Memorandum Opinion by Justice Davis, 12-25-00201-CR, January 30, 2026.
On appeal from Smith County
Synopsis
The Twelfth Court of Appeals held that a trial court’s failure to declare a mistrial does not constitute reversible error when the complaining party fails to specifically request a mistrial or obtain an adverse ruling. Although the appellant successfully moved the court to disregard surprise testimony resulting from a discovery violation, the absence of a subsequent motion for mistrial resulted in a procedural default under Texas Rule of Appellate Procedure 33.1(a).
Relevance to Family Law
While Anderson arises from a criminal revocation, its holding regarding the “preservation ladder” is a critical trap for family law practitioners, particularly in high-conflict custody or property disputes involving surprise expert testimony. In bench trials—the standard in Texas family courts—attorneys often assume that a judge’s agreement to “disregard” inadmissible or un-disclosed testimony (such as a therapist’s surprise disclosure or an un-produced forensic accounting detail) cures the harm. However, if the testimony is so prejudicial that it taints the underlying proceeding, merely winning the motion to strike is insufficient for appellate purposes. To preserve the “incurable harm” argument for appeal, the practitioner must move for a mistrial or a new trial, forcing an adverse ruling. Failing to do so renders the error unreviewable, even if the discovery violation was flagrant.
Case Summary
Fact Summary
Brandon Keith Anderson was on deferred adjudication community supervision for injury to a child. The State moved to adjudicate guilt, alleging alcohol consumption and failure to complete sex offender treatment. At the hearing, the State abandoned the treatment-related allegations and proceeded solely on the alcohol violations. However, during cross-examination, the State’s sole witness—a licensed psychological associate—testified to “surprise” facts not disclosed in discovery: specifically, that Anderson had admitted to sexually abusive behavior during a group session and had failed multiple polygraphs.
Anderson’s counsel informed the court that this lack of discovery caused irreparable harm, noting that he would not have elicited the testimony had the State complied with discovery obligations. The parties eventually reached an agreement, and the trial court granted a request to disregard the testimony regarding the sexual admissions and the polygraphs. Following the hearing, the court adjudicated Anderson guilty and sentenced him to twenty years’ confinement. Anderson appealed, arguing the trial court should have declared a mistrial sua sponte or that the error was inherent.
Issues Decided
The primary issue was whether the trial court committed reversible error by failing to declare a mistrial following the disclosure of highly prejudicial, un-disclosed testimony, despite the appellant only requesting that the testimony be disregarded.
Rules Applied
The Court relied on the standard for mistrials and the strict requirements of error preservation:
- Texas Rule of Appellate Procedure 33.1(a): To preserve a complaint for review, a party must make a timely, specific request and obtain an adverse ruling.
- Mistrial Standard: A mistrial is an extreme remedy for incurable prejudice where further proceedings would be futile (Ocon v. State, 284 S.W.3d 880).
- Preservation Ladder: Generally, a party must (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. While the sequence isn’t always rigid, the party must eventually receive an adverse ruling on the most severe remedy sought to complain of it on appeal.
Application
The Twelfth Court of Appeals focused exclusively on the procedural posture of the trial. The court noted that while the appellant complained of “irreparable harm,” he never actually moved for a mistrial. Instead, the record showed that the appellant requested the trial court to disregard the therapist’s testimony—a request the trial court granted. Because the trial court gave the appellant exactly what he asked for, there was no “adverse ruling.” Under the “axiomatic” principles of Texas appellate law, without an adverse ruling, there is nothing for the appellate court to review. The court declined to find that the trial court had a duty to declare a mistrial sua sponte in this context.
Holding
The court held that the appellant failed to preserve his complaint regarding the trial court’s failure to grant a mistrial. Because the appellant’s only requested relief (an instruction to disregard) was granted, there was no adverse ruling to support an appeal under Tex. R. App. P. 33.1(a).
The court affirmed the judgment of the trial court, overruling the sole issue on the basis of procedural default.
Practical Application
For the family litigator, Anderson serves as a warning against “taking the win” at the trial level and forgetting the appellate record. If an expert—such as a child’s therapist or a custody evaluator—drops a “bombshell” during a final trial that was not disclosed in their file or Rule 194 disclosures, the instinctive move is to ask the judge to strike the testimony. If the judge agrees, you have successfully “scrubbed” the record for the moment. However, if that testimony was so toxic that you believe the judge (as the fact-finder) cannot realistically ignore it when determining the “best interest of the child,” a motion for mistrial is necessary. Without it, you are stuck with the judge’s “I’ll disregard it” promise, with no recourse if the final rendition suggests they were influenced by the stricken evidence.
Checklists
When Surprise Testimony Occurs
- Object Immediately: Raise a specific objection based on the discovery violation (Rule 193/194) or the relevant Rules of Evidence.
- Request Curative Action: Move to strike the testimony and request the court to disregard it.
- Assess the “Incurability”: Determine if the testimony is so prejudicial that a simple “disregard” is insufficient.
- Move for Mistrial: If the harm is incurable, you must explicitly move for a mistrial on the record.
- Secure the Adverse Ruling: If the judge denies the mistrial but grants the motion to disregard, the error is now preserved. If the judge grants the motion to disregard and you say “Thank you, Your Honor” without asking for more, you have waived the mistrial issue.
Avoiding the Waiver Trap
- Don’t Settle for Agreed Orders: In Anderson, the request to disregard was “agreed.” Agreed relief is the death knell for an appeal.
- Make a Record of Harm: State clearly on the record why the surprise testimony changed your trial strategy (e.g., “Had this been disclosed, I would not have called this witness/opened this door”).
- Post-Trial Preservation: If the surprise occurs in a bench trial, ensure the issue is reiterated in a Motion for New Trial to reinforce the record of harm.
Citation
Brandon Keith Anderson v. The State of Texas, No. 12-25-00201-CR (Tex. App.—Tyler Jan. 30, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
In Texas divorce and custody litigation, this ruling can be weaponized during the “battle of the experts.” Consider a scenario where a court-appointed psychologist mentions a “failed polygraph” or an “admission of abuse” during a bench trial that was never in the produced file. If the opposing counsel merely asks the judge to strike the comment and the judge says, “I’ll ignore that,” the error is buried.
Strategic litigators can use Anderson to defend a favorable judgment on appeal by arguing that the appellant’s failure to push for a mistrial at the moment of the surprise disclosure waived any complaint about the “tainted” fact-finder. Conversely, the high-end appellate consultant must advise trial counsel: “If the bell cannot be unrung, you must ask the judge to throw out the bell—and get a ‘no’ on the record.” In the 12th Court of Appeals, as in most of Texas, getting what you asked for is the fastest way to lose your right to appeal.
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