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Click here for the full text of this decision FACTS:On June 13, 2002, a Navarro County grand jury returned an indictment charging Gregory Barnett Griggs with the aggravated sexual assault of an elderly woman. On Aug. 7, 2003, appellant filed a pretrial motion in limine asking the trial court not to admit any evidence of extraneous offenses unless the state first demonstrated that such evidence had logical relevance apart from showing his propensity to commit crime. The state agreed not to offer evidence of extraneous offenses without first approaching the bench and obtaining a ruling thereon. On August 12, 2003, the state brought Griggs to trial before a petit jury on his plea of not guilty. During the course of the guilt stage, the trial court instructed the state to take care, when questioning its witnesses, not to “get into extraneous matters that could result in reversal of this case [on appeal] should the jury return a verdict of guilt.” The trial court expressed particular concern about any mention of other sexual assaults allegedly committed by Griggs. Despite the trial court’s concern, fellow inmate Richard Gravitt stated that Griggs told him in prison that he “raped some older women.” The defense attorney made no objection. Eventually, the trial judge commented on the admission of the extraneous evidence and stated that he was considering some type of action, but the state told him that the judge could not grant a mistrial without the defense counsel first requesting it. The defense counsel sought a mistrial, which the trial judge denied. The trial judge then gave a limiting instruction to the jury. On direct appeal, Griggs argued that the trial court had erred in denying his motion for mistrial. Appellant argued that this complaint had been preserved for appellate review because 1. He had filed a motion in limine pertaining to the admission of extraneous offenses; and 2. The state had agreed to abide by that motion in limine. But the state argued in response that appellant’s complaint had not been preserved for appellate review, because his motion for mistrial was made too late. The 10th Court of Appeals, with its chief justice dissenting, agreed with Griggs that the trial court erred in denying the motion for mistrial, and reversed the trial court’s judgment of conviction. The state later filed a petition for discretionary review. HOLDING:The Court of Criminal Appeals (CCA) reversed the judgment of the 10th Court and affirmed the judgment of the trial court. Texas Rule of Appellate Procedure 33.1, the court stated, provides that, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection or motion. In accordance with Rule 33.1, the court stated, a motion for mistrial must be both timely and specific. A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent, the court stated. In the instant case, the court stated, the grounds for Griggs’ motion for mistrial first became apparent during the Gravitt’s testimony. Yet, Griggs failed to move for a mistrial until after both Gravitt and another witness concluded their testimony. Under these circumstances, the CCA held that Griggs’ motion for mistrial was untimely and failed to preserve his complaint for appellate review. Therefore, the CCA held that the 10th Court erred in addressing that complaint. OPINION:Holcomb, J., delivered the opinion of the court, in which Keller, P.J., and Price, Keasler, Hervey and Cochran, J.J., joined. CONCURRENCE:Johnson, J., concurred without an opinion. DISSENT:Meyers, J., filed a dissenting opinion. “When witness testimony repeatedly violates pretrial rulings and the court’s instructions, the defendant is entitled to request a mistrial. Under the circumstances in this case, Appellant’s motion for mistrial was timely, and preserved error because objecting after the improper testimony could not fulfill the purpose of the objection, which is to prevent the jury from hearing the inadmissible evidence.” Womack, J., dissented without an opinion.

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