Tina Lois Littlepage a/k/a Tina Lois Price v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Tina Lois Littlepage a/k/a Tina Lois Price

Appellant

Vs. No. 11-02-00312-CR -- Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted Tina Lois Littlepage a/k/a Tina Lois Price of possession of methamphetamine with intent to deliver in a Adrug free zone@ and then assessed her punishment at confinement for 40 years. We affirm.

Background Facts

The indictment charged that, on or about January 15, 2002, appellant did Aintentionally or knowingly possess, with intent to deliver,@ more than 4 grams of methamphetamine within 1,000 feet of the Mineral Wells Junior High School. There is no challenge to the sufficiency of the evidence.

Deputy Sheriff Terry McDaniel of the Palo Pinto County Sheriff=s Department testified that he was assigned to the Cross Timbers Narcotics Task Force; that he was the assistant commander of the task force; and that he was involved in an investigation on January 15, 2002, which led to the arrest of appellant and two men who were at the house where she lived. There was testimony by members of the task force about the methamphetamine which was found in the house at the time of the arrest. Deputy McDaniel testified on cross-examination that he did not know who put the methamphetamine under appellant=s bed or in the black bag. During reexamination by the assistant district attorney, Deputy McDaniel testified that there was no question in his mind that it was appellant=s methamphetamine. After further cross-examination by appellant=s attorney, Deputy McDaniel testified in relevant part (on further redirect and additional cross-examination) as shown below:

[PROSECUTOR] Q: Did [appellant] direct you to any of this stuff?

A: I was advised that there was a black bag in the bedroom that contained drugs.

Q: By her?

A: Yes.

[PROSECUTOR]: Pass the witness.

[DEFENSE COUNSEL] Q: Oh, is it your testimony that my client told you that there=s a black bag in the bedroom that contains controlled substance? That=s your testimony to this jury?

A: Yes.

Q: Now, you wrote a report in this case, didn=t you?

A: Yes.

Q: You testified about this case in another trial, too, didn=t you?

A: Yes.

Q: And you didn=t say anything in your report about my client telling you that there was a black bag in the bedroom containing controlled substance, did you?

A: No.

Q: Did you tell the prosecutor that she told you that?

A: I don=t recall if I did. (Emphasis added)

After developing this testimony, appellant=s attorney requested a recess. The court did not permit a recess at that time. Appellant=s attorney passed the witness, and the State put on testimony from two more witnesses (the evidence custodian and the expert witness who tested and weighed the controlled substance exhibits) before there was a break in the proceedings. After the expert witness was excused, the court took its afternoon recess.

The reporter=s record shows the following proceedings which were heard in open court but outside the presence of the jury:

THE COURT: Let the record reflect that the jury remains outside of the courtroom at this time; however, the defendant and her attorney are present and the State=s counsel are also present. All right. Mr. Burns.

[DEFENSE COUNSEL]: Thank you, Your Honor. Your Honor, there has been testimony in the case by Mr. McDaniel that the defendant...told law enforcement officers that there was a bag under her bed that contained a controlled substance.

Back on June the 7th of 2202, the defense filed its motion for discovery. A pretrial hearing was held sometime subsequent to that and prior to the trial of this case in which the Court...granted parts of it that said that...the substance of all oral confessions, admissions, and statements made by the Defendant to the State in connection with this case [would be furnished]. That is, in fact, an admission that the defendant knew that she was in possession of controlled substances by directing officers to the controlled substances which were in her bedroom.

That information - - the Court ruled on that and ordered the State to provide that information. That information was not provided to the defense and the defense first heard it when Mr. McDaniel testified to that fact in court. (Emphasis added)

At this point, appellant=s attorney moved for a mistrial. The trial court announced that it would take the motion Aunder advisement.@ After the evidence was completed, the court announced its ruling outside the presence of the jury. The court overruled appellant=s motion for mistrial, found that Aany verbal statement of the defendant which was not disclosed to the defense is not admissible,@ and agreed to strike that testimony and instruct the jury to disregard the questions and answers which were stricken. The jury was brought back into open court and given these instructions before the evening recess:

THE COURT: All right. Ladies and gentlemen, I=m sorry the break ended up being longer than we thought, but I warned you that happens from time to time.

At this time I want to provide you with an instruction that is consistent with one of the things that we talked about this morning when I was generally discussing with you how things unfold from time to time during a trial.

You heard some testimony just earlier this afternoon from Officer McDaniel....Question by Mr. Bankhead, ADid she,@ meaning the defendant Adirect you to any of the stuff? Answer by Officer McDaniel, AI was advised that there was a black bag in the bedroom that contained drugs.@ Question by Mr. Bankhead, ABy her?@ Answer, by the witness, AYes.@

I have ruled that this portion of Officer McDaniel=s testimony is inadmissible, and it is ordered stricken from the record. You are, therefore, instructed that you will not consider that portion of Officer McDaniel=s testimony or any other reference to that portion of his testimony for any purpose whatsoever.

You indicated to me in your oath this morning that if I gave you a limiting instruction or an instruction like this, that you could abide by that. And, therefore, you are instructed to disregard that portion of the testimony and not consider it for any purpose. (Emphasis added)

Issue Presented

Appellant briefed a single issue on appeal. She argues that the trial court erred when it denied her motion for mistrial Abecause the curative instruction was insufficient@ to cure the error of the surprise testimony.

Denial of Motion for Mistrial

In a recent case where the trial court overruled a motion for mistrial (but sustained an objection to testimony and instructed the jury to disregard that testimony), the Court of Criminal Appeals said in Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Cr.App.1999):

Generally, a mistrial is only required when the improper evidence is Aclearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.@ In all other situations, the jury is presumed to follow the trial court=s [instruction] to disregard improperly admitted evidence. Whether the erroneous admission of evidence requires a mistrial is determined by looking at the facts and circumstances of the case. (Emphasis added; Citations omitted)

See also Bauder v. State, 921 S.W.2d 696, 698 (Tex.Cr.App.1996); Waldo v. State, 746 S.W.2d 750, 752 (Tex.Cr.App.1988); Thompson v. State, 612 S.W.2d 925, 928 (Tex.Cr.App.1981); Campos v. State, 589 S.W.2d 424, 428 (Tex.Cr.App.1979); and Evans v. State, 542 S.W.2d 139, 141 (Tex.Cr.App.1976).

We hold that the trial court did not abuse its discretion in denying appellant=s motion for mistrial. We are confident that the court would have granted the motion if it had been shown that the failure to disclose was deliberate rather than inadvertent. That testimony had not been used in the earlier trial of one of the other persons who had been in the house at the time of appellant=s arrest. The sole issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

May 1, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and Dickenson, S.J.[1]

[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.