Adkins v. State

Full title: JOHNNY RAY ADKINS, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 15, 2003

No. 05-02-00343-CR (Tex. App. Oct. 15, 2003)

Opinion

No. 05-02-00343-CR

Issued October 15, 2003. DO NOT PUBLISH. Tex.R.App.P. 47

On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-49555-QU

Before Justices MORRIS, O'NEILL, and LANG.

OPINION

Opinion By DOUGLAS S. LANG, Justice.

Johnny Ray Adkins, Jr., appeals his conviction for aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). After the jury found appellant guilty, it assessed punishment at eleven years' imprisonment. Appellant brings two issues, contending that the trial court erred in denying his motion for mistrial and in admitting evidence of extraneous offenses. We affirm the trial court's judgment.

FACTUAL BACKGROUND

Early Sunday morning, February 18, 2001, appellant, Kevin West, and Joseph Brooks went out driving so they could "go get some bread," meaning, money. Appellant stole a car and the three drove around, stopping to rob people they saw along the road. They stopped four times in all. At their first stop, Brooks stole a woman's purse. They continued driving, stopping again to rob the complainant, Leroy Adams. At a third stop, West and Brooks assaulted one of two men they tried to rob. At a final stop, Brooks stole another car, which he promptly abandoned. Appellant then dropped off West and Brooks and continued alone, looking for a place to dispose of the stolen car. When appellant noticed a police helicopter hovering above, he fled on foot and police apprehended him after a chase. Several days after his arrest, appellant gave a voluntary written statement, describing all four robberies. At trial the State proffered his written statement, and the trial court admitted it over appellant's objection. While on the stand, appellant contradicted this statement and denied having knowledge that he, West, or Brooks planned to rob anyone during the various stops he made.

DENIAL OF MOTION FOR MISTRIAL

In his first issue, appellant contends the trial court erred in denying his motion for mistrial. Appellant complains that reversible error occurred as a result of testimony referring to multiple offenses that took place before appellant's arrest. The trial court sustained appellant's objection, instructed the jury to disregard, and then overruled appellant's motion for mistrial. Appellant contends that the court's instruction to disregard was inadequate to cure the error. He claims the evidence was of such a character that an instruction to disregard could not cure the prejudicial effect.

A. Standard of Review and Applicable Law

We review a trial court's decision to deny a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)). The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. struck)(citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)). A mistrial is an extreme remedy for prejudicial events occurring during the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). However, a prompt instruction to disregard will ordinarily cure the prejudicial effect associated with an improper question and answer, even one regarding extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). An exception exists only "in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds." Ladd, 3 S.W.3d at 567 (citing Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990); see Edwards, 106 S.W.3d at 838-39. To decide whether this narrow exception applies, we must examine the particular facts and circumstances of each case. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999); Hernandez v. State, 805 S.W.2d at 414.

B. Application of Law to Facts

To begin our review, we turn to the complained-of testimony. The prosecutor asked its witness, Officer Rodriguez:

Q: Once you got the defendant arrested what did you do?

A: At that time it was a task for us to compile the various offenses that had taken place.

Here, appellant's counsel objected. The trial court sustained appellant's objection, instructed the jury to disregard, and then overruled appellant's motion for mistrial. On its face, the witness' answer appears to require nothing more than an instruction to disregard. Although Officer Rodriguez's response indicates other offenses, his response does not imply that appellant committed the offenses. Importantly, the prosecutor's question appears designed to elicit answers regarding the appellant's arrest process, not a list of offenses. The prosecutor's follow-up question further indicates that she did not intend to elicit testimony about appellant's extraneous offenses. She merely asks: "Did you take the defendant to jail?" Appellant argues that Officer Rodriguez intentionally volunteered his testimony to inflame the minds of the jury. However, the record shows the prosecutor did not elicit improper evidence, the witness did not implicate the appellant by his response, and the jury could have inferred that the "various offenses" related to earlier testimony concerning appellant's attempts to evade arrest. Having reviewed the record as a whole, we find the testimony was not so inflammatory or of such a character that an instruction to disregard would not have cured any prejudicial effect. Therefore, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. Finding no error, we resolve appellant's first issue against him.

ADMISSION OF EXTRANEOUS OFFENSES

In his second issue, appellant contends the trial court erred in admitting his written statement.

A. Standard of Review and Applicable Law

A trial judge has broad discretion in admitting or excluding evidence. A reviewing court rarely reverses a trial court's judgment on evidence admitted and does so only when there has been a clear abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999) (citing Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim App. 1991) (op. on reh'g)); Fletcher v. State, 852 S.W.2d 271, 276 (Tex.App.-Dallas 1993, writ ref'd). A clear abuse of discretion is shown only when a trial court's ruling falls outside the zone of reasonable disagreement. Feldman v. State, 71 S.W.3d 738,755 (Tex.Crim.App. 2002). Even when evidence is admissible under Rule 401 of the Texas Rules of Evidence, Rule 404(b) prohibits the admission of evidence of other crimes, wrongs or acts unless it is relevant to prove some issue other than the defendant's criminal character. Montgomery, 810 S.W.2d at 386. Such issues include, but are not limited to: identity, intent, motive, opportunity, preparation, plan, knowledge, and absence of mistake or accident. Tex.R.Crim.Evid. 404(b); Montgomery, 810 S.W.2d at 387. Whether evidence meets rule 404(b) relevancy requirements falls squarely within the trial court's discretion. Montgomery, 810 S.W.2d at 391. Once a trial court rules that the evidence has relevance apart from the defendant's character, it has ruled on the full extent of the opponent's objection. Id. at 388. To invoke a trial court's duty to weigh probative value against prejudicial dangers, the opponent of the evidence must make a further rule 403 objection. Feldman, 71 S.W.3d at 754 (citing Montgomery, 810 S.W.2d at 388).

B. Application of Law to Facts

Appellant complains the extraneous offenses admitted through his written statement¹ include: (1) marijuana possession, (2) a purse theft, (3) robbery of a man, (4) assault on a second man, and (5) theft of a third man's car. Notably, the State successfully offered an edited version of this same written statement, without objection, detailing the first and third points above.² As to the remaining extraneous offenses, we review the record to decide whether the trial court abused its discretion. In this case, the jury had to determine whether appellant committed, or was a party to, the robbery of complainant, Leroy Adams. Although appellant admitted he was driving around to "go get some bread" with West and Brooks, he explicitly denied having knowledge that they were going to rob Adams, or that the robbery occurred, until after the fact. In the face of this denial, appellant's voluntary statement was relevant to show that appellant knew West and Brooks had robbed someone the first time he stopped the car, and that they would rob Adams when appellant stopped the car next to Adams. The statement also offers proof that appellant was in fact aware of the robbery as it occurred. Given that appellant denied knowledge of the robberies, the statement was properly admissible under rule 404(b) as proof of appellant's knowledge. At trial, appellant did not object to the evidence on rule 403 grounds, nor does he argue on appeal that the relevance of his statement was substantially outweighed by prejudicial dangers. Therefore, since the trial court properly admitted the evidence under rule 404(b), we conclude the trial court did not abuse its discretion. We resolve appellant's second issue against him.

CONCLUSION

We conclude the trial court did not err in denying appellant's motion for mistrial, nor did it err in admitting appellant's written statement. Having resolved appellant's two issues adversely to him, we affirm the trial court's judgment.