JAMES LEE POLK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 16, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01374-CR
No. 05-08-01375-CR
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JAMES LEE POLK, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 292nd District Court
Dallas County, Texas
Trial Court Cause Nos. F07-56766-YQV, F07-56767-YQV
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OPINION
 
Before Justices Morris, Bridges, and Murphy
Opinion By Justice Bridges
 
 
        James Lee Polk appeals his aggravated assault convictions. A jury convicted appellant, and the trial court sentenced him to forty years' confinement in each case. In three issues, appellant argues the evidence was factually insufficient to support his convictions, and the trial court erred in denying his motion for a mistrial. We affirm the trial court's judgments.
        Phyllis Randle testified she had previously been in a relationship with appellant, but they had broken up in June 2007. On August 6, 2007, Randle and her fifteen-year-old son were watching television at their home when she noticed the air conditioning was not working. About midnight, Randle went outside to investigate the air conditioner, and she discovered the breaker had been turned off. Randle turned the breaker on and went back inside. Randle's son, R.H., said he was going to take a shower, and Randle heard the shower running. Randle was watching television and dozing in and out of sleep when she felt “something get on [her] bed.” Randle turned over and saw appellant sitting on her bed. Appellant had a knife in his hand and held it to Randle's neck while he took Randle's cell phone out from beneath her pillow and said he was going to kill her. Appellant said he “had already taken care of” her son.
        Appellant was “talking loud,” and R.H. came into the room, saw appellant, and tried to run out of the room. Appellant caught R.H. and “started beating him.” Appellant took Randle and R.H. to the den where he questioned them about “an alleged affair that [Randle] was having with somebody.” If Randle and R.H. did not give appellant “the right answer, he poked [them] with the knife.” For “maybe an hour or more,” appellant continued the questioning, and he was “very agitated” and talked about killing Randle and her son and himself. Specifically, appellant said he would stab Randle and R.H. and himself.
        At approximately 4:00 or 5:00 a.m., appellant “decided he needed some cigars,” so he made Randle drive Randle, R.H., and appellant to the corner store. When they arrived at the store, appellant took Randle's keys and went to the store's outside window to buy cigars. The store was in a dangerous area, so Randle thought it was safest to stay in the car. Randle drove back to her house, where appellant continued to accuse Randle of an affair and the two of them talked about getting back together. Randle was “saying whatever [appellant] wanted [her] to say in order for him not to kill” her and her son. Randle made appellant believe she was going to get back together with him, and she drove appellant back to his sister's house where he was living. When appellant got out of Randle's car, he gave back Randle's and R.H.'s cell phones. Randle called her ex-husband, a police officer, and told him what had happened.         R.H. testified that, on August 6, 2007, he went to take a shower at about 1:00 a.m. R.H. heard the bathroom door shaking “like someone was messing with it.” R.H. got out of the shower, looked under the door, and saw “feet from under the crack of the door.” R.H. tried to open the door and discovered ropes had been tied from the doorknob to another doorknob in the hall. R.H. thought someone had broken in to the house, and he untied the ropes in “maybe a minute” and went into the den to get his cell phone. The cell phone was not where R.H. left it, and he saw appellant come out of his mother's room. Appellant, with a knife in his hand, chased R.H. to the front door, which was locked. Appellant grabbed R.H., threw him down, and started punching, kicking, and stomping on him. When appellant stopped, he sat R.H. and Randle in the den and asked them questions about whether Randle was “cheating on him.” R.H. said Randle was not cheating, and appellant jabbed R.H. in the hip with the knife. After that, R.H. “started telling him what he wanted to hear.” The questioning continued for “a few hours,” and then R.H. accompanied Randle and appellant to the store and back again. Once they returned home, R.H. fell asleep in the den and awoke to see Randle and appellant leaving.
        Appellant was charged with committing aggravated assault against both Randle and R.H. A jury convicted appellant of both offenses, and these appeals followed.
        In his first and second issues, appellant argues the evidence is factually insufficient to support his convictions. Specifically, appellant argues the State failed to prove he threatened Randle or R.H. with a knife. In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).
        On direct appeal, a court must begin its factual sufficiency review with the assumption that the evidence is legally sufficient under Jackson v. Virginia, 443 U.S. 307, 316 (1979). Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Evidence that is legally sufficient, however, can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is “too weak” to support the factfinder's verdict, or (2) considering conflicting evidence, the factfinder's verdict is “against the great weight and preponderance of the evidence.” Laster, 275 S.W.3d at 518. When a court of appeals conducts a factual sufficiency review, it must defer to the jury's findings. Id. First, the court of appeals must consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict. Second, the court of appeals may only find the evidence factually insufficient when necessary to “prevent manifest injustice.” Id. Although the verdict is afforded less deference during a factual sufficiency review, the court of appeals is not free to override the verdict simply because it disagrees with it. Id. Third, the court of appeals must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id. This requirement serves two related purposes. First, it supports the court of appeals' judgment that a manifest injustice has occurred. Id. And second, it assists the court of criminal appeals in ensuring that the standard of review was properly applied. Id.
        A person commits the offense of aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2008). Appellant argues the evidence is factually insufficient to support an aggravated assault conviction because the record shows Randle and R.H. falsely accused him of threatening them with a knife. In support of this argument, appellant relies on the fact that, when Randle drove him to the store to buy cigars, she did not attempt to flee. Despite Randle's testimony that appellant poked or “scratched” her with a knife, there are no photographs in the record of wounds or scratches on Randle's body. Similarly, while R.H. testified appellant “jabbed” him with the knife, there is no photographic or medical evidence to support R.H.'s claim. However, it was the jury's function to resolve any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jury was entitled to accept Randle's and R.H.'s testimony establishing appellant used a knife to assault them, and we will not substitute our own determination for that of the jury. See Laster, 275 S.W.3d at 518. Viewing all of the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt, and the evidence is therefore factually sufficient to support appellant's convictions for aggravated assault. See Watson, 204 S.W.3d at 415. We overrule appellant's first and second issues.
        In his third issue, appellant argues the trial court erred in denying his motion for mistrial when Randle testified that a “protective order” had been issued against appellant. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is appropriate for only “highly prejudicial and incurable errors.” Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper evidence 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. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648.
        Here, appellant's attorney asked Randle on cross-examination whether she was under the impression that appellant wanted to come see her after they broke up. Randle testified appellant wanted to come over but he could not. Counsel asked if that was because Randle would not allow him to come over. Randle responded, “Yes. And we had a protective order.” The trial judge sustained counsel's objection that Randle's answer was unresponsive and instructed the jury to disregard Randle's answer. However, the trial judge denied counsel's motion for mistrial.
        Randle had already testified that appellant broke into her home and threatened her and “poked” her and her son with a knife. The fact that Randle may have had a protective order against appellant did not refer to the charged offense. Instead, Randle's reference to the protective order was in response to defense counsel's question asking why appellant could not come over to Randle's house. Under these circumstances, we cannot conclude Randle's statement that she had a protective order was of such character as to suggest the impossibility of withdrawing the impression, if any, produced on the minds of the jurors. See Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Further, we conclude the trial court's instruction to disregard cured any error, and no mistrial was warranted. See Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005). We overrule appellant's third issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081374F.U05