Devian Charles Burks v. The State of Texas--Appeal from 232nd District Court of Harris County

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Affirmed and Memorandum Opinion filed December 23, 2008

Affirmed and Memorandum Opinion filed December 23, 2008.

In The

Fourteenth Court of Appeals


NO. 14-07-00579-CR





On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1120743


Appellant Devian Charles Burks appeals his conviction for assault, claiming the trial court committed reversible error by (1) denying appellant=s motion for mistrial, and (2) denying appellant the right to testify free from impeachment from prior convictions. We affirm.

I. Factual and Procedural Background

Appellant was charged with assault of complainant, Margarita Salazar, with whom appellant shared a dating relationship. Appellant pleaded Anot guilty@ to the charges. At a jury trial, the complainant testified that she was ambivalent about notifying the police about appellant=s assault on her for fear that appellant would suffer repercussions because he was already on parole for prior convictions. Appellant objected to the complainant=s reference to his being on parole and moved for a mistrial, which the trial court denied. The trial court instructed the jury to disregard the complainant=s statement.

The jury found appellant guilty of assault as charged in the indictment. Pursuant to an agreement as to punishment, appellant pleaded Atrue@ to two punishment enhancement paragraphs. Appellant was sentenced to twenty-five years= confinement. Challenging his conviction, appellant raises two issues for appellate review.

 II. Issues and Analysis

 A. Did the trial court commit reversible error in denying appellant=s motion for mistrial when the complainant testified that appellant was on parole for a prior conviction?

In his first issue, appellant complains that the complainant=s reference to appellant=s parole indicated that he held prior convictions. Appellant objected to the following testimony of the complainant and moved for a mistrial:

[PROSECUTOR]: When you got home did you call the police?

[COMPLAINANT]: [I] [s]at there and thought about it because I still hadBI still had that thought in my heart that I knew [appellant] was on parole and I didn=tC

The trial court sustained appellant=s objection to the complainant=s reference to appellant=s parole status and denied appellant=s motion for mistrial. The trial court gave the jury the following instruction:

Okay. Ladies and Gentlemen I=m going to instruct you to disregard the reference to parole. It=s not admissible for your consideration and it=s not really relevant to any issue before you and you=re not going to consider it for any purpose whatsoever in deciding the case.

On appeal, appellant claims that the trial court committed reversible error because the trial court=s instruction did not adequately compensate for the jury=s hearing of the inadmissible remark.

We review a trial court=s denial of a motion for a mistrial under an abuse-of-discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). A mistrial is required only when the impropriety 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 in the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); Herrero v. State, 124 S.W.3d 827, 836 (Tex. App.CHouston [14th Dist.] 2003, no pet.). In analyzing whether a prejudicial event is so harmful as to warrant a mistrial, we consider the prejudicial effect, the curative measures taken, and the certainty of conviction absent the prejudicial event. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Generally, a trial court=s prompt instruction to disregard will cure error resulting from an improper question and answer regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). Because curative instructions are presumed effective to withdraw from jury consideration almost any evidence or argument that is objectionable, trial conditions must be extreme before a mistrial is warranted. Bauder, 921 S.W.2d at 700. This presumption may apply even when the instruction follows violation of an order in limine. Janney v. State, 938 S.W.2d 770, 773 (Tex. App.CHouston [14th Dist.] 1997, no pet.). Thus, the reviewing court presumes the jury followed the trial court=s directive.

In this case, it is clear from the State=s line of questioning that the State was not seeking to elicit testimony about appellant=s parole status; rather, the State sought testimony about when the complainant notified police. See Hughes v. State, 878 S.W.2d 142, 154 (Tex. Crim. App. 1992) (op. on reh=g) (holding that jury instruction to disregard reference to the appellant=s parole status was sufficient to cure the unresponsive answer). The complainant=s answer was unresponsive. Moreover, the reference to appellant=s parole status was not embellished nor was the reference Aso inflammatory as to undermine the efficacy of the trial court=s instruction to disregard it.@ See Gardner v. State, 730 S.W.2d 675, 697 (Tex. Crim. App. 1987); see also Hughes, 878 S.W.2d at 154. Under the general rule, the trial court=s prompt instruction to disregard the reference was sufficient to cure the complainant=s unresponsive answer. See Hughes, 878 S.W.2d at 154. Therefore, we overrule appellant=s first issue.

B. Did the trial court commit reversible error in denying appellant an opportunity to testify without being impeached with his prior felony convictions?

In his second issue, appellant complains that the trial court committed reversible error by ruling that the State would be allowed to impeach him with the five prior convictions if he chose to testify at trial. At trial, after the State rested its case, appellant re-urged his pre-trial motion to testify free from impeachment with prior felony and misdemeanor convictions. The trial court ruled that it would allow impeachment with the prior felony convictions barring any time restrictions, but the record does not show that the trial court determined whether it would permit impeachment with any misdemeanor convictions. Appellant did not testify at trial. Appellant now argues that the trial court would have Aallow[ed] the State to impeach@ appellant with five previous felony convictions if appellant had testified.

Once a defendant testifies, he places his credibility at issue and thereafter may be impeached like any other testifying witness. See Alexander v. State, 740 S.W.2d 749, 763 (Tex. Crim. App. 1987); Dale v. State, 90 S.W.3d 826, 829 (Tex. App.CSan Antonio 2001, pet. ref=d). Under Texas Rule of Evidence 609(a), the credibility of a witness may be attacked with a prior felony conviction or a conviction that involved moral turpitude. Tex. R. Evid. 609(a). Before the evidence is admitted, the trial court must determine that the probative value of the evidence outweighs its prejudicial effect to the party. Id. Evidence of a conviction is admissible under this rule if a period of less than ten years has elapsed since the date of the conviction or the release date of the witness from confinement imposed for that conviction. Tex. R. Evid. 609(b). We review a trial court=s decision to admit prior convictions under an abuse-of-discretion standard. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).

In this case, we do not reach the merits of appellant=s argument because he did not testify at trial and appellant has not otherwise indicated what his testimony would have been. See Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999); Yanez v. State, 199 S.W.3d 293, 303 (Tex. App.CCorpus Christ 2006, pet. ref=d); Caballero v. State, 919 S.W.2d 919, 923 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). To preserve error on a trial court=s ruling that permits the State to impeach a defendant with prior convictions, the defendant must have testified. Jackson, 992 S.W.2d at 479; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. A reviewing court is unable to weigh the probative value of the proffered testimony against its prejudicial effect without a factual record of the appellant=s testimony at trial. Jackson, 992 S.W.2d at 479; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. Without such a record, there is no impeachment evidence for prior convictions and we cannot sufficiently review for error. See Long v. State, 245 S.W.3d 563, 573 (Tex. App.CHouston [1st Dist.] 2007, no pet.);Yanez, 199 S.W.3d at 303. Therefore, we overrule appellant=s second issue.

Having overruled appellant=s two issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost


Panel consists of Justices Anderson and Frost and Senior Justice Hudson.[1]

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Senior Justice J. Harvey Hudson sitting by assignment