Opinion
No. 06-12-00027-CR
10-16-2012
DAVID WAYNE HUGHES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law #1
Hunt County, Texas
Trial Court No. CR1100123
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
David Wayne Hughes was convicted by a jury of possession of a usable quantity of marihuana in an amount of two ounces or less. He was sentenced to 180 days in the Hunt County jail and was ordered to pay a $2,000.00 fine. Hughes argues that the trial court erred in failing to grant a mistrial after sustaining an objection to the introduction of evidence related to Hughes' possession of a firearm. We affirm the trial court's judgment.
I. Facts
Deputy David Wilson described a procedure commonly used by the Hunt County Sheriff's Office called the "knock-and-talk," "where we're going to just walk up to the residence, knock on the front door, [and] make contact with the-with the homeowner." Wilson explained,
If it was a particular residence that we had reasonable suspicion that activity was going on, we were to ask, you know, for consent to search the residence, you know, tell them why we're there, be straight honest with them, that there's -- you know, "We believe there's narcotics activity going on here and this -- and we want to see if you're willing to just let us look around to see if it's true or not." And at that point, we would have them fill out a Consensual Residential Search Form . . . . If consent was denied, then we leave.Such a procedure was used to obtain consent and search a residence occupied by Hughes. Wilson discovered a "tote that had miscellaneous drug paraphernalia."
Referring to the tote, the prosecutor asked the question, "What did you do with the -- with this item when you -- when you saw it." Wilson responded that further investigation revealed "a clear gallon-size ziplock bag with what appeared to be marijuana and stems and seeds in there," digital scales, and a smoking pipe. Continuing his answer in narrative form, Wilson then volunteered that he "could see . . . a long gun, a shotgun or a rifle of some sort" in the closet. Hughes' counsel objected to the evidence on the basis of "relevancy." The trial court sustained the objection and instructed the jury to "disregard the last portion of the witness' answer relating to the gun," but denied counsel's motion for mistrial. Later in the trial, when asked "[w]hat happened with the -- with the Defendant at that time," Wilson testified that he secured the evidence in his patrol car and "myself, the Defendant, and Sergeant Phillips went back into the house, because he said he had a .380 pistol in the cabinet." This answer prompted another sustained objection to "relevancy," an instruction to "disregard the witness's last answer," and another denied motion for mistrial.
A few minutes after the denial of the motions for mistrial, the State informed the court outside the presence of the jury that it intended to introduce evidence of the weapons as "same transaction contextual events." See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). Hughes' counsel lodged a Texas Rule of Evidence 404(b) objection and responded that such information was not relevant and "fails the 403 test." The trial court agreed that such evidence was "contextual," but ruled that the "prejudicial effect . . . outweighs any probative value that the evidence may have."
II. Denial of Mistrial
The determination of whether an error requires a mistrial is made on a case-by-case basis. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). In conducting this analysis, we view the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the court at the time of the ruling, to determine whether a trial court abused its discretion in failing to grant a mistrial. Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The ruling must be upheld if it was within the zone of reasonable disagreement. Id.
The only objection or argument by Hughes' counsel prior to the denial of the mistral was to the "relevancy" of the evidence.
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"A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Id. (citing Ladd, 3 S.W.3d at 567). Thus, a mistrial is an appropriate remedy only in "'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). It should "be granted 'only when residual prejudice remains' after less drastic alternatives are explored." Id. at 884-85.
We generally presume the jury follows the trial court's instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. App.—Texarkana 2009, pet. ref'd). When evaluating the effectiveness of a curative instruction to disregard, we look to "the nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence." Searcy v. State, 231 S.W.3d 539, 549 n.10 (Tex. App.—Texarkana 2007, pet. ref'd) (quoting Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.— Waco 2002, pet. ref'd)).
In this case, the comment by Wilson did not suggest that Hughes' possession of the weapons was illegal or related to his possession of marihuana. The comments referencing the guns were not in response to questioning by the prosecutor, and they were not revisited by the prosecutor. The court instructed the jury to disregard Wilson's comments referencing the rifle and pistol. Evidence incriminating Hughes included Wilson's testimony that he discovered marihuana in Hughes' possession, testimony by Officer David Arndt that drug paraphernalia was found in Hughes' bedroom, and exhibits admitted at trial which included the marihuana retrieved as a result of the search. Although Hughes received the maximum sentence, the jury heard during the punishment phase that Hughes was on deferred adjudication community supervision for "possession of marijuana, four ounces to five pounds," and records of Hughes' poor performance while on community supervision were admitted for the jury's review. Also, after the court overruled a relevance objection, Wilson testified during punishment that he found a "sawed-off barreled shotgun" during the search.
Except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jurors and where the conduct is of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds, a prompt instruction to disregard will ordinarily cure any error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam); Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987). We find the trial court's less drastic alternative in the form of an instruction to disregard was effective to cure the testimony during the guilt/innocence phase relating to Hughes' possession of weapons, such that no residual prejudice remained. Accordingly, we hold that the trial court did not abuse its discretion in denying Hughes' motions for mistrial.
We overrule Hughes' point of error and affirm the trial court's judgment.
Jack Carter
Justice
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