                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

 JOSEPH ALBERT DURANT,                                   §
                                                                            No. 08-11-00169-CR
                                   Appellant,            §
                                                                               Appeal from the
 v.                                                      §
                                                                             297th District Court
 THE STATE OF TEXAS,                                     §
                                                                          of Tarrant County, Texas
                                   Appellee.             §
                                                                               (TC#1181547D)
                                                          §


                                                 OPINION


        Appellant, Joseph Albert Durant, was convicted by a jury of burglary of a building,

enhanced. In a single issue, Appellant complains that the trial court erroneously denied his

motion for mistrial during the punishment phase of trial “[b]ecause the State’s counsel repeatedly

offered inflammatory information that was not admissible, even after being instructed not to do so

by the trial judge,” and asserts that his opportunity for a fair and impartial jury and trial were

severely affected.1

                                               BACKGROUND

        Appellant was charged by indictment with burglary of a building, enhanced by prior

        1
          As this case was transferred from our sister court in Fort Worth we decide it in accordance with the
precedent of that court. TEX. R. APP. P. 41.3.
convictions. Appellant pleaded guilty to the charged offense. To the enhancement provisions,

Appellant stood silent and the trial court entered a not true plea on Appellant’s behalf.

        Appellant elected to have punishment assessed by the jury. During the punishment phase

of trial, Appellant testified and was cross-examined by the State. Appellant complains of the

following colloquy.

        After the State asked Appellant if he remembered being previously arrested for larceny in

another state, counsel objected and asserted that “[e]ven in a punishment hearing arrest is not

admissible . . . without a conviction” or “some adjudication of facts . . . .” The trial court advised

the State that it could question Appellant “as to any conviction or any other admissible evidence.”

Appellant did not request that the trial court instruct the jury to disregard the State’s question nor

did he request a mistrial.

        The State then asked Appellant whether he was subject to a distribution of marijuana

charge when he was in New Mexico. After Appellant noted that those charges had been

dismissed, the trial court sustained counsel’s objection that the prosecutor was questioning

Appellant in violation of the trial court’s previous ruling, and, as requested by counsel, instructed

the jury to disregard the prosecutor’s question. The trial court then denied Appellant’s motion for

mistrial.

        The State immediately thereafter said, “Okay. You got in trouble in New Mexico,” and

then asked Appellant, “Were you ever charged with something in Hawaii?” Counsel immediately

objected, noting that the State was continuing to ignore the court’s ruling on such questions. The

State argued that it was permitted to inquire about Appellant’s bad acts under Rule 404(b).

Defense counsel countered that the State was asking the complained-of questions in bad faith


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because the State was asking about arrests and the trial court had already instructed the State that

questions regarding arrests not resulting in conviction, “or something that results in adjudication

[or] a factual determination that something has happened,” are not admissible even in a

punishment hearing. The trial court sustained the objection. However, Appellant did not ask the

trial court to instruct the jury to disregard the question and did not seek a mistrial after this

exchange.

       Following this colloquy, the State asked questions regarding Appellant’s multiple prior

convictions and sentences, and introduced into evidence Appellant’s prior judgments and pen

packets. In its charge to the jury, the trial court instructed the jury that it was only permitted to

consider evidence of extraneous crimes or bad acts in assessing punishment, even if Appellant has

not been charged or convicted for such acts, if the State had shown beyond a reasonable doubt that

Appellant had committed such acts or offenses or could be held criminally responsible therefor.

The jury thereafter returned a verdict of guilty, found the enhancement allegations in the

indictment to be true, and assessed Appellant’s punishment at fifteen years’ confinement.

                                 PRESERVATION OF ERROR

       Typically, the proper method for seeking a mistrial requires counsel to object, to request

that the trial court instruct the jury to disregard, and to move for a mistrial. Coe v. State, 683

S.W.2d 431, 436 (Tex.Crim.App. 1984) (recognizing this to be the proper method to seek mistrial

for improper admission of extraneous offense evidence); Koller v. State, 518 S.W.2d 373, 376 n.2

(Tex.Crim.App. 1975). Appellant only once followed the three-step process when the State

inquired about Appellant’s purported distribution of marijuana charge.

       Appellant failed to request an instruction to disregard and a mistrial for either the State’s


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preceding or subsequent questions to which he had objected. Therefore, any error in the trial

court’s rulings on those two objections have not been preserved for our consideration under the

improper denial of mistrial issue Appellant has raised on appeal. See McFarland v. State, 989

S.W.2d 749, 751 (Tex.Crim.App. 1999) (failure to request instruction to disregard or mistrial

failed to preserve any error in prosecutor’s jury argument). Accordingly, the only preserved

complaint that is presently before us is whether the trial court erred in denying Appellant’s motion

for mistrial regarding the State’s inquiry regarding Appellant’s alleged distribution of marijuana

charge. Coe, 683 S.W.2d at 436.

                                   STANDARD OF REVIEW

       When a trial court sustains an objection, instructs the jury to disregard, and denies a

defendant’s motion for mistrial, the issue to be determined on appeal is whether the trial court

abused its discretion by denying the mistrial.         Hawkins v. State, 135 S.W.3d 72, 76-77

(Tex.Crim.App. 2004). “A mistrial is an appropriate remedy in ‘extreme circumstances’ for a

narrow class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884

(Tex.Crim.App. 2009). Because of the remedy’s extreme nature, a mistrial “should be granted

only when residual prejudice remains after objections are sustained and curative instructions

given.” Barnett v. State, 161 S.W.3d 128, 134 (Tex.App.—Fort Worth 2005), aff’d, 189 S.W.3d

272 (Tex.Crim.App. 2006); see also Ocon, 284 S.W.3d at 884–85. In most instances, the trial

court’s instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d 103,

115 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001).

       We review a trial court’s denial of a mistrial for an abuse of discretion, and the trial court’s

ruling must be upheld if it was within the zone of reasonable disagreement. Ocon, 284 S.W.3d at


                                                  4
884; Hawkins, 135 S.W.3d at 77. We must review the trial court’s ruling in light of the arguments

that were before the trial court at the time it ruled. See TEX. R. APP. P. 33.1; Wead v. State, 129

S.W.3d 126, 129 (Tex.Crim.App. 2004); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.

2003) (appellate court reviewing a trial court ruling on a motion to dismiss must do so in light of

the arguments before the trial court at the time it ruled); see also Weatherred v. State, 15 S.W.3d

540, 542 (Tex.Crim.App. 2000) (appellate court reviewing a trial court ruling on the admission of

evidence must do so in light of the arguments before the trial court at the time it ruled). However,

we may not fault the trial court on the basis of arguments not presented to the trial court. Wead,

129 S.W.3d at 129. In determining whether the trial court abused its discretion in denying a

defendant’s motion for mistrial, we consider: (1) the severity of the conduct; (2) curative

measures; and (3) the certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 77;

Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh’g), cert denied, 526 U.S.

1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

                                           ANALYSIS

       When a defendant exercises his right to testify, the general rule is that he is subject to the

same rules governing examination and cross-examination as any other witness, whether he

testifies at the guilt-innocence stage or at the punishment stage of the trial. See Felder v.

State, 848 S.W.2d 85, 99 (Tex.Crim.App. 1992); Cantu v. State, 738 S.W.2d 249, 255

(Tex.Crim.App. 1987), citing Brown v. State, 617 S.W.2d 234 (Tex.Crim.App. 1981). Once an

appellant decides to testify at trial he opens himself up to questioning by the prosecutor on any

subject matter which is relevant. Felder, 848 S.W.2d at 99. However, article 37.07, section 3

of the Texas Code of Criminal Procedure governs the admissibility of evidence of a defendant’s


                                                 5
prior bad acts or extraneous offenses in all criminal cases after a finding of guilt. TEX. CODE

CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2006). That section provides in part:

       Regardless of the plea and whether the punishment be assessed by the judge or the
       jury, evidence may be offered by the state and the defendant as to any matter the
       court deems relevant to sentencing, including but not limited to the prior criminal
       record of the defendant, his general reputation, his character, an opinion regarding
       his character, the circumstances of the offense for which he is being tried, and,
       notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence
       of an extraneous crime or bad act that is shown beyond a reasonable doubt by
       evidence to have been committed by the defendant or for which he could be held
       criminally responsible, regardless of whether he has previously been charged with
       or finally convicted of the crime or act. Id. (emphasis added).

In addressing the reasonable doubt standard of article 37.07, the Texas Court of Criminal Appeals

has observed:

       At the punishment phase, the defendant has already been found guilty beyond a
       reasonable doubt of each element of the offense charged. For purposes of
       assessing punishment, the prosecution may offer evidence of any extraneous crime
       or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act
       committed by the defendant or (2) an act for which he could be held criminally
       responsible. TEX. CODE CRIM. PROC. art. 37.07, § 3(a). Prior crimes or bad acts
       are introduced to provide additional information which the jury may use to
       determine what sentence the defendant should receive. The statute requires that
       such evidence may not be considered in assessing punishment until the fact-finder
       is satisfied beyond a reasonable doubt that these prior acts are attributable to the
       defendant. Once this requirement is met, the fact-finder may use the evidence
       however it chooses in assessing punishment. Thus, this evidence serves a purpose
       very different from evidence presented at the guilt-innocence phase.

Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App. 1999) (emphasis in original).

       Our consideration of Appellant’s improper denial of mistrial issue is therefore guided by

article 37.07 for determining the admissibility of evidence under its provisions.        Haley v.

State, 173 S.W.3d 510, 514 (Tex.Crim.App. 2005); Jaubert v. State, 74 S.W.3d 1, 2

(Tex.Crim.App. 2002); see Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). For

purposes of assessing punishment, the Texas Court of Criminal Appeals has held the unambiguous

                                                6
wording of article 37.07, section 3(a)(1) to mean that the prosecution may offer evidence of any

extraneous crime or bad act that is shown beyond a reasonable doubt either to have been: (1) an

act committed by the defendant; or (2) an act for which he could be held criminally responsible.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); Haley, 173 S.W.3d at 514; Fields v. State, 1

S.W.3d 687, 688 (Tex.Crim.App. 1999).

       In Haley, the Court recognized three principles to be apparent from the text of article 37.07,

section 3.   Haley, 173 S.W.3d at 514-15.         First, Section 3(a) “does not contemplate any

significant distinction between the terms ‘bad act’ or ‘extraneous offense’” and “does not place

each on a separate path towards admissibility.” Id. Thus, it is irrelevant whether the conduct the

offering party is attempting to prove is, or can be characterized, as an offense. Id. Second,

although the beyond a reasonable doubt burden of proof required by article 37.07, section 3 does

not require the offering party to necessarily prove that the act was a criminal act or that the

defendant committed a crime before the jury can consider such evidence in assessing punishment,

it must be satisfied beyond a reasonable doubt that the acts are attributable to the defendant. Id. at

515; Huizar v. State, 12 S.W.3d 479, 482–83 (Tex.Crim.App. 2000); Fields, 1 S.W.3d at 688.

The Court has interpreted the provision to require the burden of proof to be applied not to the

elements of a crime as is necessary for a finding of guilt but to a defendant’s involvement in the act

itself. Haley, 173 S.W.3d at 515. Last, the plain language of the statute “is in harmony with the

nature and general characteristics of punishment evidence.”           Id.   Hence, the question at

punishment is not whether the defendant has committed a crime but, instead, what sentence should

be assessed, and the punishment phase requires the jury only find that these prior acts are

attributable to the defendant beyond a reasonable doubt. Id..


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       While we strongly disapprove of the State’s unnecessary questioning regarding arrests or

charges and its disrespectful conduct during the complained-of punishment colloquy, we find by

the narrowest of margins that the State’s questioning regarding a charge that had been dismissed

fell short of qualifying as severe. Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259. We

also find the trial court’s instruction to disregard constituted a proper curative measure, which was

followed by the trial court’s proper jury instruction in the charge setting forth the State’s burden of

proving extraneous offenses and bad acts beyond a reasonable doubt before the evidence could be

considered. Hawkins, 135 S.W.3d at 77; Wesbrook, 29 S.W.3d at 115. Finally, as Appellant had

pleaded guilty, the certainty of his conviction absent the misconduct was established. Hawkins,

135 S.W.3d at 77; Mosley, 983 S.W.2d at 259.

       We note that, without enhancement, burglary of a building is a state jail felony having a

punishment range of not more than two years or less than 180 days’ imprisonment. TEX. PENAL

CODE ANN. § 12.35(a) (West Supp. 2012), § 30.02(c)(1) (West 2011). When enhanced by two

prior felony convictions, as here, the punishment range for burglary of a building punishable under

section 12.35(a) is that of a second degree felony: not more than twenty years’ or less than two

years’ imprisonment. TEX. PENAL CODE ANN. § 12.33 (West 2011); § 12.425(b) (West Supp

2012) (current provision establishing penalties for repeat and habitual felony offenders on trial for

a state jail felony); see § 12.42(a)(2) (West 2009) (former provision).           Appellant faced a

maximum sentence of twenty years. His sentence of fifteen years is well below the maximum

sentence. As no residual prejudice remained after Appellant’s objections and the trial court’s

curative instruction, we find the trial court’s denial of Appellant’s requested mistrial was within

the zone of reasonable disagreement. Ocon, 284 S.W.3d at 884; Hawkins, 135 S.W.3d at 77.


                                                  8
Appellant’s issue is overruled.

                                        CONCLUSION

       The trial court’s judgment is affirmed.



                                             GUADALUPE RIVERA, Justice
June 12, 2013

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




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