplice witness testimony was not 

adequately corroborated. 

5 
A. Standard of Review 

In reviewing the sufficiency of the evidence to support a conviction, we 

consider all of the record evidence in the light most favorable to the verdict, and 

we determine whether any rational fact-fmder could have found that each essential 

element of the charged offense was proven beyond a reasonable doubt. See 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. 

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial 

evidence can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 

(Tex. Crim. App. 2007). We presume that the fact-finder resolved any conflicting 

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443 

U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. 

The Texas Code of Criminal Procedure prohibits a conviction based on an 

accomplice witness's testimony unless other non-accomplice evidence that tends to 

connect the accused to the offense corroborates it. TEX. CODE CRIM. PROC. ANN. 

art. 38.14 (Vernon 2005). In reviewing the sufficiency of the corroborating 

evidence, we exclude the accomplice testimony from our consideration and 

determine whether there is any independent evidence that tends to connect the 

defendant with the commission of the offense. Malone v. State, 253 S.W.3d 253, 

257 (Tex. Crim. App. 2008). We view the corroborating evidence in the light most 

6 
favorable to the jury's verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. 

App. 2008). If there are two views of the evidence, one tending to connect the 

accused to the offense and the other not, we defer to the jury's view. Smith v. 

State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). "[I]t is not appropriate for 

appellate courts to independently construe the non-accomplice evidence." !d. 

It is not necessary that corroborating evidence directly connect a defendant 

to an offense or be sufficient by itself to establish guilt. Cathey v. State, 992 

S.W.2d 460, 462 (Tex. Crim. App. 1999). The evidence must simply link the 

accused in some way to the commission of the offense and show that rational 

jurors could conclude that the evidence sufficiently tended to connect the accused 

to the offense. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). 

The corroborating evidence may be direct or circumstantial. See Smith, 332 

S.W.3d at 442. 

B. Analysis 

Here, appellant argues that the evidence is insufficient to support his 

conviction because there was insufficient non-accomplice evidence to corroborate 

Castaneda's accomplice witness testimony. 

Eliminating the accomplice testimony from consideration, the remaining 

evidence is sufficient to tend to connect appellant to the aggravated robbery. See 

Malone, 253 S.W.3d at 257. Barbara Arnold identified appellant, both in a live 

7 
line-up and at trial, as the man who put a gun to her head and robbed her. The 

testimony of a single eyewitness can be sufficient to support a conviction. See 

Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.-Houston [14th Dist.] 2012, 

pet. refd). Appellant argues that Barbara's testimony lacked credibility because 

she had previously made an incorrect identification using a photo array. However, 

the jury alone decides whether to believe eyewitness testimony and resolves any 

conflicts or inconsistencies in the evidence. See id. (citing Mosely v. State, 983 

S.W.2d 249, 254 (Tex. Crim. App. 1998)). 

Furthermore, Arnold's granddaughter, Jennifer, reported that she saw the 

robbers leave in a burgundy red Cadillac. Guzman testified that appellant had 

committed a robbery to get the money for her bail, and she linked Castaneda and 

Marquez, whom she knew to drive a red Cadillac, to the robbery. When police 

located and stopped the Hummer that Barbara had seen appellant driving following 

the robbery, they found weapons, ammunition, articles of clothing with the word 

"police" on them, a badge, and a mask. These items matched the descriptions the 

Arnolds had given of their assailants as being three armed men, one of whom wore 

police gear and two of whom wore masks. 

All of this evidence links appellant in some way to the commission of the 

robbery. See Simmons, 282 S.W.3d at 508. Thus, the jury could reasonably have 

concluded that the evidence sufficiently tended to connect appellant to the 

8 
commission of the offense. See id.; Malone, 253 S.W.3d at 257. Appellant does 

not assert any other basis for concluding that the evidence was insufficient to 

support his conviction. We conclude that the evidence was sufficient to allow the 

jury to fmd all of the elements of aggravated robbery beyond a reasonable doubt. 

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Adames, 353 S.W.3d at 859; see 

also TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) {Vernon 2011) {providing 

that person commits offense of aggravated robbery if "in the course of committing 

theft . . . and with intent to obtain or maintain control of the property" he 

"intentionally or knowingly threatens or places another in fear of imminent bodily 

injury or death" and he uses or exhibits deadly weapon). 

We overrule appellant's first point of error. 

Motion for Mistrial 

In his second point of error, appellant argues that the trial court abused its 

discretion in denying his motion for mistrial when Spanish-speaking members of 

the jury heard the accomplice witness volunteer information regarding an 

extraneous offense. 

A. Relevant Facts 

Castaneda testified through an interpreter at trial. During his crossexamination, the following exchange occurred between Castaneda and appellant's 

attorney: 

9 
[attorney]: And you said you weren't wearing any police gear 

when this robbery occurred? 

[witness]: On this robbery, I had no police gear, sir. 

[attorney]: Okay. Okay. And how many robberies do you 

have pending right now? 

Appellant's attorney then interrupted Castaneda and asked to approach the bench. 

He stated, "I caught most of that [answer] and I don't want the answer interpreted." 

Outside the presence of the jury, the trial court had the answer interpreted. 

Castaneda's response was, "I have two aggravated robberies. I committed two 

with [appellant], but I'm fighting the cases." 

Appellant's counsel objected to this answer as non-responsive, and the trial 

court sustained his objection. Appellant's attorney also sought an instruction to 

disregard the statement, even though it was never interpreted for the jury, because 

he was aware that at least one juror spoke Spanish. 

The trial court asked the bailiff to determine which jurors, who were waiting 

outside the courtroom, spoke Spanish. There were two jurors who spoke Spanish, 

and the trial court questioned them, individually, about what they had heard. The 

first testified that he spoke Spanish fluently and that he understood Castaneda's 

answer "for the most part." The juror also told the trial court that he had not 

spoken to anyone else on the jury about Castaneda's last answer. The trial court 

specifically instructed him to disregard that answer, that it could not be considered 

10 
evidence in the trial for the present offense, and that he was not to share the answer 

with anyone else on the jury. The juror indicated that he understood the instruction 

and agreed that he would comply. The trial court repeated the same process with 

the second juror, who likewise stated that she had not told any of the other jurors 

what Castaneda's last answer was, that she understood the trial court's instruction, 

and that she would comply. At that point, appellant moved for a mistrial, which 

the trial court denied. 

B. Standard of Review 

A mistrial is a device used to halt trial proceedings when error is 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). Whether a 

witness's improper reference to an extraneous offense mandates a mistrial is 

determined by examining the particular facts of the case. See id. "A mistrial is an 

appropriate remedy in 'extreme circumstances' for a narrow class of highly 

prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. 

App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 

2004)). 

We review a trial court's denial of a mistrial under an abuse of discretion 

standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In 

determining whether a trial court abused its discretion in denying a motion for 

11 
mistrial, we consider (1) the severity of the underlying misconduct, (2) any 

curative measures adopted, and (3) the certainty of the conviction absent the 

misconduct. !d. at 700. "Ordinarily, a prompt instruction to disregard will cure 

error associated with an improper question and answer, even one regarding 

extraneous offenses." Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 

2000). 

C. Analysis 

Appellant argues that Castaneda's revelation of other pending aggravated 

robberies, committed with appellant and in a similar manner, was especially 

harmful to him. He also argues that even though only two Spanish-speaking jurors 

were identified, others on the jury could also have understood Castaneda's 

comments. 

However, nothing in the record suggests that Castaneda's testimony was "so 

highly prejudicial and incurable" that the trial court erred by denying the motion 

for mistrial. See Ocon, 284 S.W.3d at 884. The complained-of statement was 

made in Spanish and was never translated for the entire jury to hear. The trial 

court identified the two jurors who were able to understand what Castaneda had 

said and instructed them not to share the information with the other jurors and not 

12 
to consider the evidence. 1 Jurors are presumed to follow instructions, and 

appellant does not point to any evidence suggesting that the jurors in this case 

failed to follow the trial court's instruction. See Gamboa v. State, 296 S.W.3d 574, 

580 (Tex. Crim. App. 2009) (holding that "[i]nstructions to the jury are generally 

considered sufficient to cure improprieties that occur during trial" and that courts 

"generally presume that a jury will follow the judge's instructions"); see also Ladd, 

3 S.W.3d at 567 (holding that trial court could have reasonably concluded that 

instruction to disregard was sufficient to cure any harm). 

We overrule appellant's second point of error. 

Conclusion 

We affirm the judgment of the trial court. 

Evelyn V. Keyes 

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes. 

Publish. TEX. R. APP. P. 47.2(b). 

To the extent that appellant is arguing on appeal that the trial court's procedure of 

questioning the Spanish-speaking jurors separately rather than giving an 

instruction to disregard to the entire jury was improper, we observe that he did not 

object on this basis in the trial court. Thus, the objection is not preserved for 

review on appeal. See TEX. R. APP. P. 33.l(a). 

13