Angel Adrian Arellano v. the State of Texas

Opinion issued December 9, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00519-CR
———————————
ANGEL ADRIAN ARELLANO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 486th District Court
Harris County, Texas
Trial Court Case No. 1799014

MEMORANDUM OPINION

A jury convicted Angel Adrian Arellano of aggravated sexual assault of a

child.1 The trial court sentenced Arellano to thirty years in prison.

1
See TEX. PENAL CODE § 22.021(a).
Arellano argues on appeal that the trial court abused its discretion by failing

to grant a mistrial based on the prosecutor’s allegedly improper jury argument. We

disagree and affirm.

Background

In July 2021, when A.A. was twelve years old, she spent a week with her

father, Arellano, at his home in Houston. A few weeks after A.A. returned home to

El Paso where she lived with her mother, A.A. made an outcry to her mother that

Arellano sexually assaulted her during their July visit. A.A.’s mother reported the

allegation to law enforcement in El Paso and an investigation ultimately was initiated

by the Harris County Sheriff’s Office. A.A. was taken for a SANE2 examination

and forensic interview in El Paso. The medical exam revealed “vaginal notches,”

which are “indention[s] in the tissue of the vagina or the hymen,” that were

“concerning for penetration.”

At trial, A.A. testified that on her last night in Houston, at Arellano’s home,

Arellano sexually assaulted her by penetrating her vagina with his penis and

performing oral sex on her. A.A. testified that after she took a shower, Arellano told

her to sit on the bed and said: “let me teach you something.” Arellano then grabbed

a condom and began kissing A.A.’s neck. He put the condom on, told A.A. to get

2
SANE stands for sexual assault nurse examiner.
2
in “the doggy position,” and then he put his penis in her vagina. A.A. also testified

that Arellano performed oral sex on her.

A.A. further testified that the following day, approximately three to four hours

outside of El Paso, Arellano pulled off the highway and parked on the side of a

private road. After he pulled over, Arellano took a condom from his bag and told

A.A. to get on top of him while he was in the driver’s seat. He then engaged in

vaginal intercourse with A.A. for a second time.

Arellano was convicted of aggravated sexual assault of a child and sentenced

to thirty years in prison.

Mistrial for Improper Jury Argument

In his sole issue, Arellano argues that the trial court abused its discretion by

denying his motion for mistrial after the prosecutor’s improper jury argument.

A. Standard of Review and Applicable Law

When, as here, the trial court instructs the jury to disregard improper

argument, the proper analysis is whether the trial court abused its discretion in

denying the defendant’s motion for mistrial. See Becerra v. State, 685 S.W.3d 120,

127 (Tex. Crim. App. 2024); Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim.

App. 2007) (“Here, the trial court sustained the defense objection and granted the

requested instruction to disregard. The only adverse ruling—and thus the only

occasion for making a mistake—was the trial court’s denial of the motion for

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mistrial. Under those circumstances, the proper issue is whether the refusal to grant

the mistrial was an abuse of discretion.” (quoting Hawkins v. State, 135 S.W.3d 72,

76–77 (Tex. Crim. App. 2004)). In applying this standard, we do not substitute our

judgment for that of the trial court. Becerra, 685 S.W.3d at 127. Rather, we must

decide whether the trial court’s decision was arbitrary or unreasonable. Id. A trial

court abuses its discretion when no reasonable view of the record could support its

ruling. Id.

In making that determination, we are instructed to uphold a trial court’s

decision to deny a mistrial “if it was within the zone of reasonable disagreement.”

Archie, 221 S.W.3d at 699; Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.—

Houston [1st Dist.] 2019, pet. ref’d). And we must review the trial court’s ruling in

light of the arguments that were before the trial court at the time it ruled. Wead v.

State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).

A mistrial is an extreme remedy. Ocon v. State, 284 S.W.3d 880, 884 (Tex.

Crim. App. 2009). It is to be used sparingly for “a narrow class of highly prejudicial

and incurable errors” committed during the trial process. Turner v. State, 570 S.W.3d

250, 268 (Tex. Crim. App. 2018).3 It is reserved for improper conduct during trial

3
See Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (explaining that
motion for mistrial is appropriate only when “the objectionable events are so
emotionally inflammatory that curative instructions are not likely to prevent the jury
from being unfairly prejudiced against the defendant” (internal quotations omitted)).

4
that is “so prejudicial that expenditure of further time and expense would be wasteful

and futile.” Hawkins, 135 S.W.3d at 77 (internal quotations omitted). And it is “an

extreme remedy and should be exceedingly uncommon.” Williams v. State, 417

S.W.3d 162, 175 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

Where, as here, constitutional rights are not implicated,4 we balance three

factors to determine whether the trial court’s refusal to grant a mistrial was an abuse

of discretion: (1) the severity of the misconduct (including its prejudicial effect), (2)

the effectiveness of the curative measures taken, and (3) the certainty of the

conviction absent the misconduct. See Archie v. State, 340 S.W.3d 734, 739 (Tex.

Crim. App. 2011) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998)).

A prompt instruction to disregard ordinarily cures any resulting harm.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). And, on appeal,

we generally presume the jury followed the trial court’s instructions. Thrift v. State,

176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Thus, a mistrial is required only in

those “extreme circumstances” where the prejudice is “incurable.” Hawkins, 135

S.W.3d at 77.

4
Generally, error involving improper jury argument is non-constitutional. See
Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000).
5
B. Analysis

During closing argument, the prosecutor made the following statements:

[The State]: If you find him not guilty, if you let this man walk out
those doors, he won’t stop. He’s going to do this again.
There will be another victim.

And next time, he’s going to get away with it because we
just taught him how. Next time he won’t have the brave
victim that we had in this trial or maybe we won’t have the
injuries we had in this trial. He’s going to find a more
submissive child that he can successfully manipulate to
not say anything.

My question to you is: How many victims does he have to
assault, does he have to rape? How many children does he
have to take their innocence from? How many victims do
I have to put on the stand before we hold him accountable
for what he's doing to the kids in our community, for what
he did to [A.A.], his own daughter. Because you better
believe if he can do it to his own daughter, he can do it to
anyone.
If you let him walk out those doors, he’s going to get on
the elevator with you, he’s going to go out into our
community, he is going to do it again. He won’t have a
sign on his back saying: I like to rape children. The only
people who would know what he’s capable of is you 12
right here. Don’t let him walk out those doors. Don’t let
him get away with putting his penis in his 12-year-old
daughter’s vagina and raping her repeatedly. Don’t let
him do it to another kid. If you find him not guilty, you’re
telling the children of our community that we don’t care
who—
[Defense]: Objection. Improper community argument, Your Honor.

The Court: All right. That’s sustained.
[Defense]: Instruction to disregard.

6
The Court: The jury will disregard the last comment by the juror—by
the prosecutor.
[Defense]: Move for a mistrial, Your Honor.

The Court: That’s denied.

Arellano contends that all the above statements were improper jury argument

because the prosecutor unequivocally told the jury that Arellano would commit

future crimes if acquitted. Arellano argues that this argument was unsupported by

the evidence, served only to inflame the jury, and does not fit within one of the four

proper areas of jury argument: (1) summation of the evidence; (2) reasonable

deductions from the evidence; (3) answers to opposing counsel’s argument; and

(4) pleas for law enforcement. See Freeman v. State, 340 S.W.3d 717, 727 (Tex.

Crim. App. 2011).

Although Arellano challenges the prosecutor’s entire argument set out above

on appeal, he did not object at trial until the prosecutor’s final statement—“If you

find him not guilty, you’re telling the children of our community that we don’t care

who . . . .” Arellano failed to object to the remainder of the prosecutor’s argument

which he now complains about on appeal.

“Before a defendant will be permitted to complain on appeal about an

erroneous jury argument or that an instruction to disregard could not have cured an

7
erroneous jury argument,5 he will have to show he objected and pursued his

objection to an adverse ruling.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim.

App. 1996). Further, to preserve error, a party is required to object each time an

objectionable argument is made. Ethington v. State, 819 S.W.2d 854, 858 (Tex.

Crim. App. 1991). Because Arellano did not raise a contemporaneous objection to

any of the other statements by the prosecutor, we hold he has forfeited his right to

complain about these statements on appeal. See Cockrell, 933 S.W.2d at 89;

Ethington, 819 S.W.2d at 858.

As to the prosecutor’s statement—“If you find him not guilty, you’re telling

the children of our community that we don’t care who . . . .”—Arellano preserved

his “improper community”6 objection to this statement by objecting, requesting an

instruction to disregard, and moving for a mistrial. See Cockrell, 933 S.W.2d at 89.

5
Arellano contends that this unpreserved error is still reversible if the argument was
so manifestly improper that an instruction would not have cured the harm. We
disagree. This contention was rejected by the Court of Criminal Appeals in Cockrell
v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The court explained that “a
defendant’s ‘right’ not to be subjected to incurable erroneous jury arguments is one
of those rights that is forfeited by a failure to insist upon it.” Id. (citing Marin v.
State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)). Therefore, the court held that
“a defendant’s failure to object to a jury argument or a defendant’s failure to pursue
to an adverse ruling his objection to a jury argument forfeits his right to complain
about the argument on appeal.” Id.; see also Hernandez v. State, 538 S.W.3d 619,
623 (Tex. Crim. App. 2018) (“Even incurably improper jury argument is
forfeitable.”).
6
A prosecutorial argument is improper if it induces the jury to reach a particular
verdict based upon the demands, desires, or expectations of the community. See
Cortez v. State, 683 S.W.2d 419, 420–21 (Tex. Crim. App. 1984).
8
Assuming that this statement was improper, we now consider whether the trial court

abused its discretion by denying Arellano’s motion for mistrial based on this

improper argument, which requires us to conduct a Mosley7 analysis.

We begin by assessing the severity of the improper jury argument in light of

the prejudicial effect of the prosecutor’s remarks. Archie, 340 S.W.3d at 739 (citing

Mosley, 983 S.W.2d at 259). Arellano argues that the improper argument was not

inconsequential because it was “a targeted two-fold message, repeated again and

again and again: [Arellano] has done this before, and he will do it again.”

But as noted above, Arellano raised no objections to the portion of the

prosecutor’s argument where she stated that Arellano would commit crimes in the

future if found not guilty. Instead, the prosecutor’s community remark—the only

statement Arellano objected to—was interrupted mid-sentence by Arellano’s

objection. Thus, even if the prosecutor had intended to argue for a guilty verdict

based on the effect on or expectations of the community, she was not given an

opportunity to do so. And any effect this comment could have had on the jury was

slight. See Hughes v. State, 897 S.W.2d 285, 304–05 (Tex. Crim. App. 1994)

(prosecutor’s comment regarding expert witness’s ethics not so inflammatory as to

7
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
9
be incurable, because, among other reasons, it was interrupted by appellant’s

objection and not a complete sentence).8

Moreover, the prosecutor did not return to this argument about what a

not-guilty verdict tells the children of our community again in closing; instead, the

prosecutor concluded her argument by urging the jury to hold Arellano accountable

for raping his twelve-year-old daughter and to not “let him do this again.” See, e.g.,

Whitney v. State, 396 S.W.3d 696, 706 (Tex. App.—Fort Worth 2013, pet. ref’d)

(concluding no abuse of discretion in denial of mistrial where trial court sustained

defense’s objection, immediately ordered jury to disregard, and prosecutor did not

revisit same line of argument). Thus, the first Mosley factor weighs in favor of the

State.

Second, we assess the efficacy of any curative measures taken by the trial

court. See Archie, 340 S.W.3d at 739 (citing Mosley, 983 S.W.2d at 259). Here, the

trial court sustained Arellano’s objection and immediately directed the jury to

disregard the prosecutor’s community remark. The trial court also instructed the

jury in the charge that it “must not consider, discuss, nor relate any matters not in

evidence.” See Hawkins, 135 S.W.3d at 84 (analysis of this factor should consider

8
See also Griffin v. State, 571 S.W.3d 404, 418 (Tex. App.—Houston [1st Dist.]
2019, pet. ref’d) (prosecutor’s comment regarding conspiracy theory of
responsibility was not so severe as to warrant mistrial where prosecutor’s attempt
to define conspiracy during closing argument was interrupted by defense counsel’s
objection).
10
instructions given in jury charge); Griffin, 571 S.W.3d at 419 (considering trial

court’s instructions to disregard and jury instructions in charge as curative

measures).9

On appeal, we presume the jury followed the trial court’s instructions and that

“[a]lmost any improper argument may be cured by an instruction to disregard.”

Williams, 417 S.W.3d at 175–76 (citation omitted). Only an extremely

inflammatory statement, calculated to inflame the minds of the jury, overcomes this

presumption. See id. at 176. We conclude that the prosecutor’s brief and interrupted

community remark, even if improper, was not so extreme as to render the trial court’s

curative instructions ineffective. See, e.g., Brumfield v. State, No. 01-09-00675-CR,

2010 WL 5187690, at *9 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.)

(mem. op., not designated for publication) (holding that prosecutor’s statement that

community demanded particular punishment was not so extreme as to warrant

mistrial and concluding that instruction to disregard cured any error).10 Thus, the

second Mosley factor weighs in favor of the State.

9
See also Williams v. State, 417 S.W.3d 162, 179 (Tex. App.—Houston [1st Dist.]
2013, pet. ref’d) (considering as curative measure that trial court’s “written jury
instructions again advised the jury that it should not ‘consider, discuss, nor relate
any matters not in evidence’”).
10
See also Dollgener v. State, No. 10-01-363-CR, 2003 WL 21404069, at *3 (Tex.
App.—Waco June 18, 2003, pet. ref’d) (concluding that trial court’s instruction
cured prejudicial effect, if any, of State’s argument that community expected certain
punishment).
11
Third, we consider the strength of the evidence supporting the conviction. See

Archie, 340 S.W.3d at 739 (citing Mosley, 983 S.W.2d at 259). Here, the record

contains strong evidence of Arellano’s guilt, including his daughter’s testimony

detailing the sexual assault, as well as evidence from the medical examination

revealing “vaginal notches” that were “concerning for penetration.” A.A.’s

testimony, standing alone even without any corroboration, is sufficient to support a

conviction for aggravated sexual assault of a child. See TEX. CODE CRIM. PROC. art.

38.07. Thus, the third Mosley factor weighs in favor of the State.

In sum, the alleged error here was not egregious. Curative action was taken

by the trial court by an immediate instruction to disregard, as well as instructions in

the jury charge. And the evidence supporting Arellano’s conviction—including his

daughter’s account of the sexual assault—was strong. Under the circumstances, the

trial court was reasonable in believing that its instruction to disregard was effective

and that Arellano suffered no prejudice from the prosecutor’s improper remark. We

hold that the trial court did not abuse its discretion in denying Arellano’s request for

a mistrial.

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Clerical Error in the Judgment

In reviewing the record to address Arellano’s issue on appeal, we discovered

a nonreversible error in the judgment. The judgment erroneously recites that

Arellano entered a plea of “guilty” to the charged offense. But our review of the

record unambiguously establishes that Arellano pleaded not guilty to the charge.

Accordingly, we modify the judgment to replace “GUILTY” with “NOT GUILTY”

in the “Plea to Offense” portion of the judgment. See TEX. R. APP. P. 43.2(b); French

v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).

Conclusion

We affirm the judgment of the trial court as modified above.

Terry Adams
Chief Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).

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