                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-18-00213-CR


                    ANTHONY DAVID LEE LEONING, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 28,384-C, Honorable Ana Estevez, Presiding

                                    December 2, 2019

                             MEMORANDUM OPINION
                    Before QUINN, C.J., and PIRTLE and PARKER, JJ.

       Appellant Anthony David Lee Leoning appeals his conviction for aggravated

robbery. Through five issues, he contends that 1) the trial court erred by denying him a

mistrial, 2) he was denied a jury trial during the punishment phase, 3) the trial court erred

in admitting a recording of a phone conversation made while in jail, 4) the trial court erred

in its jury charge, and 5) the judgment should be reformed to correctly reflect that court

costs were waived. We modify the trial court’s judgment and affirm it as modified.
       Issue One – Denial of Mistrial

       In his first issue, appellant contends the trial court abused its discretion by denying

his motion for a mistrial. He believed himself entitled to such relief because the prosecutor

“blatantly and deliberate[ly] violated the Court’s limine ruling by discussing matters in her

opening statement covered by the court’s ruling[.]” The matter broached apparently

consisted of a reference to appellant’s mother believing appellant was again using drugs

and appellant’s employer discovering a “syringe.” Appellant’s employer happened to be

the victim of the robbery. We overrule the issue for several reasons.

       First, the complaint was not preserved for review. Appellant was obligated to

timely object to the purported misconduct. A timely objection is one made at the earliest

opportunity. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Mathis v. State,

No. 06-18-00189-CR, 2019 Tex. App. LEXIS 3952, at *2 (Tex. App.—Texarkana May 16,

2019, pet. ref’d) (mem. op., not designated for publication). Before the prosecutor at bar

mentioned anything about a syringe, she told the jury that appellant’s mother “thinks

[appellant is] back to using drugs again.” This triggered no objection from appellant. Nor

did appellant object when the prosecutor continued with: “[w]ell, shortly after that, Barry

goes to one of the jobsites where he had left [appellant] there by himself. And he sees a

syringe.” Only after the prosecutor followed that statement with “[a]nd he goes out to the

truck and when he comes back, the syringe is gone” was an objection uttered.

       If appellant’s complaint concerns the interjection of drugs into the fray, an objection

should have been uttered when the prosecutor initially alluded to appellant’s mother

believing her son was “back to using drugs.” If appellant’s complaint actually concerns

the use of the word “syringe,” the earliest opportunity at which he could and should have



                                              2
objected was when reference was made to the employer (Barry) arriving at a jobsite and

“see[ing] a syringe.”   By not objecting at either instance, he failed to preserve his

complaint about the improper argument. See Davis v. State, 329 S.W.3d 798, 823 (Tex.

Crim. App. 2010) (holding that the complaint was not preserved because “[d]efense

counsel failed to object the first time the prosecutor argued that appellant was a con man

who spent four hours on the stand”); see Barnes v. State, 70 S.W.3d 294, 307-08 (Tex.

App.—Fort Worth 2002, pet. ref’d) (stating that preserving jury argument error requires a

contemporaneous objection each time the objectionable jury argument is made).

       To the extent error was preserved because the trial court ultimately sustained the

objection but denied mistrial, we say the following. Granting a mistrial should be done

sparingly for it is an exceedingly uncommon remedy.          Id. at 309. Furthermore, an

instruction to disregard the argument normally cures any prejudice arising from it. Id.;

Mills v. State, No. 07-08-0348-CR, 2009 Tex. App. LEXIS 8038, at *4-5 (Tex. App.—

Amarillo Oct. 14, 2009, no pet.) (mem. op., not designated for publication). More must

be done, though, when the argument is extreme or manifestly improper, interjected new

and harmful facts, or violated statutory edict and was so inflammatory that an instruction

to disregard could not cure the prejudice. Barnes, 70 S.W.3d at 309. Here, the trial court

acted quickly when appellant finally objected. It removed the jury, discussed the matter

with the litigants, recalled the jury, and instructed the body to disregard the prosecutor’s

“last few” sentences. Though appellant categorizes the instruction as too vague, we

cannot fault the trial court for not directing the jurors’ attention to the specific argument

deemed objectionable.      That would only highlight the supposed prejudice appellant

sought to avoid. And given the context of the argument and the prosecutor’s apparent



                                             3
decision to forgo additional comment about drugs, we cannot say that its reference to

appellant using drugs was so inflammatory as to avoid correction via an instruction to

disregard.

       Issue Two – Right to a Jury Trial

       In his second issue, appellant contends he is entitled to a new trial on punishment.

He believes himself entitled to same because he filed no written waiver conforming to the

dictates of art. 1.13 of the Texas Code of Criminal Procedure. Thus, his trial counsel’s

representation that he wanted the court to assess punishment was ineffective. We

overrule the issue for several reasons.

       First, appellant did not complain when the trial court assumed the task of

evaluating and assessing punishment. Rather, he asked the court to do just what it did.

He cannot now complain of error he invited. See Padon v. State, No. 03-17-00695-CR,

2019 Tex. App. LEXIS 8455, at *22-23 (Tex. App.—Austin Sept. 20, 2019, no pet.) (op.

on reh’g) (mem. op., not designated for publication). Second, by failing to object when

the trial court assumed the task, appellant also failed to preserve his complaint. See

Green v. State, No. 04-17-00351-CR, 2018 Tex. App. LEXIS 4708, at *7-8 (Tex. App.—

San Antonio June 27, 2018, no pet.) (mem. op., not designated for publication); see also

Hackey v. State, 500 S.W.2d 520, 521 (Tex. Crim. App. 1973) (holding that because no

one objected to the court assessing punishment it is presumed they agreed to it). Third,

because the right to have a jury assess punishment is statutory, as opposed to

constitutional, it is subject to waiver, contrary to appellant’s contention. Green, 2018 Tex.

App. LEXIS 4708, at *7. Fourth, the authority cited by appellant purportedly supporting

his proposition that art. 1.13 applies to the punishment phase of the trial actually says



                                             4
otherwise. Medina v. State, 770 S.W.2d 54, 55 (Tex. App.—Texarkana 1989, no pet.)

(stating that “[a]lthough Medina had a jury trial on the guilt/innocence phase, he now

contends that a written waiver in compliance with Article 1.13 must be on file for the

punishment phase also.       Our Court of Criminal Appeals has recently held to the

contrary.”); accord Raby v. State, No. 09-04-120-CR, 2005 Tex. App. LEXIS 2380, at *6

(Tex. App.—Beaumont Mar. 30, 2005, pet. dism’d) (mem. op.) (holding that art. 1.13 does

not apply when the defendant elects not to have a jury assess punishment).

       Issue Three – Admission of a Jail Call

       By his third issue, appellant complains that the trial court erred in admitting a

recording of a conversation he had with his mother which call was placed from jail.

Allegedly, the recording was irrelevant under Rule of Evidence 401, constituted improper

extraneous evidence under Rule 404(b), and was subject to exclusion under Rule 403

given its highly prejudicial effect. We overrule the issue.

       The recording depicted appellant developing a plan to induce the District Attorney

to dismiss the criminal charges then pending against him. Per the plan, he instructed his

mother to find his employer’s bank account number and then draft a letter purportedly

from his employer. Then:

              I want you to produce a letter going to you coming from him,
              telling you that he’s sorry about what happened to your son
              but because . . . I threatened him . . . to tell his parents and
              his son about the stuff that he was doing with the dope and
              prostitutions and everything else, he had to do what he do [sic]
              to eliminate the problem, which was get rid of me. But if you’ll
              deposit ten thousand dollars into this account number right
              here, he’ll drop the charges. And then put his name on there.




                                             5
Appellant believed that these actions would “taint the case and they’ll have no choice but

to throw it out.”

        Regarding Rule 401 and relevance,1 a rational fact-finder may consider untruthful

statements uttered by an accused as affirmative evidence of the accused’s guilt. Padilla

v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010). Such evinces a consciousness of

guilt and is relevant. Johnson v. State, 425 S.W.3d 344, 346 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d). Inducing another to contrive falsehoods about the bona fides of

one’s accuser can be viewed as evidence of a consciousness of guilt. Consequently, a

trial court could reasonably deem it relevant.

        Regarding Rule 404(b),2 “criminal acts . . . designed to reduce the likelihood of

prosecution, conviction, or incarceration for the offense on trial are admissible under Rule

404(b) as showing ‘consciousness of guilt.’” Ransom v. State, 920 S.W.2d 288, 299 (Tex.

Crim. App. 1996) (op. on reh’g); Sandoval v. State, No. 07-10-00471-CR, 2011 Tex. App.

LEXIS 5971, at *11-12 (Tex. App.—Amarillo Aug. 1, 2011, pet. ref’d) (mem. op., not

designated for publication). The recording captured such acts on the part of appellant, or

at least the trial court could have reasonably concluded. Thus, it was admissible under

Rule 404(b). See Sandoval, 2011 Tex. App. LEXIS 5971, at *12–13, (holding admissible

a defendant’s letters asking others to make false statements to police or to find others

who would provide apparently false alibi testimony).



        1 Texas Rule of Evidence 401 states: “Evidence is relevant if: (a) it has any tendency to make a

fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” TEX. R. EVID. 401 (a), (b).

        2 Texas Rule of Evidence 404(b)(1) states: “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.” TEX. R. EVID. 404(b)(1).


                                                    6
        As for Rule 403,3 it not only favors the admission of relevant evidence but also

carries a presumption that relevant evidence will be more probative than prejudicial.

Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009).                   So too does it envision

the exclusion of evidence only when there exists a clear disparity between the degree of

prejudice of the offered evidence and its probative value. Hammer v. State, 296 S.W.3d

555, 568 (Tex. Crim. App. 2009). Furthermore, evidence of one’s consciousness of guilt

“is perhaps one of the strongest kinds of evidence of guilt.” Torres v. State, 794 S.W.2d

596, 598 (Tex. App.—Austin 1990, no pet.). Indeed, in many ways it could be viewed as

an implicit confession since the guilty have more reason to deceive to avoid conviction

than the innocent.4 Given this, the court’s instruction informing the jury that it may

consider the evidence only as consciousness of guilt, and the State’s redaction from the

recording of extraneous matter, we cannot say that the trial court abused its discretion in

overruling appellant’s 403 complaint.

        Issue Four – Charge Error

        Appellant’s fourth issue pertains to the purposes for which extraneous offenses or

evidence of bad acts could be considered by the jury. That is, the trial court instructed

the jury in its charge that such could be considered only for limited purposes. However,

it did not limit those purposes to the ones appellant thought applicable. Those thought

inapplicable but nonetheless included were “motive, opportunity, intent, preparation, plan,




        3 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.

        4   “. . . the truth will set you free.” John 8:32.


                                                              7
knowledge, identity, or absence of mistake or accident.” He wanted the purpose to be

limited to consciousness of guilt.   We overrule the issue.

       The purportedly inapplicable purposes are actually included in Rule 404(b). That

is, evidence of extraneous crimes, wrongs, or bad acts “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)(2). When those

purposes accompany the initial purpose for which the evidence was admitted, no error

occurs. This is so because the additional language is mere surplusage that the jury may

disregard as irrelevant. Brown v. State, No. 01-11-00462-CR, 2012 Tex. App. LEXIS

4150, at *19-20 (Tex. App.—Houston [1st Dist.] May 24, 2012, no pet.) (mem. op., not

designated for publication). While the jury charge is not as narrowly tailored as it could

have been, it nevertheless properly instructs the jury to consider the extraneous offense

evidence for only the purposes permitted by Rule 404(b), so long as one of the named

purposes actually was in play at trial. Id.; accord Anderson v. State, No. 04-15-00573-

CR, 2016 Tex. App. LEXIS 7386, at *8-9 (Tex. App.—San Antonio July 13, 2016, pet.

ref’d) (mem. op., not designated for publication) (holding the same); Bailey v. State, No.

10-11-00437-CR, 2012 Tex. App. LEXIS 8593, at *19-21(Tex. App.—Waco Oct. 11, 2012,

no pet.) (mem. op., not designated for publication) (holding the same).

       Here, the charge included “consciousness of guilt” as one of the purposes for

which the extraneous evidence could be considered. Since that purpose was in play at

trial, as we discussed above, the trial court did not err by also including those mentioned

in Rule 404(b)(2).




                                             8
      Issue Five – Costs

      In his fifth issue, appellant argues that the Judgment’s Article 42.15 addendum

contains inconsistent provisions and should be “modified such that the section under

‘Court Costs’ . . . read[s] ‘WAIVED BY THE COURT.’” The State agrees. Consequently,

we modify the trial court’s judgment so that the section under “Court Costs” reads

“WAIVED BY THE COURT.”

      The judgment is affirmed as modified.

                                                          Per Curiam



Do not publish.




                                          9
