Ralph Paul Christensen v. The State of Texas--Appeal from 54th District Court of McLennan County

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Christensen v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-289-CR

 

RALPH PAUL CHRISTENSEN,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 54th District Court

McLennan County, Texas

Trial Court # 94-765-C

 

O P I N I O N

 

A jury convicted appellant, Ralph Paul Christensen, of the offense of theft of property valued at $750 or more, but less than $20,000. Act of June 14, 1985, 69th Leg., R.S., ch. 599, 1, 1985 Tex. Gen. Laws 2244, 2244-45, amended by Act of June 19, 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3637-38 (current version at Tex. Penal Code Ann. 31.03(e)(4)(A) (Vernon Supp. 1996)). Christensen's punishment was enhanced with a prior felony conviction for forgery, and the trial court sentenced him to ten years' incarceration in the Institutional Division of the Texas Department of Criminal Justice.

Christensen was convicted of a theft which occurred at the Bellmead Pizza Hut during the early morning hours of August 18, 1994. According to Christensen, upon leaving his apartment complex around midnight on August 18, 1994, he was accosted by an unidentified black male. Pointing a gun at Christensen, the black male allegedly ordered Christensen to drive to Christensen's place of employment, the Bellmead Pizza Hut, and remove all the money from the safe. Christensen, fearing for his life, complied and used his alarm access code to enter the building. The theft was discovered by a manager the next morning. Upon investigation, the police discovered that Christensen's alarm access code had been used to gain entrance to the Pizza Hut. Police were unable to contact Christensen until he voluntarily went to the police department to report that he had indeed taken the money but had done so under duress. Christensen was subsequently arrested and indicted for the theft.

In his first and second points of error, Christensen complains that the trial court erred in excluding photographs of his apartment complex and of the Bellmead Pizza Hut. We need not address the merits of Christensen's arguments because he has waived all complaints about the photographs. The appellant is required to provide the appellate court with a sufficient record which shows error requiring reversal. Tex. R. App. P. 50(d); O'Neal v. State, 826 S.W.2d 172, 173 (Tex. Crim. App. 1992). To preserve error for appellate review in regard to excluded evidence, the party seeking to have the evidence admitted must make an offer of proof so that a complete record will be before the appellate court. Tex. R. Crim. Evid. 103(a)(2); Tex. R. App. P. 52(b). If the excluded evidence is not made part of the record, then nothing is presented for review. Green v. State, 682 S.W.2d 271, 294-95 (Tex. Crim. App. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1407 (1985) (where confession of a co-defendant was not made part of the record, there was nothing presented for review); Coy v. State, 879 S.W.2d 960, 961 (Tex. App. Waco 1994, no pet.) (where appellant failed to make videotape of the crime part of the record, he waived any complaint of sufficiency of the evidence); Hall v. State, 829 S.W.2d 407, 410 (Tex. App. Waco 1992, no pet.) (where videotape is not made part of the record, appellant waived any error regarding the admission of statements contained on the videotape which were not recorded by the court reporter). The photographs, which Christensen contends should have been admitted into evidence, appear nowhere in the record. Christensen's first and second points are overruled.

In his third point of error, Christensen maintains the trial court erred in overruling his motion for mistrial. Christensen contends that testimony about an extraneous act, similar to the offense with which he was charged, given by Detective Jason Chambers was prejudicial to his case. When a witness refers to an extraneous offense involving the defendant, error is generally cured when the trial judge instructs the jury to disregard the statement unless the circumstances are such that the testimony "is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds." Williams v. State, 604 S.W.2d 146, 150 (Tex. Crim. App. 1980); see also Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); Dawkins v. State, 822 S.W.2d 668, 672 (Tex. App. Waco 1991), pet. ref'd per curiam, 825 S.W.2d 709 (Tex. Crim. App. 1992). "An instruction [to disregard] will also cure error when evidence of an extraneous offense is placed before the jury in violation of a motion in limine." Barnhill v. State, 779 S.W.2d 890, 891 (Tex. App. Corpus Christi 1989, no pet.) (citing Barney v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985)).

Prior to voir dire, Christensen's defense counsel made a motion in limine requesting that, prior to the presentation of any evidence relating to extraneous offenses involving Christensen, the trial court hold a hearing on the admissibility of such evidence. The State agreed to the request. At trial, Detective Chambers testified on behalf of the State. During his testimony, the following colloquy took place as to Christensen's explanation for waiting twelve hours before notifying the police that he had been forced, at gunpoint by an unidentified black male, to rob the Bellmead Pizza Hut:

[STATE:] Did you talk with Mr. Christensen about why he didn't bother to call the police if he had in fact been robbed?

[CHAMBERS:] Yes, I did. He said at that time that he was freaked out, didn't know what to do, the reason being because this had happened to him once before.

[DEFENSE]: Your Honor, I object. This is going [] into matters --

THE COURT: Sustained.

[DEFENSE]: There is a motion in limine.

THE COURT: Sustain. I instruct the jury to disregard the last statement for any purpose.

The Court of Criminal Appeals has held that a vague reference to an extraneous offense which does not reveal any facts regarding the conduct cannot be a statement made to "inflame the minds of the jury." See Kipp, 876 S.W.2d at 339; Adanadus v. State, 866 S.W.2d 210, 227 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1338 (1994). Furthermore, the trial court's sustaining the objection and promptly instructing the jury to disregard the statement cured any error, assuming, arguendo, any error occurred. Moody v. State, 827 S.W.2d 875, 890 (Tex. Crim. App.), cert. denied, 506 U.S. 839, 113 S. Ct. 119 (1992). Because Detective Chambers' statement was but a brief mention of an extraneous act involving Christensen, to which Christensen had his objection sustained and received his requested instruction to the jury to disregard the statement, we find the trial court did not abuse its discretion in overruling Christensen's motion for mistrial. Kipp, 876 S.W.2d at 339. Christensen's third point is overruled.

In his final point of error, Christensen contends the trial court erred in overruling his motion for mistrial made after a question posed to Detective Chambers which required speculation on the detective's part. Christensen complains of the following:

[STATE:] In your investigation of this matter, did it appear to you that once this unidentified black male stood at the door and Mr. Christensen went on in that the defendant had opportunities to set off any alarms or anything like that?

[DEFENSE]: Your Honor, I object. That calls for speculation.

THE COURT: Sustained.

[DEFENSE]: Ask the jury be instructed to disregard that question's implication.

THE COURT: Instruct the jury to disregard the last question for any purpose.

Whether a mistrial should be granted because an improper question has been posed to a witness is subject to the same standard as reference to an extraneous offense involving the defendant: a mistrial must be granted if the improper question was meant to inflame the jury and the impression the question produced cannot be cleared from the jurors' minds. Adanadus, 866 S.W.2d at 227. Unless the question was of such a nature, then the asking of an improper question alone will not justify the trial court's granting a mistrial. Id.

In the present situation, the State's question was not of such character as to inflame the minds of the jury and require a mistrial. Furthermore, the trial court's prompt instruction to the jury to disregard cured any error, if in fact any occurred. Once again, we conclude that the trial court did not abuse its discretion in denying Christensen's motion for mistrial. Kipp, 876 S.W.2d at 339. Christensen's fourth point of error is overruled.

On appeal, the State raises one cross-point. The State asks that, in the event we find reversible error based on any of Christensen's points of error, we reverse the trial court's ruling excluding evidence that Christensen had previously been involved in a similar occurrence the year before where he was forced, at gunpoint, by two unidentified black men to rob another Pizza Hut in the Waco area. Because no error occurred in the trial court, we overrule the State's cross-point as moot.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

 

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 6, 1996

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