                                    NO. 07-02-0192-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                      APRIL 2, 2003

                          ______________________________


                         SHEREE LYNN WOODS, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

         FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

             NO. 97,866; HONORABLE W.F. “CORKY” ROBERTS, JUDGE

                         _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                  MEMORANDUM OPINION


       Appellant Sheree Lynn Woods was convicted by a jury of the offense of prostitution

and sentenced to one year jail confinement. Appellant appeals her conviction, asserting

two points of error; we affirm.


       Appellant first asserts that testimony by a police officer, though the trial court

directed the jury to disregard it, was so prejudicial and harmful as to cause rendition of an
improper verdict; appellant’s second point argues that the trial court should not have

allowed the officer to testify at all because his name was not provided to the defense as

a prospective witness.


       We address appellant’s second point first. The State’s case during the guilt-

innocence phase of the trial consisted of the testimony of Amarillo police officers Sam

Martinez and Doug Herrington. Officer Herrington testified that he was among the police

officers conducting a prostitution “sting” on October 11, 2001, the day of appellant’s arrest,

that appellant approached his unmarked police vehicle but that he locked the vehicle door

and “waved her off” because he was not the officer intended to “make the date,” and that

he then directed Officer Martinez’s attention to appellant. Officer Martinez provided the

State’s testimony of appellant’s offer or agreement to engage in sexual conduct for a fee.


       Appellant contends that Officer Herrington’s testimony prejudiced appellant’s

defense because Officer Herrington did not prepare a police report concerning his

involvement in the sting and thus appellant was not aware until Officer Herrington’s name

was mentioned during voir dire that he was a potential witness. Appellant argues that

Officer Herrington’s testimony was not reasonably foreseeable, despite the State’s “open

file” policy, and thus amounted to “trial by ambush.”


       Appellant cites us to several cases concerning the State’s obligation to disclose

witnesses to be used at trial. The cited cases, though, are distinguishable because they

all involve the provision of witness lists (or written statements, in one case) by the State




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pursuant to the trial court’s instructions or pursuant to an agreement to do so.1 Here, no

formal discovery was conducted, cf. TEX . CODE CRIM . PROC . art. 39.14, nor does the record

reflect any court instructions or agreement concerning the providing of a witness list.

Appellant cites no rule or case, and we are aware of none, under which the State had the

duty under those circumstances to notify appellant before trial of its intention to call Officer

Herrington as a witness or of the nature of his expected testimony. Appellant does not

dispute the State’s contentions in its brief that Officer Martinez’s written report is contained

in the State’s “open file,” and that Officer Herrington’s name appears on that report as the

officer in charge.


       Moreover, appellant neither objected at trial to the State’s presentation of Officer

Herrington as a witness, nor moved for a recess or continuance. A timely and proper

request, objection or motion to the trial court is a prerequisite to the presentation of a

complaint for appellate review. Tex. R. App. P. 33.1; see also Hardin v. State, 20 S.W.3d




       1
         The cases relied on by appellant are: Martinez v. State, 867 S.W.2d 30
(Tex.Crim.App. 1993) (court instructions during hearing on pre-trial motion for list of
punishment witnesses); Nobles v. State, 843 S.W.2d 503 (Tex.Crim.App. 1992) (pre-trial
motion granted; several witness lists provided); Hernandez v. State, 819 S.W.2d 806
(Tex.Crim.App. 1991) (agreed motion to disclose names of witnesses by certain date);
Richardson v. State, 744 S.W.2d 65 (Tex.Crim.App. 1987) (witness list furnished pursuant
to court order); Pinkerton v. State, 660 S.W.2d 58 (Tex.Crim.App. 1983) (state agreed to
furnish witness list); Hightower v. State, 629 S.W.2d 920 (Tex.Crim.App. [Panel Op.] 1981)
(witness list pursuant to court order); Young v. State, 547 S.W.2d 23 (Tex.Crim.App. 1977)
(pre-trial motion for discovery of punishment witnesses granted; witness name not
provided); Goodley v. State, 457 S.W.2d 294 (Tex.Crim.App. 1970) (appeal of denial of
motion to instruct state to provide written witness statements); Hardin v. State, 20 S.W.3d
84 (Tex.App.--Texarkana, 2000, pet. ref’d)(pre-trial discovery motion; witness list provided);
Lafayette v. State, 835 S.W.2d 131 (Tex.App.--Texarkana 1992, no pet.) (no court order;
witness list provided by prosecution; written request by defense for updated list).

                                               3
at 88 (Any error in allowing the witness to testify over a claim of surprise is made harmless

by the defendant’s failure to object.) We overrule appellant’s second point.


       During voir dire, the prosecutor asked if any member of the jury panel knew Officers

Martinez or Herrington. When one member of the panel (an Amarillo lawyer) responded

that he knew Officer Herrington, the prosecutor asked if he would “give him more credibility

than you would [give] someone else just because you know him.” “Absolutely,” was the

panel member’s reply. It appears from the record that this exchange took place in the

presence of the entire jury panel. The panel member was excused and did not serve on

the jury.


       Then, during Officer Herrington’s testimony during the guilt-innocence phase of the

trial, the following exchange took place:


       Q [by the prosecutor]:      “Okay. Are you familiar with a Sheree Lynn
                                   Woods?
       A [by Officer Herrington]: “I am.
       Q:                          “Okay. How are you familiar with Ms. Woods?
       A:                          “I know her in my police capacity as a - - as a prostitute.
       Q:                          “Okay.
       Counsel for appellant:      “Your Honor, I object to that testimony and ask
                                   that [it] be stricken.
       The Court:                  “Sustained. Jury will disregard the last question
                                   and answer.”


       In her first point of error, appellant contends that Officer Herrington’s statement was

inadmissible under Texas Rule of Evidence 404(b). Appellant argues further that the

statement was so prejudicial and harmful, especially when considered in light of the

                                              4
excused venireman’s statement about Officer Herrington’s credibility, that the taint of it

could not be removed by the court’s instruction to the jury to disregard it, and that it caused

the rendition of an improper verdict.


       The State acknowledges that Officer Herrington’s statement was inadmissible, and

we concur.2 Evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show that she acted in conformity therewith. Tex. R. Evid.

404(b).3 We cannot agree with appellant, though, that reversal is required.


       The Rules of Appellate Procedure require us to disregard an error that is not

constitutional error unless it affects a "substantial right" of the appellant. Tex. R. App. P.

44.2(b). Appellant does not assert that constitutional error is involved in this case.

Generally, violations of the evidentiary rules resulting in the erroneous admission of

evidence are not constitutional error. Tate v. State, 988 S.W.2d 887, 890 (Tex.App.--

Austin 1999, pet. ref'd). A substantial right of a defendant is affected when error has a




       2
        Although the State does not argue that appellant failed to preserve the error of
which she complains, we note at the outset that appellant received all the relief she
requested from the trial court with respect to Officer Herrington’s statement. The trial court
sustained the objection to the testimony and instructed the jury to disregard it. Appellant
did not move for mistrial, consequently she has no adverse ruling of the trial court of which
to complain. Hernandez v. State, 914 S.W.2d 226, 230 (Tex.App.--Waco 1996, no pet.) (If
an objection is sustained and a curative instruction is given, a party must obtain an adverse
ruling on a motion for mistrial before any error can occur.).
       3
       In their briefs, both appellant and the State have characterized Officer Herrington’s
remark both as evidence of a collateral crime violative of Rule 404(b) and as evidence of
appellant’s character violative of Rule 404(a). Without so deciding, we assume for
purposes of this appeal that it makes no difference whether the statement is inadmissible
under Rule 404(a) or Rule 404(b).

                                              5
substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d

266, 271 (Tex.Crim.App. 1997).


       We generally presume that the jury follows the trial court’s instructions, including an

instruction to disregard impermissible testimony. Waldo v. State, 746 S.W.2d 750

(Tex.Crim.App. 1988). It has long been the law that where testimony of an extraneous

offense is admitted before the jury, the error may be rendered harmless when the trial

judge gives an instruction to the jury to disregard it, unless the evidence is clearly

calculated to inflame the minds of the jury or is of such nature that it would be impossible

to remove the harmful impression from the jury's mind. See, e.g., Kemp v. State, 846

S.W.2d 289, 308 (Tex.Crim.App. 1992); Barney v. State, 698 S.W.2d 114, 125

(Tex.Crim.App. 1985).


       We will apply that analysis to the determination whether Officer Herrington’s

statement that he knew appellant in his police capacity “as a prostitute” had a substantial

and injurious effect or influence on the jury’s verdict. As noted, appellant's counsel

promptly objected to Officer Herrington’s statement and requested that it “be stricken.” The

objection was immediately sustained and the jury so instructed. Officer Herrington’s

statement was not repeated, nor was it referred to again. Examining the record as a whole,

as we must, see Tate, 988 S.W.2d at 890, we find no indication here that the testimony

was calculated to inflame the minds of the jury. And, while the impression on the jurors’

minds of Officer Herrington’s statement may have been heightened by the excused

venireman’s stated opinion of his credibility, the statement was not of such a nature as to



                                              6
leave an indelible impression on the jurors’ minds and preclude them from following the

court's instruction to disregard it.


       The facts of Brokenberry v. State, 788 S.W.2d 103 (Tex.App.--Houston [14th Dist.]

1990, pet. ref’d), cited by appellant, are not similar to those presented by this case. There,

the trial court overruled an objection to the prosecutor’s improper jury argument and the

State made a repeated reference to the defendant’s failure to call any character witnesses

on his behalf.


       We find that Officer Herrington’s statement, though inadmissible, did not have a

substantial and injurious effect or influence on the verdict, and overrule appellant’s first

point of error.


       Having overruled appellant’s points of error, we affirm the judgment of the trial court.




                                                  James T. Campbell
                                                      Justice


Do not publish.




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