Frederick Lammarr McDonald v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00198-CR

Frederick Lammarr McDonald,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
13th District Court of Navarro County, Texas
Judge James E. Lagomarsino, presiding
Trial Court Cause No. D41,562-CR

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Frederick Lammarr McDonald was convicted of Continuous Sexual

Abuse of a Child under 14 years of age, see TEX. PENAL CODE § 21.02(b), and

sentenced to life in prison. Because McDonald’s motion for mistrial was

untimely, his sole issue is not preserved, and the trial court’s judgment is

affirmed.

In his sole issue on appeal, McDonald complains that the trial court
abused its discretion in denying McDonald’s motion for mistrial asserting the

State’s failure to provide him with discovery material, specifically, Frederick

Lammarr McDonald, Jr.’s recorded statement to the district attorney’s

investigator. McDonald had previously requested discovery from the State

pursuant to article 39.14 of the Texas Code of Criminal Procedure.

Frederick Lammarr McDonald, Jr. (Jr.), McDonald’s son, testified for the

State. Near the beginning of his testimony, Jr. was asked if he spoke to an

investigator about McDonald “molesting” Jr.’s sisters. He said he had. Jr.

testified how his father would isolate his sister, T.A., in the house while locking

the rest of her siblings, including Jr., outside one summer when T.A. was

around 10 years old. Jr. further testified that T.A. eventually confided in him

that McDonald had been “abusing” her. Jr. confronted McDonald who told Jr.

T.A. “was making shit up.” When T.A. showed Jr. marks on her back from the

carpet on the floor of the lake house, telling Jr. that “it” had happened on the

floor and that McDonald had “done it again,” Jr. had another meeting with

McDonald. Jr. testified about what happened at the meeting:

A. And so, we met in that car wash, and that's when he actually
told me that he had –

Q. And can you tell me when he told you this? What year – can
you tell me what year it was?

A. I can't remember what year it was. I can't just a remember year.
[sic] I just remember being in the car. I asked him. He told me.

McDonald v. State Page 2
He said he felt like Vicky [McDonald’s wife and Jr.’s step-mother]
put the girls on him.

***

Q. So, when you were at the – when you met your father at the car
wash –

A. Yes.

Q. – and he told you about the abuse he had done towards [T.A.]–

A. Yes.

Q. – how did you react to that at that moment?

A. I really didn't have anything to say. I just kind of let him talk
as I – yeah, I just remember him talking, and I just wasn't cool
with it.

On cross-examination, McDonald questioned Jr. about whether he told

the investigator that he had met with McDonald and that McDonald “had told

y’all of this.” Jr. responded affirmatively, saying he gave a statement to the

investigator that McDonald had “admitted to what he had done.” Jr. also said

his statement was recorded. Jr.’s cross-examination continued for three more

pages in the record, and McDonald passed him as a witness. The State had no

further questions, and Jr. was released from testifying, subject to recall, with

the agreement of the parties.

After a 15-minute break and after the trial court addressed an issue

concerning a juror, McDonald reported to the trial court that McDonald did not

McDonald v. State Page 3
have Jr.’s recorded statement. He asserted he was surprised and requested a

mistrial. The trial court recessed for the remainder of the day so that the

recording could be made available to McDonald. The next day, the trial court

determined the State did not turn over the recorded interview. And, rather

than granting McDonald’s motion for mistrial, the trial court gave McDonald

a running objection and instructed the jury “not to consider the testimony

elicited from [Jr.] regarding the Defendant's admission to him of the offense.” 1

McDonald failed to preserve this issue for appellate review because his

underlying motion for mistrial was untimely. See TEX. R. APP. P. 33.1(a). The

motion was made after Jr. was questioned, cross-examined on the subject, and

released as a witness, and after a break in the proceedings. This was too late. 2

See Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007) (stating that

a motion for mistrial is timely only if it is made as soon as the grounds for it

become apparent); Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004)

(stating that a party may no more rely on an untimely motion for mistrial than

it may rely on an untimely objection). See also Foyt v. State, 602 S.W.3d 23,

49-50 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd) (motion for mistrial

due to alleged violation of art. 39.14 untimely when defendant did not object to

1
McDonald had not requested a running objection or an instruction.

2
Even if McDonald did not recognize during the State’s direct examination that Jr. may have provided
a written or recorded statement, it was apparent during cross-examination.

McDonald v. State Page 4
testimony, cross-examined the witness, and waited to request mistrial until

the next morning). Accordingly, McDonald’s sole issue is not preserved and is

overruled.

The trial court’s judgment is affirmed.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: March 27, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
[CRPM]

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