No. 05-07-00384-CR
Opinion Issued July 31, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 1, Grayson County, Texas, Trial Court Cause No. 2005-1-369.
Before Chief Justice THOMAS and JUSTICES MORRIS and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
FRANCES MALONEY, Justice, Assigned.
The jury convicted Barrett James Oaks of driving while intoxicated and the trial court sentenced appellant to confinement in the Grayson County Jail for 180 days and a $1000 fine, suspended the jail sentence, and placed appellant on community supervision for two years. In a single issue, appellant contends the trial court erred in not granting his motion for mistrial. We affirm the trial court's judgment.
BACKGROUND
Nick Granelli, a Texas State Trooper, stopped appellant for speeding. Conversations with appellant and his passenger, together with the smell of alcohol, led Granelli to give appellant field sobriety tests to determine if appellant "was safe to operate his automobile." As a result of these tests, Granelli arrested appellant and charged him with Driving While Intoxicated (DWI). MOTION FOR MISTRIAL
In his sole issue, appellant maintains that the State's failure to notify appellant of its intent to introduce previous bad acts caught him "off guard" and their admission harmed appellant. Consequently, the jury heard "inappropriate testimony" and the trial court should have granted a mistrial. The State responds that the trial court did not admit the complained-of testimony and twice instructed the jury to disregard the testimony, therefore, the trial court did not err and this Court should not apply a harm analysis. 1. Standard of Review
We review the trial court's denial of a motion for mistrial to determine if the trial court abused its discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App. 2004). In determining whether the trial court abused its discretion, we look first to whether the trial court erred, not whether an error was harmful. Id. We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). 2. Applicable Law
To preserve error in these circumstances, appellant must timely object, request a curative instruction from the trial court, and move for a mistrial. Moody v. State, 827 S.W.2d 875, 890 (Tex.Crim.App. 1992). Additionally, appellant must pursue his objections to an adverse ruling. Young v. State, 137 S.W.3d 65, 69-70 (Tex.Crim.App. 2004). When the trial court improperly admits substantially inadmissible Rule 404(b) evidence that substantially influenced the jury's verdict, the influence on the jury verdict will always be "injurious." Hernandez v. State, 176 S.W.3d 821, 825 (Tex.Crim.App. 2005). However, when the trial court improperly admits substantially admissible evidence and the State did not comply with the Rule 404(b) notice provision, we look to whether the error surprised appellant. Id. at 824-25 (citing Roethel v. State, 80 S.W.3d 276, 281-83 (Tex.App.-Austin 2002, no pet.)). 3. The Evidence
Appellant testified in his own behalf about the events that occurred on the night of his arrest for DWI. When the State began cross examination, it first questioned appellant's "choice of drugs." Appellant answered, "I do not have one." It next asked appellant if he had "a prior arrest for controlled substance. . . ." Before appellant answered, appellant's attorney objected and the trial court sustained his objection. The State then asked appellant "you were arrested for possession of marijuana; were you not?" Although appellant answered "yes" before his attorney could object, the trial court sustained appellant's attorney's objection. In response, the State asked, "you said yes?" Upon which the trial court reminded the State that it had sustained the objection and promptly instructed the jury to disregard appellant's answer. The State continued with questions about the conditions surrounding appellant's arrest and passed the witness. Appellant rested and requested that the trial court remove the jury from the courtroom. After the jury left the courtroom, appellant requested a mistrial for the State's "inappropriate character evidence." The State argued that the rules of evidence permitted the introduction of the complained-of evidence. The trial court denied the mistrial, commenting that it disagreed with the State's interpretation of the rules of evidence. At the charge conference, appellant had no objections to the jury charge. But, did request the trial court to give an oral instruction to the jury. When the jury returned to the courtroom, the trial court reminded the jury that if it had instructed them not to consider any evidence, they were obligated not to consider it and "only consider the evidence that that's been admitted before you. . . ." 4. Application of Law to Facts
Appellant relies on Hernandez v. State to argue that the evidence was inadmissible because of the State's failure to give notice and, consequently, we must find harm. Appellant ignores that the trial court in Hernandez admitted the complained-of evidence. Here, the trial court not only did not admit the evidence, but when the State pursued the objected-to evidence for the third time, the trial court itself stopped the State and sua sponte instructed the jury to disregard that answer. Additionally, the trial court, in charging the jury, orally again admonished the jury of their obligation to disregard and not consider any evidence that it had instructed them not to consider. Because the trial court did not admit the complained-of evidence, the Hernandez analysis relied upon by appellant does not apply. Appellant does not show how his strategy would had differed if he had received notice of the State's intent to introduce this evidence or how this lack of notice injured his defense. Nor did appellant argue at trial or on appeal that the lack of notice prevented him from preparing a defense in this case. Nothing in the record demonstrates that the State's questions and appellant's single answer affected the jury's verdict. Therefore, the trial court did not abuse its discretion in denying appellant's motion for mistrial. We resolve appellant's sole issue against him and affirm the trial court's judgment.