Opinion
No. 09-05-273 CR
Submitted on June 28, 2006.
Opinion Delivered July 26, 2006. DO NOT PUBLISH.
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause No. 91949. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
A jury found Rico DeShawn Holland guilty of the aggravated assault of Jerry Sylvester. He was sentenced to twenty years in prison. In a single issue, Holland argues the trial court erred in failing to grant a mistrial. Holland contends the prosecutor "intentionally informed the jury during the guilt-innocence phase of the trial of `other shootings' by [Holland]. . . ." He says this was prosecutorial misconduct. The prosecutor questioned witness Brandi Williams as follows:
Q. [Prosecutor] When you called 911, do you remember what you told them?
A. [Brandi Williams] I told them that Jerry [Sylvester] had just been shot.
Q. Do you remember if you told them that Rico Holland shot him?A. I think I did say Rico Holland shot him.
Q. Okay. And shortly after this happened, a Beaumont police detective gave you an opportunity to give a statement?A. Yes.
Q. And [defense counsel] just showed you that statement where you say, again, what you've been telling me the whole time, that you saw Rico shoot Jerry, right?A. Yes. Q. Why did you tell that detective that? A. Because I did. Q. You did? A. Yes. Q. You did see that, didn't you, Brandi? A. Yes. Q. You saw it with your own eyes, didn't you? A. Yes.
Q. There wasn't any obstruction to your view and you were no more than 10 feet away from this where it happened, weren't you?A. That's correct, yes.
Q. Are you aware of other shootings that have taken place around there?[Defense Counsel]: Objection, Your Honor. Irrelevant. A. I've heard about it. [Defense Counsel]: Objection. [The Court]: Sustained.
[Defense Counsel]: Can the jury be instructed to disregard?[The Court]: The jury is so instructed. [Defense Counsel]: Ask for a mistrial. [The Court]: That's denied. At trial, Holland objected to the question about "other shootings" on relevancy grounds, asked for an instruction to disregard, and requested a mistrial. On appeal, Holland asserts the trial court erred in denying his request for a mistrial. He contends the prosecutor elicited hearsay, extraneous offense testimony that was so inflammatory and prejudicial that the trial court's instruction to disregard was insufficient to cure error arising from the testimony. Holland's trial objection was on relevancy grounds, not on extraneous offense grounds under Tex. R. Evid. 404(b), and not on more-prejudicial-than-probative grounds under Tex. R. Evid. 403. Grounds not raised at trial generally are not considered on appeal. However, because Holland made a relevancy objection below, obtained a ruling on his objection, and requested a mistrial, we consider whether the trial court's instruction to disregard cured any error associated with the prosecutor's question and the witness's answer. Review of a trial court's denial of a motion for mistrial is under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). Here, the trial judge promptly instructed the jury to disregard the State's question and Williams' answer. We think it unlikely the question — "Are you aware of other shootings that have taken place around there?" — and Williams' answer — "I've heard about it." — had an impact upon the jury's verdict. Six witnesses at the scene testified during the guilt-innocence phase. Jerry Sylvester (the victim of the shooting), Chivon Sylvester (Jerry's sister), and Brandi Williams (Chivon's acquaintance) testified for the State. Testifying for defendant were Rosnica Mire, Joshua Green, and Rico himself. The prosecution's three witnesses testified they saw Rico Holland shoot Jerry Sylvester that night; the three defense witnesses testified they saw Rico Holland at the scene that night, but Rico did not shoot Jerry. The jurors' verdict was based essentially on credibility determinations. Whatever the prosecution's question about "other shootings that have taken place around there" referenced, neither the question nor the answer was so clearly prejudicial to the defendant as to preclude the jurors from following the trial court's instruction to disregard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). The asking of an improper question will seldom call for a mistrial, because in most cases an instruction to disregard will cure any harm. Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005) (citing Ladd, 3 S.W.3d at 567). Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Ladd, 3 S.W.3d at 567. Here, the prosecutor's question is general and does not expressly state that Holland was involved in other shootings. Similarly, Williams' answer does not necessarily implicate Holland. The question was not so inflammatory as to be incurable by an instruction to disregard. In Gardner v. State, 730 S.W.2d 675 (Tex.Crim.App. 1987), the Court explained as follows:
In the vast majority of cases in which . . . testimony comes in . . . which has no relevance to any material issue in the case and carries with it some definite potential for prejudice to the accused, this Court has relied upon what amounts to an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury. In essence this Court puts its faith in the jury's ability, upon instruction, consciously to recognize the potential for prejudice, and then consciously to discount the prejudice, if any, in its deliberations. Thus we say the harm deriving from the unresponsive answer has been "cured." This is true "except in extreme cases where it appears that the . . . evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds."Id. at 696 (some citations omitted) (quoting Campos v. State, 589 S.W.2d 424, 428 (Tex.Crim.App. 1979)). The testimony here does not fall within the exception; the instruction to disregard "cured" any harm. The trial court did not abuse its discretion in denying Holland's motion for mistrial. Holland's issue is overruled. We affirm the trial court's judgment.
Holland's first name is spelled "Ricko" at various points in the record and in his brief. We use the spelling "Rico" from the indictment and the judgment.