Court of Appeals
Tenth Appellate District of Texas
10-24-00398-CR
Margaret Stewart,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2022-1683-C1
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
A jury found Margaret Stewart guilty of the offense of aggravated
assault and assessed her punishment at eighteen years confinement. In four
issues, Stewart argues that the evidence is insufficient to support her
conviction, that the trial court erred in charging the jury, and that the trial
court abused its discretion in denying her motion for mistrial. We affirm.
Background Facts
On November 4, 2020, Stewart was at her house with her friend, Berry
Freeman. Bryan Johnson came to Stewart’s house and took a bag of
marihuana and a gun. Stewart and Berry then left her house, and Stewart
dropped off Berry at his sister’s house. Stewart then went to another friend’s
house to ask him to help get her marihuana and gun back from Bryan.
Stewart’s friend was not successful in getting Bryan to return the property.
Stewart was upset that Bryan had taken her property, and she and
Berry discussed getting her property back. According to Stewart, Berry said
he would talk to Bryan about returning Stewart’s property. Stewart agreed
to pick up Berry and take him to talk to Bryan. When Stewart arrived to
pick up Berry, Tamarium Johnson was with him. Berry and Tamarium both
had guns when they got into Stewart’s car. Tamarium was carrying a large
KelTec SUB2000 rifle, and Berry was carrying a .380 handgun. Stewart
testified at trial that she knew Tamarium had a gun when he got into the car.
Berry sat in the front seat next to Stewart, and Tamarium sat in the back
passenger-side seat.
Berry then told Stewart to stop and pick up Demarcus Harris.
Demarcus testified at trial that Berry and Tamarium both had guns and
Stewart v. State Page 2 planned to “shoot at somebody.” According to Demarcus, Stewart dropped
him off because he did not have a gun.
Stewart then drove by a store, but Bryan’s vehicle was not there. She
drove up the street where she assumed he would be, but he was not there
either. Stewart went back by the store, and she saw Bryan sitting inside of
his vehicle. Stewart told Berry and Tamarium, “that’s his car.” Berry and
Tamarium rolled down their windows and started shooting toward Bryan’s
vehicle. Stewart accelerated and left the scene. Stewart testified that she
drove to Demarcus’s apartment after the shooting. Demarcus testified that
Stewart, Berry, and Tamarium came to his apartment and asked him to hide
some guns, but he refused.
The jury viewed surveillance video from the store that showed a blue
car driving by the store and then the flash of a gun being fired. The person in
the car slumped over immediately after the gunfire. Bryan was killed by the
gunfire that came from the car Stewart was driving. The fatal shot came
from Tamarium’s gun, the KelTec SUB2000.
Issues One and Two
In the first issue, Stewart argues that the evidence is insufficient to
support her conviction because there was no evidence she possessed the
requisite mens rea, as a party, of knowingly discharging a firearm at a
Stewart v. State Page 3 vehicle or being reckless about whether the vehicle was occupied. In the
second issue, she maintains that the evidence is insufficient to support her
conviction because there was no evidence as to whether the vehicle she was
driving came within the purview of the applicable statute.
Standard of Review
The Court of Criminal Appeals has defined our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the evidence
in the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227,
232 (Tex. Crim. App. 2017). This standard requires the appellate
court to defer “to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.”
Jackson, 443 U.S. at 319. We may not re-weigh the evidence or
substitute our judgment for that of the factfinder. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court
conducting a sufficiency review must not engage in a “divide and
conquer” strategy but must consider the cumulative force of all
the evidence. Villa, 514 S.W.3d at 232. Although juries may not
speculate about the meaning of facts or evidence, juries are
permitted to draw any reasonable inferences from the facts so
long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016)
(citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We presume that the
factfinder resolved any conflicting inferences from the evidence in
favor of the verdict, and we defer to that resolution. Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is
because the jurors are the exclusive judges of the facts, the
Stewart v. State Page 4
credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010). Direct evidence and circumstantial evidence are equally
probative, and circumstantial evidence alone may be sufficient to
uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the
conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to “the elements
of the offense as defined by the hypothetically correct jury charge
for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the
defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d
654, 665 (Tex. Crim. App. 2013). The “law as authorized by the
indictment” includes the statutory elements of the offense and
those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018).
Applicable Law
For aggravated assault Section 22.02 of the Texas Penal Code provides
that:
(a) A person commits an offense if the person commits
assault as defined in § 22.01 and the person:
(1) causes serious bodily injury to another, including the
person’s spouse; or
(2) uses or exhibits a deadly weapon during the commission
of the assault.
(b) An offense under this section is a felony of the second
degree, except that the offense is a felony of the first degree
if:
Stewart v. State Page 5
…
(3) the actor is inside of or directly en route to or from
a motor vehicle, as defined by Section 501.002,
Transportation Code, and:
(A) knowingly discharges a firearm at or in the
direction of a habitation, building, or vehicle;
(B) is reckless as to whether the habitation, building,
or vehicle is occupied; and
(C) in discharging the firearm:
(i) causes bodily injury to any person or damage
to any property; or
(ii) places any person in fear of imminent bodily
injury
TEX. PENAL CODE ANN. § 22.02(a), (b)(3).
Section 7.02 of the Texas Penal Code provides in relevant part that:
(a) A person is criminally responsible for an offense committed by
the conduct of another if:
…
(2) acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense
Id. § 7.02(a)(2).
Discussion Issue One
Stewart first argues that there is no evidence that she possessed the
requisite mens rea, as a party, of knowingly discharging a firearm at a
vehicle or being reckless about whether the vehicle was occupied.
In order for someone to be held responsible as a party to an offense, the
State must prove conduct constituting an offense plus an act by the
defendant done with the intent to promote or assist such conduct. Perry v.
Stewart v. State Page 6 State, No. 10-23-00215-CR, 2024 WL 4234525, at *4 (Tex. App.—Waco Sept.
19, 2024, no pet.) (mem. op., not designated for publication). There is no
dispute that Berry and Tamarium fired shots while passengers in Stewart’s
car and that a shot fired from that car killed Bryan. Therefore, we must
determine whether there was an act by Stewart done with the intent to
promote or assist such conduct. See id.
To determine whether an individual is a party to an offense, the
reviewing court may look to “events before, during, and after the commission
of the offense.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012).
Each fact need not point directly to the guilt of the defendant, as long as the
cumulative effect of the facts are sufficient to support the conviction under
the law of parties. Id. Mere presence of a person at the scene of a crime, or
even flight from the scene, without more, is insufficient to support a
conviction as a party to the offense. Id. Since an agreement between parties
to act together in common design can seldom be proven by words, the State
often must rely on the actions of the parties, shown by direct or
circumstantial evidence, to establish an understanding or a common design
to commit the offense. Perry, 2024 WL 4234525, at *4.
Before the commission of the offense, Stewart was very upset because
Bryan had taken her gun and marihuana. Motive alone is not sufficient to
Stewart v. State Page 7 establish guilt, but it is a significant circumstance indicating guilt. Nisbett v.
State, 552 S.W.3d 244, 265 (Tex. Crim. App. 2018). She enlisted help from
others to retrieve her property from Bryan. After an unsuccessful attempt to
retrieve her property by another friend, Stewart agreed to take Berry to meet
with Bryan in order to get her property back. Stewart picked up Berry and
Tamarium, who were both carrying guns. Stewart testified that she knew
Tamarium was carrying a large gun when he got into her car. Stewart also
picked up Demarcus who testified that they planned to shoot at someone who
had stolen a gun earlier. Stewart drove Berry and Tamarium around looking
for Bryan. During the offense, she identified Bryan’s vehicle for Berry and
Tamarium, and they began shooting. Stewart then sped away from the store.
After the commission of the offense, she drove Berry and Tamarium to
Demarcus’s apartment where they attempted to hide the guns. In an
interview that was played before the jury, Berry stated that Stewart cleaned
up the casings in her car.
Stewart argues that her conviction can only be upheld if she knew
Tamarium would discharge a firearm and if she intended to assist him in the
firing of the firearm. Section 7.02 provides that a person is criminally
responsible for the conduct of another if, acting “with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or
Stewart v. State Page 8 attempts to aid the other person to commit the offense . . .” TEX. PENAL CODE
ANN. § 7.02(a)(2). Here, the offense was knowingly discharging a firearm at
or in the direction of Bryan’s vehicle. See id. § 22.02(b)(3). We conclude that
a rational juror could have determined that Stewart intended to promote or
assist the conduct of the offense. See id. § 7.02(a)(2). Stewart drove Berry
and Tamarium, who were armed, to find Bryan, identified his vehicle for
them, sped away from the scene, and attempted to hide the guns and
cartridges. Considering all of the evidence in the light most favorable to the
verdict, we find that sufficient evidence was presented for a rational jury to
find beyond a reasonable doubt that Stewart was guilty of the charged
offense as a party. See Perry, 2024 WL 4234525, at *4. We overrule the first
issue.
Discussion Issue Two
Stewart next argues that there was no evidence she was driving a
vehicle as defined by the applicable statute. An offense under
Section 22.02(b)(3) requires proof that the actor was in a motor vehicle as
defined by Section 501.002 of the Transportation Code. See TEX. PENAL CODE
ANN. § 22.02(b)(3). Section 501.002 of the Transportation Code states that a
motor vehicle means “any motor driven or propelled vehicle required to be
Stewart v. State Page 9 registered under the laws of this state . . .” TEX. TRANSP. CODE ANN.
§ 501.002(17)(A).
Stewart argues that the State offered no evidence that she was driving
a vehicle that came within the definition set out in Section 501.002(17)(A).
Jurors are entitled to draw reasonable inferences from the facts. Zuniga, 551
S.W.3d at 732. In drawing inferences, the jury “may use common sense and
apply common knowledge, observation, and experience gained in ordinary
affairs.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). The
question is whether the inferences necessary to find the elements of the
offense are reasonable based on the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Rodgers v.
State, No. 05-23-00316-CR, 2024 WL 3158161, at *4 (Tex. App.—Dallas June
25, 2024, pet. ref’d) (mem. op., not designated for publication).
Stewart testified at trial that she was driving the car when Berry and
Tamarium shot and killed Bryan. The jury viewed surveillance video that
showed a blue car driving by the store and then the flash of a gun being fired.
The car’s status as a motor vehicle was uncontested. See id. The jury was
entitled to infer that Stewart’s car was a motor vehicle as defined by Section
501.002(17)(A). See id. We overrule the second issue.
Stewart v. State Page 10
Issue Three
In the third issue, Stewart argues that the trial court erred in its
charge to the jury.
Standard of Review
We review alleged jury-charge error by considering two questions:
(1) whether error existed in the charge, and (2) if error existed, whether
sufficient harm resulted from the error to compel reversal. Alcoser v. State,
663 S.W.3d 160, 165 (Tex. Crim. App. 2022); Ngo v. State, 175 S.W.3d 738,
744 (Tex. Crim. App. 2005). If there was a timely objection to the error in the
jury charge, the record need only show “some harm” to justify reversal of the
conviction. Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022).
“Some harm” means actual harm rather than merely a theoretical complaint.
Id. If a defendant fails to object to the error in the jury charge, the record
must show that the defendant suffered “egregious harm” to justify reversal.
Alkayyali v. State, 713 S.W.3d 780, 789 (Tex. Crim. App. 2025). “An
erroneous jury charge is egregiously harmful if it affects the very basis of the
case, deprives the accused of a valuable right, or vitally affects a defensive
theory.” Id. (quoting Alcoser, 663 S.W.3d at 165). “In determining whether
charge error resulted in egregious harm, we consider: (1) the entire jury
charge; (2) the state of the evidence; (3) the final arguments of the parties;
Stewart v. State Page 11 and (4) any other relevant information revealed by the trial court as a whole.”
Reed v. State, 680 S.W.3d 620, 626 (Tex. Crim. App. 2023). Egregious harm
must also be based on actual, rather than theoretical harm. Alkayyali, 713
S.W.3d at 789.
Discussion
We begin by determining whether error existed in the jury charge. See
Ngo, 175 S.W.3d at 744. Stewart contends that the trial court
mischaracterized the charged offense as aggravated assault rather than
drive-by aggravated assault. The jury charge stated in the abstract portion
that Stewart stands charged by indictment with the offense of aggravated
assault, that a person commits an assault “if the person intentionally,
knowingly, or recklessly causes bodily injury to another,” and that a person
commits aggravated assault if the person commits assault, as defined above,
and causes serious bodily injury to another. While that language accurately
states the offense of aggravated assault in Section 22.02(a), Stewart was
charged with the offense of aggravated assault pursuant to Section
22.02(b)(3). The indictment alleged that Stewart “did then and there, while
in a motor vehicle, and while reckless as to whether a vehicle was occupied,
knowingly discharge a firearm at or in the direction of the vehicle, and in
discharging the firearm, [Stewart] caused serious bodily injury to [Bryan].”
Stewart v. State Page 12 We agree that the abstract portion of the jury charge included a definition of
a type of aggravated assault that differed from the indictment. See Hall v.
State, 145 S.W.3d 754, 759 (Tex. App.—Texarkana 2004, no pet.).
Stewart next argues that the jury charge incorrectly defined knowingly
and recklessly in relation to the result of her conduct rather than in relation
to the nature of her conduct. The jury charge provided that, “[a] person acts
knowingly, or with knowledge, with respect to a result of her conduct when
she is aware that her conduct is reasonably certain to cause the result.” The
jury charge further provided that:
A person acts recklessly, or is reckless, with respect to the
result of her conduct when she is aware of but consciously
disregards a substantial and unjustifiable risk that the result
will occur. The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the
circumstances, as viewed from the actor’s standpoint.
Aggravated assault is a result-oriented offense. See Landrian v. State,
268 S.W.3d 532, 537 (Tex. Crim. App. 2008). However, Stewart was charged
pursuant to Section 22.02(b)(3), the drive-by shooting statute. See TEX.
PENAL CODE ANN. § 22.02(b)(3); Rodriguez v. State, 538 S.W.3d 623, 628 (Tex.
Crim. App. 2018). Stewart argues that knowingly and recklessly as used in
Section 22.02(b)(3) have to do with the nature of the conduct rather than the
result of conduct.
Stewart v. State Page 13
To ascertain the focus or gravamen of the offense, we look to the
statutory language to decide whether a crime is a “result of conduct,” “nature
of conduct,” or “circumstances of conduct” offense. O’Brien v. State, 544
S.W.3d 376, 382–83 (Tex. Crim. App. 2018). In Young v. State, the Court
explained:
Generally the statutory language determines whether a
crime is a “result of conduct,” “nature of conduct,” or
“circumstances of conduct” offense. A “result of conduct” offense
generally requires a direct object for the verb to act upon: in the
statutory language punishing murder, “causes” is the verb, and
“death”—the result—is the direct object. Further, different
subsections in a “result of conduct” statute may punish distinctly
different acts that cause the same result, and it is the result
rather than the specific act that is the focus of the offense.
“Nature of conduct” offenses, on the other hand, generally use
different verbs in different subsections, an indication that the
Legislature intended to punish distinct types of conduct. For
example, the credit-card-abuse statute criminalizes a wide range
of different acts—stealing a credit card, receiving a stolen credit
card, using a stolen credit card, and so forth. With an offense
whose criminality depends upon the “circumstances surrounding
the conduct,” the focus is on the particular circumstances that
exist rather than the discrete, and perhaps different, acts that
the defendant might commit under those circumstances. For
example, in the failure to stop and render aid statute, the focus is
upon the existence of an automobile accident. That circumstance
gives rise to a driver’s duty to stop, return to the scene, and
render aid to any injured people. . . .
No matter which category an offense falls into, the key
concept remains the same. One looks to the gravamen or focus of
the offense: Is it the result of the act, the nature of the act itself,
or the circumstances surrounding that act?
341 S.W.3d 417, 423–24 (Tex. Crim. App. 2011) (internal citations omitted).
Stewart v. State Page 14
While many assaultive offenses, including aggravated assault, are
result-oriented offenses, the drive-by enhancement in Section 22.02(b)(3)
differs from other assaultive offenses. See TEX. PENAL CODE ANN.
§ 22.02(b)(3); Rodriguez v. State, 538 S.W.3d 623, 628 (Tex. Crim. App. 2018).
In Rodriguez, the Court noted that the “so-called ‘drive-by’ enhancement in
Section 22.02 also parcels out culpable mental states in a very particular
fashion.” 538 S.W.3d at 628. Section 22.02(b)(3) requires that the actor
“knowingly” discharges a firearm at a vehicle while being “reckless” as to
whether the vehicle is occupied causing serious bodily injury to any person.
See TEX. PENAL CODE ANN. § 22.02(b)(3).
Similar to the drive-by enhancement in Section 22.03(b)(3), the offense
of deadly conduct provides that a person commits an offense if she “knowingly
discharges a firearm at or in the direction of: (1) one or more individuals; or
(2) a habitation, building, or vehicle and is reckless as to whether the
habitation, building, or vehicle is occupied.” Id. § 22.05(b). Deadly conduct is
not a result-oriented offense. Simms v. State, 629 S.W.3d 218, 223 (Tex.
Crim. App. 2021).
As in deadly conduct, the gravamen of the offense of aggravated assault
by drive-by shooting is knowingly discharging a firearm in the direction of a
vehicle while being reckless as to whether it was occupied. See Young, 341
Stewart v. State Page 15 S.W.3d at 423–24. The focus is not the result of the act. See id. Accordingly,
the abstract portion of the jury charge incorrectly defined knowingly and
recklessly in relation to the result of the conduct.
Stewart further notes that there is a typographical error in the
application portion of the jury charge. Under the law of parties application
paragraph, the jury charge stated:
If you believe from the evidence beyond a reasonable doubt that
someone other than Margaret Stewart, on or about the 4th day of
November, 2020, in the County of McLennan and State of Texas,
did then and there, while in a motor vehicle, and while reckless
as to whether a vehicle was occupied, knowingly discharge a
firearm at or in the direction of the vehicle, and in discharging
the firearm, the Defendant caused serious bodily injury to Bryan
Johnson, and you further find and believe beyond a reasonable
doubt that Margaret Stewart, acting with intent to promote or
assist another person to commit said offense, solicited,
encouraged, directed, aided, or attempted to aid another person
to commit said offense, then you will find the Defendant "Guilty"
of the offense of Aggravated Assault, as charged in the
indictment in the same manner as if you found that the offense
was committed by Defendant’s own conduct.
The State agrees that the application paragraph contains a typographical
error. The first use of the word “Defendant” should have read “someone other
than Margaret Stewart.”
Because there was error in the jury charge, we must now determine
whether sufficient harm resulted from the error to compel reversal. Alcoser,
663 S.W.3d at 165. Stewart did not object to the error in the jury charge.
Stewart v. State Page 16 Therefore, the record must show that she suffered egregious harm to justify
reversal. Alkayyali, 713 S.W.3d at 789. “In determining whether charge
error resulted in egregious harm, we consider: (1) the entire jury charge;
(2) the state of the evidence; (3) the final arguments of the parties; and
(4) any other relevant information revealed by the trial court as a whole.”
Reed, 680 S.W.3d at 626.
The jury charge correctly stated that the State has the burden of
proving Stewart guilty and must do so by proving each and every element of
the offense charged beyond a reasonable doubt. The jury charge also
provided the jury with accomplice instructions. The jury charge correctly
informed the jury that a “person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or
assist the commission of the offense, she solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.”
The application portion of the charge authorized the jury to convict
Stewart on a theory of direct liability or party liability and included each of
the elements set out in Section 22.02(b)(3). The application paragraph did
not include a definition of a type of aggravated assault that differed from the
indictment and did not allow the jury to convict Stewart on a type of
aggravated assault that differed from the indictment. See Hall v. State, 145
Stewart v. State Page 17 S.W.3d at 759–60. In addition, the application paragraph did not authorize
the jury to convict Stewart based on the result of conduct. See Hall v. State,
145 S.W.3d at 759. Although the application paragraph on the law of parties
contained a typographical error, the entire jury charge makes clear that
Stewart could be convicted for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the
offense, she solicits, encourages, directs, aids, or attempts to aid the other
person to commit the offense.
The evidence shows that Stewart was upset that Bryan had taken her
property, and she talked to Berry to help her get her property back. Stewart
was aware that Berry and Tamarium were armed, and she drove them in her
vehicle to find Bryan. There was testimony that they planned to shoot at
Bryan because he had stolen Stewart’s gun. Stewart identified Bryan’s
vehicle for Berry and Tamarium, and they began shooting. Stewart then
sped away from the scene
In its closing argument, the State correctly addressed the law of parties
as well as the elements of the offense as set out in Section 22.03(b)(3).
Stewart’s counsel also stated in closing argument that the question before the
jury was whether the actions of Berry and Tamarium should attach to
Stewart.
Stewart v. State Page 18
There is nothing to suggest that the jury was confused by the jury
charge. There is nothing to suggest that the error in the jury charge was
egregiously harmful. See Alkayyali v. State, 713 S.W.3d at 789. Viewing the
entire jury charge, the state of the evidence, the final arguments of the
parties, and other relevant information, the record does not show that
Stewart suffered egregious harm. We overrule the third issue.
Issue Four
In the fourth issue, Stewart complains that the trial court abused its
discretion in failing to grant a mistrial when a witness invoked his Fifth
Amendment right not to testify.
Standard of Review
We review the denial of a motion for mistrial for an abuse of discretion.
Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the
zone of reasonable disagreement. Id. “‘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.’” Wood v. State, 18 S.W.3d 642, 648
(Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999)).
Stewart v. State Page 19 Authority
Rule 513(b) of the Texas Rules of Evidence provides that to the “extent
practicable, the court must conduct a jury trial so that the making of a
privilege claim is not suggested to the jury by any means.” TEX. R. EVID.
513(b).
Discussion
At trial, the State called Tamarium as a witness. Prior to any
testimony, the trial court instructed the jury on accomplice testimony as
requested by Stewart. In response to questions by the State, Tamarium
confirmed that he had never met the prosecutor or talked about the case.
Tamarium also confirmed his name and that his attorney was present with
him at trial to advise him as needed during his testimony.
The State then asked Tamarium if he had been shot in December of
2020, which is after the offense that was the subject of the trial. Tamarium
responded that he would like to “plead the Fifth.” The State asked if a
firearm was taken from him when he was shot. Tamarium again responded
that he would like to “plead the Fifth.” Tamarium then indicated that he
would not answer any of the State’s questions. Stewart did not object to
Tamarium’s testimony.
Stewart v. State Page 20
The State then called Tamarium’s counsel to testify. Counsel stated
that he was recently appointed to represent Tamarium and that he had not
been able to go over any of the indictments with him. He further stated that
he and Tamarium had “talked about taking the Fifth and what his rights are
in regards to testifying.” Stewart did not object to the testimony of
Tamarium’s counsel.
The trial continued, and the State called four additional witnesses after
Tamarium’s counsel before resting. The following day, Stewart filed a motion
for mistrial, and the trial court heard the motion before resuming the trial
that day.
In accordance with Texas Rule of Appellate Procedure 33.1, a motion
for mistrial must be timely and specific. TEX. R. APP. P. 33.1; Young v. State,
137 S.W.3d 65, 69 (Tex. Crim. App. 2004). A motion for mistrial is timely
only if it is made as soon as the grounds for it become apparent. Griggs v.
State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007); Wilkerson v. State, 881
S.W.2d 321, 326 (Tex. Crim. App. 1994).
The alleged ground for a mistrial became apparent when Tamarium
invoked his Fifth Amendment right not to testify. Stewart neither objected,
nor moved for a mistrial at this time. With regard to his motion for mistrial,
Stewart waited until the following day to move for a mistrial. Because
Stewart v. State Page 21 Stewart did not move for a mistrial when the alleged ground first became
apparent, we conclude that her motion for mistrial was untimely and did not
preserve this complaint for appellate review. See TEX. R. APP. P. 33.1; see
also Griggs, 213 S.W.3d at 927; Young, 137 S.W.3d at 69; Pratt v. State, No.
10-22-00033-CR, 2022 WL 7288318, at *2 (Tex. App.—Waco Oct. 12, 2022, no
pet.) (mem. op., not designated for publication). We overrule Stewart’s fourth
issue.
Conclusion
Having overruled all of Stewart’s issues on appeal, we affirm the trial
court’s judgment.
MATT JOHNSON
Chief Justice
OPINION DELIVERED and FILED: October 15, 2026
Before Chief Justice Johnson,
Justice Harris, and
Justice Westerfeld
Affirmed
Do Not Publish
CR25
Stewart v. State Page 22