Opinion
02-23-00280-CR
08-29-2024
Clifton Ray Wade, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the County Court at Law Hood County, Texas Trial Court No. 54154
Before Sudderth, C.J.; Kerr and Walker, JJ.
MEMORANDUM OPINION
Elizabeth Kerr Justice
I. Introduction
A jury found Appellant Clifton Ray Wade guilty of resisting arrest. The trial court sentenced him to 270 days in jail and a $1,000 fine. Wade appeals, raising one issue-whether the trial court abused its discretion by refusing to declare a mistrial. We affirm.
II. Background
Kimberly Jordan is an animal-control officer and licensed peace officer in Hood County. Jordan determined on December 28, 2022, that Wade's dog needed immediate medical care for an injured ear. The next day, Jordan tried to call Wade several times to ascertain if he had taken care of his dog. When she was unable to reach Wade, she called several veterinarians in the area. None had been contacted by Wade. Jordan then applied for a warrant to seize Wade's dog.
On December 30, Jordan, accompanied by Sergeant Bradley Duckett from the Hood County Sheriff's Office, arrived at Wade's address to serve the warrant. Jordan saw the dog and determined that it was injured and had still not received any care. On learning why Jordan and Sergeant Duckett were there, Wade became "very agitated and irritated." Wade said that they would have to "shoot him to get his dog." Sergeant Duckett was concerned at this comment because he feared that Wade would become violent in an attempt to keep his dog. Wade took his dog and entered a house on the property. Sergeant Duckett did not follow him but requested another police unit to back him up.
Thinking that Wade might have outstanding warrants, Sergeant Duckett ran his name using his patrol unit's computer and discovered that Wade had four class C warrants. He also phoned his lieutenant and told him that they would probably have to "fight this guy." Sergeant Duckett shouted for Wade, who re-emerged from the house. Sergeant Duckett felt that it would be best to immediately take him into custody before he could retreat into the house. He announced to Wade that he was going to arrest him and told him to put his hands behind his back. Wade refused. Sergeant Duckett put his hands on Wade and tried to secure his arms behind his back; Wade pulled and turned away. Sergeant Duckett was able to force him to the ground. Despite Wade's resistance, and with the help of another deputy, Sergeant Duckett was able to handcuff him. The trial court admitted into evidence footage from Sergeant Duckett's body camera and from Lieutenant Nathan Livingston's dashboard camera and allowed the footage to be published to the jury.
III. The Trial Court's Overruling of Wade's Mistrial Request
In his sole issue, Wade complains that the trial court abused its discretion by denying his motion for mistrial after Sergeant Duckett testified that he learned (after running Wade's name for warrants) that he was to employ a "two-officer response" when dealing with Wade.
During cross-examination of Sergeant Duckett, the following occurred:
Defense counsel: All right. So you're on the phone with the Lieutenant -- and we can play this -- and you say -- because at 17:50 -- it's on there -- you say we're probably going to have to fight this guy. Do you remember saying that?
Sergeant Duckett: Yes, ma'am.
Defense counsel: And so you already were going into this going, this guy is going down?
Sergeant Duckett: When we run Mr. Wade in our system, it gives us a two-officer response, that they're required two officers to --
Defense counsel: Objection -- and may we approach?
Wade objected that Sergeant Duckett's answer was "impeachment evidence" that Wade was "a volatile individual." The trial court instructed Sergeant Duckett to refrain from talking "about this volatile person two-person, two officer response," and later instructed the jury to disregard Sergeant Duckett's answer. The trial court denied Wade's motion for a mistrial.
A mistrial is required only when the prejudice caused by the improper question and answer is incurable, that is, it is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is a remedy intended for extreme circumstances when prejudice is incurable and less drastic alternatives have been explored. See Ocon v. State, 284 S.W.3d 880, 884-85 (Tex. Crim. App. 2009). Furthermore, instructions to the jury generally are considered sufficient to cure improprieties that occur during trial, and we generally presume that a jury followed the judge's instructions in the absence of evidence that it did not. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); Ladd, 3 S.W.3d at 567.
Whether a witness's inadvertent reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. See Ladd, 3 S.W.3d at 567. Such a reference is generally cured by a prompt instruction to disregard. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). A mistrial should be granted only in the most egregious cases, where the "reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors' minds." Id. (quoting Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)).
We review a trial court's denial of a mistrial for abuse of discretion, and we must 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). We view the evidence in the light most favorable to the trial court's ruling. Ocon, 284 S.W.3d at 884.
IV. Analysis
Sergeant Duckett's answer does not appear to have been calculated to inflame the jury. During her question, defense counsel quoted Sergeant Duckett's understanding with his lieutenant that they were "probably going to have to fight this guy" and then asked if his understanding was that "this guy is going down." A reasonable witness might have understood this to be an inquiry about why Sergeant Duckett was preparing for the possibility of a physical conflict with Wade. "It is elementary that a defendant may not complain of testimony which he himself has elicited." Berry v. State, No. 05-92-01214-CR, 1993 WL 493723, at *3 (Tex. App.- Dallas Nov. 24, 1993, no pet.) (not designated for publication) (citing Martinez v. State, 504 S.W.2d 897, 899 (Tex. Crim. App. 1974), overruled on other grounds by Lippert v. State, 664 S.W.2d 712, 722 n.15 (Tex. Crim. App. 1984)). In any event, the trial court instructed the jury to disregard the answer, and without contrary evidence, we presume that the jury followed the trial court's instruction. See Gamboa, 296 S.W.3d at 580; Ladd, 3 S.W.3d at 567.
Wade argues that the efficacy of the trial court's instruction was attenuated by the fact that "it took over thirty minutes" for the trial court to instruct the jury after he objected to Sergeant Duckett's testimony. We disagree. First, the trial court instructed the jury immediately following the discussion of the issue and before the resumption of testimony. See Rogers v. State, 200 S.W.3d 233, 238 n.5 (Tex. App.- Houston [14th Dist.] 2006, pet. ref'd) (holding instruction to disregard given after discussion with counsel outside jury's presence but before further testimony was sufficiently prompt). Second, Wade did not even request an instruction to disregard, much less complain to the trial court about the timeliness of the instruction it did give. See Bradley v. State, No. 12-22-00313-CR, 2024 WL 110684, at *3 (Tex. App.- Tyler Jan. 10, 2024, no pet.) (mem. op., not designated for publication) (finding it "notable" that defendant complaining on appeal about timeliness of instruction did not "promptly" request a curative instruction). In Wade's case, the record reflects that the trial court's sua sponte instruction was sufficiently prompt.
Further, Sergeant Duckett's vague reference to a "two-officer response" was not of such damning character that it would be impossible to remove the harmful impression from the jurors' minds. For example, in Rojas, the witness referred to the defendant's "past anger" and "past violence." 986 S.W.2d at 250. The Texas Court of Criminal Appeals held that an instruction was sufficient to cure any error because the comment "was not a concrete reference to an extraneous offense, but merely vague speculation," and a mistrial was not warranted. Id. Similarly, Sergeant Duckett's reference to a two-officer response was not a concrete reference to an extraneous offense committed by Wade and only weakly implied some violent tendencies on Wade's part. Even if Sergeant Duckett's answer were prejudicial, it was not so prejudicial that an instruction to disregard could not cure it. Accordingly, we hold that the trial court did not abuse its discretion by refusing Wade's request for a mistrial. We overrule Wade's sole issue.
V. Conclusion
Having overruled Wade's sole issue, we affirm the trial court's judgment.