                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00317-CR

MICHAEL WAYNE SMITH,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F44966


                           MEMORANDUM OPINION


       A jury convicted Appellant Michael Wayne Smith of burglary of a motor vehicle

with two prior convictions for burglary of a motor vehicle and assessed his punishment,

enhanced by prior felony convictions, at ten years’ imprisonment and a $10,000 fine.

This appeal ensued. In his sole issue, Smith contends that the trial court “erred in

failing to grant a mistrial after the introduction of extraneous offense evidence.”

       The State asked Lieutenant Michael Gaudet of the Johnson County Sheriff’s

Office what State’s Exhibit No. 2 was, and he testified that State’s Exhibit No. 2 was a
rolled inked fingerprint card that he had obtained from Smith earlier that day. The

State then asked what State’s Exhibit No. 3 was, and Gaudet replied, “That is a rolled

inked fingerprint card from 9/7/2001 for a Failure to I.D. Fugitive From Justice.” At

that point, Smith objected, stating, “We haven’t seen this and he’s testifying from a

document not in evidence.” The jury was excused briefly while the trial court, the State,

and Smith had the following discussion.

        Smith stated, “First off, Judge, my objection is we’re testifying about

extraneouses at Guilt/Innocence. So on that, I would ask for a mistrial because he just

testified about a Failure to I.D. Fugitive From Justice.” The State responded it would

have no objection to instructing the jury to disregard. The State explained that it was

not going to actually offer State’s Exhibit No. 3 into evidence. Rather, the purpose for

offering Gaudet’s testimony regarding State’s Exhibit No. 3 was to show when Smith

had been arrested for his two prior burglary-of-a-motor-vehicle offenses as alleged in

the indictment. Smith had been arrested, however, for several offenses on that date,

and Gaudet apparently referred to the “top offense” on State’s Exhibit No. 3 that Smith

was arrested for that day, which was Failure to I.D. Fugitive From Justice. The trial

court denied Smith’s motion for mistrial and then asked if Smith wished to have an

instruction to disregard. Smith decided against the curative instruction to disregard but

agreed with the State to have an instruction concerning extraneous offenses added to

the jury charge. The jury returned to the courtroom.

        Gaudet then testified that State’s Exhibit No. 3 shows the date of arrest for two

burglary-of-a-motor-vehicle offenses as September 7, 2001.       The fingerprints from

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State’s Exhibit No. 3 are the same as those contained in State’s Exhibit No. 2, which

Gaudet took from the defendant, “Michael Wayne Smith,” that day. State’s Exhibits

Nos. 4 and 5 are judgments for a “Michael Wayne Smith.” The judgments each have a

thumbprint on them. Gaudet was not able to make a positive identification based on

those thumbprints, but he was able to obtain one point of identification on State’s

Exhibit No. 4 and five points of identification on State’s Exhibit No. 5. On the last page

of both State’s Exhibits Nos. 4 and 5, the defendant’s name is indicated as “Michael

Wayne Smith,” the offense is indicated as burglary of a vehicle, and the date of the

offense is indicated as September 7, 2001.      The State then asked, “And does that

correlate to the fingerprint card that you got from the jail today?” Gaudet replied, “Yes,

it does.”

        The State then offered State’s Exhibits Nos. 4 and 5 into evidence, and the

following exchange took place:

              [Defense Counsel]: Your Honor, we still object to State’s 4 and 5 as
        hearsay and lack of foundation and relevancy.

               THE COURT: Specifically, can you explain your objections more
        specifically.

               [Defense Counsel]: Yes, Judge. We feel that there’s been no
        predicate laid as far as these documents with regard to any overcoming
        any hearsay objection, with regard to 701, 702, any hearsay objection. I
        believe they have not met the predicate to overcome the hearsay objection.

                 THE COURT: Okay.

               [Defense Counsel]: Then they also have not overcome any -- well,
        basically on the hearsay, they haven’t met -- been able to tie this in or
        overcome their hearsay objections, Your Honor.


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                 THE COURT: All right. Will State continue.

                [Prosecutor]: Judge, both of these documents are certified copies
        from the County Clerk’s Office here in Johnson County. The Detective has
        testified that the dates and offenses of -- contained in these judgments
        match the date and offenses contained in the fingerprint card that he
        obtained today.

                 THE COURT: Objection is overruled. You may continue.

              [Prosecutor]:    Thank you, Your Honor.         Are State’s 4 and 5
        admitted?

                 THE COURT: Yes, sir. Admitted.

        We begin by addressing the State’s argument that Smith failed to preserve his

issue for appellate review because Smith objected to Gaudet’s improper comment and

then moved for a mistrial without requesting a curative instruction.        A complaint

regarding the admission of evidence may take three forms:           (1) a timely, specific

objection; (2) a request for an instruction to disregard; and (3) a motion for mistrial.

Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Each of these methods furthers

the policies of preventing and correcting errors and conserving judicial resources. Id.

An objection serves as a preemptive measure because it prompts the prevention of

harmful events. Id. An instruction to disregard is a corrective measure because it

attempts to cure any harm or prejudice resulting from events that have already

occurred. Id. In a case where the prejudice is curable, an instruction eliminates the

need for a mistrial and serves to conserve judicial resources. Id. A mistrial is also a

corrective measure, but it is reserved for those cases where an objection could not have

prevented and an instruction to disregard could not cure the prejudice stemming from


Smith v. State                                                                      Page 4
an event at trial. Id.

        A party who fails to request an instruction to disregard forfeits appellate review

of events that could have been cured by such an instruction. Id. at 70. But if an

instruction to disregard could not have had that effect, the only suitable remedy is a

mistrial, and an adverse ruling on a motion for mistrial is the only essential prerequisite

to presenting the complaint on appeal. See id. When a party’s first action is to move for

mistrial, as in this case, the scope of appellate review is thus limited to the question of

whether the trial court erred in not taking the most serious action of ending the trial. Id.

When a defendant moves for mistrial without first requesting an instruction to

disregard, as occurred in this case, he will obtain reversal only if the error could not

have been cured by an instruction to disregard. Id.

        We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wead v. State, 129

S.W.3d 126, 129 (Tex. Crim. App. 2004). An appellate court must uphold the trial

court’s ruling if it was within the zone of reasonable disagreement. Wead, 129 S.W.3d at

129.   A mistrial is required only in extreme circumstances where the prejudice is

incurable. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A mistrial is the

trial court’s remedy for improper conduct that is so prejudicial that expenditure of

further time and expense would be wasteful and futile. Hawkins, 135 S.W.3d at 77.

        Smith argues that a mistrial was required because multiple instances of his

extraneous bad conduct were admitted. He states that the evidence included that he

“had committed precisely the same crime for which he was then on trial on more than

Smith v. State                                                                        Page 5
one previous occasion.” He contends, “The only inference the jury could have drawn

from this was that Appellant was a habitual or professional car burglar and the case at

bar was merely his latest crime.”

        The two prior convictions for burglary of a motor vehicle, the allegations of

which Smith pleaded “not true,” are jurisdictional elements of a state-jail-felony

burglary-of-a-motor-vehicle offense. See TEX. PENAL CODE ANN. 30.04(d)(2)(A) (West

2011). Thus, the prior convictions for burglary of a motor vehicle were not evidence of

extraneous offenses, and the trial court did not abuse its discretion in allowing the State

to present evidence of those prior convictions during the guilt-innocence phase of trial.

The only extraneous offense then that Gaudet briefly mentioned was “Failure to I.D.

Fugitive From Justice.”

        It is well established that testimony referring to or implying extraneous offenses

can be rendered harmless by an instruction to disregard unless it is so clearly calculated

to inflame the minds of the jury and is of such a nature as to suggest the impossibility of

withdrawing the harmful impression from the jury’s mind. Kemp v. State, 846 S.W.2d

289, 308 (Tex. Crim. App. 1992). We conclude that Gaudet’s uninvited, unembellished

reference to “Failure to I.D. Fugitive From Justice” was not so inflammatory as to

undermine the efficacy of an instruction to disregard, had one been requested. Because

the error could have been cured by an instruction to disregard had one been requested,

the trial court did not abuse its discretion by denying Smith’s motion for mistrial.

Smith’s sole issue is overruled, and the trial court’s judgment is affirmed.




Smith v. State                                                                       Page 6
                                             REX D. DAVIS
                                             Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 8, 2013
Do not publish
[CR25]




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