Opinion
NUMBER 13-19-00610-CR
01-28-2021
JOEL BRADLEY COOK, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Chief Justice Contreras
Appellant Joel Bradley Cook appeals his conviction for assault of an individual with whom he has or had a dating relationship, a second-degree felony. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b-3). By one issue, Cook argues the trial court erred when it denied his motion for mistrial. We affirm.
I. BACKGROUND
In April 2019, Cook was indicted for allegedly choking Lainie Sisson, his then-girlfriend. See id. § 22.01(a)(1), (b)(2). The State alleged Cook had previously been convicted of a separate assaultive offense against a family member or person with whom he had a dating relationship. See id. § 22.01(b-3)(2) (elevating offense of assault of a person with whom a defendant has or had a relationship with from a third-degree felony to a second-degree felony); see also TEX. FAM. CODE ANN. § 71.0021(b) (defining "dating relationship").
Prior to trial, Cook filed a motion in limine asking the trial court to "instruct the [State] to instruct its witnesses to follow this order and not testify to any extraneous offenses, crimes[,] or bad acts, including any mention of criminal street gangs or gang-related affiliation." The trial court granted the motion by written order.
The motion also asked for the trial court to "instruct the prosecution to advise the [trial court] prior to eliciting any such testimony in order for the Court to excuse the jury and conduct a hearing . . . ."
At trial, the State presented testimony from Sisson and three Officers from the Victoria Police Department: Eric Parker, Daniel Turner, and Dinah Levario. During the testimony of Parker, the following colloquy occurred:
[State]: Did you receive any specialized instructions from dispatch regarding dealing with Joel Cook?
[Parker]: Yes. I was advised to use caution when contacting him due to previous statements he made that he wanted to kill police officers.
[Defense Counsel]: Object—your Honor, may we—may we have the jury out?
[Trial Court]: All right.
[Defense Counsel]: Your Honor, I would move for a mistrial at this time. This is in direct violation of the Motion in Limine, and I cannot think of possibly—other than him mentioning child molestation, that would further taint—I do not believe that this man can get a fair trial after this officer, despite the Motion in Limine, talked about him making threats to kill police officers before. I think that a mistrial is absolutely necessary at this point.
. . .
[State]: In that case, I believe an instruction to disregard that statement or that it's only to be—only goes towards the perception that Mr. Parker had as he approached the offender in terms of what he was prepared for or why he took certain actions.
[Trial court]: [Defense counsel]?
[Defense Counsel]: Judge, once again, there is no possibility that a jury is going to disregard this. He just brought out that my client—my client intends to commit capital murder in front of this jury. No curing instruction is possibly going to cure that. The cat is out of the bag. There is no—two paces out of two, so to speak. We're not putting it back in, Judge. I think [it's] absolutely necessary that a mistrial be declared.
[Trial Court]: Okay. I am going to deny the motion for mistrial. I am going to—I do believe that this matter can be addressed by the Court with a limiting instruction and the—what we're going to do is I will instruct the jury that they are to disregard that statement in its entirety and to give that statement no weight or credibility whatsoever.
. . .
[Trial Court]: You may be seated. Ladies and gentlemen, Officer Parker's statement regarding alleged statements by the defendant, Mr. Cook, regarding a desire or plan to kill peace officers is to be disregarded by you and to be given absolutely no weight or consideration. This is a hearsay statement that is, at best, second or
third or fourth hand and it is totally inappropriate for that statement to have been made and you are to disregard it and not give it any consideration whatsoever in your deliberations. Counsel is instructed not to list—to elicit any further such hearsay statements unless counsel approaches the Bench and obtains authority from the Court for that purpose.
Sisson testified that Cook sat on her chest and choked her, causing her to lose consciousness multiple times, and that she ran out of Cook's grandmother's house and eventually encountered Turner. Turner testified that Sisson approached her "screaming and saying that somebody was trying to kill her." Turner explained Sisson was terrified and disheveled and that she told her that Cook "put both his hands around her throat and strangled her until she was unconscious."
The State introduced into evidence Sisson's medical records, pictures, and the video recordings from the officers' body cameras. Sisson's medical records showed her jaw was fractured in the altercation. The body cam videos corroborate Turner's testimony at trial and show Sisson making the same accusations she testified to in court. In the videos, Sisson appears upset and scared.
Casey Heard, Cook's close family friend, testified for the defense that he saw Cook and Sisson arguing over a phone on the day of the incident. In Heard's opinion, Cook was acting in self-defense because he witnessed Sisson hit Cook "open-handed" while attempting to get her cell phone from Cook; however, Heard conceded that he did not observe the altercation that followed which resulted in Sisson's injuries. Cook's defense counsel argued that Sisson attacked Cook and that Cook was acting in self-defense.
The jury found Cook guilty of the offense. During the punishment phase, Cook stipulated to the State's enhancement allegation, and the State introduced the judgment of conviction into evidence. The trial court assessed punishment at forty years' imprisonment in the Texas Department of Criminal Justice Institutional Division. This appeal followed.
II. DISCUSSION
By his sole issue, Cook argues the trial court erred when it denied his motion for mistrial.
A. Standard of Review
We review the trial court's decision on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); see Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). We view the evidence in the light most favorable to the trial court's ruling, and we will uphold the ruling if it was within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); see Turner v. State, 570 S.W.3d 250, 268 (Tex. Crim. App. 2018) (noting that appellate courts consider only the arguments made before the trial court when reviewing the ruling on a motion for mistrial). A trial court abuses its discretion if its decision was arbitrary or unreasonable. See Webb, 232 S.W.3d at 112; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
The question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We consider (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) the effectiveness of the curative measures taken; and (3) the certainty of conviction or the punishment assessed absent the misconduct. Hawkins, 135 S.W.3d at 77.
B. Applicable Law
"A mistrial is a device used to halt trial proceedings where error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Guerrero v. State, 528 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009); see Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996) ("Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant's option, our law prefers that trials continue."). Because it is an extreme remedy, a mistrial should be granted only when residual prejudice remains after less drastic alternatives are explored. Ocon, 284 S.W.3d at 884-85.
Testimony referring to extraneous offenses is generally rendered harmless by an instruction to disregard except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such a nature as to suggest the impossibility of withdrawing the impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988); Lusk v. State, 82 S.W.3d 57, 60-61 (Tex. App.—Amarillo 2002, pet. ref'd). Whether a given case fits the exception or the rule depends on the facts. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); Ballard v. State, 537 S.W.3d 517, 525 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). For example, an instruction to disregard may not cure improperly admitted evidence of an extraneous offense when that evidence establishes exactly what the State is trying to prove. See, e.g., Music v. State, 121 S.W.2d 606, 609-10 (Tex. Crim. App. 1938) (concluding that instructions to disregard improper testimony that defendant's associates were thieves did not cure error in defendant's burglary trial); State v. Boyd, 202 S.W.3d 393, 403-04 (Tex. App.—Dallas 2006, pet. ref'd) (finding no abuse of discretion in trial court's decision to grant a mistrial after evidence of defendant's prior DWI arrest was improperly presented to the jury in defendant's DWI prosecution); see also Cavender v. State, 547 S.W.2d 601, 603 (Tex. Crim. App. 1977); Ladd v. State, 629 S.W.2d 139, 141 (Tex. App.—Dallas 1982, pet. ref'd).
C. Analysis
During questioning by the State, Parker mentioned that he was informed Cook had allegedly made statements in the past that he wanted to kill police officers. The State concedes this testimony was prejudicial, and we note it was irrelevant to any issue at the guilt stage of trial. See TEX. R. EVID. 401, 404(b). However, the trial court promptly instructed the jury to disregard Parker's statement, and the jury charge also contained a limiting instruction on the jury's consideration of extraneous offenses.See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); see also Muhammed v. State, No. AP-77,021, 2015 WL 6749922, at *35 (Tex. Crim. App. 2015).
Specifically, the charge instructed the jury that it could not "consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offense, if any, and even then you may only consider the same for the purpose of refuting . . . the defensive theory of self-defense . . . ." --------
There is nothing in the record supporting a conclusion that the complained-of testimony was so extreme under the circumstances as to render ineffective the trial court's instruction to disregard. The evidence complained of had little relevance to any material issue in the case, see Hawkins, 135 S.W.3d at 77; cf. Cavender, 547 S.W.2d at 603; Boyd, 202 S.W.3d at 403-04, and the disputed allegation was never referenced again or elaborated on. See Curlin v. State, 505 S.W.2d 889, 890 (Tex. Crim. App. 1974); Lopez v. State, 643 S.W.2d 436, 438 (Tex. App.—Corpus Christi-Edinburg 1982, pet. ref'd).
We generally presume the jury follows the trial court's instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); see, e.g., Gardner, 730 S.W.2d at 696-97. Cook does not point to anything in the record rebutting this presumption, and we find nothing supporting such a conclusion. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
Finally, as noted above, the evidence of guilt was strong. See Hawkins, 135 S.W.3d at 77; Moore v. State, 434 S.W.2d 852, 853-54 (Tex. Crim. App. 1968); see also Bendy v. State, No. 08-15-00369-CR, 2016 WL 6473054, at *6 (Tex. App.—El Paso Nov. 2, 2016, no pet.) (mem. op., not designated for publication). Cook did not contest that he assaulted Sisson; rather, Cook's defense counsel argued self-defense and presented a single witness, Heard, who testified he was not present when Cook caused Sisson's injuries. On the other hand, the State presented testimony from three officers and Sisson, as well as videos recorded by body cams and testimony and pictures of the injuries suffered by Sisson in contrast to Cook.
In sum, we cannot say that the trial court abused its discretion when it denied Cook's motion for mistrial under these circumstances. See Gamboa, 296 S.W.3d at 580 (concluding instruction to disregard was sufficient to cure extraneous-offense testimony that defendant, on trial for capital murder after robbing and shooting the victims, was seen "in a Crime Stoppers on an unrelated shooting that occurred like the following weekend"); Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982) ("It has long been held by this Court that testimony referring to or implying extraneous offenses allegedly committed by the defendant can be rendered harmless by an instruction from the trial judge."). We overrule Cook's sole issue.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed on the 28th day of January, 2021.