Opinion
No. 05-18-00490-CR
07-16-2019
KORRON TORADE HILL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F17-76407-H
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Myers
A jury convicted appellant Korron Torade Hill of aggravated assault with a deadly weapon and assessed punishment at 15 years' imprisonment. Appellant also pleaded true to an enhancement paragraph in the indictment alleging a prior aggravated assault. In two issues, appellant argues the evidence was insufficient to prove the extraneous offenses and that the trial court should not have denied appellant's motion for mistrial. We affirm.
DISCUSSION
1. Sufficiency of the Evidence
In his first point of error, appellant asks for appellate review of whether the evidence was sufficient to prove the extraneous offenses beyond a reasonable doubt.
The record shows that the State offered evidence during the punishment phase that appellant committed several extraneous offenses. This evidence was offered through the testimony of Darren Hodge, a fingerprint analyst. He testified about certain certified documents marked as State's exhibits 34 through 44. The State offered these exhibits into evidence, but the presentation was interrupted after the parties realized appellant had never entered a plea to the enhancement paragraph in the indictment. That enhancement paragraph—alleging a prior aggravated assault from 2011—was then read to appellant and he entered a plea of true, which the trial court received. However, the record also shows that the court never ruled on the admissibility of State's exhibits 34 through 44, nor were those exhibits entered into evidence. Appellant specifically complains about exhibits 34, 36, 37, 38, 39, 40, 41, and 42, and he asks us to review whether the State proved the extraneous offenses contained in those exhibits beyond a reasonable doubt. Appellant claims he is entitled to a new trial on punishment.
Although appellant couches this issue in terms of sufficiency of the evidence, the only review possible of the sufficiency of the proof of an extraneous offense offered at the punishment stage is a review under an abuse of discretion standard of the trial court's threshold ruling on admissibility. See Malpica v. State, 108 S.W.3d 374, 379 (Tex. App.—Tyler 2003, pet. ref'd); Wilson v. State, No. 05-16-01066-CR, 2017 WL 6616632, at *4 (Tex. App.—Dallas Dec. 28, 2017, pet. ref'd) (mem. op., not designated for publication); Hatch v. State, No. 05-13-01710-CR, 2015 WL 4723620, at *7 (Tex. App.—Dallas Aug. 10, 2015, pet. ref'd) (mem. op., not designated for publication); Garcia v. State, No. 05-05-00926-CR, 2006 WL 1738303, at *3 (Tex. App.—Dallas June 27, 2006, no pet.) (mem. op., not designated for publication). In this case, however, appellant does not challenge the admission of any evidence. In fact, as he acknowledges in his brief, the trial court never admitted the challenged exhibits. Nor did appellant object to any evidence concerning extraneous offenses. He did not object when the exhibits were offered but not admitted, when Investigator Hodge described the challenged exhibits, or when the State offered, and the trial court admitted, a summary of appellant's criminal history as State's exhibit 45. State's exhibit 45 was entered into evidence without any limitation on its use, and Hodge explained during his testimony that it was an accurate summary of appellant's criminal history. Without registering any complaint in the trial court about the admission of any of this evidence, appellant has preserved nothing for this Court to review on appeal. See TEX. R. APP. P. 33.1(a)(1); Wilson, 2017 WL 6616632, at *4; Hatch, 2015 WL 4723620, at *7. We overrule appellant's first issue.
2. Motion for Mistrial
In his second point of error, appellant contends the trial court erred by denying appellant's motion for mistrial.
The complained-of remarks occurred near the end of the State's direct examination of Dallas Police Department Detective Jon Lumbley. The State asked him to explain what he decided to do after he completed his investigation:
Q. [STATE:] Based on everything you learned through the course of your investigation what did you determine to do?
A. [LUMBLEY:] I believed what Ms. [TIARRA] Wilson told me. I believed what patrol officers told me. We issued a warrant for Mr. Hill's arrest. Turned the case information over to our fugitive squad and our fugitive squad executed the arrest warrant.
Q. And so I guess do you recall when exactly Mr. Hill was arrested?
A. I think my notes said the 25th, so just a couple days.
Q. So shortly after this event?
A. Correct. I take that back. He was arrested for the parole violation so he was arrested for the parole violation.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustained. Members of the jury, disregard the last 2 responses. That evidence may not be considered by you for any purpose.
[DEFENSE COUNSEL]: Move for a mistrial.
THE COURT: Denied.
Because the trial court sustained appellant's objection and instructed the jury to disregard, the only adverse ruling was the trial court's denial of the motion for mistrial. We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A trial court abuses its discretion if its decision is outside the zone of reasonable disagreement. Id. "'Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.'" Id . (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)); see also Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) ("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."). A trial court properly exercises its discretion to declare a mistrial when an impartial verdict cannot be reached. Wood, 18 S.W.3d at 648.
"'[W]hether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis.'" Archie, 221 S.W.3d at 700 (quoting Hawkins, 135 S.W.3d at 77). These factors include (1) the severity of the misconduct, i.e., the magnitude of the prejudicial effect of the prosecutor's remarks; (2) the measures adopted to cure the misconduct, i.e., the efficacy of any cautionary instruction by the judge; and (3) the certainty of conviction absent the misconduct, i.e., the strength of the evidence supporting the conviction. Id.
Having reviewed the record, we conclude the trial court did not abuse its discretion by overruling the motion for mistrial. Detective Lumbley said appellant had a "parole violation," but his comment was nonresponsive to the question asked. Additionally, the trial court took curative measures by sustaining defense counsel's objection and promptly instructing the jury to disregard. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) ("In most instances, an instruction to disregard the remarks will cure the error."). The jury charge on guilt/innocence also instructed the jury not to consider, discuss, or relate any matters not in evidence. There is no indication in the record that the jury disregarded the court's instructions and the statements in question were not so outrageous that the jury would have ignored an instruction to disregard. See id. at 116 ("Only offensive or flagrant error warrants reversal when there has been an instruction to disregard[.]"). We overrule appellant's second issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. 47.2(b)
180490F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F17-76407-H.
Opinion delivered by Justice Myers. Justices Molberg and Carlyle participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 16th day of July, 2019.