Kingery, Christopher Neal v. The State of Texas--Appeal from 180th District Court of Harris County

Affirmed and Opinion filed November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01134-CR

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CHRISTOPHER NEAL KINGERY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris  County, Texas

Trial Court Cause No. 855,577

O P I N I O N

Appellant, Christopher Neal Kingery, was convicted by a jury of sexual assault of a child and sentenced to 30 years=imprisonment. In one point of error, appellant claims the trial court erred in not granting his motion for mistrial.

Appellant lived with complainant, her mother, and her sisters in 2000. At the time, appellant was thirty-six years old and complainant was fifteen years old. Appellant sexually assaulted the complainant resulting in a pregnancy. Fetal tissue was DNA tested and showed that complainant had been pregnant with appellant=s child.

During trial, two state witnesses indicated that appellant had a prior criminal history. The first exchange, with complainant=s grandmother, Donnie Hintz, was as follows:

  PROSECUTOR: Okay. Did you, during this time prior to finding out it was the defendant and at the time that you found out it was the defendant, did you ever pressure [complainant] at all or badger her at all into saying that it was the defendant?

  WITNESS: Absolutely not. Do you want my reactions, what I said to [complainant]?

  PROSECUTOR: Sure.

  WITNESS: Okay. I just BI, you know, I told her that, in fact, that this man had been in prison, that, you know, all things happen B

Defense counsel objected and moved for a mistrial. The court denied the motion, but instructed the jury to disregard the statement of the witness. The second exchange occurred with Officer James Fitzgerald of the Harris County Sheriff=s Department.

  PROSECUTOR: Okay. What did you do in serving that search warrant?

  WITNESS: I made arrangements with the jail because the defendant was in jail at the time on a M.R.P.

Defense counsel again objected and moved for a mistrial. The trial court ordered the jury to disregard the statement and denied the motion. Appellant argues the testimony by the witnesses was highly prejudicial and as such the trial court erred in denying the motion for mistrial. We disagree with this contention and affirm.

Typically, any harm caused from an improper question and answer is cured by an instruction to disregard. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). In contrast, a mistrial is required only 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.@ Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). The jury is presumed to follow the trial court=s instruction to disregard improperly admitted evidence. Id. We review the denial of a motion for mistrial under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Generally, a trial court does not abuse its discretion unless its decision falls outside the zone of reasonable disagreement. Santellanv. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

Defense counsel objected to statements by two different witnesses indicating that the appellant had a prior criminal history. The trial court chose to resolve this issue by instructing the jury to disregard the statements. This instruction cures any error unless it was clearly calculated to inflame the jury. The testimony was not of such a character as to suggest that it could not have been corrected with a curative instruction. Although a prior criminal record may be prejudicial, it is not so inflammatory as to undermine the trial court=s instruction to disregard. Gardner v. State, 730 S.W.2d 675 (Tex. Crim. App. 1987). Furthermore, there is no indication in either the questions or answers that the witnesses or prosecutor sought to inflame the jury with information regarding appellant=s prior criminal history. We find the trial court=s instruction to disregard cured any possible prejudicial effect of the testimony. We overrule appellant=s sole point of error.

In addition to the brief filed by appellant=s counsel, appellant has also submitted a pro se brief. There is no provision in Texas for hybrid representation whereby both the appellant and his attorney may file separate briefs. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981); Normandv. State, 686 S.W.2d 275 (Tex. App.CHouston [14th Dist.] 1985, pet ref=d). Therefore, appellant=s pro se brief presents nothing for review. We also decline to consider appellant=s supplemental points of error as he failed to secure leave of court to file them. See Tex. R. App. P. 38.7; Poole v. Mo. Pac. R.R. Co., 638 S.W.2d 10, 13 (Tex. App.CHouston [1st Dist.] 1982, writ ref=d n.r.e.) (citing Tex. R. Civ. P. 431 (repealed Dec. 5, 1983)).

The trial court=s judgment is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish CTex. R. App. P. 47.3(b).