Third Court of Appeals Criminal Update

By Zak Hall

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from December 2022. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 1, 2023.

MISTRIAL – IMPROPER ADMISSION OF EXTRANEOUS OFFENSES: Trial court did not abuse its discretion in denying motion for mistrial after witness testified regarding extraneous offense committed by defendant in murder trial.

Knight v. State, No. 03-21-00338CR (Tex. App.—Austin Dec. 22, 2022, no pet.) (mem. op., not designated for publication).

Knight was charged with capital murder for killing the victim while committing or attempting to commit a robbery. The evidence at trial showed that Knight planned to rob the victim after taking steps to earn his trust and gain entry into his apartment. Knight used a gun to fatally shoot the victim, searched through the victim’s home for cash, and stole money and other property from the victim. One of the witnesses at trial was the victim’s friend, who testified that the victim and Knight lived together for approximately two years before the victim’s death, but she had not seen Knight and the victim “hanging out” together near the time of the murder because Knight “had already robbed him once.”

The State then asked the friend, “[T]here was a suspicion about that, correct?” The friend replied, “I mean, [the victim] told me that, and then immediately he moved out.” At that point, Knight objected on hearsay grounds and requested that the trial court instruct the jury to disregard the testimony. The trial court agreed to instruct the jury to disregard the witness’s testimony about a prior incident and not to consider it for any purpose. Knight then moved for a mistrial, and the trial court denied that motion. Knight was convicted of capital murder as charged.

On appeal, Knight argued that the trial court erred by denying his motion for mistrial because the State improperly put “before the jury an extraneous alleged robbery which was never proved up … in a case where proof of robbery is an essential element and for which there was remarkably little evidence.” Further, Knight urged that “[t]he introduction of the alleged prior robbery greatly harmed [him] because it irretrievably planted in the minds of the jur[y] the notion that [he] was a robber” and that the trial court’s instruction to disregard could not “possibly have cured the [S]tate’s error” because “the bell simply could not be un-rung.”

The appellate court disagreed, concluding that “any error was cured by the trial court’s instruction to disregard.” The court explained, “The allegedly improper testimony was one brief pair of statements, and the trial court promptly instructed the jury to disregard those statements. Nothing in the record before this court suggests the jury was unable to follow the instruction.” The court added that the statements “were not so emotionally inflammatory or extreme that the rare remedy of a mistrial would be necessary to cure any prejudice.” Moreover, Knight had been charged with a violent murder, “but the statements at issue addressed a robbery and did not provide any details concerning the alleged offense.”

Additionally, although Knight claimed that the instruction to disregard could not have cured any error because there was little evidence to establish that he robbed the victim, “the [S]tate presented a substantial amount of evidence from which the jury could have reasonably determined that Knight killed [the victim] while in the course of robbing him.” The court concluded that the trial court did not abuse its discretion by denying the motion for mistrial.

DEADLY WEAPONS – BASEBALL BAT: Evidence was sufficient to prove that baseball bat was used as deadly weapon during commission of offense.

Huerta v. State, No. 03-21-00041CR (Tex. App.—Austin Dec. 21, 2022, no pet.). Huerta was charged with burglary of a habitation with intent to commit a felony other than theft. The evidence showed that Huerta had broken down the door of his girlfriend’s apartment and was “assaulting her with a baseball bat.”

Huerta was convicted of the charged offense and the trial court made an affirmative deadly weapon finding. On appeal, Huerta argued that the baseball bat was not a deadly weapon.

The appellate court disagreed. It explained that Huerta “broke down [his girlfriend]’s front door and chased her while holding a bat cocked back like someone intending to swing it at something.”

Also, “[w]hen she locked herself in the restroom, he attempted to force open that door as well and only fled when he believed police were at the apartment.”

The court concluded that “such evidence supports a reasonable inference that appellant threatened action to hurt [the victim] with the bat in a factually possible manner.”

Zak Hall is a staff attorney for the Third Court of Appeals. The summary below represents the views of the author alone and does not reflect the views of the court or any of the individual Justices on the court.