John G. Mass v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00636-CR
John G. MASS,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-4941
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 24, 2004

AFFIRMED

A jury found appellant, John Mass, guilty of three counts of aggravated sexual assault and assessed punishment of confinement in the Texas Department of Criminal Justice Institutional Division for fifteen years for Count I and ten years of community supervision for Counts II and III. The trial judge entered judgment in accordance with the jury's verdict. On appeal, Mass claims the trial court erred in denying Mass's motions for mistrial based on the State's repeated references to extraneous conduct and in admitting prejudicial hearsay testimony. (1) We affirm the judgment of the trial court.

References to Extraneous Conduct and Motions for Mistrial

Mass contends the State violated the court's order on his motion in limine by making references to extraneous offenses or bad acts without first obtaining a ruling from the court. Mass further claims he was denied a fair trial in violation of the Sixth Amendment of the United States Constitution when the trial court repeatedly denied his motions for mistrial. We review the trial court's denial of a motion for mistrial under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); Fairley v. State, 90 S.W.3d 903, 905 (Tex. App.--San Antonio 2002, no pet.). In order to preserve error regarding an alleged violation of a motion in limine, the appellant must request that the court instruct the jury to disregard the offending statement in order to cure the potential error. See Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982). An instruction to disregard will cure the error of admitting evidence of an extraneous offense unless the evidence was so inflammatory or "'of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind.'" McDonald v. State, 911 S.W.2d 798, 803 (Tex. App.--San Antonio 1995, pet. dism'd) (quoting Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992)).

Mass claims the State's witnesses violated his motion in limine five different times during the trial by referring to other allegations or incidents involving Mass and other girls. After each of the first three occurrences, Mass objected and requested a mistrial. The trial court sustained his objections, but denied his requests for mistrial. After the fourth occurrence, the court excused the jury and admonished the State to refrain from asking questions that would "bootstrap any other investigations, or any other victims ...." After the fifth comment, the court excused the jury, admonished the witness and the State, and delivered a strict admonishment to the jury, which included an instruction to disregard the witness's last answer. Although Mass objected after each incident, only after the fifth occurrence did Mass request that an instruction to disregard be given to the jury. Mass contends, however, that the cumulative effect of the jury hearing about these prior acts five times was so inflammatory that it had a substantial and injurious effect on the jury's verdict. Mass's failure to request an instruction to disregard after each of the first four objectionable comments waives his complaint unless the objectionable testimony was so inflammatory that it would be impossible to remove the harmful impression from the jury's mind. See McDonald, 911 S.W.2d at 803. We have reviewed the questions and testimony at issue, and we cannot say that they are so inflammatory that an instruction would not have cured the error, if any. See id. Having failed to request an instruction to disregard, Mass failed to preserve error and presents nothing for review. See Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992); Lusk v. State, 82 S.W.3d 57, 60-61 (Tex. App.--Amarillo 2002, pet. ref'd); Jones v. State, 825 S.W.2d 470, 471 (Tex. App.--Corpus Christi 1991, pet. ref'd);

The fifth instance of reference to extraneous bad acts occurred during the direct testimony of the complainant, N.B. In an effort to establish when the alleged incidents of sexual assault occurred, N.B. was asked if "all of this occurred" prior to her fourteenth birthday. In response, the following exchange took place:

N.B. A little bit. Matter of fact, a little bit before my birthday, they started investigating the beginning of February. I was then brought in by the principal, Bullock - Bullock, or whatever his name was. I was then pulled in and, well, I had told Gina Evans, which was a janitor there.

STATE: Okay.

N.B. And me and Gina was - we was friends. I talked to her, whatever. And I let her know. Well, then Gina told me, Well, I'm not going to say nothing if they don't ask me questions about it. Well, she had told me he was doing it to other girls.

After this testimony the jury was excused, the trial court confirmed with the prosecutor that she had indeed previously cautioned N.B. not to refer to allegations involving other victims, and the trial judge himself admonished N.B. Following a lengthy discussion, the trial judge denied Mass's request for a mistrial, and instructed the jury that he was "very strongly admonishing you not to consider any of that evidence of any other alleged instances that may or may not have occurred before, or separate and apart from the incidence that is alleged, or incidences that [are] alleged in this particular case in this particular indictment." Accordingly, Mass has preserved his claim of error as to the fifth reference to extraneous offenses.

We must presume that the jury followed the trial judge's "strong admonishment" to disregard any evidence of other alleged instances of misconduct. See Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). An instruction to disregard will cure any error in admitting improper testimony except in extreme cases where the evidence is calculated to inflame the minds of the jury such that an instruction would not withdraw the impression in their minds. Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990). We cannot say that this testimony was clearly calculated to inflame the minds of the jurors. Further, unlike the cases relied upon by Mass, N.B.'s reference to other possible bad acts was an unsolicited comment and not in response to an offending question posed by the State. See Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974) (State asked police officer if he was satisfied that appellant was guilty); Lucas v. State; 378 S.W.2d 340 (Tex. Crim. App. 1964) (State asked witness question that implied that appellant had previously been charged with drug possession); Tate v. State, 762 S.W.2d 678 (Tex. App. - Houston [1st Dist.] 1988, no pet.) (State asked witness "isn't it a fact that you went and scored some heroin" with appellant). Under these circumstances, the trial court did not abuse its discretion in denying the requested mistrial.

Hearsay

Mass contends that the trial court erred during the punishment phase in admitting prejudicial hearsay testimony as an "excited utterance." We review the trial court's admission of evidence under an abuse of discretion standard, "meaning that we will uphold the trial court's decision if it is within 'the zone of reasonable disagreement.'" Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). This hearsay exception is based on the understanding that "excited" statements are involuntary and trustworthy since the declarant does not have an adequate opportunity to fabricate. Salley v. State, 25 S.W.3d 878, 880 (Tex. App.--Houston [14th Dist.] 2000, no pet.). In determining whether a statement is an excited utterance, the court may factor in the time elapsed from the event and whether the statement was made in response to a question. Zuliani, 97 S.W.3d at 595. The critical determination, however, is "'whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event' or condition at the time of the statement." Id. at 596.

In the present case, the trial court admitted the excited utterance testimony during the punishment phase when Michelle (a witness) recounted an episode from 1986 and repeated what her friend Tammy stated. Michelle explained that she and Tammy met Mass (a Converse police officer at the time) at a convenience store in Converse, Texas. Mass was in his police uniform when he approached the girls and learned that they had just been kicked out of their homes. He then left in his patrol car and returned in a civilian car to take them to a motel, where he rented a room, and then left them there to spend the night. The next morning Mass brought them breakfast before he went to work. Mass returned later that evening. When Michelle woke up the following morning she saw Mass was in the room, but she could not say for sure whether he had spent the night. Mass told Tammy and Michelle that he had to take them elsewhere to stay and drove them to his sister's house. Michelle testified to the following situation once they arrived at his sister's house and Mass left them alone for a minute:

Q. What was Tammy's demeanor at the time when John Mass left?

A. She was very scared, and she told us that we had to leave.

[objection and ruling]

Q. Michelle, when Tammy first had the opportunity to talk to you or say something to you, and you stated, I believe, that she was frightened and she was scared. What did she tell you had happened?

A. That John had put his hand in her pants.

The evidence supports a conclusion that Mass's actions startled Tammy and that she was still dominated by the emotions, excitement, or fear of the event when she told Michelle. Michelle's testimony explains that Tammy was scared and that this was Tammy's first opportunity to tell Michelle. Mass argues that the record does not state the time or date of when this event occurred or whether the touching was consensual. Further, he contends that the evidence does not show whether this alleged event took place the first night or the second night in the motel, so this may not have been Tammy's first time alone with Michelle since it happened. As the State argues, however, the evidence supports the inference that this touching occurred the second night since Michelle said Mass was not in the motel room the first night. In addition, Michelle testified that once Mass arrived at the motel on the second evening, he remained with them until they arrived at his sister's house. The trial court did not abuse its discretion in admitting Tammy's statement as an excited utterance. Mass's second issue is overruled.

Conclusion

We overrule Mass's issues and affirm the judgment of the trial court.

Catherine Stone, Justice

Do Not Publish

1. Mass has filed a pro se brief raising eleven issues. This court will only consider the brief of Mass's attorney since there is no right to hybrid representation under Texas law. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. 1981); Barnes v. State, 103 S.W.3d 494, 496, n.2 (Tex. App.- San Antonio 2003, no pet.)