Opinion
02-22-00037-CR 02-22-00038-CR
09-07-2023
Jeremy Nathaniel Brown, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 235th District Court Cooke County, Texas Trial Court Nos. CR20-00400, CR20-00401
Before Bassel, Womack, and Wallach, JJ.
MEMORANDUM OPINION
Mike Wallach, Justice
Appellant Jeremy Nathaniel Brown appeals his convictions for the murder of his infant daughter and the assault of his baby's mother (enhanced with prior convictions). In his first point, Brown makes three different arguments challenging the admission of extraneous offenses committed against the assault complainant. The second point faults the trial court for refusing Brown's requests for a mistrial. In Brown's third point, he challenges the trial court's territorial jurisdiction over the murder conviction. We affirm.
I. Background
Karina Ortiz had been in a relationship with Brown since she was seventeen years old. Gradually, the relationship became abusive. Brown's first abuse toward Karina occurred during the return leg of an out-of-town car trip. Brown traumatized Karina "the whole way from Lewisville to Gainesville," drove erratically, acted like he was going to rear-end eighteen-wheelers, and feigned running off the road. He started hitting Karina and then slammed her foot in the door. Karina was pregnant at the time. Their daughter was born in 2020. The abuse continued.
Further violence from Brown was exacerbated by the couple's drug use. Brown introduced Karina to "hard-core" drugs and pressured her into using cocaine. If Karina refused to use drugs, Brown would become violent. In addition, Brown was suicidal- he had previously tried to kill himself both by taking pills and by trying to wreck his car.
Brown shoved methamphetamines down Karina's throat and raped her on June 7, 2020, their last night together. The next morning, they picked up their baby from Karina's mother and drove to her cousin's house. Brown again became enraged at Karina, who signaled to her cousin that Brown was about to "go crazy." The cousin called Karina's mother to come and pick up the baby, but there was no answer. Brown convinced Karina that he would not get "crazy" and that they should both just leave and take their baby somewhere safe. Karina put her baby in a car seat behind the driver's seat-she drove away with Brown in the passenger's seat.
On the way, Brown became violent. He started to punch Karina in the ribs, slap her, and elbow her. Karina tried to slow the car down, but Brown kept hitting her. She parked the car and took his abuse until she just fell out of the open door, unable to breathe. Karina tried to get the baby out of the back seat, but the doors were locked. Brown told Karina that she was "about to die." Karina responded by reminding him that it was his daughter in the back seat of the car. Brown just kept hitting Karina and dragged her away from the car.
Madalyn Ford was stopped at an intersection near Karina and Brown. Karina ran toward Ford's car with Brown close behind. Brown pinned Karina against Ford's driver's side door. Ford unlocked the door, and Karina climbed in. Ford called 911. Brown got back into Karina's car and drove away with the baby. Police arrived, Karina was taken to the hospital, and she was released the next morning.
Sometime during that evening, Brown telephoned Chris Cypert, a municipal judge in Gainesville. Cypert had known Brown and mentored him since he was a teenager. Brown had previously told Cypert that he was suicidal and had tried to kill himself by driving into a light pole. During the phone call that Brown made to Cypert on June 8, Brown again told Cypert he was going to kill himself and said that he had tried to kill "her" for being unfaithful to him.
The day after Brown's assault on Karina, June 9, William Hobbs was under the I-35 bridge near the Red River (on the Texas side). Brown approached Hobbs, exchanged greetings, and left. Brown later returned and asked Hobbs for a water bottle. He told Hobbs that he was stuck at that bridge because, the night before, he had failed to negotiate a U-turn and had driven his car into the river. Brown pointed out his halfsunken car to Hobbs. He also said that if no one had retrieved his "baby" from the car, she was still in there. Hobbs did not understand this statement at the time.
Brown borrowed Hobbs's phone and called someone. Hobbs heard Brown say on the phone something like "she's still in the car." Brown returned the phone to Hobbs and told him that, if his "baby's momma" called, Hobbs should tell her that Brown would be staying at the river. Hobbs left; someone did call Hobbs's phone and told Hobbs that the police had been contacted.
Megan Huerta Rodriguez had been in a previous relationship with Brown and had a child with him. Police contacted her when Brown and the baby went missing. Rodriguez told the police that she did not want to be involved but was afraid that Brown was suicidal and that his actions could ultimately harm the baby.
Brown apparently called Rodriguez from Hobbs's phone. He told her that he needed help and that he was at the river. Rodriguez asked Brown where the baby was, but he said he did not know. She told Brown that there was an "Amber Alert" issued for him and the baby because he had beaten up Karina and taken the baby. Rodriguez said she would call him back, but Brown told her not to-he was going to go into the water and look for his daughter.
Police arrived to find a partially submerged car and Brown standing by the river. Brown walked into deeper water, approaching the car. Brown refused orders to come out of the water, saying that he could not come out because "she is still in the vehicle." When an officer with the sheriff's office tried to approach Brown, he began screaming, kicking, and flailing. Officers got ahold of Brown-who was still frantic-and eventually pulled him out of the water. A tow truck pulled the car out of the river.
An investigator with the Sheriff's office was present when the car was extracted. In the back seat was Karina's deceased daughter, still strapped into her car seat. The medical examiner determined that the cause of her death was drowning.
Brown was indicted for the capital murder of his daughter and for the familyviolence assault of Karina (enhanced by prior convictions). A jury found Brown guilty of the lesser included offense of murder of his daughter. It also found him guilty of assaulting Karina. The jury then assessed a punishment of life in prison for both the assault and the murder convictions. The trial court sentenced Brown accordingly.
II. Extraneous-Offense Evidence
In his first point, Brown complains about the admission of several pieces of extraneous-offense evidence-specifically, evidence of prior threats and assaults against Karina. He divides this point into three parts. First, Brown alleges that the State did not provide him sufficient notice of its intent to use the extraneous-offense evidence. Second, he contends the evidence was inadmissible as character-propensity evidence. Third, he argues the evidence was substantially more prejudicial than probative.
A. Standard of Review
We review the trial court's admission of evidence for an abuse of discretion-an abuse of discretion occurs only when the ruling falls outside the zone of reasonable disagreement. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Merrick v. State, 567 S.W.3d 359, 375 (Tex. App.-Fort Worth 2018, pet. ref'd). We will uphold the trial court's correct decision under any applicable legal theory even if the trial court gave a wrong or incomplete reason for its ruling. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.-Fort Worth 2018, pet. ref'd).
B. The State's Notice of its Intent to Use the Evidence
The notice provision of Rule 404(b) provides that, upon timely request by the accused, the prosecution must give the accused reasonable notice in advance of trial of its intent to use extraneous-offense evidence during its case-in-chief. Tex. R. Evid. 404(b); see also Hernandez v. State, 176 S.W.3d 821, 822 (Tex. Crim. App. 2005). The purpose of the notice requirement is to avoid unfair surprise to the defendant and to enable him to prepare to answer the extraneous-offense evidence. See Hernandez, 176 S.W.3d at 825; Burgess v. State, No. 02-12-00407-CR, 2014 WL 70090, at *4 (Tex. App.-Fort Worth Jan. 9, 2014, pet. ref'd) (mem. op., not designated for publication).
Brown filed a request for notice of the State's intent to use extraneous offenses. The State responded with a detailed notice containing many alleged offenses, but none specifically committed against Karina. Later, the State filed a supplemental notice alleging: "Defendant repeatedly committed acts of violence, mental abuse, and sexual abuse towards Karina Ortiz in Cooke County during the entirety of their relationship, from at least late 2018 up until June 8, 2020."
During a hearing before the trial court, Brown raised his objections to admission of evidence of extraneous acts based on a lack of notice from the State. Reviewing the State's supplemental notice, the trial court commented that it was "pretty generic." The State responded that the notice was indeed "vague," but that notice was satisfied by statements that Karina gave during a protective order hearing-the transcript of which defense counsel apparently had in his possession. The trial court examined that transcript. Of note was a reference to Brown having threatened to drown Karina while they were under the bridge on the shore of the Red River-then actually trying to drown her during a subsequent incident. After hearing the arguments of counsel on the issue of sufficient notice, the trial court overruled Brown's objection and admitted "testimony of prior acts between" Brown and Karina.
The protective order transcript is not part of the record in this appeal.
On appeal, Brown complains about the following specific extraneous acts testified to by Karina that were admitted by the trial court:
• On the way home from Main Event, Brown drove "crazy" and acted like he was going to kill Karina.
• Several times, Brown told Karina that if he had to spend the rest of his life away from his daughter, he would make sure Karina did the same. Karina took this to be a death threat.
• Brown put a gun to Karina's head and asked what she would do if he pulled the trigger.
• Brown would force Karina to have sex with him when she did not want to.
• Brown pressured her into taking "hard-core" drugs.
• Brown generally intimidated, slapped, and pushed Karina.
• During one violent episode, Brown told Karina it was "one hundred percent true" that he would drown her.
A trial court errs in admitting objected-to extraneous-offense evidence when the State has failed to comply with the notice provisions of Rule 404(b). Hernandez, 176 S.W.3d at 822. An erroneous admission of this evidence may still, however, be harmless. Id. at 825.
Rule 44.2(b) of the Texas Rules of Appellate Procedure requires us to disregard any nonconstitutional error that does not affect an appellant's substantial rights. Tex.R.App.P. 44.2(b). An error that has a "substantial and injurious effect or influence in determining the jury's verdict" affects a substantial right. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Assuming without deciding that the State's 404(b) notice was insufficient, we hold that evidence of threats and violence committed by Brown against Karina was harmless. In determining whether a defendant's substantial rights were affected in an insufficient-notice case, we analyze how the lack of notice harmed the defendant's ability to prepare a defense to the admitted evidence. Hernandez, 176 S.W.3d at 825. Factors to be considered in analyzing harm include whether the defendant was surprised by the evidence, id. at 822-23; whether the defendant was unable to prepare a crossexamination, McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005); or whether the defendant moved for a continuance so he might have time to examine the evidence, id.
Although Brown argues on appeal that he was prevented from preparing for trial generally and cross-examination of Karina specifically, he never advanced these arguments in the trial court. A defendant may demonstrate surprise by showing how his defensive strategy might have been different had the State notified him of its intent to offer the extraneous-offense evidence. Allen v. State, 202 S.W.3d 364, 369 (Tex. App.-Fort Worth 2006, pet. ref'd) (op. on reh'g). Brown failed to identify or demonstrate any change in his strategy necessitated by the supposedly surprising evidence. In addition, the State's notice arguably gave Brown at least general notice that it might introduce bad acts showing his physical and emotional abuse against Karina, thus mitigating any possible surprise. See Fernandez v. State, 597 S.W.3d 546, 568 (Tex. App.-El Paso 2020, pet. ref'd). Similarly, Brown had notice of the State's intent to introduce the most important extraneous-offense evidence-his threats to drown Karina. These threats appear to have been the subject of the earlier protective order hearing, the transcript of which had been received by Brown's attorney.
Finally, Brown did not ask the trial court for a continuance or express the need for any extra time to prepare for a cross-examination of Karina about his prior bad acts. Because of this, we hold that Brown cannot show that he was surprised by the State's notice and, therefore, any error has been rendered harmless. See Martin v. State, 176 S.W.3d 887, 900 (Tex. App.-Fort Worth 2005, no pet.); see also Fernandez, 597 S.W.3d at 568 ("Fernandez neither requested additional time to prepare a defense to the extraneous offenses nor made an objection that his defensive theory was hamstrung at that point in time by the State's late disclosure.").
Assuming that the State's notice of extraneous-offense evidence was deficient, we conclude that Brown's substantial rights were not affected and he was therefore not harmed.
C. The Extraneous-Offense Evidence's Relevance Beyond Character Conformity
Separate from his notice complaint, Brown also argues that the trial court abused its discretion by admitting the extraneous-offense evidence because it was introduced merely to show that he acted in conformity with his character in violation of Rule 404(b). Tex. R. Evid. 404(b). We disagree.
Article 38.371 of the Code of Criminal Procedure permits the admission of evidence of "all relevant facts and circumstances" that may assist a trier of fact in certain family-violence prosecutions, including the admission of evidence "regarding the nature of the relationship between the actor and the alleged victim." Tex. Code Crim. Proc. Ann. art. 38.371(b). The statute does, however, preclude the admission of "character evidence that would otherwise be inadmissible" under the rules of evidence. Id. art. 38.371(c). Rule 404(b) prohibits admission of extraneous-offense evidence during the guilt stage of trial to prove that a defendant committed a charged offense in conformity with a bad character. Tex. R. Evid. 404(b)(1); see Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). However, extraneous-offense evidence may be admissible when it has relevance apart from character conformity. Tex. R. Evid. 404(b)(2); Wenger v. State, 292 S.W.3d 191, 203 (Tex. App.-Fort Worth 2009, no pet.).
Rule 404(b) precludes the admission of evidence of a crime, wrong, or act solely to prove a person's character to show that he acted in conformity with that character on a particular occasion, but the rule allows for such evidence to be admitted for other purposes, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Tex. R. Evid. 404(b)(2). Those listed purposes "are neither mutually exclusive nor collectively exhaustive." De La Paz, 279 S.W.3d at 343.
As we have recognized, "Article 38.371, which applies to family-violence prosecutions, provides another non-character-conformity purpose for admitting extraneous-offense evidence." James v. State, 623 S.W.3d 533, 545 (Tex. App.-Fort Worth 2021, no pet.). Though Article 38.371 explicitly proscribes the presentation of character evidence that is otherwise inadmissible under the Rules of Evidence or other laws, it expressly allows "evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense . . ., including testimony or evidence regarding the nature of the relationship" between the accused and the complainant. Id. at 545-46 (citing Tex. Code Crim. Proc. Ann. art. 38.371(b), (c)). Thus, Article 38.371(b) expressly provides for the admission of extraneous-offense evidence regarding the nature of the relationship between an accused and a complainant. James, 623 S.W.3d at 546; see also Franco v. State, No. 08-18-00040-CR, 2020 WL 3168560, at *8 (Tex. App.-El Paso June 15, 2020, no pet.) (not designated for publication) ("[T]he Legislature has determined under article 38.371 that the nature of the relationship itself is a permissible, non-character-conformity purpose for which evidence is admissible.").
In this case, the evidence challenged by Brown gave the jury insight into the couple's volatile relationship. The extraneous acts are the same as those held admissible by this court in James, 623 S.W.3d at 543. For example, the defendant in that case verbally and physically abused the victim, forced her to have sex with him, forced her to take illegal drugs, and threatened to kill her. Id. at 544-46. Brown's acts are indistinguishable. We therefore hold, as we did in James, that the evidence of Brown's violence and threats against Karina concerned their relationship, "a purpose that is not character conformity," and the trial court did not abuse its discretion in admitting it. Id. at 546.
D. Whether the Evidence was Substantially More Prejudicial Than Probative
Brown also argues that the trial court should have excluded the extraneous offense evidence under Rule 403. Otherwise admissible evidence may be excluded under Rule 403 "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. "Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial." James, 623 S.W.3d at 546-47. Because of this presumption, it is the burden of the party opposing the admission of the evidence to show that its probative value is substantially outweighed by one or more of the dangers listed in Rule 403-including unfair prejudice. Id. at 547; Wells v. State, 558 S.W.3d 661, 669 (Tex. App.-Fort Worth 2017, pet. ref'd).
The trial court must conduct a balancing test to determine if evidence is admissible in the face of a Rule 403 objection. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g). Courts must balance (1) the inherent probative force of the proffered item of evidence and (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency that a jury that has not been equipped to evaluate the probative force of the evidence would give it undue weight, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
1. Probative Value and State's Need for the Evidence
Probative value pairs "the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation . . . with the proponent's need for that item of evidence." Id. at 641. When the State has "other compelling or undisputed evidence to establish" what the extraneous-offense evidence "goes to prove," the value of the extraneousoffense evidence is much less. Id. (quoting Montgomery, 810 S.W.2d at 390).
The probative strength of evidence may depend on its value in rebutting a defensive theory of fabrication. See James, 623 S.W.3d at 548. Here, one of the defense's theories was that Karina was not credible and had in fact fabricated the details of Brown's assault against her. This was a theory, in fact, first presented to the panel during jury selection. The defense closing argument made clear its view that Karina was "not credible" and that she had no right to "lie to you." Evidence of prior assaultive behavior "makes it less likely that a complainant has fabricated the charged offenses." Id. Accordingly, we hold that the probative value of the evidence was strong.
As for the State's need for the evidence, while there was ample evidence of the charged assault against Karina, Brown's defensive posture at trial necessitated an explanation of the couple's violent history. As discussed above, Brown contended that Karina had made up details of the attack. Therefore, the evidence of the couple's past relationship, and the past violence perpetrated on Karina by Brown, was necessary to rebut Brown's defensive theory of fabrication. Accordingly, these two factors weigh in favor of admission.
2. Danger of Unfair Prejudice, Confusion of the Issues, Misleading the Jury, and Time Expended
Next, we must weigh the probative value of the extraneous-offense evidence against the danger that it would unfairly prejudice, confuse, or mislead the jury, and cause undue delay. "Unfair prejudice" refers to a tendency of the jury to decide on an improper basis, commonly an emotional one. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2011). All evidence employed against a defendant is necessarily prejudicial-so evidence is not excludable under Rule 403 if it is "merely" prejudicial. Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). "Confusion of the issues" refers to a tendency to confuse or distract the jury from the main issues in the case. Gigliobianco, 210 S.W.3d at 641. "Misleading the jury" involves the likelihood that a jury will place too much weight on the evidence for some non-emotional reason. Scientific evidence, for example, might mislead a jury "not properly equipped to judge the probative force of the evidence." Id. "Undue delay" concerns the efficiency of the trial proceeding rather than the threat of an inaccurate decision. Id.
Brown's argument that the extraneous-offense evidence was prejudicial focuses on its "egregious" nature. This evidence-when placed in juxtaposition to the charged assault-was not particularly egregious, certainly not enough to constitute unfair prejudice. See Norwood v. State, No. 03-13-00230-CR, 2014 WL 4058820, at *5 (Tex. App.-Austin Aug. 15, 2014, pet. ref'd) (mem. op., not designated for publication) ("When the extraneous offense is no more heinous than the charged offense, evidence concerning the extraneous offense is unlikely to cause unfair prejudice."); see also Payne v. State, No. 02-17-00268-CR, 2019 WL 2223575, at *2 (Tex. App.-Fort Worth May 23, 2019, no pet.) (mem. op., not designated for publication) ("Although the [extraneous-offense] evidence was necessarily prejudicial, it was not unfairly so compared to its probative value."). Further, the evidence did not take up a large part of the testimony during the State's case-in-chief, nor did it consist of confusing or technically difficult scientific evidence. See James, 623 S.W.3d at 550.
Considering these factors and weighing them against the probative value of the extraneous-offense evidence, we hold they weigh in favor of its admission. We overrule Brown's first point.
III. Denial of Brown's Requests for a Mistrial
Brown's second point faults the trial court for denying his requests for a mistrial-one request was in response to an unresponsive answer that referred to his history of incarceration, and the other was in response to a prosecutor's question that touched on the same subject. We disagree and hold that the trial court's decision was not an abuse of discretion.
Megan Rodriguez testified about her prior relationship with Brown and the fact that they had a son together in 2016. In response to the State's question about how close Brown was to his son, Rodriguez replied that Brown was "actually in prison" when the child was born. Brown objected and asked for an instruction to the jury to disregard Rodriguez's response. The trial court sustained the objection and gave the requested instruction. Brown's request for a mistrial was denied.
April Sikes testified as a defense witness. During her testimony, Sikes spoke of her relationship with Brown and the children they had together. The State crossexamined Sikes and asked her about periods of time in which Brown was absent from the children's lives. Sikes responded that Brown was not around because he was in jail for thirty-seven months. Brown objected and, outside the jury's presence, Sikes was instructed that she could answer as long as she did not say where Brown was during that period. Back in the jury's presence the State asked Sikes if there was a period of thirty-seven months during which Brown was away from the children. Defense counsel objected, asked for an instruction to disregard, and asked for a mistrial. The trial court instructed the jury to disregard the previous question but denied Brown's mistrial request. On appeal, Brown complains that testimony about his prior incarceration is inadmissible as evidence of the commission of prior extraneous offenses.
We review the denial of a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). 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. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). A mistrial is appropriate only when the record reveals highly prejudicial and incurable error. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). The court of criminal appeals has recognized that "[o]rdinarily, a prompt instruction to disregard will cure error associated with an improper question and answer." Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). Therefore, a trial court should grant a mistrial only when an improper question about inadmissible extraneous offenses (or an unresponsive answer that mentions extraneous offenses) is "clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)); Brock v. State, No. 02-13-00595-CR, 2014 WL 6997450, at *1 (Tex. App.-Fort Worth Dec. 11, 2014, no pet.) (mem. op., not designated for publication).
An instruction to disregard testimony regarding extraneous offenses is sufficient to cure an alleged harm "unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind." Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Brock, 2014 WL 6997450, at *1. Here, the statements made by Rodriguez and Sikes were not so inflammatory that the jurors could not follow the court's instructions to disregard them. The testimony was bereft of any detail that could have been prejudicial to Brown. See Keele v. State, No. 04-02-00132- CR, 2003 WL 21076655, at *3 (Tex. App.-San Antonio May 14, 2003, pet. ref'd) (mem. op., not designated for publication) (holding mistrial not required where testimony about defendant's prior attempted rape was "unresponsive and fleeting"). Additionally, the fact that the references to imprisonment came from two different witnesses does not change our calculus that the instructions were sufficient to cure any prejudicial effect. See Lusk v. State, 82 S.W.3d 57, 63 (Tex. App.-Amarillo 2002, pet. ref'd) (holding that prejudicial effect from even multiple references to prior offenses committed by defendant was sufficiently cured by trial court's instruction to disregard).
Further supporting the court's mid-trial instruction, the charge at guilt instructed the jury that it could "only consider [evidence of extraneous offenses] in determining the nature of the relationship between [Brown] and [Karina], motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant...."
The trial court did not abuse its discretion in denying Brown's requests for a mistrial, and we overrule his second point of error.
IV. Territorial Jurisdiction
In his third point, Brown claims that because the baby's death took place in Oklahoma, Texas could not exercise "territorial jurisdiction" over his actions-thus the trial court had no jurisdiction.
Brown drove a car with his daughter into the Red River. The boundary between Texas and Oklahoma is "the vegetation line along the south bank of the Red River except for the Texoma area, where the boundary does not change." Tex. Nat. Res. Code Ann. § 12.002, art. II(b). Brown's argument is that, because the water impacted the baby (and caused her death) in the river, the result of his offense took place in Oklahoma, not Texas.
The "Texoma area" is not encompassed by the location where Brown drove the car into the Red River. See Tex. Nat. Res. Code Ann. § 12.002, art. II(b)(1), (2); art.II(c) (defining the boundaries of the Texoma area).
Texas has jurisdiction over an offense when "either the conduct or a result that is an element of the offense occurs inside this state." Tex. Penal Code Ann. § 1.04(a)(1); see also Lee v. State, 537 S.W.3d 924, 926 (Tex. Crim. App. 2017); Gunter v. State, 327 S.W.3d 797, 799 (Tex. App.-Fort Worth 2010, no pet.). The indictment accused Brown of "driving a car in which [the victim] was a passenger into a body of water." This conduct, (i.e., Brown's driving of the car) took place in Texas. According to the testimony of an accident reconstructionist, Brown drove down the I-35 service road, hit an embankment, became airborne, and landed in the river.
Brown, who was charged with capital murder, was convicted of the lesser included offense of murder. See Tex. Penal Code Ann. § 19.02(b)(2) (a person who intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death is guilty of murder). A necessary element of murder is committing an act clearly dangerous to human life. See Cannon v. State, 401 S.W.3d 907, 910 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd). Driving a car into a river with an infant could certainly constitute an act clearly dangerous to human life. Based on the evidence at trial, it was obvious that Brown's journey from the service road to the river took him through Cooke County, Texas. Accordingly, Brown's conduct that resulted in the child's death occurred in Texas, and the trial court properly exercised jurisdiction over Brown's prosecution. See Rodriguez v. State, 146 S.W.3d 674, 677 (Tex. Crim. App. 2004) (holding that where aggravating element of capital murder occurred in Texas, Texas had territorial jurisdiction over the offense).
V. Conclusion
Having overruled Brown's three points, we affirm the trial court's judgments.