Opinion
No. 05-14-01050-CR
02-04-2016
RONNIE CREIGE WILSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F13-62751-J
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Ronnie Creige Wilson appeals his conviction for aggravated robbery with a deadly weapon. After finding appellant guilty, the jury assessed punishment at twenty-two years in prison and a $2,000 fine. In a single issue, appellant claims the trial court abused its discretion by denying his motion for mistrial during the punishment phase of the trial. We affirm.
We review the trial court's denial of a mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We uphold the trial court's ruling if it is within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). A mistrial is required "[o]nly in extreme circumstances, where the prejudice is incurable." Hawkins, 135 S.W.3d at 77. A mistrial is the trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). In effect, the trial court conducts an appellate function and determines whether improper conduct is so harmful that the case must be redone. Id. In most cases, however, "a prompt instruction to disregard will cure error associated with" improper testimony or evidence. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). The harm analysis is conducted in light of the trial court's curative instruction, and only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Hawkins, 135 S.W.3d at 77; see Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).
At trial, Erica Boyd told the jury that on the day in question, as she walked from her apartment on Royal Lane near Central Expressway to two nearby stores, a man began following her. The man, later identified in a photographic lineup and in court as appellant, tried to talk to her, but Boyd ignored him and kept walking. Boyd described his demeanor as "more of a flirtatious kind of conversation." When she was finished shopping at the first store, Doc's, Boyd continued walking and entered the CVS store. Again, appellant followed her in the store and waited "off to the side" while she made her purchases.
When Boyd left CVS and began the walk home, appellant continued to follow and then hit her with a gun and pushed her to the ground. He pointed the gun in her face, grabbing her purse and the cellphone from her hands. Boyd had a second cell phone in her back pocket which appellant also took. He ordered her to stay on the ground and went through her pockets. Boyd said she thought she was going to die. Appellant backed away, waving the gun in her face, and told her not to move, "there is people watching." A man jogging by called police, chased appellant but did not catch him. Boyd's friend arrived shortly and also called police.
About two weeks later, Boyd saw appellant on a DART bus she was riding. He was dressed the same as the night he assaulted her. Although she called police, he got off the bus and got on a different bus on another route. After hearing this and other evidence, including the testimony and in-court identification of appellant by a woman who witnessed the robbery, the jury found appellant guilty.
During punishment, the State introduced evidence, through several witnesses, of three extraneous offenses that occurred in the same area as Boyd's robbery. The first complainant, Farah Hussein, positively identified appellant as the man who robbed her. The second complainant, Cynthia Huasco, was unable to identify her assailant; however, one of the detectives working the cases, Frank Carcone, testified he viewed video footage from the nearby CVS which showed appellant using Huasco's food stamp card to make purchases shortly after Huasco was robbed.
Before the third complainant, Peri Schenkler, testified, the trial court held a hearing outside the jury's presence to determine whether to allow the State to present this evidence in light of the fact Schenkler was unable to positively identify appellant and identified another individual as her attacker. The trial court concluded the State could present evidence of the robbery but that Schenkler could not identify appellant in court. Schenkler then testified and admitted she did not initially recognize any of the photographs in the line-up as being that of her attacker. She conceded that upon a second viewing, she identified someone other than appellant as her assailant. The detective also testified he did not have probable cause to arrest appellant for the Schenkler robbery.
Outside the jury's presence, appellant requested the trial court instruct the jury to disregard Schenkler's testimony and not consider the evidence for any reason. Although the trial court initially denied his request, upon reconsideration, it granted his request and instructed the jury:
Ladies and Gentlemen, after careful review of all the evidence regarding Ms. Schenkler's case, the Court is of the opinion that it did not meet the standard of
probable cause, and the Court is instructing you to disregard all the testimony regarding the offense against her. The Court does not believe that probable cause was met, and for that reason, the Court is ordering, yes, the Court is ordering you that you disregard that testimony.Immediately following this, appellant moved for a mistrial which was denied.
Although appellant claims the evidence of the Schenkler robbery was so similar to the other extraneous offenses that "the jury could not simply ignore Schenkler's testimony" and any curative measures were not sufficient to correct the harm, we cannot agree. Appellant was found guilty in this case of a first degree felony. During the robbery, he pointed a gun in Boyd's face. The evidence of the other two extraneous offenses was strong, clearly implicated appellant, and included testimony that appellant placed a gun to Hussein's forehead and shoved a gun in Huasco's side. Huasco also testified her young daughter was with her at the time of the assault and she thought they were going to die. The trial court instructed the jury to disregard Schenkler's testimony, after which the jury assessed punishment at twenty-two years in prison and a $2,000 fine. The punishment range available to the jury was probation and 5 to 99 years or life in the Texas Department of Criminal Justice and a fine up to $10,000. We put faith in the jury's ability, upon instruction, to recognize the potential for prejudice, and then consciously discount the prejudice, if any, in its deliberations. See Gardner, 730 S.W.2d at 696. Under the facts of this case, we conclude that by sustaining appellant's objection and instructing the jury as it did, the trial court sufficiently alleviated any potential harm from admission of Schenkler's testimony. We overrule appellant's sole issue.
We affirm the trial court's judgment. Do Not Publish
TEX. R. APP. P. 47
141050F.U05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F13-62751-J.
Opinion delivered by Justice Francis, Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 4, 2016.