Opinion
Nos. 05-05-00870-CR, 05-05-00871-CR
Opinion Filed July 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-23527-SMQ F04-23526-SMQ. Affirm.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Appellant pleaded guilty before a jury to the felony offenses of evading arrest and detention using a motor vehicle (cause number 05-05-00870-CR and trial court cause number F04-23527-SMQ) and aggravated robbery with a deadly weapon, enhanced by a prior felony conviction (cause number 05-05-00871-CR and trial court cause number F04-23526-SMQ). The jury assessed punishment in the aggravated robbery case at confinement for thirty-two years and a fine of $10,000 and in the evading arrest case at confinement for one and a half years. Appellant and his friend, Kevin Warren, were driving around when they saw the complainant drive by in her truck. They decided to steal her truck for its rims. Appellant blocked the complainant with the car, got out of the car, pointed a loaded assault rifle at her, and ordered her out of the truck. Appellant stole the truck and Warren left in the car. The complainant flagged down a passing police officer. Appellant led police on a high-speed chase that ended when appellant wrecked the truck. The police recovered the rifle from the street near the truck. In four issues, appellant contends (1) the trial court erred by denying his motion for mistrial after the State introduced five misdemeanor convictions unrelated to appellant; (2) the trial court erred by allowing a height comparison between the prosecutor and appellant; and (3) (4) his counsel was ineffective when he failed to object to the admission of the unrelated prior convictions and the height demonstration. We affirm the judgments of the trial court.
Motion for Mistrial
In his first issue, appellant argues the trial court erred by denying his motion for mistrial. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard and uphold the trial court's ruling if that ruling was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). Mistrials ought to be rarely declared. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). For this reason, our system presumes that judicial admonishments to the jury are effective. Id. Mistrials are only required when the improper 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 the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). In making this determination, we look to the facts and circumstances of the case. Id. (citing Hernandez v. State, 805 S.W.2d 409, 414 (Tex.Crim.App. 1990)). The State offered ten prior convictions in the punishment phase; five of those convictions did not belong to appellant. Defense counsel did not object to the admission of the convictions and, in fact, appellant stipulated that he committed all ten of the offenses. The State offered the exhibits and appellant's stipulation, rested its case, and the jury was released for the day. Before the proceedings began the next day, the State realized its mistake. The State told the trial court, which instructed the State to withdraw the unrelated exhibits in the presence of the jury and inform the jury they did not belong to appellant. Appellant's counsel moved for mistrial, arguing that the jury "after sleeping on this, they may have simply made their minds up as to . . . where in the range of punishment they think they might fall down or made other prejudicial decisions about the defendant that can't be undone simply by telling them this morning that, well, on this long list of convictions, [five] of these are not his." The court denied the motion. As instructed, the State withdrew the exhibits in the presence of the jury, informed the jury that appellant had not committed those offenses, and asked the jury not to consider them during its deliberations:[THE STATE]: At this time, ladies and gentlemen of the jury, it's come to the [S]tate's attention that we offered some evidence yesterday that I determined are not the defendant. So I'm gonna retract some of the exhibits and ask you not to consider in your deliberations as we determined these are not the defendant. Okay.
State's Exhibit 39, which was a theft-20 offense.
State's Exhibit 38, which is a possession-of-marijuana offense.
State's Exhibit 36, the driving with no license.
State's Exhibit 37, a possession of marijuana.
State's Exhibit 34, driving with no license.
THE COURT: Those, in fact, belong to a different person; is that correct?
[THE STATE]: Yes, Your Honor, another Derrick Jackson. . . . [The] State would withdraw the prior exhibits and reoffer them for record purposes only.The record does not contain any indication that the State offered these unrelated convictions against appellant to inflame the jury. Instead, the record reflects that when the State became aware of its error, it advised the court before the proceedings began the next day. When the prior convictions were presented, the trial was not over, and the jury had been instructed not to make a decision or even discuss the case until the trial court gave them instructions to begin their deliberations. The trial judge did not personally instruct the jury not to consider the unrelated convictions, but the court directed the State to instruct the jury and it did so. All of the unrelated convictions were for non-violent misdemeanors, two of which were punishable by a fine only. Although the jury could have thought about the five convictions the night before, we presume they followed the instructions and did not consider the unrelated convictions during deliberations. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998); Waldo v. State, 746 S.W.2d 750, 752-54 (1988) (jury presumed to follow instructions to disregard improper evidence). The court of criminal appeals has repeatedly held curative instructions are effective. See Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992). And a prompt instruction to disregard will ordinarily cure error regarding extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Nobles, 843 S.W.2d at 514. On this record, a reasonable trial judge could have concluded that an instruction to disregard the unrelated prior convictions would be effective to remove any possible prejudice caused by their erroneous admission. See Wead, 129 S.W.3d at 130. We overrule appellant's first point of error.
Height Comparison
In his third issue, appellant argues the trial court erred by allowing the State to conduct a height comparison between appellant and the prosecutor because it was irrelevant or, alternatively, highly prejudicial under rule 403. That rule provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. During the State's questioning of the complainant, she identified appellant as the driver of the car and the one who pointed the gun at her. She also testified that the assailant with the gun was the taller of the two. When appellant testified in his own behalf, he denied any real participation in the commission of the offense beyond driving the car and told the jury that Kevin Warren, the other assailant, was the one with the gun. During cross-examination, the prosecutor questioned appellant as follows:Q. [THE STATE] Okay. How tall are you?
A. About 5'11", six foot.
[THE STATE]: Okay. Your Honor, may I ask the defendant to step down?
THE COURT: Yes.
[DEFENSE COUNSEL]: Your Honor, I'm gonna object to physical demonstration unless we have some idea what they are. The defendant is not a proper
THE COURT: What do you want him to do?
Q: [THE STATE] I'm 5'5" and Kevin Warren is 5'5"; is that correct?
A: No, no.
Q: Kevin Warren, the co-defendant, is 5'5".
[DEFENSE COUNSEL]: Objection. Asked and answered. They can put him on the stand if they want, Your Honor. They have him.
THE COURT: Overruled. Rephrase your question or ask it again.
Q. [THE STATE] How tall are you?
A. 5'11", six foot.
Q. Can you step down, sir?
[DEFENSE COUNSEL]: Your Honor, I object to this demonstration.
THE COURT: Overruled, overruled.
Q. [BY THE STATE] Come stand by me, sir.
A. (Defendant complies)
[DEFENSE COUNSEL]: Your Honor, I object. She's taken her shoes off in order to skew this demonstration. I don't think the defendant should be asked to remove his shoes.
THE COURT: Overruled.
Q. [BY THE STATE] There's a significant difference in height between you and me; is that correct?
A: Yes.
* * * Q. You admitted to the jury you were the driver of the vehicle; is that correct?
A. Yes.
Q. And you heard [the complainant] tell the jury the driver of the vehicle [was] the one with the gun; is that correct?
A. Yes.
[DEFENSE COUNSEL]: I object to comparison testimony, Your Honor.
THE COURT: Overruled.To preserve a complaint that the trial court erroneously admitted evidence, the appellant must have objected to the trial court's action or have requested the relief sought with sufficient specificity to make the trial court aware of the complaint or request, unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1(a)(1)(A). Appellant made one general objection to the demonstration, and the grounds appellant argues on appeal were not apparent from the context. Accordingly, appellant has not preserved any error for appellate review. Tex.R.App.P. 33.1(a)(1)(A); see Threadgill v. State, 146 S.W.3d 654, 670 n. 5 (Tex.Crim.App. 2004) (relevance objection); see Bell v. State, 938 S.W.2d 35, 49 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 827 (1997) (rule 403 objection) (citing Montgomery v. State, 810 S.W.2d, 372, 388 (Tex.Crim.App. 1991) (op. on reh'g)). We overrule appellant's third issue.