TERRELL LASTAR NELSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 7, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01017-CR
............................
TERRELL LASTAR NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-47440-V
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MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Lang
Opinion By Justice Francis
        A jury convicted Terrell Lastar Nelson of aggravated sexual assault, and the trial court sentenced him to fifty years in prison. In two issues, appellant contends the trial court erred in denying his motion for mistrial and in allowing inadmissible testimony. We affirm.
        Kimberly Tremain (a pseudonym) testified she was sitting in her car outside of her apartment when appellant approached her, pointed a gun at her, and demanded her keys and phone. Appellant forced Tremain to take him to her apartment, where he ripped out a telephone and searched for money and other valuables. After finding jewelry in her bedroom, appellant ordered Tremain to undress and then sexually assaulted her by vaginal penetration. During the assault, appellant hit Tremain in the head with the gun. Appellant then took her in the kitchen area, where he ordered Tremain to get on her knees and forced her to perform oral sex on him while he held the gun to her neck. At one point, appellant pulled the trigger, but the gun did not discharge because appellant said he forgot to load it.
        Tremain's sons, ages eleven and fifteen, were in their bedroom when they heard commotion in the apartment. Believing their mother was being robbed, they called their father from a telephone in their bedroom and then fled the apartment to wait for the police. Officer Aaron Glenn testified that as he approached the apartment door, he heard a “whimpering sound” and then heard appellant yelling, “Shut up, bitch.” Officer Glenn rushed in and found appellant, with his penis outside his underwear, facing Tremain, who was naked and on her knees in the corner of the kitchen. When Tremain realized the police were there, she fell back against the corner, covered herself, and kept saying, “Thank God. Thank God.” The police arrested appellant and recovered his gun from the kitchen. Tremain's jewelry was found inside appellant's pants pocket.
        Appellant testified he saw Tremain outside the apartment and asked if he could use her phone. According to appellant, Tremain led him to his apartment, where he made an unsuccessful attempt to call his brother, Charles Pless. While waiting for his brother to call him back, appellant said he and Tremain “flirted” with each other. After about five minutes, appellant said his brother called him back and then he and Tremain engaged in consensual sex.
        Pless told the jury he received a couple of phone calls from appellant on the night in question. When he returned the call, Pless said an unknown woman answered the phone. The woman put appellant on the phone, and Pless talked to him for about five minutes. Pless said the woman called appellant by his nickname, seemed to be nonchalant, and appeared to know his brother.
        In his first issue, appellant contends the trial court erred in denying his motion for mistrial after the prosecutor improperly impeached Pless.
        On cross-examination, the prosecutor asked Pless if he was on deferred adjudication for aggravated assault. Appellant objected, and a hearing was held outside the jury's presence on whether the question was improper impeachment.   See Footnote 1  The trial sustained the objection and instructed the jury as follows:
 
Ladies and gentlemen, before you retired, there was a question asked by the State and the defense objected to the question. We conducted a hearing outside your presence. I have determined that it's appropriate to sustain the defense's objection. I don't want to talk about what it was. You may not even remember. But if you do remember it, do not consider it for any purpose.
 
The trial court denied appellant's motion for mistrial.
        Although appellant's issue is phrased to challenge the correctness of the ruling on his request for a mistrial, his briefing on the issue is directed to the inadmissibility of the evidence. He provides no law with respect to the mistrial ruling and nothing more than minimal conclusory analysis. Under these circumstances, we conclude this issue is inadequately briefed. See Tex. R. App. P. 38.1(h). Even if properly briefed, no abuse of discretion is shown.
        A mistrial due to an improper question is required only when “the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App 2000). 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). Courts have relied on various factors to determine if an instruction to disregard cured the harm, including the nature of the error, the persistence of the prosecutor in committing the error, the flagrancy of the violation, the particular instruction given, the weight of incriminating evidence, and the harm to the accused as measured by the severity of the sentence. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).
        Here, after conducting a hearing outside the jury's presence, the trial court promptly instructed the jury not to talk about the question or consider it “for any purpose.” Additionally, the prosecutor did not repeat the error nor did she make any reference to the impeaching evidence during closing argument. The weight of the State's evidence was overwhelming. In addition to Tremaine, the prosecutor presented the testimony of Tremaine's young son, who called for help because he believed his mother was being robbed, and the responding officer, who entered the apartment to find a frightened Tremaine on her knees before appellant, whose pants were down and his penis exposed. Police found appellant's gun on the kitchen counter and Tremain's jewelry in appellant's pants pocket. Finally, the jury did not assess punishment; the trial court did. Given these circumstances, we conclude the trial court did not abuse its discretion in denying the motion for mistrial. We overrule the first issue.
        In his second issue, appellant contends the trial court erred in overruling his objection to improper opinion testimony by Officer Glenn. He directs us to the following exchange during the prosecutor's redirect of Officer Glenn:
 
[PROSECUTOR]: Based on your personal experience and your personal observations that night, when you got to the apartment, what was your observations and your layperson's opinion about what you had just interrupted?
 
 
 
[DEFENSE COUNSEL]: Objection, Your Honor, improper opinion testimony.
 
 
 
[TRIAL COURT]: Overruled.
 
 
 
[OFFICER GLENN]: It appeared that the complainant was performing oral sex on the defendant.
 
        Appellant argues Officer Glenn's testimony was “rank speculation, which was not proper opinion testimony to put before the jury.” We disagree. Glenn testified as to what he observed upon entering the apartment that led him to conclude Tremain was performing oral sex on appellant. Such testimony was helpful to the jury's determination of a fact issue and was therefore admissible. See Hollis v. State, 219 S.W.3d 446, 464-65 (Tex. App.-Austin 2007, no pet.) (concluding officer's testimony in drug manufacturing case about what was going on in building, based on his observations after he made entry, was admissible under Texas Rule of Evidence 701 as it was helpful to jury's determination of fact, even though jury could reach same opinion from the facts in evidence).
        Moreover, any error in admitting evidence is cured when the same or similar evidence comes in elsewhere without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. 1998). During his cross-examination of Officer Glenn, defense counsel asked, “And you were not there when any oral sex occurred?” Glenn responded, “I believe I broke it up.” Consequently, even if we assumed the the complained-of response was inadmissible, Officer Glenn had previously given the same testimony without objection. We overrule the second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081017F.U05
 
Footnote 1 The hearing centered around whether the deferred probation was for a felony or misdemeanor offense, and if the offense was a misdemeanor, whether it was a crime of moral turpitude. Ultimately, the trial court ruled the evidence inadmissible because the offense was a misdemeanor and was did involve moral turpitude. Regardless of whether the crime involved moral turpitude, it was not admissible to impeach Pless's credibility because it was not a conviction. See Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008) (explaining deferred adjudication does not constitute conviction under Texas Rule of Evidence 609).