JERRY DEAN ELLIOTT v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

 NUMBER 13-05-00227-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JERRY DEAN ELLIOTT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 36th District Court of San Patricio County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Jerry Dean Elliott, guilty of possession of more than four grams, but less than two-hundred grams, of methamphetamine,[1] and assessed his punishment at eighteen years= imprisonment and a $1,100 fine. In one issue, appellant contends the trial court erred in allowing evidence of an extraneous offense to be presented to the jury during the punishment phase of the trial. We affirm.

During the punishment phase of the trial, the State sought to introduce evidence of the following two extraneous offenses: (1) appellant=s May 4, 1998 conviction for the possession of amphetamines, a third degree felony; and (2) appellant=s February 6, 2003 arrest for the possession of methamphetamine, a case which was still pending. Over defense counsel=s objection, the trial court initially allowed Officer Rusty Young to testify about the 2003 arrest. However, after defense counsel took Officer Young on voir dire, the trial judge instructed the jury to disregard all of Officer Young=s testimony about the 2003 arrest. Appellant moved for a mistrial, but the trial court denied the motion.

During the punishment phase, the State may offer evidence on any matter deemed relevant to sentencing, including the defendant=s prior criminal record and any Aevidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2005).

Since the trial court instructed the jury to disregard Officer Young=s testimony about the 2003 arrest, we assume, without deciding, that the introduction of the officer=s testimony was erroneous. Accordingly, we conclude that the issue before this Court is whether the trial court=s limiting instruction was sufficient to cure that error.

As a general rule, testimony

referring to . . . extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind.

Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). On appeal, courts employ a presumption that juries follow the law as instructed by the trial judge and consider only what the judge allows them to consider. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.1998); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App.1996). This presumption may be rebutted, but only by evidence that the jury disregarded the judge=s instructions. See Thrift, 176 S.W.3d at 224; Colburn, 966 S.W.2d at 520. Only when Athe facts of the case suggest the impossibility of removing the impression produced on the minds of the jury@ is an instruction to disregard insufficient to cure the error. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).

The jury was admonished several times that they were to disregard all of Officer Young=s testimony and that the testimony was to play no part in their deliberations. Since the officer=s testimony was not so inflammatory that its effect could not be cured by an instruction to disregard, we start with the presumption that the jury followed the judge=s instructions. Appellant may rebut this presumption only with evidence that the jury disregarded the judge=s instructions.

As evidence that the jury disregarded the judge=s instructions and considered Officer Young=s testimony, appellant points only to the fact that the jury assessed his punishment at eighteen years= imprisonment, only two years short of the statutory maximum. Given the amount of methamphetamine possessed by appellant at the time of his arrest, as well as his 1998 conviction for possession of amphetamines, we cannot say that appellant=s punishment is excessive.

Accordingly, we hold that appellant failed to rebut the presumption that the jury followed the judge=s limiting instructions to disregard Officer Young=s testimony. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 20th day of July, 2006.

[1] The possession of more than four grams, but less than two-hundred grams, of methamphetamine is a second-degree felony.