Opinion
Nos. 05-03-00616-CR, 05-03-00617-CR, 05-03-00618-CR
Opinion Filed October 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-59940-N, F01-59941-N, and F01-75696-N. Affirm.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
In October 1999, Paula Skelton sought and received a protective order against appellant Moses Blaylock, with whom she had been living. The order forbade Blaylock from committing family violence against Skelton. In this appeal, Blaylock challenges his convictions for (1) violation of that protective order, (2) assault, and (3) retaliation. Blaylock contends that the evidence is factually insufficient to support the convictions for both assault and retaliation, and that the trial court erroneously denied his motion for a mistrial on all charges. For the reasons discussed below, we affirm the judgments of the trial court.
Factual Sufficiency
In a factual sufficiency review, we view all of the evidence in a neutral light, and we determine whether the evidence of the appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). In conducting this review, we may not substitute our determination for that of the factfinder. Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Resolution of conflicts in the evidence and credibility of witnesses lies within the factfinder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). Despite the family violence that had led to the October 1999 protective order, Blaylock and Skelton subsequently had a daughter together and resumed living together. Blaylock remained subject to the protective order forbidding family violence. His conviction in this case for violation of that protective order is based upon testimony from Skelton and her then thirteen-year-old daughter, Ashley. Both witnesses testified that on September 4, 2001, Blaylock punched Skelton in the eye and hit her across the face with his hand during an argument about money. Following the altercation, Skelton took the parties' baby and Ashley to a shelter for three weeks and then to a home of their own. Blaylock does not challenge the sufficiency of the evidence to support his conviction for violation of the protective order in September. Blaylock does challenge the sufficiency of the evidence to support his convictions for assault and retaliation, both of which stem from allegations of his conduct on December 8, 2001. Accordingly, we analyze all the evidence of these charges in a neutral light. As to the assault, Skelton testified that Blaylock came to her home on December 8 and that he was angry when he arrived. Apparently, he had recently learned that Skelton had reported his violation of the protective order to the authorities and that a warrant had been issued for his arrest. An argument ensued, and Skelton testified that Blaylock pulled her hair and struck her repeatedly in the face. She further testified that he threw her on a bed and choked her with his hand. When she tried to get away from him and fell, he stepped on her throat, choking her with his foot. Skelton stated that while Blaylock was choking her, he said he was going to kill her. Skelton testified she was in fear of her life. Ashley was present at this time, and she testified that she saw Blaylock hit her mother repeatedly and choke her with his hand and his foot. As to the retaliation, Skelton testified that while Blaylock was choking and threatening her, he also told her that he was going to take her "downtown" and she was going to drop the charges against him. She also testified that Blaylock took their infant daughter with him and said he would not give the child back to Skelton until she dropped the charges. In fact, Blaylock did drive Skelton to the district attorney's office so that she could drop the charges. However, while Skelton was going through the procedures to do so, she "broke down" and told the official she did not really want to drop the charges. Skelton spoke to Detective J.H. Lumbley, who took pictures showing scratches on Skelton's neck. The police took Moesha from Blaylock and gave her back to Skelton. Blaylock stresses that neither Skelton nor Ashley called the police after Blaylock left or the following day. Blaylock also relies on testimony from Blaylock's brother, Michael Green. At one point Green testified that he was with his brother all day and that he never saw Blaylock injure Skelton. He also stated that when he saw Skelton that day, he did not see any signs of injury to her. However, Green later conceded that he was not with his brother the entire day. And Skelton testified that she did not call the police because Blaylock had threatened both to harm her and to keep the baby if she did. There is conflicting evidence concerning the circumstances under which Blaylock took the baby. Skelton testified that she was forced to sign a paper Blaylock composed giving custody of the baby to Blaylock and that Blaylock and Green took the baby and all of the baby's things with them after the assault. Green testified that Skelton voluntarily wrote out the custody paper herself, that the baby was already out of the house, and that Skelton herself had packed up all of the baby's things for the brothers to take with them. The credibility issues raised by the evidence were the factfinder's to decide. See Obigbo, 6 S.W.3d at 305. After reviewing the entire record, we conclude that the evidence of Blaylock's guilt on the charges of assault and retaliation, taken alone, is not too weak to support the jury's finding of guilt beyond a reasonable doubt. We also conclude that the evidence contrary to these two verdicts is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 2004 WL 840786 at *7. We overrule Blaylock's first two issues.Mistrial
Blaylock's third issue relates to the testimony of Detective Lumbley, who spoke with Skelton when she came to the district attorney's office on December 10, 2001. The State called Lumbley and, in the course of the direct examination, the prosecutor asked Lumbley what Skelton had told him. Counsel for Blaylock objected to the hearsay being sought; the court overruled the objection on excited-utterance grounds. Following that ruling, the following exchange took place:Q. (By [the prosecutor]) What did she tell you.
A. She told me that on Saturday she had come home, and the Defendant had threaten [sic] her and made several remarks about killing her. He told her that he was going to go back to prison anyway, and he might as well —Blaylock's counsel objected because his motion in limine, which the trial court had granted, covered evidence of Blaylock's prior felony conviction. The trial court sustained the objection and instructed the jury to disregard the statement. The court denied Blaylock's motion for mistrial. We review a trial court's denial of a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial halts trial proceedings when an error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. To determine whether a given error necessitates a mistrial, we examine the particular facts of the case. See id. In general, a trial court's prompt instruction to disregard will cure a witness's inadvertent reference to an extraneous offense. Wilson v. State, 90 S.W.3d 391, 395 (Tex.App.-Dallas 2002, no pet.). Only in extreme cases, where the question is clearly calculated to inflame the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds, will error from an improper question not be cured or rendered harmless by an instruction to disregard. Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990). This instance is not one of those extreme cases. First, the jury had already learned that Blaylock had an earlier conviction for domestic violence. The jury could easily connect the detective's reference to Blaylock's incarceration with that offense rather than with some other undisclosed and undiscussed felony conviction. Moreover, the offending statement was not the detective's own pronouncement of Blaylock's criminal record: he was merely repeating what Skelton had told him. Skelton herself had already testified, giving the jury the ability to make decisions concerning her credibility. Jurors would have received and evaluated the statement subject to their perceptions of Skelton's credibility, not clothed with the credibility and authority of a law enforcement official. We conclude that, under the circumstances of this case, the statement repeated by the detective was not clearly calculated to inflame the jury. And we are confident the trial court's instruction sufficed to cure the harm, if any, caused by repetition of Skelton's remark. We find no abuse of discretion in the trial court's refusal to declare a mistrial. We overrule Blaylock's third issue. We have decided each of Blaylock's issues against him. Accordingly, we affirm all three judgments of the trial court.