Opinion issued February 28, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00112-CR ——————————— WILLIAM DENON SMITH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1706143
MEMORANDUM OPINION
A jury found Appellant William Denon Smith guilty of evading arrest or
detention in a motor vehicle and the trial court assessed his punishment at forty
years’ confinement in the Texas Department of Criminal Justice. In a single issue,
Appellant argues the trial court erred in denying his motion for mistrial after a witness for the State referred to a “robbery,” an extraneous offense involving
Appellant that was not directly related to the charged offense at issue.
We affirm.
Background
This case stems from a high-speed motor vehicle chase on January 11, 2021.
Appellant William Denon Smith (“Appellant”) entered a Chase Bank (“Chase”) in
Spring, Texas. He had been there at least twice before, once on January 5, 2021,
and again on January 8, 2021, according to Chase employee Amelia Thompson
(“Thompson”). During the guilt-innocence phase of trial, Thompson testified that
on January 5, 2021, there was “an incident” at Chase involving a man who
approached her and got very close to her on the other side of the counter. He was
wearing a hat, sunglasses, and a mask. Thompson spent less than two minutes with
him and was “scared” after the incident. Three days later, on January 8, 2021, the
same man, dressed in the same clothes, approached Thompson and got close to her,
“right across from the counter.” This second “incident” lasted about three minutes
and left Thompson “terrified.”1
Thompson further testified that on January 11, 2021, she saw a man she
believed to be the same man involved in the two previous incidents approaching
1 During the punishment phase of trial, Thompson testified in greater detail about the two “incidents,” each involving a robbery. But because Appellant was not on trial for the robberies during these proceedings, the trial court ruled that the jury was not allowed to hear about the robberies during the guilt-innocence phase.
2 the bank. She alerted the bank’s security officer and when he approached the man,
the man fled. The officer told Thompson the man left in an orange truck. During
trial, Thompson identified Appellant as the man who twice approached her in the
bank and who fled from the bank on January 11, 2021.
Appellant was apprehended on January 11, 2021 after a high-speed chase
that lasted twenty to thirty minutes. He was charged with evading arrest or
detention in a motor vehicle.2 During the guilt-innocence phase of trial, several
law enforcement personnel testified for the State regarding the high-speed chase
and Appellant’s apprehension.
A. Trial Testimony
1. Mark Holmes
Harris County Sherriff’s Deputy Mark Holmes (“Deputy Holmes”) testified
he was working as a uniformed officer on January 11, 2021 in a Chase Bank in
Harris County, Texas. He said he was talking to a bank employee on January 11,
2021 about an incident that had occurred several days earlier when the employee
saw the same man approaching the building. After the man made eye contact with
Deputy Holmes, the man left. Deputy Holmes followed the man, who was wearing
a mask. The man ran to an orange pickup truck with paper license plates, and
2 Appellant also was charged with felon in possession of a firearm but the jury acquitted him of that charge.
3 ignored orders from Deputy Holmes, who identified himself as a police officer, to
stop. The man got into the driver’s side of the truck and left.3
2. Steven Drake
Deputy Steven Drake (“Deputy Drake”) works in the Harris County
Constable’s Office, Precinct 4. On January 11, 2021, Deputy Drake was patrolling
in Spring, Texas, when he heard a description of an orange truck with paper license
plates on his radio. He saw an orange truck with paper license plates in the area
and followed the truck, which was speeding. He intended to stop the truck for
speeding, so he activated his lights and turned on his siren, but the truck continued
driving. Other law enforcement joined the pursuit, all of them running their lights
and sirens. Deputy Drake testified the driver of the orange truck used his turn
signal to change lanes and for freeway exits but never made any attempt to stop.
He testified the driver appeared to be “going somewhere.” Deputy Drake was
involved in the pursuit for about twenty minutes, after which he was forced to exit,
and other law enforcement continued the pursuit. He estimated that at one point
they were traveling at ninety miles per hour and testified the truck was “swerving
through traffic” to avoid the law enforcement personnel chasing him. He estimated
he was involved in the chase for twenty or thirty miles. After the pursuit ended,
Deputy Drake saw Appellant in custody, standing near the orange truck. After he
3 Deputy Holmes estimated the truck was parked 500 yards from the bank.
4 was apprehended, Appellant did not struggle or attempt to get away but was,
rather, calm and polite.
3. Demon Callier
Deputy Demon Callier (“Deputy Callier”) of the Harris County Constable’s
Office, Precinct 4, testified he took a call on January 11, 2021 about an orange
Dodge pickup with a paper license plate and radioed it to other deputies in the area.
He testified that approximately two minutes later, Deputy Drake spotted the truck
and tried to initiate a traffic stop for speeding, but the truck did not stop. Deputy
Callier joined the chase, activating his emergency lights and sirens, and stayed
with the pursuit until the end. The chase ended when the orange truck parked in
the driveway of a residence. The chase lasted twenty to twenty-five minutes,
involved ten or more officers, and included some “erratic driving” by Appellant.
When they approached the orange truck parked on the driveway, Appellant was
sitting in the driver’s seat. A woman was sitting in the passenger’s seat.4 In
searching the car, the officers found a semiautomatic Glock handgun in the
passenger’s purse. Appellant first said he did not own the gun but subsequently
admitted it was his.5
4 The female passenger was detained but released without arrest. 5 Deputy Callier initially testified he heard Appellant say the gun was his but later testified he may have heard from someone else that Appellant acknowledged owning the gun.
5 Deputy Callier wore a body-worn camera when he was in pursuit of
Appellant and his patrol car was equipped with a dash camera. The jury saw the
dash camera video. It depicted Deputy Callier’s lights and sirens activated as he
drove to catch up with the other deputies pursuing Appellant. By the time he
caught up to them, Deputy Drake’s vehicle was to the right of the orange truck and
other vehicles were involved in the pursuit. By that time, Deputy Callier testified,
Appellant “should have pulled over to the rightmost lane and stopped.” Deputy
Callier stated Appellant was traveling at an “excess speed.” As the pursuit
continued, law enforcement from other jurisdictions joined the pursuit. Deputy
Callier testified that at one point, he was driving in excess of ninety miles per hour
to keep up with the orange truck. When Deputy Callier exited the freeway and
drove into a residential area, the orange truck was traveling at thirty-five to forty
miles per hour. Deputy Callier’s dashcam video indicated the chase lasted about
twenty-five minutes and covered approximately twenty miles before Appellant
stopped in a residential driveway. Deputy Callier arrived at the driveway seconds
after Appellant stopped there. After parking, Appellant did not try to flee, did not
struggle, and obeyed the instructions given by law enforcement personnel.
4. Ryan Hilz
Deputy Investigator Ryan Hilz, a robbery and violent crime investigator with
the Harris County Sherriff’s Office (“Deputy Hilz”), testified that on January 11,
6 2021, he recovered a handgun at the end of a vehicle pursuit involving Appellant
and the Precinct 4 Constable’s Office. The gun was discovered during the
inventory search of Appellant’s vehicle, but Deputy Hilz was not involved in the
pursuit. Deputy Hilz recovered and took possession of a black Glock 21 found in
the purse of the vehicle’s passenger and submitted it as evidence. He did not know
whether Appellant owned the weapon.
5. David Helms
Sergeant David Helms (“Sergeant Helms”), a Houston Police Officer,
responded to the scene of an investigation on January 11, 2021 involving a suspect
fleeing in a vehicle. Appellant, who was driving an orange truck, was ultimately
arrested. Sergeant Helms found a black Glock semiautomatic pistol in the front
when he searched the truck after the chase. After Appellant was arrested and read
his Miranda warnings, Sergeant Helms and Detective Hilz interviewed Appellant
in the FBI’s Houston office.6 During the interview, parts of which were played for
the jury, Appellant told them he fled because there was a gun in the truck and he
wanted to drive the truck to where he was staying. Appellant confirmed during the
interview that he was the driver of the orange truck, that he knew there was a gun
in the truck, that he knew the police wanted to stop him, that he is a felon, and that
he passed the pistol to his passenger to put in her purse. He stated during the
6 See Miranda v. Arizona, 384 U.S. 436, 467 (1966).
7 interview that he wanted to take his truck home and that he used his turn signals
during the chase. Sergeant Helms testified that Appellant consented to give a
DNA swab and to a search of his cell phone.
B. The Motion in Limine, the Rule 404(b) Hearing, and Deputy Gheen’s Testimony
Appellant’s motion in limine included a request that the State be ordered
“not to mention, refer to, or attempt to elicit in any manner” Appellant’s
extraneous offenses until the trial court conducted a hearing outside the presence of
the jury to determine the admissibility of the offenses. The trial court granted the
motion in limine before trial began.
The State filed a Notice of Intention to Use Evidence of Prior Convictions
and Extraneous Offenses (“404(b) Notice”) pursuant to Texas Rule of Evidence
404(b).7 The 404(b) Notice included two incidents involving robberies at Chase,
corresponding to the two prior incidents on January 5 and January 8, 2021, where
7 Texas Rule of Evidence 404 pertains to “Character Evidence; Crimes or Other Acts.” Rule 404(b) states in part: (b) Crimes, Wrongs, or Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b).
8 according to Thompson, a man had approached her at the bank. The trial court
conducted a Rule 404(b) hearing prior to the beginning of testimony. During the
hearing, Appellant objected as follows:
I’m going to object to the facts of those two prior robberies as not relevant, which is the first prong for contextual evidence; as violating Rule 402; and being too prejudicial under Rule 403 and the Montgomery case; and in violation of Rule 404 as improper background contextual evidence. So those are my objections to both of those robberies being proved up at the guilt and innocence state of this trial.
The trial court judge remarked that he was looking at “the [Texas Rule of
Evidence] 403 issue:”
It’s definitely – if you’re talking about all the specifics to the two bank robberies, I think it’s going to be highly prejudicial. Whether it’s unfair, I haven’t gotten that far, but it definitely appears to be highly prejudicial. But I will allow it in a means where you can establish what you need to establish without it being unfairly prejudicial.8
After the parties conferred with the trial court, they came to an agreement, as
articulated by the State:
[J]ust to make sure that I comply with your rulings and don’t, you know, cause any unnecessary movement of the jury for efficiency, it’s Your Honor’s ruling that we can talk about incidents, the facts of how
8 Texas Rule of Evidence 403 states: The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403.
9 she came close to this defendant in the past, but certainly not the word “robbery” and nothing about a specific criminal act. . . .
Appellant’s counsel stated, “If that’s all they offer, then I’ll hold my objection in
abeyance.” To which the trial court ruled, “All right. So I think we’ll do it that
way to prevent any 403 issues.”
Later that day, the State called Jeremy Gheen (“Deputy Gheen”), a Harris
County Constable’s Office Precinct 4 corporal, who responded to a call on January
11, 2021 regarding an orange truck that was evading the police. He testified about
his exchange with Appellant when the truck he was driving came to a stop:
Q (by the State): Were you present when the truck came to a stop?
A (by Deputy Ghent): That’s correct.
Q: When the truck came to a stop, did you participate in a felony stop?
A: That’s correct, I did.
Q: What is a felony stop?
A: It is guns drawn and giving out verbal commands to the suspects to retreat back to us in as safe a manner as possible and to get them detained.
Q: Why was this a felony stop?
A: We were informed about the robbery at a bank and –
10 Counsel for Appellant: Objection, Your Honor. This gets into what we –
The Court: All right. State, approach the bench —
Counsel for Appellant: Instruction to disregard.
The Court: The jury will be instructed to disregard the last statement of the witness.
Counsel for Appellant: Move for a mistrial, Your Honor.
The Court: That will be denied.
(At the Bench, on the record)
Counsel for the State: Yes, Your Honor?
The Court: Did y’all talk to him about this?
Counsel for the State: He’s very tired and sleepy and we –
The Court: You did not talk to him –
Counsel for the State: We’ll take him out, Judge, with the Court’s permission. Can we take him out?
The Court: Do you want to take –
Counsel for Appellant: I cannot hear what you’re saying. I’m sorry.
Counsel for the State: Can we take him out of the room and admonish him again?
Counsel for Appellant reurged his motion for a mistrial and the Court denied it
again, stating he would instruct the jury to disregard the statement.9
9 The jury instructions contained the following language:
11 Deputy Gheen continued his testimony, stating that he saw Appellant driving
the orange truck and park it in a driveway. Deputy Gheen testified that after
Appellant emerged from the truck, he did not attempt to flee on foot, did not
struggle, and followed law enforcement personnel’s commands.
C. Conviction and Punishment
The jury convicted Appellant of evading arrest or detention with a motor
vehicle. Appellant elected for the trial court to assess punishment. The charge was
enhanced with two prior convictions for felony assault and harassment of a public
servant. Appellant pleaded true to the enhancements. The trial court assessed
Appellant’s punishment at forty years’ confinement in the Texas Department of
Criminal Justice. This appeal ensued.
Discussion
In one issue, Appellant argues the trial court erred in denying his request for
a mistrial after Deputy Gheen informed the jury that Appellant was involved in a
robbery in violation of the trial court’s ruling on Appellant’s motion in limine.
Appellant argues the State’s failure to properly instruct Deputy Gheen about the
court’s prior ruling “resulted in the jury being presented with that highly
You are instructed that certain evidence may have been presented to you in regard to the defendant’s having been charged and convicted of an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case.
12 prejudicial and inflammatory” information. Appellant argues the court’s
instruction to the jury to disregard Deputy Gheen’s statement was not adequate to
address the resulting harm and that a mistrial should have been granted, because
the error was incurable. The State responds that the trial court did not err because
the jury is presumed to have followed the court’s instruction to disregard the
statement. The State argues that “one slip of the word ‘robbery’ without reference
to [A]ppellant or when it occurred” was not calculated to inflame the minds of the
jury or “so damning as to suggest it would be impossible to remove any harmful
impression from the mind of the jury.” Thus, it argues, the trial court did not abuse
its discretion in denying Appellant’s motion for mistrial.
A. Standard of Review and Applicable Law
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Gonzalez
v. State, 455 S.W.3d 198, 205–06 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). “A mistrial is an appropriate remedy in ‘extreme circumstances’ for a
narrow class of highly prejudicial and incurable errors.” Ocon, 284 S.W.3d at 884
(citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A mistrial is
warranted to stop trial proceedings “when error is so prejudicial that expenditure of
further time and expense would be wasteful and futile.” Id. Mistrial is “an
13 extreme remedy” that “should be granted ‘only when residual prejudice remains’
after less drastic alternatives are explored.” Id. at 884–85.
We determine whether an error requires a mistrial based on the particular
facts of each case. Id. at 884. In reviewing a ruling on a motion for mistrial, we
view the evidence “in the light most favorable to the trial court’s ruling,
considering only those arguments before the court at the time of the ruling.” Id.
(citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The
reviewing court will not substitute its judgment for that of the trial court but will
decide, rather, whether the trial court’s ruling was “arbitrary or unreasonable.”
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). The trial court’s
ruling on a motion for mistrial must be upheld if it was “within the zone of
reasonable disagreement.” Wead, 129 S.W.3d at 129; Ocon, 284 S.W.3d at 884.
Instructions to disregard “are generally considered sufficient to cure
improprieties that occur during trial.” Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009). Testimony that refers to or implies information regarding
extraneous offenses allegedly committed by the defendant “can be rendered
harmless by an instruction from the trial judge.” Davis v. State, 642 S.W.2d 510,
512 (Tex. Crim. App. 1982). It is “well-settled” that testimony that refers to or
implies the commission of extraneous offenses is rendered harmless if the trial
judge instructs the jury to disregard the testimony, “unless it appears the evidence
14 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.” Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.
1992) (citing Gardner v. State, 730 S.W.2d 675, 696–97 (Tex. Cr. App. 1987)).
When constitutional rights are not implicated, we evaluate whether a trial
court abused its discretion in denying a motion for mistrial by weighing the factors
enumerated in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). We
consider “(1) the severity of the misconduct (the magnitude of the prejudicial
effect of the prosecutor’s remarks), (2) the measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the judge), and (3) the
certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction).” Id.; Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim.
App. 2007). In conducting this review, we examine the factors in light of the
entire record. Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001).
B. The Parties’ Contentions
Appellant argues that the State’s failure to instruct Deputy Gheen to refrain
from referring to robberies involving Appellant was “highly prejudicial and
inflammatory.” Appellant concedes “there was sufficient evidence to support
guilt,” but asserts the evidence “was not overwhelming.” While he does not
dispute he was the driver of the orange truck in question, and he testified he was
15 aware he was being pursued by law enforcement personnel, Appellant explains he
did not make any effort to hide from law enforcement during the chase, he used his
turn signals during the chase, and he “fully cooperated with law enforcement”
when he stopped in a place “he determined was safe.”
Appellant argues that Deputy Gheen’s statement regarding a robbery
“garnered the jury’s attention and may have resulted in Appellant being improperly
tried for collateral offenses or for being a criminal generally.” He explains the jury
had already heard testimony from Thompson that she was “fearful” during the
January 5, 2021 incident and “terrified” after the January 8, 2021 incident.10 He
argues that Thompson’s testimony, coupled with Deputy Gheen’s reference to a
robbery involving Appellant, would have made it “very difficult” for the jury to do
anything other than convict Appellant. Appellant argues that it is likely the
evidence of the extraneous offenses played a “significant role” in Appellant’s
conviction.
Appellant argues the jury “certainly had some question about his guilt as
they spent a considerable period of time on the first day of deliberation and had to
return the following day to complete their task.”11 Appellant argues that one of the
10 Thompson testified that she was “scared” after the first incident. 11 Given that the jury was deliberating on two charges, it is not possible to determine how much of the jury’s deliberation pertained to the evading arrest charge. See supra, note 2.
16 jury’s notes sent to the Court asked if there was a “specific distance when you must
stop when being followed by a police car with lights and siren active.”12 Thus,
Appellant asserts, “the evidence was not so overwhelming as to assure that the
extraneous offense evidence had no influence or only a slight influence on the
verdict.”
The State contends that the court’s instruction to the jury to disregard
Deputy Gheen’s statement cured his reference to a robbery. The State further
argues that Appellant did not present evidence showing the jury failed to follow the
trial court’s instruction and thus, Deputy Gheen’s reference to “the robbery at the
bank” was not “so calculated to inflame the minds of a jury or of such a nature as
to suggest the impossibility of withdrawing the impression produced.”
C. The Mosley Factors
Evaluating whether a trial court erred in denying a mistrial is similar to
performing a harm analysis. Archie, 221 S.W.3d at 700; Gomez v. State, 552
S.W.3d 422, 428 (Tex. App.—Fort Worth 2018, no pet.). “[W]hether a mistrial
should have been granted involves most, if not all, of the same considerations that
attend a harm analysis.” Hawkins, 135 S.W.3d at 77. We use a harm analysis
12 The jury’s actual question was, “Is there any language that specifies a distance of when you must stop when you are being followed by a police car with lights and siren active?”
17 when there is error, and “ordinarily, error occurs only when the trial court makes a
mistake.” Id. at 76.
Here, the trial court sustained Appellant’s objection to Deputy Gheen’s
testimony, instructed the jury to disregard his reference to a robbery, and included
a jury instruction in the charge admonishing the jury that it could not consider
evidence of extraneous offenses in determining guilt. As in Hawkins v. State, 135
S.W.3d 72 (Tex. Crim. App. 2004), “[t]he only adverse ruling—and thus the only
occasion for making a mistake—was the trial court’s denial of the motion for
mistrial.” Id. at 77–78.
Appellant contends the reviewing court should consider in its analysis “the
nature of the evidence supporting the verdict, the character of the alleged error, and
how the error might be considered in connection with other evidence in the case.”
Appellant cites Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) in support
of its analysis. But Morales is about the exclusion of a relevant piece of evidence.
Id. at 864. We believe the proper analysis is that set forth in Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998). The Mosley factors are based on federal
caselaw and are intended to construe the impact of Texas Rule of Appellate
Procedure 44.2(b), which states, “Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.” See Mosley, 983
S.W.2d at 259. Although Mosley involved an improper jury argument, the Mosley
18 factors have been applied in other situations where mistrials were denied, such as
in cases involving testimony referring to extraneous offenses. See, e.g., Gomez,
552 S.W.3d at 427, 429 (affirming trial court’s denial of mistrial after testifying
officer referred to “previous family violence calls involving Appellant”).13 As
noted, under Mosley, we consider: “(1) the severity of the misconduct (the
magnitude of the prejudicial effect of the prosecutor’s remarks), (2) the measures
adopted to cure the misconduct (the efficacy of any cautionary instruction by the
judge), and (3) the certainty of conviction absent the misconduct (the strength of
the evidence supporting the conviction).” Mosley, 983 S.W.2d at 259; see also
Hernandez v. State, 454 S.W.3d 643, 650 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d) (citing Archie, 221 S.W.3d at 700)14; Griffin v. State, 571 S.W.3d 404,
13 Although Gomez v. State, 552 S.W.3d 422, 428 (Tex. App.—Fort Worth 2018, no pet.) does not expressly refer to the factors as Mosley factors, it identifies the factors and relies on Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004), which cites the Mosley factors in its opinion concerning an appeal of the denial of a motion for mistrial. 14 Hernandez v. State, 454 S.W.3d 643, 649 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) identifies the Mosley factors but it does not address each factor. Rather, it bases its holding solely on the presumption that the trial court’s instruction to the jury to disregard testimony about an extraneous offense was sufficient to cure any harm. Id. at 650. In that case, we held the trial court’s denial of a motion for mistrial was not an abuse of discretion. Id.
19 417 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing Archie, 340 S.W.3d
at 739) (citing Mosley, 983 S.W.2d at 259).15, 16
1. The Severity of the Misconduct
Appellant argues the State did not instruct Deputy Gheen to refrain from
referring to any prior robberies. The State counters that the record does not reflect
it failed to instruct its witnesses to avoid referring to robberies; rather, the record
indicates only that there was “one tired witness who accidentally said the word
‘robbery.’”17 The transcript of the trial does not establish whether the witness was
told prior to his testimony not to refer to robberies, but the State did request
permission to admonish the witness “again.” As the State notes in its brief, “every
other witness complied with the court’s instruction, presumably because the State
informed them of such.” Thus, Appellant did not establish the State engaged in
severe misconduct.
Further, Appellant did not establish that he was prejudiced by Deputy
Gheen’s statement. “Prejudice is clearly the touchstone of the first factor in
the Mosley test.” Hawkins, 135 S.W.3d at 77. “To be sure, particularly offensive
15 In Griffin v. State, 571 S.W.3d 404, 417 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d), this Court applied the Mosley factors to determine whether the trial court abused its discretion in denying a motion for mistrial. 16 The parties did not address the Mosley factors in their briefs. 17 Deputy Gheen stated at the beginning of his testimony that he had not had any sleep because he was on duty “very, very late” the night before.
20 or outrageous conduct generally gives rise to a natural inference of prejudice and
can be considered as such, even when prejudice is not otherwise apparent from the
record.” Id. at 77–78. Appellant argued that “the evidence of extraneous criminal
offenses was inherently prejudicial and tended to confuse the issues in the case
because of the jury’s natural inclination to infer guilt of the charged offenses from
the extraneous offenses.” But Deputy Gheen’s single reference to a robbery was
not accompanied by any information about the robbery. To the extent Appellant
asserts the “mention of an extraneous robbery garnered the jury’s attention, and
may have resulted in Appellant being improperly tried for collateral offenses for
being a criminal generally,” he seems to argue that any accidental reference to an
extraneous offense will be prejudicial and should automatically result in mistrial.
That is not the law. See, e.g., Bendy v. State, No. 08-15-00369-CR, 2016 WL
6473054, at *5 (Tex. App.—El Paso Nov. 2, 2016, no pet.) (mem. op., not
designated for publication) (holding “the magnitude of any prejudicial effect was
low” when jury heard “single, isolated statement” that Appellant’s name appeared
in unspecified criminal investigation); Gomez, 552 S.W.3d at 426 (discussing first
Mosley factor, noting that officer who mentioned extraneous offenses after being
instructed not to did not refer to them again or provide details regarding offenses,
and finding that “limited nature” of his statement weighed against mistrial). As
Appellant notes, by the time Deputy Gheen testified, Thompson already had
21 testified that she was “terrified” by the two prior incidents at Chase involving
Appellant. The jury was free to believe or disbelieve after her testimony that
something nefarious had transpired during those prior incidents. Either way,
Appellant did not establish he was prejudiced by Deputy Gheen’s isolated
statement about a robbery devoid of any other factual context or information.
Because it appears Deputy Gheen was admonished not to refer to robberies
but inadvertently disregarded the admonishment, and in the absence of a showing
that Appellant was prejudiced by the statement, this factor weighs against a finding
that the trial court abused its discretion in denying Appellant’s motion for mistrial.
2. Measures Adopted to Cure the Misconduct
Immediately after Deputy Gheen’s testimony regarding a robbery, Appellant
objected to the testimony about the extraneous offense and asked for an instruction
to disregard. The transcript indicates the trial court immediately instructed the jury
“to disregard the last statement of the witness.” In addition, the jury charge
instructed the jurors to disregard any evidence “in regard to the defendant’s having
been charged and convicted of an offense or offenses other than the one” for which
he was on trial.
Instructions to disregard “are generally considered sufficient to cure
improprieties that occur during trial.” Gamboa, 296 S.W.3d at 580; see also
Davis, 642 S.W.2d at 512 (testimony “referring to or implying extraneous offenses
22 allegedly committed by the defendant” is rendered harmless if judge gives
instruction to disregard); Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.—
Houston [14th Dist.] 2000, pet. dism’d) (“Because curative instructions are
presumed efficacious to withdraw from jury consideration almost any evidence or
argument which is objectionable, trial conditions must be extreme before a mistrial
is warranted.”); Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)
(“[T]he trial judge’s prompt sustaining of counsel’s objection conveyed the
appropriate message that the witness’s comment was not supported by the evidence
and was not to be considered.”). The general presumption is that a jury will follow
the judge’s instructions. Gamboa, 296 S.W.3d at 580 (citing Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998)).18 The presumption is rebuttable if the
complaining party “point[s] to evidence that the jury failed to follow the trial
18 See Gardner v. State, 730 S.W.2d 675, 696–97 (Tex. Cr. App. 1987) (holding witness statement that “[appellant] told me that even when he was in the penitentiary, that he had stomach problems” was cured by trial court’s instruction to disregard); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (holding reference to appellant’s having “recently been released from the penitentiary” did not warrant mistrial when jury was instructed to disregard testimony); Ballard v. State, 537 S.W.3d 517, 521, 525–26 (Tex. App.—Houston [1st Dist. 2017, pet ref’d) (affirming denial of mistrial when limiting instruction was given because of witness’ testimony regarding finding of “crystal meth” and gun in appellant’s home despite limine order precluding evidence of extraneous offenses); Francis v. State, 445 S.W.3d 307, 320–21 (Tex. App.—Houston [1st Dist.] 2013) (holding mistrial properly denied because instruction to disregard cured reference to defendant’s “criminal history”), aff’d, 428 S.W.3d 850 (Tex. Crim. App. 2014); Williams v. State, 417 S.W.3d 162, 172–73 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d) (holding instruction to disregard cured prosecutor’s voir dire comment about his opinion of defendant’s guilt).
23 court’s instructions.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)
(citing Coburn, 966 S.W.2d at 520). The presumption also is rebuttable “in the
most egregious cases” where the statement at issue is “extremely inflammatory.”
Griffin, 571 S.W.3d at 419 (quoting Williams v. State, 417 S.W.3d 162, 176 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d)).
Appellant does not cite anything in the appellate record that indicates the
jury failed to follow the court’s instruction to disregard.19 As such, he did not
rebut the presumption that the jury followed the trial court’s instruction. See
Hernandez, 454 S.W.3d at 650 (affirming denial of mistrial, noting lack of
evidence suggesting jurors failed to follow trial court’s instructions to disregard
statement regarding extraneous offenses); Thrift, 176 S.W.3d at 224 (affirming
denial of mistrial after proper instruction to disregard was given by trial court, and
noting appellant failed to rebut presumption that jury followed instruction);
Lazarine v. State, No. 01-19-00982-CR, 2021 WL 5702182, at *11 (Tex. App.—
Houston [1st Dist.] Dec. 2, 2021, pet. ref’d) (mem. op., not designated for
publication) (concluding trial court did not abuse its discretion in denying motion
for mistrial, stating, “Lazarine does not explain, and we cannot discern, why the
trial court’s instruction to disregard was not effective to cure the alleged error.”).
In the absence of any evidence to the contrary, we conclude the trial judge’s 19 Appellant says in his brief, without elaboration, that “[a]n instruction to disregard would not have been adequate to address the harm and a mistrial was warranted.”
24 instruction to disregard cured any error. This factor indicates the trial court did not
abuse its discretion in overruling appellant’s motion for mistrial.
3. The Certainty of the Conviction Absent the Misconduct
After a review of the record, we conclude there were sufficient grounds to
convict Appellant regardless of the objected-to testimony. Sergeant Holmes
testified that Appellant ran from him at the bank, even after Sergeant Holmes
identified himself as a police officer and ordered him to stop. Deputy Drake
testified that when he saw the orange truck, he attempted to make a traffic stop
because Appellant was speeding, but Appellant continued driving, disregarding
Deputy Drake’s lights and siren. He testified that Appellant’s truck was “swerving
through traffic” to avoid the several law enforcement vehicles that were following
him with lights and sirens activated. The dashcam footage verifies the orange
truck Appellant was driving led several law enforcement vehicles in pursuit on a
busy freeway.20 Both Deputy Drake and Deputy Callier testified that during the
pursuit, Appellant drove as fast as ninety miles per hour. Deputy Callier testified
that Appellant was “erratic” in his driving during the twenty- to twenty-five-minute
chase.
Appellant concedes “there was sufficient evidence to support guilt.” He
further acknowledges he was the driver of the orange truck and “he was aware that
20 The dashcam video was muted, but it is clear when viewing it that the law enforcement vehicles’ flashing lights were on.
25 he was being pursued by law enforcement.” Appellant points to only two reasons
the jury should have questioned Appellant’s guilt: his use of turn signals during the
chase, and his cooperation with law enforcement authorities after the chase.
It is not clear, as Appellant argues, that his use of turn signals and his failure
to struggle or attempt to run after exiting the truck is “inconsistent with a person
fleeing.” While the use of turn signals during a chase may be unexpected, it is not
enough to negate the overwhelming evidence of Appellant’s having evaded arrest
or detention. And we decline to hold that Appellant’s cooperation with law
enforcement personnel after leading them on a high-speed chase tempers the fact
that he evaded them for twenty to thirty miles as they followed him in their
vehicles at a rate up to ninety miles per hour with lights and sirens activated for at
least twenty minutes.
That Appellant led multiple law enforcement units with lights and sirens on
a high-speed chase for at least twenty minutes is compelling evidence of
Appellant’s guilt of the evading-arrest charge. Notwithstanding Appellant’s use of
his turn signals during the chase and his cooperation after the chase, this factor
weighs against a finding that the trial court abused its discretion in denying
Appellant’s motion for mistrial.
Under these circumstances, it was within the trial court’s discretion to deny
26 Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy Justice
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).