AFFIRM; Opinion Filed April 9, 2020




                                        In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-00557-CR

                        JAMIE RAY WATKINS, Appellant
                                    V.
                        THE STATE OF TEXAS, Appellee

                On Appeal from the 282nd Judicial District Court
                             Dallas County, Texas
                     Trial Court Cause No. F18-14134-S

                         MEMORANDUM OPINION
                   Before Justices Schenck, Osborne, and Reichek
                            Opinion by Justice Schenck
        Jamie Ray Watkins appeals from a conviction for burglary of a habitation with

the intent to commit a felony. We affirm the trial court’s judgment. Because all

issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P.

47.4.

                                   BACKGROUND

        Beginning in 2016, appellant lived with T.H., their child I.W., and T.H.’s

other minor daughter T.C. On or about July 20, 2018, appellant and T.H. got into a

heated argument, after which T.H. told appellant to leave the house. Appellant
packed some clothes and walked out of the house. T.H. followed appellant out of

the house to ask for the house key, but appellant refused to give it to her. That

evening, T.H.’s father changed the lock on the front door. The next day, appellant

sent T.H. a series of text messages that began with apologies and ended with

statements she perceived as threatening.

      In the evening of July 22, T.H. heard a noise outside her bedroom window

and looked out to see appellant’s car parked in the driveway. T.H. called 9-1-1 and

shouted to I.W. and T.C. to call their grandfather and other people for help. T.H.

then saw appellant break in through the backdoor and charge towards her, so she and

T.C. ran into I.W.’s bedroom where I.W. was awake watching videos on her

phone. I.W. jumped off her bed and turned on the light. Appellant entered I.W.’s

bedroom and punched T.H. several times before quickly leaving the house. T.H.

called 9-1-1 again, and the police and T.H.’s father arrived at the house where they

saw visible red marks on T.H.’s face.

      Appellant was indicted for burglary of a habitation with the intent to commit

a felony. The indictment also alleged appellant had a dating relationship T.H. and

was a member of her household and that appellant had a prior conviction for a family

violence offense. Appellant pleaded not guilty, and the case proceeded to trial

before a jury. The jury found appellant guilty as charged in the indictment and

sentenced him to twenty-two years’ confinement. Appellant timely filed this

appeal.
                                        –2–
                                     DISCUSSION

I.    Denial of Mistrial

      In his first issue, appellant argues the trial court erred in denying his request

for a mistrial after T.H.’s father testified appellant had been incarcerated.

      The complained-of statement took place during the prosecutor’s examination

of T.H.’s father:

      Q: …well, when did you come to learn about [T.H.’s] relationship with
      [appellant]?

      A: Actually, um, I think on the day that – um, that we actually knew of
      him was, uh, pretty much when my daughter told me that, um, she was
      pregnant and – um, but we didn’t get to know of him really because it
      was kind of secretive, if you want to say.

      Q: Okay.

      A: But, um, didn’t know him until – um, possibly of him really is, uh,
      when he got incarcerated.

At that point, defense counsel objected, and the trial judge dismissed the jury from

the courtroom. Outside the presence of the jury, the prosecutor questioned T.H.’s

father and established he had been instructed not to refer to appellant’s prior

incarceration. Defense counsel requested a mistrial based on “previous rulings of

the Court concerning prior convictions and extraneous offenses.” The trial court

denied that request for mistrial and instead brought the jury back into the courtroom

and issued an instruction to disregard T.H.’s father’s last statement.

      Our standard of review of a trial court’s ruling on a motion for mistrial is

abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

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We view the evidence in the light most favorable to the trial court’s ruling and

uphold the trial court’s ruling if it was within the zone of reasonable

disagreement. Id. We may not substitute our judgment for that of the trial court, but

rather we decide whether the trial court’s decision was arbitrary or

unreasonable. See id. Thus, a trial court abuses its discretion in denying a motion

for new trial only when no reasonable view of the record could support the trial

court’s ruling. See id.

      A mistrial is appropriate in “extreme circumstances” for a narrow class of

highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884

(Tex. Crim. App. 2009). Whether an error requires a mistrial must be determined

by the particular facts of the case. Id. Because it is an extreme remedy, a mistrial

should be granted “only when residual prejudice [would] remain[ ]” after less drastic

alternatives are explored. Id. Less drastic alternatives include instructing the jury

“to consider as evidence only the testimony and exhibits admitted through witnesses

on the stand,” and, questioning the jury “about the extent of any prejudice,” if

instructions alone do not sufficiently cure the problem. Id. Though requesting

lesser remedies is not a prerequisite to a motion for mistrial, when the movant does

not first request a lesser remedy, we will not reverse the court’s judgment if any

improper harm could have been cured by the less drastic alternative. Id.

      Given the fact that the trial court gave a limiting instruction to the jury, it

appears from this record that the trial court agreed with appellant that T.H.’s father’s
                                          –4–
statement was not admissible. See TEX. R. EVID. 404(b) (prohibiting admission of

evidence of prior crime, wrong, or other act to show that on a particular occasion the

person acted in accordance with the character). However, testimony referring to or

implying extraneous offenses allegedly committed by the appellant may be rendered

harmless by an instruction from the trial court unless it appears the evidence was so

clearly calculated to inflame the minds of the jury or is of such damning character

as to suggest it would be impossible to remove the harmful impression from the

jury’s mind. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).

      Appellant argues the complained-of statement was so prejudicial that a

limiting instruction could not cure the harmful effect. As support, he relies on the

fact that during their deliberations in the guilt-innocence phase of trial, the jurors

sent a note that read, “Do we decide the sentence length? Do we need to decide that

now? What are the procedures after the verdict? We are concerned about

safety.” Appellant urges that T.H.’s statement regarding prior incarceration must

have had the speaker’s desired effect of persuading jury that appellant was a bad

person or criminal in general.

      Review of the record establishes the jury heard evidence that appellant had

threatened T.H., broken into her home, and physically assaulted her in front of her

children. The jury also heard evidence that appellant had a prior conviction for

assault domestic violence. Moreover, the complained-of statement was elicited after

the prosecutor asked T.H.’s father when he came to learn about his daughter’s
                                         –5–
relationship with appellant. Viewing the complained-of statement in the context of

the entire record, we cannot conclude it was so clearly calculated to inflame the

minds of the jury or that it would be impossible for a curing instruction to remove

the harmful impression from the jury’s mind.

      Accordingly, we conclude the trial court did not abuse its discretion in

denying appellant’s motion for mistrial. We overrule appellant’s first issue.

II.   Extraneous Bad Act or Crime

      In his second issue, appellant argues the trial court abused its discretion in

permitting the State to present evidence of an extraneous bad act or crime, that being

his threatening his biological daughter I.W. by taking an aggressive stance during a

heated argument with her mother.

      At trial, T.C. testified regarding the heated altercation that occurred between

appellant and T.H. two days before the offense. She stated that she and her sister

I.W. were in the house and heard yelling and arguing coming from their mother’s

bedroom. According to T.C., she followed I.W. into the bedroom.

      Q. What did [I.W.] do when she got into the bedroom?

      A. She was trying to stop them from arguing and stuff, and then I had
      pulled her back ‘cause he tried to buck at her like he was about to hit
      her. So I pulled her back and then my mom --

      Q. And when you say her, are you talking about [I.W.]?

      A. Yes, [I.W.]




                                         –6–
      Q. And buck at her. If -- uh, if I was from another planet and I was
      learning English for the first time and somebody taught me that phrase,
      buck at her, how would you explain what that means?

      DEFENSE COUNSEL: Objection as to this line of questioning, uh,
      based on prior ruling of the Court concerning extraneous offenses. We
      received no notice of this. And we had prior objections and motion in
      limine concerning any extraneous offenses.

      THE COURT: Overruled.

      Q. You can answer the question. How would you explain what bucking
      at means?

      A. Like this (indicating). Like -- I don’t really know how to explain it,
      but I could show you. It like that (indicating).

      Q. And when you’re showing me ‘cause I got to make a record of it.
      You’re kind of puffing your chest out?

      A. Yeah.

      Q. Okay. Is that a position to sort of challenge somebody?

      A. Yes.

      Q. Okay. So you saw [appellant] buck at [I.W.]?

      A. Yes.

      Appellant objected to this evidence based on rule 404(b) of the Texas Rules

of Evidence. Evidence of a crime other than the one charged is not admissible to

prove a defendant’s character in order to show that, on a particular occasion, the

defendant acted in accordance with that character. See TEX. R. EVID. 404(b)(1).

This evidence may be admissible, however, for a purpose other than character

conformity, such as proof of a defendant’s motive or intent. Id. 404(b)(2). We

review the admissibility of an extraneous offense for an abuse of discretion. Devoe

                                        –7–
v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). If the trial court’s ruling is

within the zone of reasonable disagreement, there is no abuse of discretion, and we

will uphold it. Id.

       Appellant argues that T.C.’s description of him “bucking” at I.W. constitutes

evidence of the extraneous offense of assaulting his biological daughter. The State

responds that this evidence goes to show appellant’s motive and intent in committing

the underlying offense: that he was so angry with T.H. he would threaten their

biological daughter for intervening in the altercation between her parents and that he

was enraged enough return to break into the house to assault T.H. We agree with

the State and conclude the trial court’s decision to admit the complained-of evidence

is within the zone of reasonable disagreement. See id.

       Accordingly, we overrule appellant’s second issue.

       In his third issue, appellant argues the cumulative effect of the errors alleged

in his first and second issues is so harmful that reversal of the judgment is required.

However, we have not determined there to be any errors as complained of in those

issues. Accordingly, we overrule this issue. See Rayford v. State, 125 S.W.3d 521,

534 (Tex. Crim. App. 2003).

III.   Right to Allocution

       In his fourth issue, appellant complains the trial court violated his common

law right to allocution, such that he should receive a new punishment hearing. The

term “allocution” refers to a trial judge’s asking a criminal defendant to speak in

                                         –8–
mitigation of the sentence to be imposed. Williamson v. State, No. 05-17-00411-

CR, 2018 WL 388025, at *3 (Tex. App.—Dallas Jan. 12, 2018, pet. ref’d) (mem.

op., not designated for publication); see also Green v. United States, 365 U.S. 301,

304 (1961) (recognizing common-law right of allocution). The State responds that

appellant failed to preserve this issue.

        The record reflects that at the conclusion of the punishment phase of trial, the

trial court asked if there was any legal reason why sentence should not be imposed

in compliance with the Texas Code of Criminal Procedure1 before pronouncing

sentence, but did not ask appellant whether he had anything to say in mitigation.

However, to complain on appeal of the denial of the right of allocution, whether

statutory or one claimed under the common law, controlling precedent requires that

a defendant timely object. See Gallegos-Perez v. State, No. 05-16-00015-CR, 2016

WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not

designated for publication) (citing Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim.

App. 1978) (panel op.); McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App.

1974)). Appellant did not raise this issue at sentencing or in his motion for new trial.

Accordingly, we are compelled to overrule appellant’s fourth issue.




   1
       See TEX. CODE CRIM. PROC. ANN. art. 42.07 (requiring that the defendant be asked, before
sentence is pronounced, “whether he has anything to say why the sentence should not be imposed
against him”).
                                              –9–
                                  CONCLUSION

      We affirm the trial court’s judgment.




                                          /David J. Schenck/
                                          DAVID J. SCHENCK
                                          JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47
190557F.U05




                                      –10–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

JAMIE RAY WATKINS, Appellant                  On Appeal from the 282nd Judicial
                                              District Court, Dallas County, Texas
No. 05-19-00557-CR          V.                Trial Court Cause No. F18-14134-S.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Schenck. Justices Osborne and
                                              Reichek participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 9th day of April, 2020.




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