No. 01-05-01011-CR.
Issued: December 7, 2006.
On Appeal from County Criminal Court at Law No. 5 Harris County, Texas, Trial Court Cause No. 1323112
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Justice, JANE BLAND
MEMORANDUM OPINION
A jury convicted Dwight Daniels of burglary of a motor vehicle. Pursuant to the parties' agreement, the trial court assessed punishment at 301 days' confinement. Daniels contends on appeal that the trial court erred in denying his motion for mistrial after the police officer who had apprehended him testified that Daniels was in possession of a prison identification card at the time he was taken into custody. We conclude that the trial court did not abuse its discretion in denying Daniels's motion and therefore affirm. Background
In August 2005, Officer R. Villarreal of the Houston Community College Police Department worked an extra job as a security guard at St. Joseph Hospital in downtown Houston. As Villarreal patrolled the hospital's exterior, a man notified him that a van parked near the hospital had a shattered window and someone was rummaging through the vehicle. Villarreal drove to the reported location to investigate. As he approached, he observed Daniels crawling out of the van through a window. Villarreal exited his vehicle and asked Daniels to speak with him. Daniels, who was holding a plastic grocery bag in his hand, denied any wrongdoing. He simultaneously backed away from Villarreal and then turned and ran. Villarreal got into his patrol vehicle and chased Daniels for several blocks before apprehending him. Daniels dropped the plastic bag as he was running, but one of Villarreal's fellow officers later recovered the bag. Villarreal testified that the bag contained coins, pornographic material, and a bottle of Victoria's Secret lotion. One of Villarreal's fellow security guards located the owner of the van, Judith Gomez, who was visiting her husband in the hospital. Gomez testified that coins were missing from the van's ashtray and that the bottle of Victoria's Secret lotion found in the plastic bag had been in the van and belonged to her. She further testified that she did not know Daniels and had not given him permission to enter her vehicle. During cross-examination of Villarreal, defense counsel asked whether Daniels had any identification on him at the time he was apprehended. Villarreal responded, "If I recall correctly, he had a Social Security card and an identification that they issue them in prison." Counsel for Daniels objected and the trial court sustained the objection. Counsel then requested a limiting instruction, which the trial court granted. Specifically, the court instructed the jury to "disregard the last answer that the witness gave with regard to the identification, the second form. You will not consider it for any purpose whatsoever." Counsel then moved for a mistrial. The trial court denied the motion. After the jury found Daniels guilty, the trial court sentenced Daniels to 301 days' confinement, consistent with the parties' agreement. This appeal followed. Standard of Review
We review a trial court's denial of a motion for mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). 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. See Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App. 1983). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990). Analysis
Daniels contends the trial court abused its discretion in denying his motion for mistrial after Villarreal testified that Daniels was in possession of a prison identification card at the time he was taken into custody. Specifically, Daniels asserts that Villarreal's statement regarding the prison identification card was inadmissible pursuant to Texas Rule of Evidence 404(b). See TEX. R. EVID. 404(b). Daniels maintains that the trial court's instruction to the jury to disregard this evidence was insufficient to cure the resulting harm, and that declaration of a mistrial was the only appropriate remedy. We disagree. Though Villarreal's statement implying that Daniels had previously been incarcerated was inadmissible under Rule 404(b), it "is well-settled that testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, 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); Tennard v. State, 802 S.W.2d 678, 685 (Tex.Crim.App. 1990); see also Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000) ("Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses."). The present case is indistinguishable from a long line of cases in which witnesses have made similarly inappropriate, but unembellished, references to the appellant's prior incarceration. See Kemp, 846 S.W.2d at 308 (witness disclosed that appellant "had recently been released from the penitentiary"); Nobles v. State, 843 S.W.2d 503, 513 (Tex.Crim.App. 1992) (witness testified that appellant "didn't want to go to the hospital because he didn't want to go back to prison"); Tennard, 802 S.W.2d at 685 (witness stated that he saw appellant "[w]hen he first got out of the penitentiary"); Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987) (witness revealed that appellant had experienced stomach problems "when he was in the penitentiary"); Barney v. State, 698 S.W.2d 114, 125 (Tex.Crim.App. 1985) (witness testified that victim did not like appellant "because he was an ex-con"); Hughes v. State, 962 S.W.2d 89, 91 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (witness explained that he had "seen [appellant] when he got out of jail"). In each of these cases, the trial court instructed the jury to disregard the prejudicial testimony. Kemp, 846 S.W.2d at 308; Nobles, 843 S.W.2d at 514; Tennard, 802 S.W.2d at 685; Gardner, 730 S.W.2d at 696; Barney, 698 S.W.2d at 125; Hughes, 962 S.W.2d at 91. And in each of these cases, either the Court of Criminal Appeals or this court held that the instruction to disregard was sufficient to cure any harm. Kemp, 846 S.W.2d at 308; Nobles, 843 S.W.2d at 514; Tennard, 802 S.W.2d at 685; Gardner, 730 S.W.2d at 697; Barney, 698 S.W.2d at 125; Hughes, 962 S.W.2d at 92. Villarreal's reference to Daniels's possession of a prison identification card is no more inflammatory or prejudicial than the statements made by the witnesses in the cases cited above. Furthermore, the trial court's instruction to disregard the testimony plainly admonished the jury "not [to] consider it for any purpose whatsoever." We therefore conclude that the trial court effectively cured any prejudice that may have resulted from Villarreal's inadmissible statement. See Kemp, 846 S.W.2d at 308; Nobles, 843 S.W.2d at 514; Tennard, 802 S.W.2d at 685; Gardner, 730 S.W.2d at 697; Barney, 698 S.W.2d at 125; Hughes, 962 S.W.2d at 92. Accordingly, we hold that the trial court did not abuse its discretion in denying Daniels's motion for mistrial. Conclusion
We conclude that the trial court did not abuse its discretion in denying Daniels's motion for mistrial and therefore affirm the judgment of the trial court.