Opinion
NO. 01-17-00246-CR
04-24-2018
JAMES WARD, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1401937
MEMORANDUM OPINION
A jury convicted appellant, James Ward, Jr., of the first-degree felony offense of murder and assessed his punishment at sixty years' confinement. In three issues, appellant contends that: (1) the State presented insufficient evidence to prove that he committed murder; (2) the State presented insufficient evidence to support his conviction for murder under the law of parties; and (3) the trial court erred by denying his motion for mistrial made after a witness commented on his criminal history.
See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
We affirm.
Background
A. Factual Background
On September 11, 2013, Reshunda "Nikki" Edwards was living with Verne "One-Armed Jack" Whaley in a house at the intersection of Rogers Street and Barkley Street in north Houston. Rogers Street runs parallel to Airline Drive, which is approximately one or two blocks to the east. Barkley Street runs parallel to Crosstimbers Street, which is approximately two blocks to the north. The intersection of Airline and Crosstimbers is thus within walking distance of the house where Edwards lived.
Edwards had known the complainant, Roderick "CP" Culpepper, for approximately two years. Culpepper frequently visited Whaley's house, and he came over to the house several times on September 10, 2013, including just after night had fallen, which was the last time Culpepper visited the house before his murder on September 11. On that occasion, Culpepper came to the house because he had been having an argument with a woman Edwards knew named Pinkie.
On cross-examination, Edwards estimated that Culpepper came to the house around 6:00 or 7:00 p.m., stating, "It had just gotten dark." She testified that Culpepper and Whaley got into an argument, during which Whaley threatened Culpepper with a knife, and Culpepper left and did not come back. Edwards testified that appellant was present when Culpepper left the house that evening.
Appellant, whom Edwards identified as "Red," was also staying at Whaley's house at the behest of Charles "CC" Nickerson. Both Edwards and Whaley were aware that Nickerson and appellant were involved with drugs and prostitution, and Edwards testified that Whaley occasionally let the men use his house for these purposes. Appellant sold drugs for Nickerson, and Pinkie worked as a prostitute for Nickerson. Appellant's duties included selling drugs and notifying Nickerson when he needed a fresh supply of drugs.
At some point in the evening, Culpepper, Pinkie, and appellant were all present at the house, and Edwards heard Culpepper and Pinkie have an argument. In response to this argument, appellant called Nickerson, and Edwards heard appellant inform Nickerson that Pinkie was at the house and that Culpepper "was messing with her again" and had robbed her. Edwards left the area to talk to Whaley because she was tired of Pinkie coming to the house and starting drama, and she did not hear any more of appellant's conversation with Nickerson. After the argument, Culpepper left the house on foot, walking east down Barkley Street toward Airline.
Around thirty or forty-five minutes later, Nickerson arrived at the house driving a white or silver car. Edwards could not remember the exact color or the make of the car, and she stated that Nickerson frequently changed cars. Nickerson then spoke to appellant and left alone in his car, driving east on Barkley. After five to ten minutes, Nickerson came back to the house and told appellant to get in the car with him. Nickerson and appellant drove around the block and then started slowly driving east down Barkley towards Airline. Edwards started following them, walking east down Barkley, when she heard a "boom, boom, boom" coming from the intersection of Barkley and Airline, and she saw Nickerson's car stopped at the intersection. Edwards screamed for Whaley to come with her, but when he would not leave the house, she returned to the house. Edwards estimated that Nickerson and appellant left the house in Nickerson's car less than an hour after Culpepper left the house on foot.
Right after Edwards heard gunshots, another woman who worked for Nickerson as a prostitute arrived at the house and picked up Pinkie. Nickerson then came back to the house and spoke to Edwards, telling her, "Everything is going to be okay."
Edwards testified that she did not see anyone with a gun on the night of the shooting, but, the day before, she had seen appellant with a gun that had been given to him by Nickerson. Edwards complained to Whaley that she did not want anyone to have guns at the house, and she did not see any guns at the house after that point. The only time Edwards ever saw Nickerson with a gun was when he gave the gun to appellant. B. The Police Investigation
Houston Police Department (HPD) Officer M. Rodriguez received a dispatch for a shooting in progress around 4:00 a.m. on September 11. Officer Rodriguez saw Culpepper lying on Airline just south of the intersection with Barkley. Culpepper was not breathing, and Officer Rodriguez called for medical assistance, but Culpepper was pronounced dead at the scene.
Investigator B. Evans, with the HPD Homicide Division, arrived at the scene and observed four spent .40 caliber shell casings lying in the street near Culpepper's body. Dr. Darshan Phatak, with the Harris County Institute of Forensic Sciences, conducted Culpepper's autopsy. Culpepper sustained three gunshot wounds, including one on the left side of his abdomen that perforated his intestines and exited through his back. A second bullet entered Culpepper's right hip, perforated the intestines, and penetrated the pelvis. This bullet was recovered inside his body. Culpepper sustained a third gunshot wound on his right buttock, which perforated the left femoral artery and lodged in his left thigh. Culpepper did not have any defensive wounds on his hands and there was no gunshot residue or stippling on his clothing. The toxicology report revealed that Culpepper had alcohol, cocaine, and cocaine metabolites in his system at the time of his death.
Appellant's father, James Ward, Sr. ("Ward"), testified that appellant got in touch with him through appellant's grandfather in September 2013. Ward did not want appellant to have his phone number or know where he and his family lived, so he set up an email account to communicate with appellant. Ward and appellant exchanged multiple emails on September 17 and 18, 2013. In the emails, appellant confessed to Ward that he had committed murder on the north side of Houston on September 11, and that the male victim had been found dead in the street. Appellant explained that the motive for the shooting was that the man owed $50 to a prostitute who had been working for appellant. Appellant also sent Ward a photograph of himself holding a firearm. Ward then shared the information that he received from these emails with HPD and encouraged appellant to turn himself in. Ward testified that appellant did not express any remorse or regret during their email conversations, but instead acted as though he thought Ward would be proud of him. Ward stated appellant told him that he committed the murder "so he could get his rep up."
When appellant was taken into custody, this same picture was discovered on the cell phone that appellant had in his possession at the time.
The trial court admitted copies of the emails exchanged between appellant and Ward. On September 17, appellant sent Ward an email that stated, "Ive been selling crack an running hoes but i commited murder[.]" Shortly thereafter, appellant sent Ward another message that read, "this aint funn look it up northine man found dead in street[.]" Ward advised appellant to turn himself in, but appellant responded, "Turning myself in aint keeping it real dad ur scaring me i thought u was way more hood then that[.]" Later that day, appellant stated, "I messed up money was too good i couldnt resist it it was heat of the moment[.]" Ward replied, stating, "I tried to look up your issue but couldnt find anything on it." Appellant responded, in three messages, "Northside houston shooting sept 11 man found dead in road," "Airline," and "They been questioning people in the hood bout me." Over the course of three messages, appellant stated, "I dont even have a heart i dont feel bad for what i did and if i can keep getting away with it ill probably continue it made me happy on the inside really[.]"
Appellant sent Ward two messages stating, "U know for as bad as u think i [am] ive only been to jail for fighting an dope cases an i just got my first felony delivery of a controlled substance but its adjudicated . . . im scared to report." Appellant followed this message by sending a picture of himself pointing a gun at the camera. On September 18, appellant sent Ward a series of messages stating that he committed the murder because the victim "kept fucking with my hoe an he took 50 [dollars] frum her the day before an when he a crack head then i tried to confront him an he got fly so i told him wait right here an then i came back a gave him the biz[.]" Appellant stated that he committed the murder so people in the neighborhood would fear and respect him.
HPD Lieutenant W. Meeler was the homicide detective who investigated the shooting of Culpepper. Lieutenant Meeler listened to the original 9-1-1 calls, which reported that a white Dodge Charger had driven away from the scene, and spoke with the callers. One of the callers did not witness the shooting itself, and the other caller was not cooperative with Lieutenant Meeler and did not provide any further information. Lieutenant Meeler visited several businesses near the intersection where the shooting occurred in an attempt to view surveillance footage, including a Valero station at Airline and Crosstimbers. The Valero footage did not show the shooting itself.
Lieutenant Meeler testified that, in the days after the shooting, he began receiving anonymous tips concerning who might be involved. He received the nicknames "CC" and "Red" and a phone number, which he was able to connect to Nickerson. Lieutenant Meeler also learned that Edwards was a potential witness, and he interviewed both Whaley and her. Edwards provided Meeler with the nicknames "CC" and "Red," and she identified Nickerson in a photo-array. Once Lieutenant Meeler had an identification of Nickerson from Edwards, he studied the surveillance footage from the Valero once again and located Nickerson in that footage. Nickerson appeared at the Valero shortly after midnight on September 11, 2013, driving a white Dodge Charger. Lieutenant Meeler observed Pinkie on the Valero surveillance footage at 3:00 a.m., and he identified one of the 9-1-1 callers on the surveillance footage at 3:36 a.m.
Nickerson's wife rented a white Dodge Charger and listed Nickerson as an authorized driver on the rental agreement. The car was returned to the rental car company around 5:00 p.m. on September 11, 2013. Appellant testified that Nickerson always used rental cars so no one would know what car he was driving.
Lieutenant Meeler developed Nickerson as a suspect, but because "Red" was an "extremely common nickname," he was unable to identify appellant as a potential suspect until Ward contacted HPD and informed Meeler of the email messages Ward and appellant had exchanged. Ward gave Lieutenant Meeler permission to view his email correspondence with appellant. Based on these messages, Lieutenant Meeler created a photo-array containing appellant's picture and showed the array to Edwards, who positively identified appellant as "Red." Appellant was subsequently arrested and charged with the offense of murder. C. Trial Proceedings
Edwards appeared in handcuffs during her testimony because she had failed to appear for the first day of trial. At the beginning of her testimony, she had the following exchange with the prosecutor:
The State: So, you have previously been arrested and convicted of criminal cases, though; right?
Edwards: Yes.
The State: Prostitution, correct?
Edwards: Okay. Well, you just came back there and told me that his [appellant's] criminal record would not be brought up, so why is mine?Edwards then testified about where she had been living at the time of the shooting, as well as how she knew Culpepper, Nickerson, and appellant.
Defense counsel: May it please the Court, I would object. And I would instruct the jury to disregard the nonresponsive answer. And I would ask for a mistrial, Your Honor.
The Court: The jury will disregard that nonresponsive answer. And that's denied. You [Edwards] just answer questions. Do we understand each other?
Edwards: Yes, we do.
The Court: Good.
The State: All right. And you have previously been convicted of prostitution, correct?
Edwards: Yes, I have.
The State: And that's—you've been convicted of that multiple times? More than once, right?
Edwards: More than once, yes.
The State then asked Edwards, "What was the relationship between [Nickerson] and [appellant] as far as you knew?" The following then occurred:
Edwards: From my understanding, that [appellant] had just gotten out of jail or had just came from out of town somewhere and needed a place.
Defense counsel: If it please the Court, I would object and renew my objection that an extraneous offense has now been introduced for the second time in this case. And I would request that the jury be instructed to
disregard the non-responsive answer and we ask for a mistrial, Judge.Edwards did not reference appellant's criminal history again during her testimony.
The Court: Jury will disregard. It's denied. Come talk to your client. Overruled.
Whaley testified on appellant's behalf. Whaley testified that Pinkie, Nickerson, and appellant did not come to his house on the evening of September 10, 2013. Whaley agreed that he heard gunshots that evening, but he stated that this did not concern him because hearing gunshots was commonplace in his neighborhood. He stated that he did not walk down Barkley Street toward Airline and that it was the next morning when he learned that someone had been murdered at that intersection.
Darius Johnson testified that he was at the Valero station around 3:00 a.m. on September 11, 2013. A man approached Johnson and asked if he had a cigarette, and when Johnson responded that he did not, the man started walking south down Airline. Johnson started walking behind the man, but when he saw four other men approach the man around the intersection of Airline and Barkley and start shooting, Johnson ran back to the Valero. Johnson did not see a vehicle in the area. When the police arrived at the Valero, Johnson reported that he had heard the gunshots, and he spoke with an officer. Johnson denied being able to identify anyone involved with the shooting, and he stated that he had never seen appellant before. On cross- examination, Johnson agreed with the State that, on the night of the shooting, he had originally told officers that he saw two men, instead of four, approach the man who was shot.
Appellant testified on his own behalf. Appellant acknowledged that he knew Edwards, Pinkie, and Whaley, but he denied ever knowing Culpepper, stating, "I've never met this guy." Appellant admitted selling drugs for Nickerson, and he testified that Nickerson picked the locations where appellant would be "stationed," including various motels in the area and Whaley's house. Appellant testified that, on the night of the shooting, he was at Whaley's house. He called Nickerson to tell him that he had run out of drugs, and Nickerson told him that "one of his girls got into it with somebody." Nickerson reportedly told appellant to stay at Whaley's house because Nickerson was already on his way over there and he would pick appellant up.
Appellant stated that Nickerson arrived at Whaley's house in a white Dodge Charger approximately five minutes after appellant called him. According to appellant, only Whaley and he were at the house when Nickerson arrived; neither Edwards nor Pinkie was there. Appellant testified that Culpepper had not been at Whaley's house that evening, again stating that he did not know Culpepper. Appellant stated that Nickerson told him, "Things get real in the streets," and that appellant needed to get out of the area because it was known that he was associated with Nickerson. Appellant estimated that Nickerson drove him away from Whaley's house around 3:30 in the morning, and he stated that Nickerson took him to a motel off of Highway 290, where he met up with Pinkie and a few other women. Appellant stated that he was at the motel for the rest of the night selling drugs for Nickerson, and he did not go back to Whaley's house on September 11.
Appellant stated that the surveillance footage of Pinkie at the Valero at Airline and Crosstimbers had to have been taken before appellant arrived at the motel because Pinkie was already at the motel when he arrived.
Appellant testified that he learned of the shooting several days later and that Nickerson was responsible, although he denied being with Nickerson when the shooting occurred. He testified that he knew that Nickerson carried a handgun, which appellant used "to take pictures with to look cool." Appellant acknowledged having email conversations with Ward about the murder. He testified:
I knew [the police were] going to eventually question me about [the shooting] because I'm somebody that's with [Nickerson] on a regular [basis]. And in order to tell my dad what happened, I ended up stating that I was the one who did it; but I didn't. I was trying to look cool at the time and always tried to get my dad's approval on things. And I don't know, I was messed up and I was on drugs for several days.Appellant testified that he did not have anything to do with the murder of Culpepper and that he was not present when Culpepper was shot.
The jury charge authorized the jury to convict appellant either as the primary actor or under the law of parties if the jury found that appellant, "with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Charles Nickerson to commit the offense, if he did." The jury found appellant guilty of the offense of murder and assessed his punishment at sixty years' confinement. This appeal followed.
Sufficiency of Evidence
In his first issue, appellant contends that the State failed to present sufficient evidence that he committed the murder of Culpepper as a primary actor. In his second issue, he contends that the State failed to present sufficient evidence that he committed the murder under the law of parties. A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Rivera v. State, 507 S.W.3d 844, 853-54 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).
We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We give great deference to the jury's credibility determinations. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination."). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13. B. Murder as a Primary Actor
To establish that appellant committed the offense of murder as a primary actor, the State was required to prove that appellant intentionally or knowingly caused the death of Roderick Culpepper by shooting him with a firearm or that appellant intended to cause serious bodily injury to Culpepper and committed an act clearly dangerous to human life—shooting Culpepper with a firearm—that caused Culpepper's death. See TEX. PENAL CODE ANN. § 19.02(b)(1)-(2) (West 2011). Appellant argues that the evidence is insufficient to support his conviction for murder as a primary actor because the only evidence showing that appellant caused Culpepper's death was Ward's testimony that appellant admitted in an email that he killed Culpepper because Culpepper stole fifty dollars from a prostitute that worked for appellant.
An extrajudicial confession is sufficient to establish the identity of the perpetrator of a crime. Emery v. State, 881 S.W.2d 702, 706 (Tex. Crim. App. 1994); Dansby v. State, 530 S.W.3d 213, 227 (Tex. App.—Tyler 2017, pet. ref'd); Herrero v. State, 124 S.W.3d 827, 833 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Under the corpus delicti rule, a defendant's extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent evidence of the corpus delicti. Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (quoting Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)). To satisfy the corpus delicti rule, "there must be 'evidence independent of a defendant's extrajudicial confession show[ing] that the "essential nature" of the charged crime was committed by someone.'" Id. (quoting Hacker, 389 S.W.3d at 866); Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993) ("The corpus delicti of a crime—any crime— simply consists of the fact that the crime in question has been committed by someone.") (emphasis in original); Fiedler v. State, 991 S.W.2d 70, 73 (Tex. App.—San Antonio 1998, no pet.) (stating that although person may not be convicted upon confession alone, evidence of corpus delicti of crime plus confession is sufficient).
In this case, it is undisputed that the crime in question—the murder of Culpepper—was committed by someone, and appellant does not argue that the corpus delicti rule was not satisfied. Instead, he argues that the statements he made in the email messages to his father are not sufficient to establish that he was the perpetrator of Culpepper's murder.
Edwards testified that she, Pinkie, Culpepper, and appellant were all present at Whaley's house on the night of the shooting. She knew that Pinkie and Culpepper had a disagreement, and she heard appellant—who worked for Nickerson selling drugs—call Nickerson and inform him that Pinkie—who worked for Nickerson as a prostitute—was at the house and that Culpepper "was messing with her again" and had robbed her. At some point, Culpepper left the house on foot, walking east down Barkley Street toward Airline.
Edwards further testified that, around an hour later, Nickerson arrived at the house and briefly spoke with appellant before driving away. After five or ten minutes, Nickerson arrived back at the house and told appellant to get in the car, and they slowly drove east down Barkley Street toward Airline. Edwards started following them on foot, and, as she walked down Barkley Street, she heard a "boom, boom, boom" and saw Nickerson's car stopped at the intersection of Barkley and Airline. She did not see who fired the shots. Edwards did not see anyone with a weapon on the night of the murder, but, on the day before the murder, she had seen appellant with a handgun which had been given to him by Nickerson.
HPD officers later found Culpepper's body lying on Airline, just south of the intersection with Barkley Street. Culpepper had sustained three gunshot wounds, and officers discovered four spent shell casings near Culpepper's body.
Ward, appellant's father, testified that appellant contacted him several days after the murder, and Ward set up an email account so he could communicate with appellant. During the course of their email correspondence over the next two days, appellant confessed to Ward that he had committed murder in Houston. Specifically, he stated to Ward, "Ive been selling crack an running hoes but i commited murder[.]" Appellant also told Ward, "look it up northine man found dead in street" and "Northside houston shooting sept 11 man found dead in road[.]" Appellant then clarified that the "road" was "Airline." Appellant sent a series of messages stating that he committed the murder because Culpepper "kept fucking with my hoe an he took 50 [dollars] frum her the day before an when he a crack head then i tried to confront him an he got fly so i told him wait right here an then i came back a gave him the biz[.]" Appellant also sent messages to Ward stating that he committed the murder so that people in the neighborhood would fear and respect him and denying that he experienced remorse for his actions. Appellant sent Ward a photograph of himself pointing a handgun at the camera. In addition to Ward's testimony, the trial court admitted copies of the email correspondence between Ward and appellant.
Appellant's extrajudicial confession to the murder is sufficient evidence to establish his identity as the perpetrator of the murder. See Emery, 881 S.W.2d at 706; Dansby, 530 S.W.3d at 227; Herrero, 124 S.W.3d at 833. In addition, Edwards' testimony places appellant at the scene of the murder at the time Culpepper was shot.
Appellant contends that the evidence of his statements in the emails to Ward is outweighed by the fact that Edwards did not witness the shooting itself and the fact that appellant testified that he did not kill Culpepper, that he was not even present at the time of the shooting because Nickerson had driven him to a motel, and that he lied to Ward about killing Culpepper. Appellant argues that he "negated [the] emailed statement by explaining that he emailed this statement to his father to bolster his reputation in the community."
It is within the province of the jury to resolve conflicts in the evidence, and we defer to that resolution. See Murray, 457 S.W.3d at 448-49; Curry, 30 S.W.3d at 406. Here, the jury was presented with Ward's testimony concerning the email conversation he had with appellant; the emails themselves, in which appellant admitted, in several messages, that he committed the murder and provided details concerning the murder, such as when it occurred, how it occurred, and the particular street where it occurred; and appellant's self-serving testimony that he was lying when he told his father that he committed murder because he was "trying to look cool" and get Ward's approval. The jury could choose to disbelieve appellant's testimony, and we may not re-evaluate the weight and credibility that the jury assigned to the evidence. See Williams, 235 S.W.3d at 750; Leroy, 512 S.W.3d at 543; Rivera, 507 S.W.3d at 853-54.
Viewing the evidence in the light most favorable to the verdict, as we must, we conclude that a reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt. See TEX. PENAL CODE ANN. § 19.02(b)(1)-(2); Griffin, 491 S.W.3d at 774. We therefore hold that the State presented sufficient evidence that appellant committed the murder of Culpepper as the primary actor.
Because we conclude that the State presented sufficient evidence to establish that appellant committed murder as the primary actor, we need not address appellant's second issue—whether the evidence was sufficient to support appellant's conviction for murder under the law of parties. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ("[W]hen the trial court's charge authorizes the jury to convict on more than one theory, as it did in this case, the verdict of guilty will be upheld if the evidence is sufficient on any one of the theories.").
We overrule appellant's first issue.
Denial of Motion for Mistrial
In his third issue, appellant contends that the trial court erred by denying his motions for mistrial made after Edwards, on two occasions, referenced appellant's criminal history.
"A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We review a trial court's refusal to grant a motion for mistrial for an abuse of discretion. Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App. 2011). A trial court properly exercises its discretion to grant a mistrial if an impartial verdict cannot be reached, or if a verdict could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd, 3 S.W.3d at 567. Granting a motion for mistrial is the appropriate remedy when "the objectionable events 'are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.'" Archie, 340 S.W.3d at 739 (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
"Unless clearly calculated to inflame the minds of the jury or of such damning character as to make it impossible to remove the harmful impression from the jurors' minds, a witness's reference to a defendant's criminal history or previous incarceration, standing alone, generally is cured by a prompt instruction to disregard." Smith v. State, 491 S.W.3d 864, 873 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd); see also Ladd, 3 S.W.3d at 571 (holding that trial court did not abuse its discretion in refusing to grant mistrial after witness referred to defendant's juvenile criminal history when trial court sustained objection to testimony and gave prompt instruction to disregard). Granting a motion for mistrial should be reserved for the cases in which an instruction to disregard could not cure the prejudice stemming from an event at trial. Jackson v. State, 287 S.W.3d 346, 354 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (quoting Young, 137 S.W.3d at 69). "Because curative instructions are presumed effective to withdraw from jury consideration almost any evidence or argument that is objectionable, trial conditions must be extreme before a mistrial is warranted." Herrero, 124 S.W.3d at 836 (citing Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996)).
In this case, the State began questioning Edwards regarding why she appeared before the jury in handcuffs, and Edwards responded that she had been arrested for failure to appear in court the day before. The following exchange then occurred:
The State: Okay. So, you have previously been arrested and convicted of criminal cases, though; right?
Edwards: Yes.
The State: Prostitution, correct?
Edwards: Okay. Well, you just came back there and told me that his [appellant's] criminal record would not be brought up, so why is mine?
Defense counsel: May it please the Court, I would object. And I would instruct the jury to disregard the nonresponsive answer. And I would ask for a mistrial, Your Honor.
The Court: The jury will disregard that nonresponsive answer. And that's denied. You [Edwards] just answer questions. Do we understand each other?
Edwards: Yes, we do.
The Court: Good.
Edwards then testified concerning living with Whaley, how she knew Culpepper, Culpepper's visits to Whaley's house on September 10, appellant's presence at that house that evening, and his connection to Nickerson. The State asked Edwards, "What was the relationship between CC [Nickerson] and Red [appellant] as far as you knew?" The following occurred:
Edwards: From my understanding, that [appellant] had just gotten out of jail or had just come from out of town somewhere and needed a place.Edwards then testified concerning Nickerson's and appellant's drug enterprise, and she did not again testify concerning appellant's criminal history.
Defense counsel: If it please the Court, I would object and renew my objection that an extraneous offense has now been introduced for the second time in this case. And I would request that the jury be instructed to disregard the non-responsive answer and we ask for a mistrial, Judge.
The Court: Jury will disregard. It's denied. Come talk to your client. Overruled.
Although prejudicial, Edwards' testimony was not "clearly calculated to inflame the minds of the jury or of such damning character as to make it impossible to remove the harmful impression from the jurors' minds." See Jackson, 287 S.W.3d at 354. Edwards' comments referencing that appellant had a criminal history—without providing specific details about his criminal history—and stating her belief that appellant had recently been released from jail "or had just come from out of town somewhere and needed a place" to stay, which led to his connection with Nickerson and Whaley, were not so extreme that an instruction to disregard could not "withdraw[] the impression produced on the minds of the jury." See Herrero, 124 S.W.3d at 836. Instead, her testimony was "uninvited and unembellished and mirrored those references typically cured by an instruction to disregard." See Smith, 491 S.W.3d at 873 (complainant testified that defendant lived with her and with his grandmother "when he got out of jail that last time"); see also Ladd, 3 S.W.3d at 571 (instruction to disregard cured any harm caused by reference to defendant's "three or four juvenile arrests"); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (instruction to disregard cured any harm from witness's statement that defendant "had recently been released from the penitentiary"); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (noting that "inadvertent references to prior incarceration can be cured of prejudicial effect" and holding that instruction to disregard cured harm from witness's testimony that defendant "didn't want to go back to prison").
Moreover, we note that the trial court admitted copies of appellant's emails to his father, in which he told Ward that he had recently been put on deferred adjudication for delivery of a controlled substance and referenced getting out of jail in Madisonville, Texas. Appellant also, during his own testimony, freely admitted that he was involved in criminal activity by assisting Nickerson with his drug and prostitution enterprise.
Because this case is not one in which the prejudice from Edwards' testimony was incurable, such that the trial court's prompt instructions to disregard were ineffective, we conclude that a mistrial was not warranted in this case. See Hawkins, 135 S.W.3d at 77 ("Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required."). We therefore hold that the trial court did not abuse its discretion by denying appellant's requests for a mistrial. See Archie, 340 S.W.3d at 738-39; Smith, 491 S.W.3d at 873; Jackson, 287 S.W.3d at 354.
We overrule appellant's third issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Jennings, Keyes, and Higley. Do not publish. TEX. R. APP. P. 47.2(b).