Williams James Bradford v. State

• Court: Court of Appeals of Texas
• Decided: September 17, 2009
• Docket: 14-08-00387-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed September 17, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-00387-CR

WILLIAM JAMES BRADFORD, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1121937

M E M O R A N D U M   O P I N I O N

Appellant, William James Bradford, was convicted of aggravated sexual assault and sentenced to life imprisonment.  In the sole issue presented on appeal, appellant argues the trial court erred in denying his motion for mistrial premised upon an apparently inadvertent reference to his Acriminal history.@  Finding no reversible error by the trial court, we affirm.

Background

On December 8, 2006, complainant, S.N., was sexually assaulted at her sister=s apartment.  She did not see her attacker=s face because he wore a mask.  Following the assault, complainant and her sister gave police a list of items that were taken from the apartment, including a Swiss Army watch and a University of Texas national championship letter jacket. 

Sergeant Cliff Blomberg of the Houston Police Department located a watch matching the description at a nearby pawn shop.  The store=s records indicated that appellant pawned the watch ten days after the sexual assault.  Then, in February 2007, complainant=s sister saw appellant outside of her apartment wearing her letter jacket.^[1]

Appellant was arrested and indicted for aggravated sexual assault.  At trial, Sergeant Blomberg briefly mentioned appellant=s Acriminal history@ while testifying.  The parties agree that the comment was not solicited by the prosecutor and the jury did not hear any details about appellant=s criminal history.^[2]  The jury was immediately removed from the courtroom, and appellant moved for a mistrial.

The court denied appellant=s motion and instructed the jury to disregard Blomberg=s statement and not to consider it for any purpose.  Following the instruction to disregard, the State presented additional evidence, including test results indicating that appellant=s DNA was found inside of complainant=s underwear. 

The jury found appellant guilty and sentenced him to life imprisonment.  On appeal, appellant argues that the instruction to disregard did not cure the prejudice allegedly caused by the inadvertent mention of appellant=s criminal history.

Analysis

Appellant claims that the trial court erred in denying his motion for mistrial after Sergeant Blomberg mentioned appellant=s Acriminal history@ during the guilt phase of trial.  We review a trial court=s denial of a motion for mistrial under an abuse-of-discretion standard.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).  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). 

A mistrial is used to halt proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case.  Id.  A grant of a motion for mistrial should be reserved for those cases in which an instruction to disregard could not cure the prejudice stemming from an event at trial.  Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).

Generally, a witness=s reference to a defendant=s criminal history, standing alone, is cured by a prompt instruction to disregard.  Jackson v. State, 287 S.W.3d 346, 354 (Tex. App.CHouston [14th Dist.] 2009, no pet.); see also Ladd, 3 S.W.3d at 571 (holding instruction to disregard cured witness=s improper reference to defendant=s multiple juvenile arrests); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (concluding witness=s reference to defendant having Arecently been released from the penitentiary@ cured by instruction to disregard).  An exception to this general rule exists, such that a mistrial is required, when the improper testimony is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.  Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.CHouston [14th Dist.] 2005, no pet.). 

Here, Blomberg=s reference to appellant=s criminal history does not constitute such improper testimony.  Rather, the challenged testimony closely resembles references that have been cured by an instruction to disregard.  See Jackson, 287 S.W.3d at 354; Ladd, 3 S.W.3d at 571; Kemp, 846 S.W.2d at 308.  We must presume that the jury in this case followed the trial court=s instructions and conducted itself accordingly.  See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).  Therefore, appellant has not shown that the trial court=s prompt and unequivocal instruction to disregard was insufficient to cure harm from any impression left upon the jury.  See Hudson, 179 S.W.3d at 738B39.

Even had appellant shown an abuse of discretion, we are required to disregard any error that does not affect the substantial rights of the accused.  See Tex. R. App. P. 44.2(b).  In conducting a harm analysis under Rule 44.2, we may consider a number of factors, including evidence of appellant=s guilt presented at trial.  See Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002).  In this case, evidence at trial connected appellant to rather unique items taken from the apartment following the sexual assault.  Police located the Swiss Army watch at a pawn shop and discovered that it was appellant who pawned it.  Appellant was also seen wearing a college football national-championship letter jacket, an item not commonly found in many wardrobes, identical to that reported missing from the apartment.  Finally, the State offered testimony demonstrating that appellant=s DNA was found in complainant=s underwear.

Given the overwhelming evidence of appellant=s guilt, it is unlikely that the brief mention of appellant=s criminal history had a substantial effect on the jury=s verdict.  See id. at 357.  The trial court did not did not abuse its discretion in denying appellant=s motion for mistrial.  We overrule the sole issue presented on appeal. 

Conclusion

Accordingly, the judgment of the trial court is affirmed.

/s/      Kent C. Sullivan

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           She testified that the jacket was rare.

^[2]           During the punishment phase of trial, Deputy Gail Mills of the Harris County Sheriff=s Department testified that appellant was convicted of indecency with a child in November 1989 and burglary of a habitation with intent to commit sexual assault in June 2003.