LEWIS C. ELLIOTT, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 31, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01388-CR
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LEWIS C. ELLIOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-94908-QV
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OPINION PER CURIAM
Before Justices Whitham, Baker and Ovard
        Lewis C. Elliott appeals his jury conviction for aggravated sexual assault for which the jury assessed punishment at fifty years' confinement. In his sole point of error, he contends that the trial court erred in admitting evidence of an extraneous offense. We affirm.
        Appellant was convicted of sexual assault of his eight-year-old daughter. Appellant contends that certain testimony of an adult stepdaughter, offered during the punishment stage, was inadmissible because it revealed an extraneous offense. Appellant's adult stepdaughter testified as follows:
    [Prosecutor]: How old were you when you came to live with Lewis Charles Elliott?
 
    [Witness]: He has been my daddy all my life.
 
* * *
    [Prosecutor]: Okay. Do you feel that Lewis Elliott was a good father to you and your children?
 
    [Witness]: He provided for us as best he could; but as far as really being a good father, no, he wasn't.
 
    [Prosecutor]: So I guess what you're saying, he provided for you physically but you don't think he was a good father?
 
    [Witness]: He took care of us and we had a house to live in and he taught us a lot of things . . . and he sexually abused me when I was 8. [emphasis added]
 
    [Defense Counsel]: Objection. Extraneous offense.
 
    [Court]: I will sustain it. The question is simply do you think that he was a good father. I think you have answered than, have you not?
 
    [Witness]: Yes.
        In order to preserve error for appeal, a party must object and obtain an adverse ruling from the trial court. Tex. R. App. P. 52(a). The proper method to preserve error in pursuing the objection to an adverse ruling is to (1) make an objection, (2) request an instruction to disregard, and (3) move for a mistrial. Koller v. State, 518 S.W.2d 373, 375 n.2 (Tex. Crim. App. 1975). Having failed to request an instruction to disregard or to move for mistrial, appellant has failed to present error for review. Id.
        Appellant argues, however, that the testimony was so prejudicial that an instruction to disregard could not have cured the error, thus he cannot be faulted for having failed to request an instruction to disregard. See Abbott v. State, 726 S.W.2d 644, 649 (Tex. App. -- Amarillo 1987, no pet.). We disagree. The witness's testimony that her father had previously sexually abused her was a gratuitous, unsolicted response. As a general rule, an instruction to disregard will cure any unresponsive answer. Gardner v, State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); Richardson v. State, 624 S.W.2d 912, 914 (Tex. Crim. App. [Panel Op.] 1981). This is true except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds. Gardner, 739 S.W.2d at 696; Hopkins v. State, 480 S.W.2d 212, 216 (Tex. Crim. App. 1972).Whether a given case fits the exception or the rule will depend upon its particular facts. Gardner, 730 S.W.2d at 696.
        Under the particular facts of this case, the revelation that appellant had sexually abused another daughter was not so inflammatory that an instruction to disregard could not have cured it. The testimony came during the punishment phase, and the jury had already been informed that appellant had three convictions for incest, each involving a different stepdaughter. The jury had also learned that the complainant and two other child witnesses were the children of appellant by his stepdaughters. In fact, the jury had been informed that appellant was the natural father of all thirteen children born to his three adult stepdaughters. We conclude that an instruction to disregard would have cured any error inherent in the unresponsive answer. Thus, appellant has waived any error by failing to request an instruction to disregard and to move for mistrial. Koller, 518 S.W.2d at 375 n.2.
        Assuming, arguendo, that any error was properly preserved, we conclude that the error, if any, was harmless. Appellant's argument is that the evidence was harmful because, although the jury knew about his activities with his adult daughters, the testimony that he had abused another child tended to show his unnatural attraction to children. See Boutwell v. State, 719 S.W.2d 164, 176 (Tex. Crim. App. 1985). We note, however, that when this evidence was disclosed, appellant had already been found guilty of sexually assaulting a child. Thus, there is no possibility that the jury improperly considered the testimony as evidence of guilt. We note further that the punishment assessed was only fifty years' confinement when the range of punishment was five years to ninety-nine years or life confinement, and a fine of $10,000. In light of appellant's three incest convictions, the evidence of the unusual family circumstances, and the facts of the assault itself, we conclude beyond a reasonable doubt that the allegedly erroneous evidence did not contribute to the punishment assessed. Tex. R. App. P. 81(b)(2).
        We overrule appellant's sole point of error and affirm the trial court's judgment.
                                                          
                                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
881388.U05
 
 
File Date[10-31-89]
File Name[881388]