IN THE TENTH COURT OF APPEALS
No. 10-16-00048-CR
KENNETH BUTLER, Appellant v.
THE STATE OF TEXAS, Appellee
From the County Court at Law Navarro County, Texas Trial Court No. C35834-CR
MEMORANDUM OPINION
A jury convicted Appellant Kenneth Butler of possession of less than one gram of
methamphetamine, and the trial court sentenced him to five years’ community
supervision. The methamphetamine was discovered in Butler’s pocket when he was
being treated for injuries he sustained after wrecking his motorcycle. Butler appeals in
two issues. We will affirm. Denial of Motion for Mistrial
In his first issue, Butler asserts that the trial court erred in denying his motion for
mistrial. Butler specifically complains that a mistrial should have been granted after the
State was allowed to introduce evidence of an extraneous offense. The DPS Trooper who
investigated Butler’s wreck, LaTonya Sadler, was questioned by the prosecution
regarding the actions she took in her investigation. Sadler replied: “Those actions are is
I went ahead—after I went through the defendant’s criminal history, is I went through
and I seen that the defendant had a lengthy criminal history.” Butler objected and
requested a limiting instruction. The State agreed that a limiting instruction to the jury
would be appropriate, and the judge admonished the jury to disregard Sadler’s
statement. Butler additionally moved for a mistrial, which the judge denied.
The denial of a motion for mistrial, which is appropriate for “highly prejudicial
and incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642,
648 (Tex. Crim. App. 2000)); see also Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
[T]he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. A mistrial is the trial court's remedy for improper conduct that is “so prejudicial that expenditure of further time and expense would be wasteful and futile.” In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in light of the trial court's curative instruction. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd, 3 S.W.3d at 567);
see also Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007). Thus, the
Butler v. State Page 2 appropriate test for evaluating whether the trial court abused its discretion in overruling
a motion for mistrial is a tailored version of the test originally set out in Mosley v. State,
983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. “The
Mosley factors are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of
conviction absent the misconduct.” Id.; see Mosley, 983 S.W.2d at 259; see also Brinegar v.
State, No. 10-14-00195-CR, 2015 WL 6777445, at *4 (Tex. App.--Waco Nov. 5, 2015, pet.
ref’d) (mem. op., not designated for publication).
The asking of an improper question will seldom call for a mistrial because any
error can usually be cured by an instruction to disregard. Wood, 18 S.W.3d at 648. In fact,
the Texas Court of Criminal Appeals has stated: “Ordinarily, a prompt instruction to
disregard will cure error associated with an improper question and answer, even one
regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
Testimony that refers to or implies the existence of extraneous offenses can be cured by
an instruction to disregard by the trial court, unless the evidence was so clearly calculated
to inflame the minds of the jury or is of such damning character as to suggest it would be
impossible to remove the harmful impression from the jury’s mind. Harris v. State, 164
S.W.3d 775, 783 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Butler makes no
allegation that Sadler’s testimony was made “with calculated intent” to inflame or
mislead the jury or that Sadler’s testimony was embellished in any manner.
Considering the Mosley factors, we cannot say that the trial court abused its
discretion in denying the motion for mistrial. Any prejudicial effect from Sadler’s
Butler v. State Page 3 testimony was curable because the comment was quite brief, it did not identify any
specific criminal activity, and it was not repeated. The trial court's instruction to
disregard, which was the proper curative measure in this instance, was prompt and will
ordinarily cure any error. See Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex. Crim. App.
2000). Finally, the statement was not so inflammatory as to undermine the efficacy of the
trial court’s instruction to disregard. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.
App. 1992); see also Martinez v. State, No. 10-13-00431-CR, 2015 WL 5092672, at *10 (Tex.
App.—Waco Aug. 27, 2015, no pet.) (mem. op., not designated for publication). The trial
court did not abuse its discretion in denying Butler’s motion for mistrial. Butler’s first
issue is overruled.
Remote Conviction
In his second issue, Butler argues that the trial court erred in allowing the
prosecutor to introduce evidence of Butler’s felony DWI conviction that occurred over
ten years prior to the date of trial. The violation of an evidentiary rule that results in the
erroneous admission of evidence constitutes non-constitutional error. See Martin v. State,
176 S.W.3d 887, 897 (Tex. App.—Fort Worth 2005, no pet.). Under Rule of Appellate
Procedure 44.2(b), an appellate court must disregard non-constitutional error unless the
error affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b); see also Gerron v.
State, 524 S.W.3d 308, 325 (Tex. App.—Waco 2016, pet. ref'd). A substantial right is
affected when the erroneously admitted evidence, viewed in light of the record as a
Butler v. State Page 4 whole, had “a substantial and injurious effect or influence on the jury's verdict.” Id. In
assessing the likelihood that the jury's decision was improperly influenced, we must
consider the entire record, including such things as the testimony and physical evidence
admitted, the nature of the evidence supporting the verdict, the character of the error and
how it might be considered in connection with other evidence, the jury instructions, the
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE TENTH COURT OF APPEALS
No. 10-16-00048-CR
KENNETH BUTLER, Appellant v.
THE STATE OF TEXAS, Appellee
From the County Court at Law Navarro County, Texas Trial Court No. C35834-CR
MEMORANDUM OPINION
A jury convicted Appellant Kenneth Butler of possession of less than one gram of
methamphetamine, and the trial court sentenced him to five years’ community
supervision. The methamphetamine was discovered in Butler’s pocket when he was
being treated for injuries he sustained after wrecking his motorcycle. Butler appeals in
two issues. We will affirm. Denial of Motion for Mistrial
In his first issue, Butler asserts that the trial court erred in denying his motion for
mistrial. Butler specifically complains that a mistrial should have been granted after the
State was allowed to introduce evidence of an extraneous offense. The DPS Trooper who
investigated Butler’s wreck, LaTonya Sadler, was questioned by the prosecution
regarding the actions she took in her investigation. Sadler replied: “Those actions are is
I went ahead—after I went through the defendant’s criminal history, is I went through
and I seen that the defendant had a lengthy criminal history.” Butler objected and
requested a limiting instruction. The State agreed that a limiting instruction to the jury
would be appropriate, and the judge admonished the jury to disregard Sadler’s
statement. Butler additionally moved for a mistrial, which the judge denied.
The denial of a motion for mistrial, which is appropriate for “highly prejudicial
and incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642,
648 (Tex. Crim. App. 2000)); see also Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
[T]he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. A mistrial is the trial court's remedy for improper conduct that is “so prejudicial that expenditure of further time and expense would be wasteful and futile.” In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in light of the trial court's curative instruction. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd, 3 S.W.3d at 567);
see also Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007). Thus, the
Butler v. State Page 2 appropriate test for evaluating whether the trial court abused its discretion in overruling
a motion for mistrial is a tailored version of the test originally set out in Mosley v. State,
983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. “The
Mosley factors are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of
conviction absent the misconduct.” Id.; see Mosley, 983 S.W.2d at 259; see also Brinegar v.
State, No. 10-14-00195-CR, 2015 WL 6777445, at *4 (Tex. App.--Waco Nov. 5, 2015, pet.
ref’d) (mem. op., not designated for publication).
The asking of an improper question will seldom call for a mistrial because any
error can usually be cured by an instruction to disregard. Wood, 18 S.W.3d at 648. In fact,
the Texas Court of Criminal Appeals has stated: “Ordinarily, a prompt instruction to
disregard will cure error associated with an improper question and answer, even one
regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
Testimony that refers to or implies the existence of extraneous offenses can be cured by
an instruction to disregard by the trial court, unless the evidence was so clearly calculated
to inflame the minds of the jury or is of such damning character as to suggest it would be
impossible to remove the harmful impression from the jury’s mind. Harris v. State, 164
S.W.3d 775, 783 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Butler makes no
allegation that Sadler’s testimony was made “with calculated intent” to inflame or
mislead the jury or that Sadler’s testimony was embellished in any manner.
Considering the Mosley factors, we cannot say that the trial court abused its
discretion in denying the motion for mistrial. Any prejudicial effect from Sadler’s
Butler v. State Page 3 testimony was curable because the comment was quite brief, it did not identify any
specific criminal activity, and it was not repeated. The trial court's instruction to
disregard, which was the proper curative measure in this instance, was prompt and will
ordinarily cure any error. See Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex. Crim. App.
2000). Finally, the statement was not so inflammatory as to undermine the efficacy of the
trial court’s instruction to disregard. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.
App. 1992); see also Martinez v. State, No. 10-13-00431-CR, 2015 WL 5092672, at *10 (Tex.
App.—Waco Aug. 27, 2015, no pet.) (mem. op., not designated for publication). The trial
court did not abuse its discretion in denying Butler’s motion for mistrial. Butler’s first
issue is overruled.
Remote Conviction
In his second issue, Butler argues that the trial court erred in allowing the
prosecutor to introduce evidence of Butler’s felony DWI conviction that occurred over
ten years prior to the date of trial. The violation of an evidentiary rule that results in the
erroneous admission of evidence constitutes non-constitutional error. See Martin v. State,
176 S.W.3d 887, 897 (Tex. App.—Fort Worth 2005, no pet.). Under Rule of Appellate
Procedure 44.2(b), an appellate court must disregard non-constitutional error unless the
error affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b); see also Gerron v.
State, 524 S.W.3d 308, 325 (Tex. App.—Waco 2016, pet. ref'd). A substantial right is
affected when the erroneously admitted evidence, viewed in light of the record as a
Butler v. State Page 4 whole, had “a substantial and injurious effect or influence on the jury's verdict.” Id. In
assessing the likelihood that the jury's decision was improperly influenced, we must
consider the entire record, including such things as the testimony and physical evidence
admitted, the nature of the evidence supporting the verdict, the character of the error and
how it might be considered in connection with other evidence, the jury instructions, the
State's theories, defensive theories, closing arguments, voir dire, and whether the State
emphasized the error. Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011).
Assuming without deciding that the trial court erred in admitting Butler’s prior DWI
conviction, we find that the error did not affect Butler’s substantial rights in light of the
strong evidence of his guilt.
The evidence at trial established that Butler crashed his motorcycle after hitting a
deer. A passing motorist called 9-1-1 after noticing the dead deer and Butler’s motorcycle
on the side of the road. The motorist also reported that Butler was lying in the ditch
beside the road and that he was not moving. Responding emergency medical personnel
noted that Butler had a serious head injury and that he was in and out of consciousness.
The medical personnel had to remove six or seven layers of clothing, some needing to be
cut off, in order to ascertain whether Butler had suffered other injuries. A black, plastic
cigarette box, that Butler acknowledged was his, was found in the pocket of a shirt that
was under an outer jacket and coveralls. The box was given to the deputy on the scene,
who opened it to see if it contained Butler’s identification. In the box, the deputy found
cigarettes and a baggy containing a crystalline substance that was later confirmed by the
Butler v. State Page 5 lab to be methamphetamine. Also recovered from the scene was Butler’s wallet that
contained approximately one hundred dollars. Butler was taken by helicopter to a
hospital for treatment, and he was subsequently arrested for possession of less than one
gram of methamphetamine. Butler was semi-conscious when transferred to the hospital,
and his medical records reflect that he was combative with medical personnel and had to
be restrained. Blood tests revealed the presence of cannabinoids and opiates in Butler’s
system, although he denied using any substance containing opiates. The blood tests did
not reveal the presence of methamphetamine in his system, and methamphetamine is
neither an opiate nor a byproduct of marijuana. Butler’s father testified that he went to
the scene of the wreck four days later to look for Butler’s cell phone. He walked around
the area calling Butler’s phone from his own cell phone but never heard it ring.
While Butler testified that he remembered everything that occurred prior to his
collision with the deer, he was unclear about the time the wreck occurred. Butler first
testified that the sun was shining when he arose the morning of the wreck and that he
left his brother’s house at 6:00 a.m. When the prosecutor reminded him that the 9-1-1
recording noted the time that the wreck was reported as 6:04 a.m., Butler then stated that
he left his brother’s house at 5:30 and hit the deer at around 6:00 a.m. Butler testified that
he knew nothing about the methamphetamine that was recovered from the cigarette box,
but he remembered putting the cigarette box in a storage compartment on the motorcycle
and not in his shirt pocket. Butler also testified that he remembered placing his cell phone
in the right front pocket of his jeans and that he never saw it again after the wreck.
Butler v. State Page 6 Butler’s theory about how the methamphetamine found its way into his pocket
was that some unknown person must have placed it there. There was no evidence of the
existence of such a person, merely Butler’s supposition. Butler testified that he had no
memory of anyone putting the box containing the methamphetamine in his pocket or
taking his cell phone—he just assumed that those events occurred based upon “how
everything looked.” Some of the circumstances that Butler and his attorney identified to
support his theory were: (1) Butler’s motorcycle was in an upright position after the
wreck, indicating that some unknown person picked it up; (2) Butler was combative with
medical personnel when he arrived at the hospital, indicating that he was reliving his
struggles with the unknown person; (3) the cuts on Butler’s clothing where they had been
removed by medical personnel at the scene of the accident did not line up properly,
indicating that the unknown person disarranged Butler’s clothing while planting the
methamphetamine; (4) Butler’s cell phone was not found, indicating that the unknown
person stole it; and (5) officers found nothing with which Butler could have used the
methamphetamine, such as a needle or a pipe. All of the circumstances were as likely, if
not more likely, to have occurred without the intervention of an unknown person.
Considering the weight of the evidence against Butler, we possess a fair assurance that
the admission of the DWI conviction did not influence the jury or, at most, had only a
slight effect on their verdict. Butler’s second issue is overruled.
Butler v. State Page 7 Having overruled both issues presented by Butler, we affirm the trial court’s
judgment.
REX D. DAVIS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 30, 2018 Do not publish [CR25]
Butler v. State Page 8