Affirmed and Memorandum Opinion filed June 25, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00145-CR

                           LAMAR COOKS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 262nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1534757

                     MEMORANDUM OPINION

      Appellant Lamar Cooks challenges his conviction for murder. In a single
issue, he argues that the trial court abused its discretion by failing to grant a
mistrial because a State’s witness violated the court’s order granting appellant’s
motion in limine regarding extraneous bad acts. Because we conclude that the trial
court did not abuse its discretion in denying appellant’s motion for a mistrial, 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

      A Harris County grand jury indicted appellant for the first-degree felony
offense of murder. Appellant pleaded not guilty. Prior to trial, the court granted
appellant’s motion in limine and instructed the State to approach the bench prior to
mentioning “any prior criminal history of [appellant] or any bad acts.” During the
jury trial, the following facts were established.

      Appellant and Norma were in a dating relationship. Appellant, Norma, and
Norma’s brother—the complainant—lived together in an apartment. One night
while Norma was at work, appellant allegedly fought with the complainant. A
neighbor testified that he heard three or four gunshots. The neighbor looked
outside toward the apartment parking lot and saw one man shoot another man as
the second man attempted to run away. An autopsy of the complainant’s body
showed that he was shot in the chest and the back of his left arm.

      According to Norma, appellant called Norma after the fight and told her that
he shot her brother. Norma left work and drove to the apartment. Appellant was
no longer there.     Norma spoke with appellant again on the phone, and he
“constantly told [her] he didn’t want [her] to say anything; that he loved [her] and
for [her] not to say anything.” Norma told a police officer at the scene that
appellant had called her and said “that he had fired shots at [her] bitch ass brother
and that [her brother] had threw a can [at appellant] and that [appellant] just
wanted [the complainant] to die.” Appellant later texted Norma several times,
imploring her, “don’t say anything, please don’t say anything.”

      At trial, appellant conceded that he killed the complainant. Appellant did
not testify but his attorney argued that appellant acted in self-defense, relying in
part on Norma’s testimony. Norma testified that she continued to communicate
with appellant in the days following the shooting because she “want[ed] to know
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the reason why [appellant] did it.”           According to Norma, during these
conversations, appellant told her that the complainant threw a beer can at appellant,
attacked appellant, had “red eyes,” and “looked like the devil.”           Also, the
complainant had a large jacket on, and appellant thought the complainant had a
gun.

       In one exchange, the prosecutor asked Norma to describe the nature of her
relationship with appellant. Norma said the relationship was “not healthy,” that
they argued a lot, and that “when we would argue the arguments would get very
loud and then it would become aggressive.” Appellant objected that Norma’s
testimony violated the order in limine because she suggested that appellant
engaged in violent bad acts. The trial court sustained the objection and instructed
the jury to disregard Norma’s last statement about appellant being “aggressive.”
Appellant also moved for a mistrial, which the trial court denied.

       The jury found appellant guilty of the charged offense. The jury assessed
appellant’s punishment at sixty years’ confinement in the institutional division of
the Texas Department of Criminal Justice, as well as a $10,000 fine. Appellant
timely appeals.

                                      Analysis

       In one issue, appellant argues that the trial court erred in denying his motion
for mistrial after the State violated the trial court’s order in limine regarding
extraneous bad acts.

       A mistrial is a device used to halt trial proceedings when error occurring
during trial is so prejudicial that expenditure of further time and expense would be
wasteful and futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009).
A mistrial is appropriate only in extreme circumstances “for a narrow class of


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highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009). Whether a mistrial is required depends on the facts of the case.
Id. A trial court should grant a mistrial “only when residual prejudice remains
after less drastic alternatives are explored.”    Id. at 884-85 (internal quotation
omitted). A mistrial should be exceedingly uncommon. See Hudson v. State, 179
S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2005, no pet.). A denial of a
motion for mistrial is reviewed under an abuse of discretion standard, and we must
uphold a trial court’s ruling if it was within the zone of reasonable disagreement.
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999).

      Appellant identifies the following extended exchange as the basis for his
appellate complaint that he was entitled to a mistrial:

      [Prosecutor]: . . .The exact question that I believe that I was asking
      you was about the on again/off again nature of your relationship with
      Lamar, and I was asking you to describe that for the jury and whether
      that was a healthy relationship.
      [Norma]: No, it wasn’t healthy.
      [Prosecutor]: And I asked you to describe for the jury why you’re
      saying it wasn’t healthy.
      [Norma]: We would argue a lot; and when we would argue the
      arguments would get very loud and then it would become aggressive.
      [Defense counsel]: Judge, I’m going to object. We need to approach.
      THE COURT: All right.
                                 (Bench conference)
      [Defense counsel]: That’s an absolute violation of the Motion in
      Limine.
      THE COURT: How is it a violation?
      [Defense counsel]: She said it got aggressive.        That infers that
      someone was violent and it goes directly to that.

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THE COURT: I granted a Motion in Limine regarding criminal cases
and bad acts. So you’re saying that just being aggressive is a
violation?
[Defense counsel]: It’s an inference to the jury that someone was
violent in that situation, yes. I’m objecting to that. It’s a backdoor
way.
                            *      *     *
THE COURT: I’ve granted a Motion in Limine for the Defense; that
you-all will not go into bad acts, acts of violence, anything that could
be perceived as a bad act. So, I’m going to ask that you honor that
Motion in Limine at this time and that you not go into that so that we
don’t have this issue.
                            *      *     *
[Defense counsel]: And, Judge, just for the record, you may have -- I
just need a ruling on my objection to -- she didn’t answer it, did she?
[Prosecutor]: The last thing that you asked to approach was we would
get in arguments that turned aggressive.
[Defense counsel]: Okay. I would object that that’s a violation of the
Motion in Limine by the State and I just need a ruling for the record.
THE COURT: I think I’ve already ruled by saying that it was -- I’m
not going to allow her to elicit any additional testimony regarding
that. That question in and of itself was ambiguous.
[Defense counsel]: I’m sorry.
THE COURT: Did she answer the question?
[Defense counsel]: She said that it was aggressive.
THE COURT: Okay. Then the objection is sustained.
                            *      *     *
                       (Jury enters courtroom.)
                            *      *     *
[Defense counsel]: Judge, I’m sorry, I need to have you ask the jury to
disregard.
THE COURT: Ladies and gentlemen, disregard the last answer of the
witness.

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      [Defense counsel]: And I move for a mistrial.
      THE COURT: That will be denied.

      When, as here, a trial court sustains an objection to evidence and instructs
the jury to disregard, but denies a defendant’s motion for mistrial, the issue is
whether the trial court abused its discretion in denying the motion for mistrial
because that was the only adverse ruling. See Hawkins v. State, 135 S.W.3d 72,
76-77 (Tex. Crim. App. 2004). Generally, a trial court’s prompt instruction to
disregard will cure any error associated with testimony referring to extraneous
offenses, unless it appears the evidence was so clearly calculated to inflame the
minds of the jury or is of such a damning character as to suggest it would be
impossible to remove the harmful impression from the juror’s minds. Kemp v.
State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see also Crayton v. State, 463
S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Logan v.
State, 698 S.W.2d 680, 683-84 (Tex. Crim. App. 1985)). A court should review
the particular facts of the case in determining whether a given error requires a
mistrial. See Ladd, 3 S.W.3d at 567.

      In several cases involving extraneous or bad acts evidence, courts have held
a curative instruction sufficient to render objectionable testimony harmless. See,
e.g., Kemp, 846 S.W.2d at 308 (holding State’s witness’s reference to defendant’s
prior incarceration rendered harmless by curative instruction); Gardner v. State,
730 S.W.2d 675, 696-97 (Tex. Crim. App. 1987) (holding witness’s testimony that,
when defendant was in the penitentiary, he had stomach problems attributable to
drug withdrawal was not so inflammatory as to require a mistrial); Barney v. State,
698 S.W.2d 114, 124-25 (Tex. Crim. App. 1985) (holding State’s witness’s answer
that victim did not like defendant because “he was an ex-con” was improper
reference to extraneous offense but cured by jury instruction); Campos v. State,

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589 S.W.2d 424, 427-28 (Tex. Crim. App. 1979) (holding witness’s testimony,
during State’s cross-examination, that defendant was arrested and jailed on an
extraneous offense was cured by jury instruction); Bledsoe v. State, 21 S.W.3d 615,
624 (Tex. App.—Tyler 2000, no pet.) (holding detective’s testimony, during
questioning by State, that detective served warrant on defendant at county jail was
cured by instruction when State did not solicit response or emphasize the testimony
to the jury and detective did not elaborate on reasons for the incarceration).

       We conclude the trial court did not err in denying appellant’s motion for
mistrial. First, Norma’s testimony that arguments with appellant “would get very
loud and then it would become aggressive” was brief and ambiguous. Norma did
not testify that appellant became physically aggressive or violent. Moreover, the
prosecutor moved on and did not revisit the issue. Accordingly, though the trial
court believed the topic violated its order in limine, the single statement was not a
particularly severe violation. See Webb v. State, No. 01-14-00174-CR, 2015 WL
5315332, at *5 (Tex. App.—Houston [1st Dist.] Sept. 10, 2015, pet. ref’d) (mem.
op. on reh’g, not designated for publication).1

       Second, the trial court promptly instructed the jury to disregard Norma’s
answer. This is not an instance where it appears that the elicited testimony was “so
clearly calculated to inflame the minds of the jury or is of such a damning
character as to suggest that it would be impossible to remove the harmful
impression from the juror’s minds.” Crayton, 463 S.W.3d at 535; see also, e.g.,


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          Appellant contends that the State solicited additional testimony that showed its limine
violations were “persistent.” On direct examination, Norma testified that: (1) appellant fathered
three children, each with a different mother; and (2) her relationship with appellant “wasn’t very
healthy at all.” We reject appellant’s reliance on this testimony to support his argument that he
was entitled to a mistrial based on a limine violation. The testimony cited does not describe
extraneous bad acts contemplated by rule 404, and therefore is not violative of the limine order,
and appellant did not object to the evidence based on an alleged limine violation in any event.

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Whitaker v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (instruction cured
harm where witness testified that capital murder defendant “beat her up before
giving her an engagement ring”); Smiley v. State, No. 14-06-00884-CR, 2007 WL
4200585, at *2-3 (Tex. App.—Houston [14th Dist.] Nov. 29, 2007, no pet.) (mem.
op., not designated for publication) (holding trial court did not err in denying
motion for mistrial for alleged limine violation as to extraneous bad acts evidence;
jury instruction to disregard cured any harm).

      Last, the evidence supporting conviction is compelling even absent the
alleged limine violation. As discussed above, Norma testified that appellant called
her immediately after the altercation with the complainant and told Norma that he
had shot her “bitch ass brother” and that he hoped the complainant died. Further, a
neighbor testified that he saw a man, concededly appellant, shoot at another man,
undisputedly the complainant, as the complainant ran away from appellant. A
bullet wound on the back of the complainant’s arm corroborates the neighbor’s
testimony; the medical examiner testified that “the gun would have been somewhat
behind and to the left of the [complainant].” Finally, appellant’s flight from the
scene and his instructions to Norma to “don’t say anything” to law enforcement are
circumstances from which a rational jury could reasonably find guilt. See Clayton
v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (defendant’s flight from the
crime scene is a circumstance of guilt); Guevara v. State, 152 S.W.3d 45, 50 (Tex.
Crim. App. 2004) (defendant’s attempt to conceal incriminating evidence is a
circumstance of guilt); Hardesty v. State, 656 S.W.2d 73, 77-78 (Tex. Crim. App.
1983) (defendant’s attempt to avoid police apprehension is a circumstance of
guilt). The case against appellant was strong.

      Appellant conceded that he killed the complainant, but argued that he acted
in self-defense, because the complainant threw a beer can at him, had red eyes, and

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looked like the devil, although we note that appellant did not mention that he had
acted in self-defense until days after the shooting. Regardless, the jury is the sole
arbiter of credibility determinations, and we defer to the jurors’ resolution of the
testimony presented to them. Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim.
App. 2016).

      The trial court did not abuse its discretion in denying appellant’s motion for
a mistrial. Accordingly, we overrule appellant’s issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                       /s/       Kevin Jewell
                                                 Justice


Panel consists of Justices Christopher, Jewell, and Bourliot.
Do Not Publish — Tex. R. App. P. 47.2(b).




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