Opinion
No. 05-15-00142-CR
04-28-2016
DEVARION CLARK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1470983-R
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Fillmore
A jury found Devarion Clark guilty of family violence assault, enhanced by a prior family violence assault conviction. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A) (West Supp. 2015); TEX. FAM. CODE ANN. § 71.0021 (West Supp. 2015) & 71.003 (West 2014). The jury found two enhancement paragraphs alleged in the indictment to be true, and sentenced Clark to twenty-five years' imprisonment. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2015). In one point of error, Clark asserts the trial court erred by denying his motion for mistrial after a witness testified about an extraneous act committed by Clark. We affirm the trial court's judgment.
Background
Because Clark does not challenge the sufficiency of the evidence to support the conviction, we recite only those facts necessary to address his complaint on appeal. --------
Clark and Ashley Lippold had an off-and-on romantic relationship and had a child together. On May 10, 2014, Clark assaulted Lippold by hitting her in the face with his hand, knocking off her glasses. Lippold had a laceration on her nose and some redness on her face from the assault.
Senior Corporal Dan Russell of the Dallas Police Department and an officer he was training responded to a 911 call about the assault. The prosecutor asked Russell what Lippold told him about the incident and he responded:
[Lippold] stated that she had been showing a vacant apartment to another friend, and at the time, the suspect arrived, she hadn't seen him in quite sometime [sic], and he was immediately verbally abusive and abrasive, argumentative with her. Said something to the effect of, next time I see you, I'm going to kill you and -Clark generally objected to the answer. After the trial court instructed the jury to retire to the jury room, Clark objected that Russell's testimony was a violation of a motion in limine that required the parties to approach the bench before offering evidence about an extraneous offense, and asserted he was prejudiced by the jury hearing he had threatened to kill Lippold. The trial court conducted a nine-minute hearing that encompassed not only the motion in limine but also whether Russell had personal knowledge of Lippold's statement and whether the statement was an excited utterance, and determined there had not been a willful violation of the motion in limine. Immediately after the jury returned to the court room, the trial court sustained Clark's objection, instructed the jury to disregard Russell's "last answer," and denied Clark's motion for mistrial.
Analysis
When, as here, the trial court sustains a defense objection and instructs the jury to disregard improper testimony, but denies the defendant's motion for mistrial, the issue is whether the trial court abused its discretion by denying the motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We uphold the trial court's ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); see also Pierson v. State, 426 S.W.3d 763, 770 (Tex. Crim. App.), cert. denied, 135 S. Ct. 206 (2014) ("As an appellate court, it is our function to review the record and determine if the trial judge exercised 'sound discretion' when granting a mistrial.").
"[W]hether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis." Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (quoting Hawkins, 135 S.W.3d at 77). These factors include: (1) the severity of the misconduct (magnitude of the prejudicial effect of the prosecutor's remarks); (2) the measures adopted to cure any harm from the misconduct (efficacy of any cautionary instruction by the trial court); and (3) the certainty of conviction absent the misconduct (strength of the evidence supporting the conviction). Id. at 700 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). In balancing these factors, we examine the particular facts and circumstances of the case. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990).
"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." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd, 3 S.W.3d at 567); see also Hawkins, 135 S.W.3d at 77. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77; see also Ocon v. State, 284 S.W.3d 880, 884- 85 (Tex. Crim. App. 2009) (mistrial is extreme remedy and should be granted "'only when residual prejudice remains' after less drastic alternatives are explored"). A mistrial is required only when an improper question or answer is "clearly prejudicial" and "of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Ladd, 3 S.W.3d at 567.
"Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam); see also Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam). We generally presume the jury followed the trial court's instructions in the absence of evidence it did not. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
In this case, we cannot conclude the trial court abused its discretion by denying the motion for mistrial. Russell testified only briefly that Lippold told him Clark threatened to kill her. The State did not attempt to solicit the same information again from Russell or from any other witness. Immediately after the jury returned to the court room, the trial court took curative measures by sustaining Clark's objection to Russell's answer and instructing the jury to disregard the answer. In its charge, the trial court again instructed the jury that it "must not consider" any "offer of evidence" that was rejected by the trial court. There is no indication in the record that the jury disregarded the trial court's instructions.
Finally, the jury heard substantial evidence Clark was violent toward Lippold and committed the charged offense. Lippold's co-worker, Nicole McGuire, testified that, when Clark appeared at the apartment complex, he was following Lippold, calling her names and was "mad and stuff." McGuire saw Clark "bend back" the window of Lippold's car, put his hand in the opening, and start "punching at" Lippold. After McGuire saw Clark "knock off" Lippold's glasses, she called 911 and reported that Clark was hitting Lippold. Charles Bednar, Lippold's stepfather, testified that, when he ran downstairs, he saw Clark had pulled out the top of the door on the driver's side of Lippold's car and had his hand in the car trying to unlock the door. Lippold testified Clark hit her twice in the face with his hand, knocking off her glasses, and bent back the door frame of her car in an attempt to reach her. Bednar observed injuries on Lippold's face after the incident that were not present before the incident. The jury saw pictures of the damage that was done to Lippold's car when Clark pried away the door frame with his hands as well as the laceration on Lippold's face caused by Clark knocking off her glasses. Accordingly, we are unable to conclude Russell's testimony that Lippold told him Clark threatened to kill her was so clearly prejudicial or of such a character that it was impossible to withdraw the impression from the minds of the jury, and do not doubt the certainty of Clark's conviction absent Russell's reference to the extraneous act.
We conclude that, under the facts of this case, the trial court did not abuse its discretion by denying Clark's motion for mistrial. We resolve Clark's point of error against him and affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47 150142F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-1470983-R.
Opinion delivered by Justice Fillmore, Justices Stoddart and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of April, 2016.