Terry Wayne Cochran v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00155-CR

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TERRY WAYNE COCHRAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 03-0031X

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

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Terry Wayne Cochran appeals from his conviction by a jury for burglary of a building, enhanced. The jury assessed his punishment at eight years' imprisonment. Cochran contends his conviction should be reversed because testimony about inadmissible inculpatory statements were placed before the jury, because the trial court erred by denying his motion to strike the State's supplemental discovery report, and because the trial court's denial of his motion to exclude evidence about his prior criminal history was unfair.

The sufficiency of the evidence is not contested. For context, we provide a brief summary of the incident. While investigating a vandalism report, Deputy Sheriff Lance Rhodes, and a civilian riding with him, Randall Corley, drove up to a bar that was closed and shined a light through a window. They saw a person inside begin to run. Rhodes and Corley ran in different directions around the building in an effort to intercept the person. Corley testified that, as he came around the corner of the building, he saw the person climbing out of a broken window with a long object in his hand. Corley and Rhodes chased the person and apprehended him. The person was identified as Cochran. When the building was checked, it was determined that a video game had been broken into and the money changer removed. That item, along with a crowbar and a pair of gloves, were found along the line of Cochran's flight from the building.

Cochran first contends the trial court erred by overruling his motion for mistrial based on improper testimony by Rhodes. The officer had restrained Cochran and had taken him to the police car. The complained-of testimony follows:

Q.Was he just cooperative, yes officer, no officer, or were you having to - -

A.He wasn't moving under his own power. I was having to move him and he was making statements along the line of, I'm sorry, I don't know why I did that or words to that effect.

[Defense Counsel]:Objection, Your Honor. Move to disregard.

THE COURT:Do you have an objection?

[Defense Counsel]:I have an objection to the - - to the unsolicited statement - -

THE COURT:Non-responsive?

[Defense Counsel]:Non-responsive statement by the officer and I would ask that the jury be instructed to disregard that statement.

THE COURT:All right, disregard it.

[Defense Counsel]:And I would move for mistrial.

THE COURT: Denied.

Cochran contends the trial court erred by denying his motion for mistrial. We review a trial court's denial of a motion for 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).

The asking of an improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id.

In this case, the statement was not in response to a question posed by the State, but was instead a statement volunteered by Rhodes. The trial court correctly categorized the statement as nonresponsive and correctly sustained the objection. The remaining question is whether the statement was of such character as to make the instruction to disregard ineffectual. Although the statement is clearly prejudicial, we do not find it to be necessarily of such character as to make it impossible for the instruction to withdraw the impression made on the minds of the jurors.

The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. See id. Under the requisite abuse of discretion standard, we do not find the trial court's denial of the motion for mistrial to be outside the range of reasonable disagreement. The contention is overruled.

Cochran next contends the trial court's denial of his motion to strike evidence based on a "supplemental" discovery report by the State was error. Cochran had filed a request for discovery which was granted in an agreed order by the court, and he was provided a copy of the entire file of the district attorney's office regarding his case. Counsel states he had designed his defensive strategy (to allow Cochran to take the stand and provide his version of events) around the information contained in that file.

The supplemental report contained a description of an oral statement made by Cochran after arrest and after receiving Miranda // warnings. The officer recounted that Cochran had stated he broke into the store that night because he had been accused of a similar crime a few days earlier, "and he felt he might as well do it." The report also states Cochran refused to either give a written statement or talk further about the incident.

According to the motion to strike, the document was provided to defense counsel May 1, 2003. Counsel argues that, because it was not provided at the same time as the other information provided by the State, he did not have an adequate opportunity to formulate and plan his defensive strategy. However, the record shows trial did not begin until May 12, 2003. In this case, there is no order setting a time limitation on the date discovery must have been provided to Cochran, see State v. LaRue, 108 S.W.3d 431 (Tex. App. Beaumont 2003, pet. granted), there was a reasonable amount of time provided before trial began for review of the newly provided document, and counsel did not request any additional time to prepare for trial.

We conclude the trial court did not err under these facts by denying the motion to strike.

Cochran also contends the trial court erred by denying his motion to exclude evidence of his criminal history. That motion sought to prevent the State from cross-examining Cochran about his lengthy criminal history. The brief suggests no reason that such cross-examination would have been improper under the rules. Rather, counsel acknowledges that his motion is not supported by the existing Rules of Evidence or the cases decided under those rules. See Tex. R. Evid. 609. Nevertheless, he argues that to allow such impeachment deprives him of a fair and impartial trial under the constitution and that we should therefore reverse.

Counsel has provided no reasoned argument adequate to persuade this Court that we should ignore both the Rules of Evidence and the cases decided under those rules to declare the admission of such impeachment evidence unconstitutional, and without such persuasion, we will not so hold. The contention of error is overruled.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: February 10, 2004

Date Decided: February 27, 2004

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