Opinion
No. 10-05-00001-CR
Opinion delivered and filed February 15, 2006. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2003-754-C. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Belcher appeals his convictions for sexual assault of a child and indecency with a child. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.11(a), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at TEX. PENAL CODE ANN. § 21.11(a) (Vernon 2003)); id. sec. 22.011(a)(2), 1993 Tex. Gen. Laws at 3618 (amended 1997, 2003) (current version at TEX. PENAL CODE ANN. § 22.011(a)(2) (Vernon Supp. 2005)). We affirm. In Belcher's first issue, he contends that the trial court erred in not instructing the jury on the difference in age between Belcher and the victim. In general, a "defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence. . . ." Young v. State, 991 S.W.2d 835, 840 (Tex.Crim.App. 1999). However, "no error is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the defendant is not entitled to rely on this defense." Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.); see Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984). It is an affirmative defense to prosecution under the statutes under which Belcher was prosecuted that "the actor was not more than three years older than the victim," among other requirements that differ between the two offenses. TEX. PENAL CODE ANN. § 21.11(b)(1) (Vernon 2003), § 22.011(e)(1) (Vernon Supp. 2005). Belcher was born on March 2, 1975; the victim was born on September 3, 1978. Belcher thus was approximately three and one half years older than the victim. See Brown v. State, 990 S.W.2d 759, 760 (Tex.App.-Austin 1999, no pet.). Accordingly, Belcher was not entitled to rely on the defense, and the trial court did not err in denying the requested instruction. We overrule Belcher's first issue. In Belcher's second issue, he contends that the trial court erred in overruling Belcher's motion for mistrial. Belcher complains of the following testimony on direct examination of a police officer by the State:
Q . . . Why were you running Mr. Belcher's "local" [criminal history]?
A Another criminal offense, the investigation of another criminal offense."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.'" Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). "The denial of a motion for mistrial is reviewed under an abuse of discretion standard." Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). "[T]he general presumption is that an instruction to disregard . . . objectionable evidence is sufficient to cure error." Swallow v. State, 829 S.W.2d 223, 226 (Tex.Crim.App. 1992). "A grant of a motion for mistrial should be reserved for those cases in which . . . an instruction to disregard could not cure the prejudice stemming from an event at trial — i.e., where an instruction would not leave the jury in an acceptable state to continue the trial." Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). The trial court does not abuse its discretion in overruling a motion for mistrial after giving an instruction to disregard where "[t]he trial court could have reasonably concluded that its instruction to disregard was sufficient to cure any harm." Ladd, 3 S.W.3d at 567. Belcher argues that the prosecutor committed a flagrant violation and was persistent in pursuing it, and that the incriminating evidence was weak and contradicted (citing Veteto v. State, 8 S.W.3d 805 (Tex.App.-Waco 2000, pet. ref'd)). The State disputes this; argues that the evidence, including DNA evidence, was strong; and points to the strength of the instruction to disregard "for any purpose" and to Belcher's moderate sentence (citing Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App. 1988)). The trial court could have reasonably concluded that its instruction to disregard was sufficient to cure any error, and accordingly did not abuse its discretion in overruling the motion for mistrial. We overrule Belcher's second issue. Having overruled Belcher's issues, we affirm.