                                  NO. 12-18-00349-CR

                             IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 LESTER THOMAS BUTCHER,                           §       APPEAL FROM THE 420TH
 APPELLANT

 V.                                               §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §       NACOGDOCHES COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Lester Thomas Butcher appeals his conviction for murder. In one issue, he contends the
trial court abused its discretion by denying his motion for a mistrial after the jury heard evidence
that he previously had been to prison. We affirm.


                                          BACKGROUND
       Appellant was indicted for the capital murder of James Steitler. The indictment alleged
that Appellant, on or about April 9, 2017, in Nacogdoches County, Texas, intentionally caused
Steitler’s death by shooting Steitler with a firearm, stabbing him with a knife, and striking him
with a bat while in the course of committing or attempting to commit the offense of burglary. The
State did not seek the death penalty. Appellant entered a plea of “not guilty” and the case
proceeded to a jury trial.
       At trial, the evidence showed that Appellant was at Ricky Butcher’s home on April 8, the
evening before Steitler’s murder. Ricky, Appellant’s brother, and Steitler were neighbors in a rural
area near Trawick, Texas in Nacogdoches County. Appellant left Ricky’s home in the late evening
hours of April 8 and returned sometime after midnight on April 9. Ricky and Appellant’s nephew,
Alvin Blangger, testified that when Appellant returned, he was panicked. Blangger testified he
heard Appellant tell Ricky “we don’t have to worry about that [expletive] anymore because he’s
dead.” Blangger further testified to hearing Appellant say “if the cops come, I was never here.”
Blangger testified he observed Appellant and Ricky go outside and then heard Appellant leave in
his vehicle.
       After Appellant left, Ricky contacted the Nacogdoches Sheriff’s Office and requested a
welfare check on Steitler. Law enforcement arrived and located Steitler’s dead body in his
bedroom, laying in a pool of blood. Law enforcement discovered that the back window to Steitler’s
home had been broken and the door to his bedroom was cracked near the doorknob. Law
enforcement learned about Appellant’s statements regarding Steitler’s murder, and began
searching for him.
       Appellant arrived at a residence in Chandler, Texas in the early morning hours of April 9.
Waylon and Richard Barton, two brothers present at the Chandler residence, testified at trial that
Appellant appeared scared, had blood on his person, and was carrying bloody clothes. Waylon
testified that Appellant asked the brothers for clean clothes and help cleaning the blood out of his
truck. Waylon testified that he observed Appellant pull a bat from the back of his truck and walk
between the house and two sheds located on the property. Waylon testified that he then saw flames
coming from that direction. Richard testified that Appellant asked him to help him dispose of a
shotgun. Richard testified that he gave Appellant a pair of shorts, but refused to help him clean
his car or dispose of the shotgun. Law enforcement located Appellant in the Chandler vicinity on
April 10, and took him into custody. Appellant gave a recorded statement to law enforcement. In
that statement, Appellant told the officer that Steitler sold methamphetamine and pills. According
to Appellant, he took Richard to Steitler’s residence on the evening of the murder so that Richard
could buy some pills from Steitler. Appellant denied murdering Steitler, and blamed Richard for
the murder.
       Law enforcement searched the Chandler property and located a knife and bat from a burn
barrel. Next to the burn barrel, law enforcement located a shotgun from under some debris.
Forensic testing revealed that Appellant’s DNA was present on the bat recovered from the burn
barrel, and Steitler’s DNA was present on the shotgun recovered next to the burn barrel. Steitler’s
mother, Darlene Bates, was able to identify the shotgun as Steitler’s. She testified that she saw the
shotgun in Steitler’s room on April 8. Appellant’s ex-girlfriend, Stacie Breeden, identified the
knife found in the burn barrel as belonging to Appellant. Breeden told law enforcement that the
knife was one of two from a set that Appellant kept in his bedroom at Ricky’s home. Law



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enforcement located the other knife, and a sheath capable of holding both knives, in Appellant’s
bedroom at Ricky’s home.
         Dr. Ami Murphy, a forensic pathologist, testified that Steitler’s body showed forty blunt
impact injuries, thirteen blade wounds, and a shotgun wound to the right forearm that also involved
the right side of the chest, the chin, the jaw, and the left hand. She testified that Steitler’s death
was ruled a homicide and his cause of death was blunt impact trauma to the head, stab wounds to
the face and neck, and a shotgun wound to the forearm.
         At the conclusion of the trial, the jury found Appellant “guilty” of capital murder.
Appellant was sentenced to life without parole. 1 This appeal followed.


                                    DENIAL OF MOTION FOR MISTRIAL
         In his sole issue, Appellant argues that the trial court abused its discretion by denying his
motion for mistrial after the jury heard evidence that he had previously been to prison.
Standard of Review and Applicable Law
         A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard, and
its ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State,
330 S.W.3d 253, 292 (Tex. Crim. App. 2010). “Ordinarily, a prompt instruction to disregard will
cure error associated with an improper question and answer, even one regarding extraneous
offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). “Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins v. State,
135 S.W.3d 72, 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). Whether an error requires a mistrial is determined by
the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “A
mistrial is required only when the improper question is clearly prejudicial to the defendant and is
of such character as to suggest the impossibility of withdrawing the impression produced on the
minds of the jurors.” Id. In determining whether the trial court abused its discretion in denying the




         1
           In cases where the state does not seek the death penalty, an individual adjudged guilty of a capital felony
shall be punished by imprisonment for life without parole if the individual committed the offense when eighteen years
of age or older. TEX. PENAL CODE ANN. § 12.31(a)(2) (West 2019).


                                                          3
mistrial, we consider the severity of the misconduct (prejudicial effect), any curative measures
taken, and the certainty of conviction absent the misconduct. Hawkins, 15 S.W.3d at 77.
Appellant’s Recorded Statement
       Prior to trial, Appellant filed two motions in limine and a motion to exclude certain portions
of his recorded statement given to law enforcement about the murder. The first motion in limine
requested that the State’s attorney refrain from mentioning or eliciting testimony regarding any
extraneous offense, wrongs, or acts committed by Appellant until a ruling on the admissibility of
the evidence could be made outside the jury’s presence. The second motion in limine requested
the same procedure in reference to Appellant’s prior criminal record. Both motions were granted.
       The motion to exclude portions of Appellant’s statement requested the trial court exclude
designated time periods of his recorded interview. Appellant argued that the designated portions
contained inadmissible hearsay or references to inadmissible extraneous offenses. Prior to the
beginning of voir dire, the State and the defense agreed to mute the time frames designated in
Appellant’s motion while playing the interview for the jury. The muted portions referenced in
Appellant’s motion and agreed upon by the parties were referenced in minutes and seconds.
       During the State’s case in chief, the State offered, and the court admitted Appellant’s
recorded statement as State’s exhibit 357, subject to the agreement to mute the designated portions.
While State’s exhibit 357 was published to the jury, Appellant’s counsel asked to approach the
bench. The court took a recess and sent the jury out of the courtroom. On the record, but outside
the presence of the jury, Appellant’s counsel objected to the “portion of the tape that was played
that stated briefly about [Appellant] going to prison” because it violated his motion in limine. The
State maintained that it muted the portions designated in Appellant’s motion, and Appellant’s
counsel clarified that he was not alleging that the State intentionally violated his motion in limine.
Appellant asked the trial court to instruct the jury to disregard the statements and requested a
mistrial. The trial court denied Appellant’s motion for mistrial, but granted his request for an
instruction to disregard.
       The trial court clarified the objectionable statements as follows:

       And, I guess, so the record is clear, what I wrote down—or what I heard was there was a reference
       where I think Ranger Hicks said, was your mom upset when she found out you were going to prison,
       or words to that effect.




                                                      4
Appellant’s counsel agreed that the foregoing was the objectionable statement played before the
jury. Thereafter, the court took a recess so State’s counsel and Appellant’s counsel could
reexamine exhibit 357 to ensure that, going forward, the designated time frames would exclude
any inadmissible extraneous offense evidence. After the recess, State’s counsel informed the court
that the parties inadvertently wrote down the wrong ending time frame, which explained why the
objectionable statement was published to the jury. Counsel for the State clarified that instead of
muting exhibit 357 from 25:30 through 29:22, the exhibit should have been muted from 25:30
through 31:10 to exclude all references to Appellant previously having been to prison. Appellant’s
counsel requested the court instruct the jury to disregard the portion of the recording that was
played at 29:22 through 31:10. Appellant’s counsel clarified that he did not want the court to
specifically mention the statement, to avoid further drawing the jury’s attention to the fact that
Appellant had previously been to prison. The court granted Appellant’s request and instructed the
jury to disregard the statements it heard from 29:22 to 31:10 of exhibit 357 and not consider them
for any purpose whatsoever. Thereafter, the State resumed publishing exhibit 357, and no further
references to Appellant’s having been to prison were made.
Analysis
       On appeal, Appellant argues that “the statement about [his] previously going to prison
made it impossible to remove the harmful effects of the testimony from the minds of the jury,
especially considering the nature of the allegations—capital murder.” He further argues that, even
though the trial court instructed the jury to disregard the statement, “the damage was done.”
Appellant cites no authority for his argument. See TEX. R. APP. P. 38.1(i).
       Generally, when evidence comes in, deliberately or inadvertently, which has no relevance
to any material issue in the case and carries with it some definite potential for prejudice to the
accused, the courts rely on what amounts to an appellate presumption that an instruction to
disregard the evidence will be obeyed by the jury. See Gardner v. State, 730 S.W.2d 675, 696
(Tex. Crim. App. 1987). In this case, there was a brief, inadvertent, reference to Appellant having
been to prison at some point before the trial of this case. There was no mention of what charge
Appellant went to prison for, when he went to prison, or the circumstances that led to Appellant
going to prison. After the statement was admitted, the court took a brief recess to discuss the
matter outside the presence of the jury, and when the trial resumed, the court promptly instructed
the jury to disregard the evidence.



                                                5
         We must presume that the jury followed the trial court’s instruction to disregard the
statement. See Coble, 330 S.W.3d at 293. Furthermore, we conclude that a brief, inadvertent
reference to Appellant having previously been to prison, without any further detail, was not so
inflammatory that the trial court’s instruction to disregard could not cure the harm. See Gardner,
730 S.W.2d at 679; see also, e.g.; Francis v. State, 445 S.W.3d 307, 320 (Tex. App.—Houston
[1st Dist.] 2013), aff’d, 428 S.W.3d 850 (Tex. Crim. App. 2014). We further note that the evidence
produced at trial to prove Appellant’s guilt, as previously discussed at length, was substantial.
Hawkins, 15 S.W.3d at 77. Thus, we hold that the trial court did not abuse its discretion in denying
Appellant’s motion for mistrial. Coble, 330 S.W.3d at 292. Appellant’s sole issue is overruled.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.



                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2019


                                         NO. 12-18-00349-CR


                                  LESTER THOMAS BUTCHER,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 420th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F1723232)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
