Opinion
05-22-01320-CR
06-18-2024
A.S.B., Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 417-85059-2021
Before Justices Partida-Kipness, Nowell, and Smith
MEMORANDUM OPINION
CRAIG SMITH, JUSTICE
Appellant A.S.B., a juvenile who was certified to stand trial as an adult, see Tex. Fam. Code Ann. § 54.02, appeals his conviction for murder. See Tex. Penal Code Ann. § 19.02(b)(1), (2). After appellant pleaded guilty, the case proceeded to trial on the issue of punishment. The jury assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. The trial court sentenced him accordingly and, after appellant's motion for new trial was overruled by operation of law, this appeal ensued. In a single issue, appellant argues that the trial court erred in denying his request for mistrial after a State's witness improperly testified to matters in violation of the trial court's orders on appellant's motion in limine. We affirm.
Background
The facts of this murder are particularly heinous. On January 3, 2021, appellant bludgeoned his mother to death with a hammer while she sat on their living room couch. He was fifteen years old at the time. Appellant approached his mother from behind and swung the hammer, hitting her in the side of the head. The initial blow caused her to immediately slump over on the couch. Appellant struck his mother over ten times, sometimes swinging the hammer in full motion from up above his head down onto her head. He also strangled her with his bare hands. She suffered multiple lacerations to her head and face, multiple skull fractures, a fractured mandible, multiple abrasions to her neck, a contusion to her neck, and a fractured neck bone. The blows also knocked out multiple teeth. Video-surveillance installed in the family's home captured the murder and was presented to the jury.
Appellant's parents had been concerned about his behavioral outbursts since he was very young. After kindergarten, his parents noticed some delays in that he was not learning as quickly as other children. He was placed in special education for ADHD due to his difficulty with focus, concentration, and attention. As he progressed in schooling, his behavioral and emotional problems increased. In middle school, appellant was found to have an emotional disturbance and was placed in a behavioral classroom designed for students with special needs.
Although his parents did not know it at the time, appellant was sexually assaulted by his brother's math teacher when he was in sixth or seventh grade. The teacher oversaw a running club that appellant and his siblings joined and took a special interest in appellant. At the time, appellant's parents believed that the teacher was genuinely trying to help and formed a close bond with him. Instead, the teacher provided appellant with drugs and alcohol and abused him. Appellant later outcried, and the teacher was charged with continual sexual abuse of a child; the case was still pending at the time of appellant's trial.
Appellant also struggled to follow rules at home. According to his father, he was always finding a way to circumvent whatever effort they put into preventing certain behaviors, such as leaving the house or accessing inappropriate subjects on the internet. Appellant's parents sought treatment for him at Clearfork Academy, which was an adolescent substance abuse treatment center. He attended Clearfork twice. Within a week of returning home the second time, appellant began breaking the house rules again and stealing from his siblings. When his father confronted him about his behavior, appellant responded, "Well, I have a criminal mind, that's just how I think." Ultimately the family installed cameras inside and outside the home to help monitor appellant's behavior and locks on all the bedroom doors to help restrict his access.
Appellant also stole from gas stations, assaulted students and teachers at school, and vandalized property. As a result of appellant slashing his headboard with a steak knife and stabbing things into the wall, his parents had to lock all the knives and other sharp or dangerous objects in their bedroom.
Following his second treatment at Clearfork, his parents hired Henry Boyce, a recovery coach, to help appellant stay sober. Ultimately, Boyce advised the family to remove appellant from the home before he harmed himself or someone else. The family was resistant to Boyce's advice, so their relationship ended and Boyce referred appellant to Jennifer Shotwell, who was a licensed counselor that worked mainly with high risk or acute risk individuals. Shotwell began seeing appellant about six months before the murder. When she started challenging the information he was telling her, he became hostile, argumentative, combative, and defiant. He would stop talking and stare her down. She realized early on that there was more going on than a substance abuse issue. Ultimately, she diagnosed him with oppositional defiant disorder and post-traumatic stress disorder.
Two or three months into seeing appellant, Shotwell concluded that he was a danger to society and a danger to his family. She even began carrying a taser to her therapy sessions with appellant. Shotwell communicated her concerns to appellant's mother, including that she was worried for the safety of the other minor children in the house, and recommended a higher level of care with placement in a mental health inpatient treatment center. Shotwell explained that the only reason she did not diagnose appellant with antisocial personality disorder was due to its age restriction of eighteen or older. In her opinion, appellant was completely unmotivated, did not care how his behavior affected others, blamed others for the reason he had to hurt them, and often found it funny and entertaining how others responded to his threatening and violent behavior.
His parents began searching for a treatment center and told appellant they were looking for one that could help him. Appellant was accepted to a residential treatment center in Montana and his parents received approval from the center on January 1, 2021, to bring him. Shotwell advised appellant's parents not to tell him about the treatment center or when he was going because she feared he might react by acting out, becoming violent, or running away. Nevertheless, appellant asked his father if he could hang out with a friend the next day, and his father responded that he could not because they were leaving for the residential treatment center in Montana. Initially appellant was upset. However, he and his mother talked about it being an opportunity for him to get help and support and, according to his father, his mother believed appellant was at peace with going. The parents prepared for the trip, and appellant's father went to bed. Appellant's mother remained in the living room, waiting for appellant's sister to return home.
Sometime after midnight, appellant brutally attacked his mother with the hammer. Appellant's father heard slapping sounds and, ultimately, went to investigate. He saw appellant dragging his mother across the front entryway floor by her feet. He had a blank look on his face. Appellant's father yelled at him, and appellant dropped his mother's feet and ran out of the house. Appellant's father called 9-1-1, and appellant was later apprehended. Appellant's mother was pronounced dead at the scene.
Denial of Mistrial
Appellant argues in his sole issue on appeal that the trial court erred by denying his motion for mistrial after the State violated the trial court's limine orders through Shotwell's testimony regarding extraneous sexual matters allegedly committed by appellant and a CPS matter involving him. The trial court had previously granted appellant's motion in limine as to paragraphs 110, 115, and 116 of the State's Notice of Intent to Use 37.07, 404(b), and 609(f) Evidence, which provided:
110. On or about July 19, 2020, while at his residence in McKinney, Collin County, Texas, the defendant was caught in the midst of a sexual encounter with his male neighbor.. . . .
115. On or about November 12, 2020, McKinney Police Department, Collin County, Texas received a CPS Referral regarding [J.C.], the 12 year old next door neighbor of the Defendant. [J.C.] disclosed she lost her virginity to the defendant and had multiple sexual encounters with the defendant.
116. On or about November 12, 2020, McKinney Police Department, Collin County, Texas, received a CPS Referral regarding [C.C.] The defendant disclosed in a therapy session that he possibly had consensual sexual intercourse with his 14 year old neighbor.
At trial, in reference to her recommendation that the family seek a higher level of care for appellant, Shotwell testified, "I think I even stated a mental health inpatient treatment, something similar to Clearfork, but mental health, not substance use. Something that was prepared to take on potential violent and sexual actions." Shotwell further explained:
We discussed - - I sent referrals. I started asking peers, Facebook group, chats, any place where they felt somebody with violent acts, sexual acts - - because [appellant] had spoken and told me that he was sexually active with somebody significantly younger than him, but I didn't have any other details.
And so we were trying to find a place that would accept those two. And for liability reasons, it's very, very difficult to find somebody who is a violent offender, and what he had told me, a sexual predator, and we could not find a place.
A few pages later in the record, Shotwell was asked if she told appellant that maybe he was meant to be in jail. She responded, "We did actually discuss - - we had a conversation about jail being the best option for him. There was - - I think it was right after the CPS case against him when it was brought to light - - ." Defense counsel asked to approach, and a bench conference was held off the record. At that point, the State passed the witness, and the trial court excused the jury for the day.
Outside of the jury's presence, defense counsel took Shotwell on voir dire and inquired into whether the State had warned her about the trial court's rulings and advised her as to what she could or could not reference in her testimony. The State had not. Defense counsel argued Shotwell's testimony violated the trial court's orders and requested a mistrial.
The trial court found that its limine orders had been violated and admonished the State with regards to preparing their witnesses. The trial court recessed for the day to review the record and take the request for mistrial under advisement. When court reconvened the next day, the trial court denied defense counsel's request for a mistrial. The question then turned to what, if any, limiting instruction the trial court should give to the jury.
The trial court was concerned that giving a limiting instruction would draw more attention to the issue and advised the parties that the court's preference "would be to leave it alone at this stage." However, defense counsel responded, "I believe a limiting instruction is appropriate and necessary" and approved the substance of the following instruction given to the jury before testimony resumed:
Y'all got a lot of information thrown at you yesterday. We had a few comments that were made that I need to clarify for you because they were not supported by evidence that is before you.
So to the extent you heard comments about CPS, there is no evidence to support that. And so you need to make sure you disregard anything that you may have heard about CPS involvement in any case. It's not a part of this case and you're not to consider anything about that.
There, I think, was also a comment about some sexual activity of the Defendant. What is before you is that the Defendant was the victim of sexual assault by an adult. He is incapable of consenting to that sexual encounter.
Any other references to sexual encounters he may have had are to be disregarded. They are not part of this case and are not relevant, so please, disregard anything else you may have heard. The relevant piece is the one encounter I just mentioned.
We review a trial court's denial of a motion for mistrial for an abuse of discretion. Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim. App. 2016). A trial court abuses it discretion when its decision is outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). "A mistrial is an extreme remedy that should be granted only if residual prejudice remains after less drastic alternatives have been explored." Jenkins, 493 S.W.3d at 612; see also Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) ("Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required."); Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996) ("Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted."), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). Less drastic alternatives include giving appropriate instructions to the jury. Jenkins, 493 S.W.3d at 612. "[O]rdinarily a prompt instruction to disregard will cure error associated with an improper question and answer. And generally, such an instruction will cure prejudice from a witness's inadvertent reference to an extraneous offense or from a nonresponsive answer." Sandoval v. State, 665 S.W.3d 496, 529 (Tex. Crim. App. 2022) (internal footnotes and citations omitted). Thus, a mistrial should be granted only in cases where the reference was of such damning character that it would be impossible to remove the harmful impression from the jurors' minds. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). "Whether an error requires a mistrial must be determined by the particular facts of the case." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).
Appellant contends that Shotwell's reference to him as a sexual predator and being involved in a CPS case was highly prejudicial and that the trial court's limiting instruction did not prevent the jury from being unfairly prejudiced against him.Specifically, appellant points to the trial court's concern with giving a limiting instruction: "[M]y concern is it's going to draw even more attention to it . . . . if I start talking about it now, I think it's going to be a lot worse." Appellant argues, "This statement by the court shows that the limiting instruction was fallible. It highlights the inflammatory nature of Shotwell's statements and the high likelihood that it will prejudice the jury against the defendant. The limiting instruction could not un-ring the bell that was rung through Shotwell's prejudicial testimony." These extra facts of appellant being a sexual predator and involved with CPS, "unnecessarily compounded the already emotionally charged criminal offense that he pleaded guilty to before the jury."
The parties dispute whether appellant preserved error, or timely presented the motion for mistrial, as to Shotwell's references to appellant's sexual activities. See Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007) (under Tex.R.App.P. 33.1, a motion for mistrial must be timely and specific). When the trial court denied appellant's motion for mistrial, it pointed out that defense counsel had not objected to the first two limine violations regarding appellant's sexual activities but acknowledged that there might be a cumulative issue. Because the trial court instructed the jury regarding each of the limine violations at issue, we assume without deciding that appellant timely presented his motion for mistrial as to each of the violations and determine whether the trial court's instruction cured any prejudice.
We disagree that Shotwell's references to appellant being involved in a CPS case or even being a self-proclaimed sexual predator were so emotionally inflammatory, in light of the particular facts of this case, that the jury could not disregard such references when instructed. It is hard to imagine anything more emotionally inflammatory than a video portraying a fifteen-year-old child beating his mother to death with a hammer and then choking her. Appellant's family was terrified of him and what he might do if he was released from prison. According to one of his mother's journal entries, appellant had told her that he was going to kill his whole family one day. Several of the State's witnesses, including Dr. Kristi Compton, a clinical and forensic psychologist who reviewed thousands of pages of records and opined that appellant had strong psychopathic traits, testified that appellant could not be helped. In light of this record, the trial judge could have reasonably concluded that Shotwell's references to appellant's sexual conduct and the CPS investigation were not so inflammatory as to be incurable by an instruction to disregard. Furthermore, in addition to instructing the jury to disregard, the trial court explained to the jurors that the references were not supported by the evidence before them and were not relevant. The trial court also emphasized that the only sexual encounter supported by evidence was appellant being sexually assaulted by an adult and that appellant was incapable of consenting to that encounter. Absent contrary evidence, we conclude that the jury followed the trial court's instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
Based on this record, we are unable to conclude that Shotwell's references were so clearly prejudicial or of such character that the trial court's instructions were ineffective. Because the trial court's instructions to disregard cured any prejudice, the trial court did not abuse its discretion by denying appellant's motion for mistrial. We overrule appellant's sole issue on appeal.
Conclusion
We affirm the trial court's judgment of conviction.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 18th day of June 2024.