Opinion
No. 05-04-00473-CR
Opinion Filed April 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-80703-03.
Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Jeremy Scott Wages of assaulting his wife, and the trial court assessed punishment at 365 days in jail, probated for two years. In a single point of error, appellant complains the trial court erred in denying his motion for mistrial. We affirm. Appellant and his wife Jackie went to a club with Jackie's best friend, Jamie Taylor, and Taylor's boyfriend. Appellant got "drunk," and on the way home, he and Taylor began arguing. Once they arrived at the apartment, Jackie and Taylor left to pick up the Wages's children. When they returned, appellant was angry because they were gone for so long and accused his wife of cheating on him. According to Taylor, appellant pulled his wife's pants down in the kitchen and put his finger between her legs to see if she "smelled of sex." Appellant then began hitting his wife. When she fell on the floor, he kicked her in the stomach and legs. He also hit her with a mop. Taylor went to the bathroom, locked the door, and called 911. During her testimony, the State asked Taylor if she believed appellant's actions were intentional, and Taylor said yes. The State asked, "What makes you think he intentionally did this?" Taylor replied, "Because he's done it before." Defense counsel objected that the answer was "not responsive" and violated the motion in limine. The trial court sustained both objections. Defense counsel then moved for a mistrial, but the trial court denied the motion. Appellant did not ask the judge to instruct the jury to disregard the statement before (or after) seeking a mistrial. In his sole issue on appeal, appellant contends the trial court reversibly erred in denying his motion for mistrial. The State counters that appellant has waived his complaint by failing to request an instruction to disregard. We agree with the State. An instruction to disregard attempts to cure any harm or prejudice resulting from events that have already occurred. See Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). Where the prejudice is curable, an instruction eliminates the need for a mistrial, thereby conserving the resources associated with beginning the trial process anew. Id. Although a request for an instruction to disregard is not always required to preserve error, one is necessary when the instruction could have enabled the continuation of the trial by an impartial jury. Id. at 70. The party who fails to request an instruction to disregard forfeits appellate review of that class of events that could have been cured by such an instruction. Id. Instructions to disregard have been found adequate to cure error even where witnesses have violated a motion in limine or referenced an extraneous offense. See Whitaker v. State, 977 S.W.2d 595, 601 (Tex.Crim.App. 1998) (concluding instruction was sufficient to cure any error when witness testified defendant was physically and mentally abusive towards her); Herrero v. State, 124 S.W.3d 827, 835 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (concluding instruction cured error when witness testified police promised him protection against defendant's death threat if witness testified); Martinez v. State, 844 S.W.2d 279, 284 (Tex.App.-San Antonio 1992, pet. ref'd) (concluding instruction cured error in admission of testimony in murder case that defendant threatened intended victim and shot at his house). In this case, we conclude an appropriate instruction to disregard could have cured any prejudice resulting from the statement. Accordingly, we conclude appellant has forfeited his complaint. We overrule the sole point of error.
We affirm the trial court's judgment.