Billy Ray Smiley v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed November 29, 2007

Affirmed and Memorandum Opinion filed November 29, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00884-CR

NO. 14-06-00885-CR

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BILLY RAY SMILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause Nos. 1027286, 1027288

M E M O R A N D U M O P I N I O N

Appellant Billy Ray Smiley appeals his convictions for possession of marijuana and possession with intent to deliver cocaine on the ground that the trial court abused its discretion by failing to grant a mistrial after a State rebuttal witness violated the court=s motion in limine. We affirm.

I. Factual and Procedural Background

Appellant has not challenged the sufficiency of the evidence. We therefore discuss the facts only briefly here and throughout the opinion as necessary to address appellant=s sole issue.

On May 16, 2005, several Houston Police Department (AHPD@) undercover narcotics officers were conducting an investigation in the 4000 block of Scott Street in Harris County. While overseeing a paid informant=s drug purchase at a car wash in that area, HPD Officer Abraham Vanderberry saw several individuals smoking marijuana. When marked patrol cars arrived at the scene to arrest the individual from whom the informant had purchased drugs, these individuals dispersed on foot. Vanderberry and other undercover surveillance officers observed where they fled. Two of the individuals went into a nearby store briefly and then came out to watch the police activity by the car wash. Vanderberry was in his parked unmarked vehicle and had a clear view of the store and the parking lot. He saw one of the individuals, later identified as Gerard Jackson, approach a maroon car parked in front of the store, with appellant and another individual inside.

After observing what appeared to be a drug transaction between appellant and Jackson, Vanderberry approached appellant in his vehicle, detected the odor of marijuana, and saw what appeared to be rocks of crack cocaine on the gear shift of the car. Appellant, who was in the driver=s seat of the car, got out of the vehicle; he and the vehicle=s other occupant fled on foot. Vanderberry and other officers apprehended the fleeing suspects, and a subsequent search of the vehicle resulted in the discovery of marijuana and cocaine. Appellant was arrested and later indicted for the offenses of possession of marijuana and possession with intent to deliver cocaine.

Before his jury trial, the trial court granted appellant=s motion in limine, requiring, as is relevant here, that the prosecution approach the bench and receive permission from the court prior to mentioning, alluding to, or eliciting evidence regarding (a) any extraneous offenses allegedly committed by appellant not charged in the indictment; (b) any prior arrests or convictions;(c) any reference to any prior bad acts; and (d) any reference to the allegation of Gerard Jackson that appellant had dealt drugs prior to the date of his arrest. Jackson was not called as a witness during the State=s case-in-chief; however, after the defense rested, the State called him as a rebuttal witness.

Jackson testified that he saw appellant sitting in the driver=s seat of the car in which the drugs were found. He stated that another individual, who he identified as ALynn,@ was in the passenger=s seat of the car. According to Jackson, he approached appellant and ALynn,@ and warned them to Abe safe and . . . get out of the area@ because there were several police officers making drug arrests around the area. The prosecutor then asked Jackson why he told Athem@ (i.e., appellant and ALynn@) about the police activity. Jackson responded, ABasically, because, I mean, I guess, you know, his priors or whatever his history of drugs.@

Appellant=s trial counsel immediately objected to this testimony, and the trial court sustained the objection and sua sponte instructed the jury to disregard. Appellant=s trial counsel then approached the bench and requested a mistrial, which was denied by the trial court, but the trial court again instructed the jury to disregard Jackson=s statement.[1] Jackson continued testifying and was cross-examined by appellant. After both sides rested and closed, the trial court excused the jury to conduct a charge conference. In the midst of the charge conference, appellant=s trial counsel re-urged his motion for mistrial, arguing that the testimony was Ainflammatory and violative@ of appellant=s state and federal constitutional rights, as well as violating the Texas Rules of Evidence. The trial court noted that it would take the motion for mistrial Aunder advisement.@ Later, after a recess for lunch and before bringing the jury in for closing argument and instructions, appellant=s trial counsel reiterated his motion for mistrial. The trial judge responded, AAll right. I=ve ruled on it. I=ve decided how I=m going to go.@ The case was submitted to the jury, which found appellant guilty as charged. The trial court assessed punishment for both offenses,[2] and this appeal timely followed.

II. Issue and Analysis

In his sole issue, appellant contends the trial court abused its discretion by failing to grant a mistrial because the State=s rebuttal witness violated the court=s motion in limine.

We review the trial court=s denial of a motion for mistrial under an abuse-of-discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc). A mistrial is an extreme remedy for prejudicial events that occur at trial and should therefore be exceedingly uncommon. Austin v. State, 222 S.W.3d 801, 815 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). A mistrial should only halt trial proceedings when an error is so prejudicial that continuing the trial would be wasteful and futile because an impartial verdict cannot be reached or a conviction would have to be reversed on appeal due to obvious error. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In determining this issue, we must examine the characteristics of this case, the entire record, the nature of the evidence, and the surrounding circumstances to determine the probability or possibility of harm. See Guzmon v. State, 697 S.W.2d 404, 408 (Tex. Crim. App. 1985) (en banc).

Generally, a witness=s inadvertent reference to an extraneous offense may be cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). Such an instruction to disregard may be ineffective, however, when the testimony is clearly calculated to Ainflame the minds of the jury@ or is of such Adamning character@ that it would be impossible to reverse the harmful impression created by the testimony. See id.

Under the circumstances of this case, we conclude that the trial court=s instruction to disregard cured any error in the admission of this evidence. First, Jackson=s statement regarding appellant=s Apriors or whatever his history of drugs@ can be described, at best, as a brief and non-specific suggestion that appellant may have a criminal history or past drug involvement.[3] And although appellant claims that the suggestion that he had a criminal history involving drugs Acan be deemed highly emotional and inflammatory,@ he has provided no authority indicating that such a brief reference to appellant=s possible drug history could not be cured by the trial court=s prompt instruction to disregard. In fact, Jackson made this statement in response to a question from the State regarding why he told appellant and ALynn@ about the nearby police activity. Based on this context, Jackson=s reference to Ahis@ prior drug history could have referred to either appellant or ALynn.@ Additionally, Jackson himself was an admitted drug user with a criminal background who was also arrested during the same drug sweep in which appellant was apprehended,[4] and the jury likely took these factors into account when determining the weight to be given to his statements.

Finally, Jackson=s improper statements occurred during rebuttal. Appellant complains the fact established by the rebuttal testimony offered by Jackson (that appellant was the driver of the vehicle in which the drugs were found) Ahad already been proven through [three] or more witnesses. . . presented in the [State=s] case in chief.@ But the issue of whether Jackson was a proper rebuttal witness is not before this Court. To the extent that appellant is implying a mistrial should be granted based on prosecutorial misconduct, his trial attorney specifically stated the motion for mistrial was not based on prosecutorial misconduct and was instead based Aon . . . admission of testimony in front of th[e] jury that [appellant] has a drug history, priors.@ Thus, any such complaint has been explicitly waived.[5]

In sum, the inadmissible evidence was not incurably harmful because it was brief, vague, and given by a witness of dubious credibility. This isolated statement was neither Aclearly calculated to inflame the minds of the jury@ nor Aof such a character to suggest the impossibility of withdrawing the impression produced on the minds of the jury.@ Rojas, 986 S.W.2d at 250. The trial court promptly instructed the jury to disregard Jackson=s statement, and the jury is presumed to follow the trial court=s instruction.[6] Thus, the trial court did not abuse its discretion in refusing appellant=s request for a mistrial,[7] and we overrule appellant=s issue.

IV. Conclusion

Because the trial court did not abuse its discretion in denying appellant=s request for a mistrial, we overrule appellant=s sole issue. We affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed November 29, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The following colloquy at the bench occurred:

[defense counsel]: Your Honor, that is a direct violation of the motion in limine. At this time I=m forced to ask for a mistrial.

[trial court]: Okay.

[defense counsel]: They have now disclosed in front of this jury the history of [appellant].

[trial court]: The mistrial is denied. I=ll instruct the jury.

[2] After finding true to two enhancements, the trial court sentenced appellant to 15 years confinement for possession of marijuana and 28 years confinement for possession with intent to deliver cocaine in the Texas Department of Criminal Justice, Institutional Division, both sentences to run concurrently.

[3] See, e.g., Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (en banc) (holding that an Auninvited and unembellished reference to appellant=s prior incarceration@ was not Aso inflammatory as to undermine the efficacy of the trial court=s instruction to disregard@); Rogers v. State, 200 S.W.3d 233, 238 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (determining that a prompt instruction to disregard was sufficient to overcome a Abrief and equivocal mention@ of appellant=s drug use by a witness for the State).

[4] Jackson stated that he remembered the date of appellant=s arrest because, he Awas smoking weed at a car wash@and was also arrested on that day for evading arrest. He also admitted he=d previously been in jail for A[t]wo thefts, possession of marijuana, and evading arrest.@

[5] See, e.g., Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (en banc) (noting that it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial).

[6] Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (AOn appeal, we generally presume the jury follows the trial court=s instructions.@).

[7] In arguing that he was harmed by the trial court=s denial of his requested mistrial, appellant contends that several members of the venire panel in this case expressed doubts about their ability to be fair if a particular defendant had been involved with drugs in some way. First, none of these panel members indicated that a defendant=s history of drug involvement would cause them to be unfair; instead, the panel members expressed various personal reasons causing them to doubt whether they could be fair in any drug case. More importantly, however, appellant has not established that any of these venire persons were impaneled on the jury.