Joe Lewis Jones v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00106-CR

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JOE LEWIS JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31295-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Joe Lewis Jones appeals from his conviction by a jury for aggravated sexual assault on a child. The jury assessed his punishment, with one enhancement, at ninety-nine years' imprisonment. Jones contends the trial court committed reversible error by overruling his motion for mistrial and by admitting an audiotape of a telephone conversation between himself and the victim. We affirm.

The record shows that Jones was prosecuted for raping P. T., his fifteen-year-old niece. P. T. testified that, while they were making a nighttime run to a local discount store to purchase diapers for Jones' child, Jones pulled his van into a parking lot, where he pointed a weapon at her and sexually assaulted her. P. T. did not immediately inform her parents. Five days later, she had a genital outbreak of herpes simplex one. At that point, she told her sister what had happened, who then informed their mother about the rape. The mother contacted police. The evidence reflects that Jones was infected with the same virus.

Jones contends reversible error is shown by the trial court's denial of his motion for mistrial. At issue is a videotape of his custodial interrogation. It contains references to his prior conviction for a felony offense and information showing he had been on parole. The trial court ordered the references removed from the videotape. While another witness was being questioned, the State undertook to remove those references. However, the State did not remove all of the references. The State argues that this was a mere accident and that the references it failed to erase were not particularly prejudicial. As a result of the "accident," the jury heard Jones state he had been released from parole four to five years before the interrogation. Defense counsel's motion for mistrial was denied. The court then instructed the jury to disregard the comment. //

We review a trial court's denial of a mistrial under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). Mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). Such a situation could exist if an instruction would not adequately compensate for the erroneous admission of evidence. Thus, if the error is extremely prejudicial to the defendant and is of such a nature that it cannot be withdrawn from the jurors' minds, the trial court should declare a mistrial. Phillips v. State, 130 S.W.3d 343, 348 (Tex. App. Houston [14th Dist.] 2004, pet. granted); Lusk v. State, 82 S.W.3d 57, 60 61 (Tex. App. Amarillo 2002, pet. ref'd).

Under this analysis, a mistrial is described as being appropriate only when the event is "so emotionally inflammatory that a curative instruction is not likely to prevent the jury from being unfairly prejudiced against the defendant." Lusk, 821 S.W.2d at 60; see Shepherd v. State, 915 S.W.2d 177, 179 80 (Tex. App. Fort Worth 1996, pet. ref'd) (holding a repeated comment on defendant's failure to testify warranted mistrial).

We generally presume the jury follows the trial court's instruction to disregard. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). 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).

In this case, the mention was fleeting and was not repeated by counsel or emphasized in any particular way. Combined with the instruction tendered by the court, we do not find this error to be of such substance as to make it impossible to withdraw its consideration from the minds of the jury. The contention of error is overruled.

Jones next contends the court erred by admitting an audiotape into evidence without Jones' voice being identified as one of the parties to the conversation. The record shows that police attached a recorder to the telephone of the victim's family and that P. T. placed a telephone call that was recorded and ultimately played to the jury. On the recording, P. T. talked with a male about how she had herpes, how much it hurt, and how she was going to explain it to her parents. The male begged her not to tell that he was responsible, and told her that he would be gone for a long time, would never get to see his kids or her again, and that she should make up a name.

Jones objected on the basis that not all of the voices could be identified. The court sustained the objection. Seth Vanover was then recalled as a witness for the State. He testified that he and another officer were responsible for making the tape, and that he could identify the voices on the audiotape. The State then reoffered the exhibit. Vanover was questioned on voir dire by Jones and testified that P. T. was coached about the questions to ask as she talked on the telephone. Jones then objected because there were "no 822 warnings" and that P. T. was at that point an agent of the State, being directed by the police. Counsel did not reurge an objection based on identification of the speakers.

To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Finally, the point of error on appeal must correspond to the objection made at trial. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). When the exhibit was reoffered, counsel did not object on the basis now claimed as error.

The contention of error was not preserved for our review and is overruled.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: March 23, 2005

Date Decided: May 26, 2005

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