Adrian Tod Dearion v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00202-CR

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ADRIAN TOD DEARION, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30675-B

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Adrian Tod Dearion was indicted for possession of one to four grams of cocaine and for possession with intent to deliver cocaine. He was acquitted of the intent to deliver charge, but convicted for possession of cocaine. The range of punishment was enhanced to twenty-five to ninety-nine years by two prior felony convictions. See Tex. Pen. Code Ann. 12.42(d) (Vernon Supp. 2004). At the punishment hearing, Dearion pled "true" to the enhancement allegations. The jury assessed punishment at fifty years' confinement. The court ordered the sentence to be served consecutively to another felony offense. Dearion's sole issue on appeal is that improper evidence was admitted and the trial court erred by failing to grant a mistrial. We affirm the judgment of the trial court.

After the indictment was read, Dearion was asked to enter his plea and replied, "Sir, I plead guilty to the possession part." The court refused to allow him to plead guilty to one paragraph and not the other. Defense counsel stated, "He desires to enter a plea of not guilty to possession of intent to deliver and guilty to possession." The court entered a plea of not guilty to the indictment.

Factual Background

Chris Clark, a patrolman for the City of Longview, Texas, Police Department, was dispatched to the Econo Lodge in Longview on February 8, 2003, to investigate a report of suspicious activity in room 221. Clark was informed that a person named Stoker had rented the room. During the direct examination by the State, the following occurred:

QWhat did you do after you found this out?

AWe were going to make contact to Room 221, but prior to doing so, the caller who reported this gave us the name of a person that was occupying that room and the name was Adrian Dearion, and we were informed by dispatch that this Mr. Dearion had an outstanding parole violation warrant.

The trial court removed the jury and admonished the witness. Defense counsel moved for a mistrial. The court deferred ruling on the motion and instructed the jury to "completely disregard the last answer given by the witness in testifying. You will not consider that remark for any purpose whatsoever." Later, the court overruled the motion for mistrial.

Clark testified that, on approaching room 221, he made contact with the occupant, Dearion. The officers detected an odor of burning marihuana emitting from the room, and Dearion admitted narcotics were in the room. A search of the room revealed some suspected crack cocaine, as well as other illegal substances. As each illegal substance was found, Dearion claimed it was his. Other officers testified as to the search and chain of custody of the evidence. A chemist testified one of the substances found in Dearion's possession contained cocaine in the form of cocaine base. The cocaine substance weighed 1.22 grams.

Motion for Mistrial

Dearion alleges that the testimony concerning a "parole violation warrant" obviously referred to a prior criminal conviction and that it was highly prejudicial and incurable by an instruction to disregard. A denial of a mistrial is reviewed for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

An accused is entitled to be tried on the accusation in the State's pleading and should not be tried for some collateral crime or for being a criminal generally. Campos v. State, 589 S.W.2d 424, 427 28 (Tex. Crim. App. [Panel Op.] 1979) (citing Jones v. State, 568 S.W.2d 847 (Tex. Crim. App. 1978)).

In Campos, evidence was introduced as to the defendant's previous incarceration and an instruction to disregard was given to the jury. The court held that a trial court's instruction to the jury to disregard cured the improper admission of such evidence except in extreme cases where it appeared the question or evidence was clearly calculated to inflame the minds of the jury and was of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Campos, 589 S.W.2d at 428.

In Mathews v. State, 40 S.W.3d 179 (Tex. App. Texarkana 2001, pet. ref'd), this Court addressed a situation in which an expert witness interjected that the defendant had been in the penitentiary for eight years on two different occasions. Defense counsel moved for a mistrial, but did not request an instruction for the jury to disregard the evidence. This Court held that such an instruction to the jury would have been adequate to cure any harm caused by such testimony. Id. at 183.

Improper evidence will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id. (citing Ladd, 3 S.W.3d at 567).

Dearion argues that this case is one of those extreme cases in which the improper testimony is inflammatory and cannot be withdrawn from the minds of the jury. We disagree. Here, some of the first words the jury heard at trial was Dearion attempting to plead guilty to the charge of possession of cocaine. The jury convicted Dearion of possession of cocaine, but acquitted him of possession with intent to deliver. It appears the jury was not inflamed toward Dearion, because he was acquitted of the only charge for which he denied guilt. Counsel for Dearion announced to the jury in his opening statement and in final argument that Dearion admitted guilt concerning the possession charge, but denied guilt as to the intent to deliver charge. The jury reached the decision Dearion sought. The impact of this evidence was also reduced because the jury had previously been advised by defense counsel in his opening statement regarding Dearion that there was "a warrant for his arrest."

The trial court promptly and clearly advised the jury to disregard the statement of the officer for any purpose. We presume the jury followed this instruction and, based on the decision the jury reached, it is logical and reasonable to conclude that the jury in fact followed the court's instruction to disregard the evidence. The statement that a parole warrant existed likewise would not affect the jury's consideration of punishment, because Dearion pled true to the enhancement paragraphs and his prior convictions were properly in evidence for the jury's consideration.

Conclusion

We find that the circumstances of this case do not show the evidence was calculated to inflame the minds of the jury and was not so extreme that it could not be cured by a proper instruction. The trial court's action in instructing the jury cured any error concerning the testimony. The trial court did not abuse its discretion in denying the motion for mistrial.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: March 19, 2004

Date Decided: March 23, 2004

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