In The Court of Appeals Seventh District of Texas at Amarillo ________________________ No. 07-18-00032-CR ________________________

DANNY WAYNE ALCOSER, APPELLANT V. THE STATE OF TEXAS, APPELLEE

On Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2016-1261-C1 (Counts I, II & III); Honorable Ralph T. Strother, Presiding

August 9, 2022 MEMORANDUM OPINION ON REMAND Before QUINN, C.J., and PARKER, J., and PIRTLE, S.J. 1

By opinion and judgment dated December 20, 2019, this court reversed three convictions of Appellant, Danny Wayne Alcoser, related to a domestic violence incident based on improper jury instructions which this court found had caused him egregious

Prior to the release of the Court of Criminal Appeals opinion, but subsequent to the release of our opinion, Appellant filed an Amended Motion for New Trial raising issues of ineffective assistance of counsel. Following remand to this court from the Court of Criminal Appeals, Appellant filed a pro se Motion to Withdraw Appellate Counsel and to Self-Represent. By order dated May 19, 2022, this court denied that motion and explained that withdrawal of appointed counsel was a matter within the purview of the trial court’s authority. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j). By our order, Appellant was advised that self-representation on direct appeal was reviewed on a case-by-case

Subsequent to our order of May 19, 2022, Appellant filed an Original Petition for Writ of Prohibition with the Texas Court of Criminal Appeals. On July 20, the Court denied Appellant’s motion for leave to file, without written order.

A hearing was held before the trial court on this court’s order of May 19 on June 23, 2022. Alan Bennett appeared as Appellant’s counsel. The court determined that Appellant did desire to be represented by counsel but he further desired that Mr. Bennett be removed as his counsel. The court, therefore, appointed Robert Callahan to replace Mr. Bennett and rescheduled the hearing for July 13, 2022. On July 12, 2022, Appellant requested that he be allowed to substitute retained counsel for his appointed counsel.

Appellant’s request was granted, and Tate Saunders was allowed to substitute for Mr. Callahan as Appellant’s attorney of record. A hearing was held on July 13, 2022, with Mr. Saunders appearing as Appellant’s counsel. At the conclusion of that hearing, the trial court ordered that Appellant’s Second Motion for New Trial be denied. The trial court subsequently entered findings of fact and conclusions of law as requested by this court.

Now pending before this court are the remaining issues from Appellant’s original appeal (whether the trial court abused its discretion in denying a mistrial (Issue One) and whether the evidence is factually insufficient to support his assault conviction (Issue

Four)), as well as issues raised by the filing of Appellant’s Second Motion for New Trial.

We will address each issue individually. 3

ISSUE ONE—MISTRIAL A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A mistrial is used to halt proceedings when the error is so prejudicial that it makes the expenditure of further time and expense wasteful and futile. Ocon, 284 S.W.3d at 884 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). The decision to grant a mistrial is governed by the particular facts of the case. Ladd, 3 S.W.3d at 567. We review a trial court’s decision to deny a motion for mistrial for abuse of discretion. See Ocon, 284 S.W.3d at 884. The denial of the motion for mistrial must be upheld if, when viewing the evidence in the light most favorable to the denial, it was within the zone of reasonable disagreement. Id.

Ordinarily, a prompt instruction to disregard will cure any prejudice arising from an inadvertent statement. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). On appeal, there is a presumption that the jury followed the trial court’s instructions. McConnell v. State, No. 10-17-00254-CR, 2019 Tex. App. LEXIS 2663, at *4 (Tex. App.—Waco April 3, 2019, no pet.) (mem. op., not designated for publication) (citing Thrift v. State, 176 S.W.3d 221,

224 (Tex. Crim. App. 2005)). The presumption must be rebutted by evidence indicating the jury failed to follow the trial court’s instructions. Thrift, 176 S.W.3d at 224.

In determining whether an offending statement is “highly prejudicial and incurable,” reviewing courts have applied the three-factor balancing test articulated in Mosley v. State, 983 S.W.2d 249, 259 (Tex. 1998). See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). Reviewing courts look at the following: (1) the severity of the misconduct (i.e., the magnitude of the prejudicial effect of the prosecutor’s remark); (2) the curative measures taken (the efficacy of any cautionary instruction by the trial judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259.

Just prior to trial, both parties presented motions in limine which the trial court granted. The State agreed not to question witnesses regarding Appellant’s alleged extraneous conduct other than on the date of the offense and not to delve into any acts regarding the minor children including matters related to CPS proceedings without first approaching the bench.

During Sergeant Tucker’s testimony, Appellant insinuated that lazy police work was behind the decision to not interview the child, T.W. Sergeant Tucker explained he did not interview T.W. to avoid further trauma to the child. Defense counsel’s objection based on the motion in limine was sustained and the trial court instructed the jury to disregard the witness’s comment. A motion for mistrial was denied.

Additionally, while the complainant was testifying, she was asked if being choked by Appellant was an accident to which she replied, “[i]t wasn’t the first time.” Defense counsel’s objection that the question elicited an extraneous offense answer was sustained and the jury was again instructed to disregard the answer. A second motion for mistrial was denied.

Again, during the complainant’s testimony, when asked whether Appellant had “disappeared” after her grandmother died, she responded, “[w]e had been ordered to participate in . . . counseling.” 4 Before she could finish her response, defense counsel objected and obtained a favorable ruling, and the jury was instructed for a third time to disregard complainant’s comments. Another motion for mistrial was denied. Appellant contends that the “collective weight” of the State’s violations of his motion in limine were incurable. We disagree.

With each violation of Appellant’s motion in limine, defense counsel’s objections were immediately sustained and the jury was promptly instructed to disregard any offending answers or comments. The motion in limine violation occurring during Sergeant Tucker’s testimony was in response to Appellant’s suggestion of lazy police work and elicited nothing more than a statement regarding the circumstantial res gestae facts surrounding the offense. The two violations that occurred during the complainant’s testimony were not solicited by the prosecutor; rather, the complainant voluntarily offered information that went beyond the scope of the questions and was not overtly prejudicial.

See Brown v. State, Nos. 14-13-00057-CR through 14-13-00060-CR, 2014 Tex. App. LEXIS 8972, at *11 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, pet. ref’d) (mem. op., not designated for publication) (finding no abuse of discretion where the witness gave an

Applying the Mosely factors, we do not find that the complained-of violations fall within the “narrow class of highly prejudicial and incurable errors.” They were not calculated to inflame the minds of the jury. See England v. State, No. 10-05-00021-CR, 2006 Tex. App. LEXIS 2524, at *5 (Tex. App.—Waco March 29, 2006, pet. ref’d) (mem. op., not designated for publication). We find the trial court did not abuse its discretion in denying Appellant’s multiple requests for a mistrial. Issue one is overruled.

ISSUE FOUR—FACTUALLY INSUFFICIENT EVIDENCE By his fourth issue, Appellant contends that, consistent with the Texas Constitution and the Code of Criminal Procedure, factual insufficiency should be reinstated. Based on that premise, he further contends that the evidence is factually insufficient to support the jury’s rejection of his claim of self-defense as to the assault conviction.

Acknowledging that factual sufficiency review in a criminal case was abrogated by the Texas Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), Appellant nevertheless urges this court to conduct such a review of his convictions based on Article V, Section 6 of the Texas Constitution and article 44.25 of the Texas Code of Criminal Procedure. 5 Having considered Appellant’s arguments, we decline his invitation to conduct a factual sufficiency review of either his claim of self-defense or his other convictions. Under the time-honored principle of stare decisis, this court is bound

Just to be clear, however, self-defense is classified as a defense, with burdens at trial that alternate between the defense and the State, not an affirmative defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (explaining that self-defense is “classified as a defense, as opposed to an affirmative defense”). Saxton v. State, 804 S.W.2d 910, 912 n.5 (Tex. Crim. App. 1991) (noting that self-defense is a defense to prosecution under section 2.03 of the penal code). Therefore, the Clewis factual- sufficiency standard does not apply when we conduct a review of the sufficiency of the evidence to support the jury’s implied rejection of a defendant’s claim of self- defense. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (“Because the State bears the burden of persuasion to disprove a section 2.03 defense by establishing its case beyond a reasonable doubt, we review both legal and factual sufficiency challenges to the jury’s rejection of such a defense under the Jackson v. Virginia standard.”). See Brooks, 323 S.W.3d at 912. Accordingly, we resolve Appellant’s fourth issue against him.

AMENDED MOTION FOR NEW TRIAL Subsequent to the issuance of our prior opinion, but prior to the issuance of the Court of Criminal Appeals opinion, Appellant filed his pro se Amended Motion for New Trial wherein he originally outlined twenty instances of alleged ineffective assistance of counsel by his trial defense attorney. 6 At the hearing held on July 13, 2022, for the purpose of ruling on this court’s order of May 19, 2022, it was called to the attention of the court that Appellant had filed a motion for new trial. Although it exceeded the scope of our order of abatement, the trial court denied the motion for new trial.

We decline to find Appellant’s trial counsel ineffective on the basis of the record before us. Generally, the record on direct appeal is rarely adequate to address complex claims of ineffective assistance of counsel. Milburn v. State, No. 10-20-00072-CR, 2022 Tex. App. LEXIS 2269, at *18 (Tex. App.—Waco April 6, 2022, no pet.) (mem. op., not designated for publication); Clayton v. State, No. 07-15-00312-CR, 2016 Tex. App. LEXIS 11988, *8-9 (Tex. App.—Amarillo Nov. 4, 2016, no pet.) (mem. op., not designated for publication). Claims of ineffective assistance of counsel must be firmly rooted in the record and the record must affirmatively demonstrate the meritorious nature of the claim.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Before granting relief on a claim that defense counsel failed to do something, we ordinarily require that counsel be afforded the opportunity to explain the reasons for his trial court decisions. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). To warrant reversal without affording counsel such an opportunity, the challenged conduct must be “so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.

Appellant’s twenty complaints of ineffective assistance of counsel consisted of twelve complaints that trial counsel failed to subpoena, obtain, or offer certain evidence.

In each instance, Appellant failed to offer any explanation as to how counsel’s failure was

Appellant’s ineffective assistance of counsel claims are best left to a writ of habeas corpus where an evidentiary record can be developed. Because the present record does not support a finding of ineffective assistance of counsel, Appellant’s late-filed Amended Motion for New Trial does not raise any grounds on which relief could be granted.

CONCLUSION That portion of the judgment convicting Appellant in Count I of assault family violence is affirmed. The portions of the judgment convicting Appellant in Count II of endangering a child and in Count III of interference with an emergency request for assistance are reversed and Count II and Count III are remanded to the trial court for further proceedings.

Patrick A. Pirtle Senior Justice

Quinn, C.J., concurring in the result.

Do not publish.

7Regardless of whether we were to review Appellant’s “twenty” instances of ineffective assistance of counsel or his “nineteen” instances, our conclusion remains the same.