Jeffrey Shawn Meads v. The State of Texas--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-180-CR

JEFFREY SHAWN MEADS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 1234-93

O P I N I O N

Appellant was charged by information with the felony offense of driving while intoxicated, second offense, by drugs, alcohol, or combination. He pleaded not guilty before a jury which found him guilty as charged and assessed his punishment at 730 days confinement in jail and a $700 fine.

Appellant comes to this court upon one point of error as follows:

"The trial court erred in denying defense counsel's motions for a mistrial after the State's chief witness made statements in front of the jury which were expressly ruled inadmissible by the court because their prejudicial effect on the defendant outweighed any probative value they might have, thus denying the defendant a fair trial."

We overrule Appellant's sole point of error and affirm the trial court's judgment.

During the guilt-or-innocence phase of the trial, the State called Officer Neveu as a witness who had initially pulled Appellant over for suspicion of driving while intoxicated. While Officer Neveu was on the witness stand, a recess for lunch was taken. Before the jury came back from recess, the State informed the court of the impending examination of Officer Neveu about some statements made by Appellant to the officer. A hearing was held outside the presence of the jury to determine if the statements would be admissible. At this hearing outside the presence of the jury, Officer Neveu testified that Appellant said, "I'm already going to serve time at T.D.C. for distribution of cocaine. Why do you have to take me to jail? I'm already going to jail in two days." Defense counsel made an objection to the statement's admission on the ground that the probative value of the admission of such statement would be outweighed by the prejudicial effect of the statement. The trial court agreed and sustained defense counsel's objection, thus ruling the statement inadmissible.

At that time the jury was allowed to reenter the courtroom and the State continued direct examination of Officer Neveu. During its examination, the State asked Officer Neveu why Appellant was not placed in handcuffs after being arrested. Officer Neveu testified that he did not place Appellant in handcuffs because "he was very agitated with me because I was going to take him to jail because he was already going to be incarcerated at another time." Defense counsel objected to the officer's statement and the trial court sustained the objection. Defense counsel then moved that the jury be instructed to disregard the statement, whereupon the trial court so instructed the jury. Defense counsel moved for a mistrial which motion the trial court denied.

On cross-examination of Officer Neveu, defense counsel asked why Appellant was not placed in handcuffs before being put in the squad car. Officer Neveu testified that, "after I found out who the subject was, I knew he had a criminal history." Defense counsel objected to this statement, the trial court sustained the objection and instructed the jury to disregard the statement. Defense counsel then made a motion for a mistrial which was denied by the court.

Neither of the two inappropriate responses of the officer hereinabove set out were specific as to a particular crime or conviction. These responses were not admitted into evidence and the trial court in each instance instructed the jury to disregard same. No evidence of extraneous crimes was entered during the guilt phase of the trial, nor did the State mention it during closing arguments.

The mention of a future incarceration or a vague "criminal history" is neither extremely outrageous or prejudicial. Canida v. State, (Tex. App. Texarkana 1992), 823 S.W.2d 382, 384, affirmed, 848 S.W.2d 919 (Tex. App. Texarkana 1993). An instruction to the jury to disregard improperly admitted evidence is generally considered sufficient to correct all but the most outrageous or prejudicial statements. Waldo v. State, 746 S.W.2d, 750-752 (Tex. Crim. App. 1988). Also see Moody v. State, 827 S.W.2d 875, 890 (Tex. Crim. App. 1992). Such possible error is cured by a court's instruction except in extreme cases. Barney v. State, 698 S.W.2d 114 (Tex. Crim. App. 1985).

One of the best discussions of the problem at hand is made by our Court of Criminal Appeals speaking through Judge Clinton in Waldo v. State, 746 S.W.2d 750 at 752:

"It has long been the general rule and well settled since the early case of Miller v. State, 79 Tex. Cr. R. 9, 185 S.W. 29 (1916), that error in admitting improper evidence may be generally corrected by a withdrawal and an instruction to disregard it except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. (Citation). In Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987), we opined:

`In the vast majority of cases in which argument is made or testimony comes in, deliberately or inadvertently, which has no relevance to any material issue in the case and carries with it some definite potential for prejudice to the accused, this court has relied upon what amounts to an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury - (citations) - In essence this court puts its faith in the jury's ability, upon instruction, consciously to disregard the potential for prejudice, and then consciously to discount the prejudice, if any, in its deliberations.'"

Also see White v. State, 610 S.W.2d 504 (Tex. Crim. App. 1981); Ridyolph v. State, 545 S.W.2d 784, 787 (Tex. Crim. App. 1977); Livingston v. State, 739 S.W.2d 311, 335 (Tex. Crim. App. 1987) cert. den., 487 U.S. 1210 (1988).

The references to incarceration and criminal history made here were not calculated to inflame the jury nor did they refer to any specific criminal act. Neither could they be said to be extreme or outrageous. Any prejudicial effect, since they were non-specific replies, would be overcome by the judicial instruction to disregard. Both of Appellant's objections were sustained and a proper instruction to disregard in each instance was given by the trial court. This cured any error from the inappropriate answer.

Moreover to the foregoing, we believe Appellant waived any evidentiary objections in this case. Grounds of error over extraneous offenses are without merit when defendant admits guilt at the punishment stage. Garcia v. State, (Tex. App. Corpus Christi 1986, no writ) 718 S.W.2d 782; also see Brown v. State, 617 S.W.2d 234 (Tex. Crim. App. 1981). In the case at bar, Appellant pleaded true to the information when the enhancement paragraph was read to the jury at the beginning of the punishment phase. This refers to Appellant's past criminal history of driving while intoxicated on July 21, 1991, and enhanced the basic charge of driving while intoxicated second offense charge of which Appellant had just been found guilty. By pleading true to the information as read, Appellant waived any error of which he now complains. Additionally, Appellant had no objection to State's exhibits 2, 3, 4, 5, 6, 7 and 8, all of which dealt with Appellant's past criminal convictions and history. Appellant thereby waived any objection to his criminal history in his trial.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings and

Justice James (Retired)

Affirmed

Opinion delivered and filed February 9, 1994

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