Manuel Oscar Ramirez v. State

• Court: Court of Appeals of Texas
• Decided: October 7, 2008
• Docket: 14-07-00464-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 7, 2008

Affirmed and Memorandum Opinion filed October 7, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00464-CR

MANUEL OSCAR RAMIREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1058694

M E M O R A N D U M     O P I N I O N

Appellant, Manuel Ramirez, challenges his conviction for aggravated sexual assault using a deadly weapon.  The jury sentenced him to 70 years imprisonment and a $10,000 fine.  Appellant contends that the trial court erred in denying his motion for mistrial after sustaining his objection to a witness=s reference to an extraneous offense.  We affirm.

Background

Around 3:00 a.m. on January 2, 2006, the complainant was awakened in her bedroom by a man covering her mouth and holding a knife to her side.  The man told her to undress, said he was going to rape her, and then did so.  Afterwards, the complainant fought back and gained possession of the knife, cutting her hand in the process.  Her attacker escaped through the bedroom window.

The complainant was transported to the hospital, where a nurse practitioner performed a rape examination on her and treated the deep cut she suffered in grabbing the knife from her attacker.  The nurse took anal and vaginal swabs from the victim as part of performing the rape examination.  These swabs were given to the Houston Police Department Crime Laboratory so that DNA analysis could be performed.

The complainant later identified appellant as her attacker by looking at a police photo spread.  The complainant=s daughter and niece, who were in a nearby room during the attack, corroborated the complainant=s testimony regarding the attack, but did not identify the attacker.  DNA testing performed on the anal swab produced a DNA profile of the appellant.

The State called Cleva West of the Houston Police Department Crime Laboratory as a witness during the guilt-innocence phase of the trial.  West testified that she conducted an examination of the anal swab taken from the victim to determine whether there were DNA profiles of the appellant and of the victim.  The State asked West during direct examination how she obtained appellant=s known serology sample for DNA testing.  West answered by referring to another case number in front of the jury:

STATE:           Okay. And you have a known sample from the defendant, correct?

WITNESS:     Right.

STATE:           Manuel Ramirez?

STATE:           Where did you get that, do you know?

WITNESS:     That=s the sample that was submitted under a different case number.

Defense counsel immediately objected and requested a bench conference, at which time the jury was removed from the courtroom.

Outside the jury=s presence, defense counsel objected to West=s response as improperly mentioning an extraneous offense.  See Tex. R. Evid. 404(b).  Defense counsel stated no other grounds for the objection.^[1]  The trial court sustained this objection.  Defense counsel renewed this objection without mentioning the grounds after the jury returned to the courtroom.  The objection again was sustained.  Defense counsel requested an instruction for the jury to disregard West=s response.  The trial court granted this request.  Defense counsel then moved for a mistrial.  The trial court denied this defense motion.  Appellant now challenges the denial of a mistrial on appeal.

Analysis

We review the denial of a motion for mistrial for clear abuse of discretion.  Rojas v. State, 986 S.W.2d 241, 250-51 (Tex. Crim. App. 1998).  A trial court does not abuse its discretion unless its decision falls outside the zone of reasonable disagreement.  Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (en banc).  A witness=s inadvertent reference to an extraneous offense generally can be cured by a prompt instruction to disregard.  Rojas, 986 S.W.2d at 250.  We presume that a jury will obey a trial court=s instruction to disregard evidence that has not been admitted.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  An exception exists when the reference to an extraneous offense was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors= minds.  Rojas, 986 S.W.2d at 250.

The facts here parallel Rojas, a capital murder case.  During direct examination in Rojas, a Texas Ranger responded to a question by the prosecution about the defendant=s confession as follows: AI believe that [victim] wanted [defendant] to move out.  [Victim] knew because of [defendant=s] past anger, [defendant=s] past violence that that was the only way . . . .@  Id.  Defense counsel objected immediately on several grounds, requested an instruction for the jury to disregard, and moved for a mistrial.  Id.  The trial court sustained the objection and gave the requested instruction, but denied the motion for mistrial.  Id.  The Texas Court of Criminal Appeals affirmed the trial court=s decision because the trial judge=s instruction to disregard cured any error and denying the motion for mistrial was not an abuse of discretion.  Id. at 250-51.

As in Rojas, the objectionable reference in this case to Aa different case number@ was at most an oblique reference to an extraneous offense.  Defense counsel objected immediately and the jury was removed from the courtroom.  The jury, upon returning to the courtroom, merely heard (1) the renewed objection without grounds; (2) the court=s ruling sustaining the objection; (3) defense counsel=s request for an instruction to disregard; (4) the court=s issuance of an instruction to disregard; (5) defense counsel=s motion for a mistrial; and (6) the trial court=s denial of this motion.  No further elaboration on or reference to West=s objectionable comment was made by either side.

West=s statement here was not of a nature calculated to inflame the jury, or of such damning character as to be impossible to remove from the jurors= minds.  Rather, this statement was adequately addressed by a sustained objection and an instruction to disregard.  See id. at 250-51; Sperling v. State, 924 S.W.2d 722, 724-25 (Tex. App.BAmarillo 1996, pet. ref=d) (reference by State=s witness to defendant=s prior incarceration during direct examination did not require mistrial); Rudd v. State, 921 S.W.2d 370, 373-74 (Tex. App.BTexarkana 1996, pet. ref=d) (reference by State=s expert witness to defendant=s arrest at age seven during direct examination did not require mistrial); Kirkland v. State, 786 S.W.2d 557, 562 (Tex. App.BAustin 1990, no pet.) (reference by police officer to defendant=s failure to appear in court for traffic citations during State=s direct examination did not require mistrial).  In cases such as this, we must assume that the jury properly heeded the instructions of the trial court.  See Ladd, 3 S.W.3d at 567.

The witness=s reference to an extraneous offense was cured by appellant=s objection and by the trial court=s instruction to disregard.  Therefore, the trial court did not abuse its discretion in denying appellant=s motion for mistrial.  Appellant=s sole issue on appeal is overruled.

Conclusion

The trial court=s judgment is affirmed.

/s/        William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed October 7, 2008.

Panel consists of Justices Yates, Seymore and Boyce.

Do not publish C Tex. R. App. P. 47.2(b).

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¹           Appellant suggests in his brief that trial counsel also invoked Texas Rule of Evidence 403 in his objection.  However, the record indicates that no grounds other than Rule 404(b) were given for the objection.  Therefore, this court will not address whether the disputed exchange is inadmissible under Rule 403.  See Tex. R. App. P. 33.1(a); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).