Cooper v. State

901 S.W.2d 757, 1995 Tex. App. LEXIS 1358, 1995 WL 358412
CourtCourt of Appeals of Texas
DecidedJune 14, 1995
DocketNo. 09-94-046 CR
StatusPublished
Cited by15 cases

This text of 901 S.W.2d 757 (Cooper v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. State, 901 S.W.2d 757, 1995 Tex. App. LEXIS 1358, 1995 WL 358412 (Tex. Ct. App. 1995).

Opinion

OPINION

WALKER, Chief Justice.

In a single indictment, appellant was charged with two counts of Aggravated Sexual Assault involving separate minor victims with the incidents allegedly taking place on separate dates. The victims are the son and daughter of a woman with whom appellant lived for approximately four years. A jury found appellant guilty on both counts. Following appellant’s plea of “true” to a single enhancement paragraph, the trial court assessed punishment at seventy-eight (78) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, and further assessed a fine of $10,-000. Appellant raises two points of error on appeal, viz:

Point of Error One: The trial court committed reversible error when it failed to grant a mistrial after the State’s witness testified to the defendant’s prior criminal record.
Point of Error Two: The court erred in permitting, over appellant’s objection, the ex-wife’s testimony about the appellant’s sexual practices.

Appellant’s complaint under his first point of error centers around the following portion of testimony from the State’s outcry witness, a Child Protective Services caseworker, with regard to her interview with the young male victim:

Q. [Prosecutor] Did he describe the sexual abuse to you?
A. [CPS worker] Yes, he did.
Q. And what did he tell you?
A. He described anal penetration, oral sex, fondling. He also said that he had been threatened. He had been threatened by Mr. Cooper not to tell anyone.
Q. Do you recall the specific threats that he received?
A. It was from several things that were said about his past murder he had committed, and that he was capable of committing murder, and the child already knew about the murder.

[759]*759At tMs point, appellant’s trial counsel requested to approach the bench and the trial court agreed. A bench conference took place in which trial counsel complained that appellant’s motion in limine had been violated by the witness’s reference to an extraneous offense. The State responded somewhat apologetically. Trial counsel then requested the trial court to instruct the jury to disregard. The trial court immediately instructed the jury as follows:

BY THE COURT: Ladies and gentlemen, the Court will ask that you disregard the last statement of the witness, and that you will not consider it for any purpose. Treat it as though you’d never heard it.

Appellant’s trial counsel then moved for a mistrial. Following another bench conference, the trial court denied appellant’s motion.

In his brief, appellant recognizes the general rule that a timely instruction to disregard will cure most improper evidence placed before a jury. Appellant, however, focuses his argument on the exception to this rule that an instruction to disregard will not cure error “in extreme cases where it appears that the question or evidence 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.” See Kelley v. State, 677 S.W.2d 34, 36 (Tex.Crim.App.1984). Out of several cases cited by appellant in his brief, the only one that resulted in a conviction being reversed was Robinette v. State, 816 S.W.2d 817 (Tex.App. — Eastland 1991, no pet.). The Court in Robinette also recognized the general rule regarding curative instructions to disregard. However, what distinguishes the circumstances in Ro-binette from those in the instant case is that in Robinette the State had just elicited from its own witness evidence of an extraneous offense involving the defendant to which the trial court sustained an objection by defense counsel. Immediately thereafter, the State asked the witness, a close friend of the defendant, about the defendant’s “macho attitude about people.” When the witness acknowledged that the defendant did have such an attitude, the State continued the inquiry as follows:

Q. [State] Did he ever brag about anything that he did in a macho sort of fashion?
A. [State’s witness] Yes, sir.
Q. And what was that in particular?
A. He bragged he killed a police officer one time.

Id. at 819.

In holding that the trial court’s subsequent instruction to disregard did not cure the error, the Eastland Court provided the following explanation:

The witness [first] testified that he was told by Rose that appellant held a knife at her throat and at her dog’s throat. This testimony was inadmissible. The court sustained appellant’s objection. The prosecutor then immediately returned to the forbidden extraneous offense area and elicited before the jury testimony that appellant had bragged about killing a police officer. We hold that the question and answer were clearly calculated to inflame the minds of the jury and were of such character as to suggest the impossibility of withdrawing the impression produced on the jurors’ minds.

By contrast in the instant case, the form of the State’s question was not presented in an inflammatory manner. The witness’s response was, arguably, not entirely inadmissible as the fact that the appellant may have told the victim that he (appellant) was “capable of committing murder” is the type of specific threat admissible to show appellant’s intent to force the victim to comply with his sexual demands. Furthermore, the trial court promptly, and quite authoritatively, admonished the jury to “disregard” the witness’s statement; to “not consider it for any purpose;” and to treat the statement “as though you’d never heard it.” We find that the trial court’s instruction to disregard sufficiently cured whatever prejudicial effects arose from the response in question. See Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992), cert. denied, — U.S. -, [760]*760113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). Point of error one is overruled.

Appellant’s second point of error is based upon a portion of the testimony elicited from the State’s witness, Melanie Norris. Ms. Norris is the mother of the two victims. Recall that appellant lived with Ms. Norris and the two victims for approximately four years. It was during this period of time that the offenses were allegedly committed. The record reflects that Ms. Norris was the second witness called by the State, having followed the CPS caseworker who was the State’s initial witness. We now reproduce the pertinent portion of the record in order to aid in our discussion of point of error two:

Q. [Prosecutor] Do you recall when you met Terry Cooper?
A. [Ms. Norris] Yes, ma’am.
Q. Okay. When was that?
A. In ’86.
Q. Okay. When did you start seeing him like, I guess dating, or romantically?
A.

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Cite This Page — Counsel Stack

Bluebook (online)
901 S.W.2d 757, 1995 Tex. App. LEXIS 1358, 1995 WL 358412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-state-texapp-1995.