Affirmed and Memorandum Opinion filed March 21, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-11-00148-CR

                     ROGERS HENRY WILLIAMS, Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 208th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1247169


                  MEMORANDUM                       OPINION


      A jury convicted appellant Rogers Henry Williams of aggravated assault and
assessed his punishment at 70 years’ imprisonment and a $10,000 fine. On appeal,
Williams argues: (1) the trial court erred by denying his request for an additional
peremptory strike; (2) the evidence was insufficient to support the conviction; (3)
the trial court erred by denying his motion for mistrial during the punishment
phase; and (4) the trial court erred by overruling his objection to the introduction of
an extraneous capital murder during the punishment phase. We affirm.

                                              I

      In June of 2006, Williams1 was in non-exclusive relationships with both
complainant Frankalakena “Frankie” Robertson2 and Michelle Grant. He shared an
apartment with each of them, on Telephone Road and Southlawn Street,
respectively. On the evening of June 29, Robertson was at her apartment with her
cousin Jamita Hemphill and Jasmine Heard. While there, Hemphill and Heard
argued and fought over Larry “Big Boy” Shields. Williams was also at the
apartment that night, but he left around 1:00 a.m. to go to work at an after-hours
club. Shortly thereafter, Robertson, Hemphill, and Heard also left the apartment.
Hemphill and Heard wanted to confront Shields about their argument, so
Robertson drove them to the corner of Napoleon and Dennis Streets, where Shields
could usually be found. Robertson testified that she called Williams from the car
and told him she was ending their relationship, and that Williams replied he was
going to kill her.

      Robertson, Hemphill, and Heard arrived around 1:30 a.m. and saw Shields
standing outside. Robertson parked on Napoleon Street and waited in the car while
Hemphill got out to talk to Shields. After several minutes, a car drove down
Napoleon Street toward the group. The car stopped and its male driver emerged
and approached Robertson, holding a gun. Robertson and Hemphill both
recognized the man as Williams. Frightened, Robertson sped away as the man shot
four to six bullets at the back of her car. Heard, who was sitting in the backseat
behind Robertson, was shot in the upper thigh.

      A jury convicted Williams of aggravated assault against Robertson and
      1
          Williams is also known by the nicknames “Tink” and “Tinkerman.”
      2
          Robertson is also known by the surname “Vaughn-Murphy.”

                                              2
assessed his punishment at 70 years’ imprisonment and a $10,000 fine. In four
issues, Williams appeals.

                                          II

      In his first issue, Williams argues the trial court erred by denying his request
for an additional peremptory strike after venireman number seven, Mr. Riley, “was
excluded on [an] improper commitment question on motion by the State.” We
understand Williams’s challenge to include three subparts: (1) the prosecutor asked
an improper commitment question, (2) the trial court erred by granting the State’s
motion to challenge Riley for cause, and (3) the trial court erred by denying
Williams the additional peremptory strike he requested as a result of Riley’s
dismissal. We address each of these issues in turn.

                                          A

      First, Williams contends the prosecutor asked an improper commitment
question while inquiring about each venireman’s willingness to convict a
defendant based on the testimony of only one eyewitness.

      To preserve error for appellate review, the complainant must make a timely,
specific objection and obtain a ruling from the trial court, and the point of error on
appeal must correspond to that objection. Tex. R. App. P. 33.1; Dixon v. State, 2
S.W.3d 263, 265 (Tex. Crim. App. 1998). To be timely, the objection must be
made at the earliest possible opportunity. Dixon, 2 S.W.3d at 265. It is also
necessary that the objecting party continue to object each time the objectionable
question or evidence is offered, obtain a running objection, or request a hearing
outside the jury’s presence in order to preserve the complaint for appellate review.
Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Fuentes v. State,
991 S.W.2d 267, 273 (Tex. Crim. App. 1999). When, in response to an objection,


                                          3
the State rephrases the question and no objection is made to the rephrased question,
there is no adverse ruling to complain of on appeal. Grant v. State, 345 S.W.3d
509, 512–13 (Tex. App.—Waco 2011, pet. ref’d); Badall v. State, 216 S.W.3d 865,
872 (Tex. App.—Beaumont 2007, pet. ref’d).

      In this case, the prosecutor posed the following question to each venireman:
“If there’s only one witness, but you believe that witness beyond a reasonable
doubt that the crime has occurred, will you convict?” The first five veniremen
responded affirmatively, but venireman number six replied, “I don’t know.” The
following exchange then took place:

      [PROSECUTOR]: Can’t let you get by with that. And it doesn’t
      matter to me one way other [sic] another, but this is the question: If
      you believe one witness and you believe that one witness beyond a
      reasonable doubt, can you convict based on that testimony?
      VENIREPERSON [6]: I don’t know if I can believe one witness.
      [PROSECUTOR]: Okay. But in my hypothetical and I have to put
      this—
      [DEFENSE]: Judge, I object to, again, committing him. If one witness
      creates a reasonable doubt in his mind, then he’s not disqualified.
      THE COURT: Well, I’ll sustain your objection. Just rephrase your
      question.
      [PROSECUTOR]: Okay. If you believe the witness beyond a
      reasonable doubt, and that part’s really important in my question, can
      you convict?
      VENIREPERSON [6]: I guess, yeah.
      [PROSECUTOR]: Okay. Juror No. 7?
      VENIREPERSON [7]: No.
The defense did not object to the rephrased question. Therefore, Williams did not
preserve this complaint for appeal. See Grant, 345 S.W.3d at 512–13; Badall, 216




                                         4
S.W.3d at 872. Accordingly, we overrule this issue.3

                                                B

       Second, Williams argues the trial court erred by granting the State’s motion
to challenge Riley after he further elaborated on his reservations about convicting a
defendant based on one witness’s testimony. Williams maintains that Riley was not
objectionable because he merely stated that the testimony of one witness could not
get him to the threshold of “beyond a reasonable doubt” and not that he was biased
against the law.

       To show that the trial court erred by granting a motion to challenge a
venireman, an appellant must demonstrate that the trial judge either applied the
wrong legal standard in sustaining the challenge or abused her discretion in
applying the correct legal standard. Jones v. State, 982 S.W.2d 386, 388–89 (Tex.
Crim. App. 1998). It is the challenging party’s burden to demonstrate that the
venireman he seeks to have stricken is, in fact, incapable of, or at least
substantially impaired from, following the law. Castillo v. State, 913 S.W.2d 529,
354 (Tex. Crim. App. 1995). We give considerable deference to the trial court’s
ruling because the trial court is in the best position to evaluate the venireman’s

       3
         Although Williams’s brief does not make it entirely clear, it suggests that he also takes
issue with another question asked during voir dire. Specifically, Williams points to the
prosecutor’s inquiry about whether the veniremen would feel threatened if they were approached
by someone holding a gun or a knife. The prosecutor further asked whether a previous
relationship with the armed person would affect the veniremen’s opinions. During this line of
questioning, Riley responded, “It depends on the circumstances of the situation.” The prosecutor
then asked:
       And it might go to the specificness [sic] of the threat. If we have a relationship
       and I did something to you and you came at me with a gun, or a knife, or I felt
       like you had done something to me and I come at you with a gun or a knife, that
       might go to the specifics of threat. Right?
Riley responded, “Uh-huh.” The defense did not object. Therefore, Williams did not preserve
this error and, to the extent he complains of it on appeal, we overrule the issue.

                                                5
demeanor, responses, and sincerity. Newbury v. State, 135 S.W.3d 22, 32 (Tex.
Crim. App. 2004); Conklin v State, 731 S.W.2d 655, 656 (Tex. App.—Houston
[1st Dist.] 1987, pet. ref’d); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997) (stating that appellate courts afford “almost total deference” to a trial
court’s resolution of factual and legal issues that turn on an evaluation of
credibility and demeanor). In evaluating the trial court’s action, we review all of
the venireman’s responses during voir dire. Conklin, 731 S.W.2d at 656.

      A venireman who categorically refuses to render a guilty verdict on the basis
of only one eyewitness is not challengeable for cause on that basis so long as his
refusal is predicated on his reasonable understanding of what constitutes proof
beyond a reasonable doubt. Castillo, 913 S.W.2d at 533. Such a venireman may
only be indicating that his threshold for proof is somewhat higher than the
minimum that the law recognizes as sufficient. Id.; Tran v. State, 221 S.W.3d 79,
86 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). As long as the law permits
a range of “reasonable doubt,” a venireman who says he will hold the State to the
high end of the range is not requiring anything the law does not tolerate. Castillo,
913 S.W.2d at 533. But if a venireman says he would not convict even if he
believed the testimony of the State’s only eyewitness, and that testimony
convinced him of the defendant’s guilt beyond a reasonable doubt, can be
challenged for cause because he holds the State to a higher burden than the law
allows. Id.; Tran, 221 S.W.3d at 86.

      In this case, the defense asked Riley a number of follow-up questions
regarding his views on convicting a defendant based on the testimony of only one
witness. Riley explained, “with one witness, it’s hard for me to convict a person or
be on a jury and convict because people look at things differently. They see things
they didn’t see. It happens all the time.” To clarify, the defense asked, “[W]hat I’m

                                         6
hearing from you, that one witness wouldn’t convince you beyond a reasonable
doubt?” Riley responded, “No, it has to be 100 percent. I have to see visual, I have
to see all of that. I can’t just say—because people make mistakes all the time.”
After the trial judge announced the peremptory challenges, she asked Riley to
approach the bench to further discuss the one-witness issue. Riley explained:

      [I]t’s hard for me to hear one witness, his testimony and say, Okay, I
      can believe this, just what one person said. Unless they have—
      evidence has to be 100 percent sure. I mean, I have to see visual. They
      have to show me something that says, okay, This person was there at
      that time and they actually saw what they saw.
To clarify Riley’s position, the judge asked, “[I]f there were only one witness, it’s
not a problem with finding someone guilty based on only one witness. It’s that, in
order to do that, you would have to believe them beyond all doubt or 100 percent;
is that right?” Riley replied, “Yes, ma’am. I have to see it.”

      The State’s burden was to prove Williams’s guilt beyond a reasonable doubt,
not beyond all doubt. See Fluellen v. State, 104 S.W.3d 152, 164 (Tex. App.—
Texarkana 2003, no pet.) (finding no error in a jury charge that did not define
reasonable doubt—it merely instructed the jury that the State must prove the
defendant’s guilt beyond a reasonable doubt, not beyond all doubt); Rogers v.
State, 795 S.W.2d 300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d)
(remarks that State is not required to present proof beyond all doubt or beyond a
shadow of a doubt are lawful). Therefore, by requiring proof beyond all doubt,
Riley indicated he would hold the State to a higher burden than the law allows and
was validly challenged for cause. See Lee v. State, 206 S.W.3d 620, 623–26 (Tex.
Crim. App. 2006) (concluding that the veniremember was validly challenged for
cause because he said even if he heard one eyewitness and believed that witness
beyond a reasonable doubt and believed that witness’s testimony proved the
indictment beyond a reasonable doubt, he would still require additional evidence to
                                           7
return a guilty verdict). Because the trial court did not err by granting the State’s
motion to challenge Riley for cause, we overrule Williams’s first issue.

                                               III

       In his second issue, Williams argues that the evidence at trial was
insufficient to support his conviction.

       In a legal-sufficiency review,4 we examine all the evidence in the light most
favorable to the verdict to determine whether a rational fact finder could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This standard of review applies to cases involving both direct
and circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007); Uyamadu v. State, 359 S.W.3d 753, 757 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d). We consider all the evidence presented at trial, but we do
not substitute our judgment regarding the weight and credibility of the evidence for
that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d). We presume the jury resolved conflicting inferences in favor of
the verdict, and we defer to that determination. Clayton, 235 S.W.3d at 778;
Uyamadu, 359 S.W.3d at 757. We further determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Clayton, 235
S.W.3d at 778; Bradley, 359 S.W.3d at 912.
       4
         A majority of the judges on the court of criminal appeals have held that because there
was no meaningful distinction between the legal- and factual-sufficiency standards, the Jackson
v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal offense that
the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010).

                                                8
      To obtain a conviction for aggravated assault against Williams in this case,
the State must have proved, beyond a reasonable doubt, that Williams intentionally
or knowingly threatened Robertson with imminent bodily injury by using or
exhibiting a deadly weapon. See Tex. Penal Code §§ 22.01(a)(2), 22.02(a)(2). It is
well established that threats can be communicated by action or conduct, as well as
by words. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984);
Dobbins v. State, 228 S.W.3d 761, 766 (Tex. App.—Houston [14th Dist.] 2007,
pet. dism’d).

      In this case, the jury heard the testimony of four eyewitnesses, beginning
with Robertson. According to her, she was with Hemphill and Heard in her
apartment, which she shared with Williams, on the evening of June 29, 2006.
Hemphill and Heard were fighting over Shields when Williams came home, and he
helped Robertson break it up. Around 1:00 a.m., Williams left to go to the after-
hours club and told Robertson, Hemphill, and Heard not to leave the apartment
while he was gone. Robertson saw him drive away in a light blue car that he
occasionally borrowed from Grant.

      Hemphill and Heard wanted to confront Shields about their argument, so
Robertson drove them to his “normal hang-out spot” on the corner of Napoleon
and Dennis Streets. She called Williams from the car and told him she was ending
their relationship, and Williams replied, “Bitch, when I find you, I’m going to kill
you.” Around 1:30 a.m., Robertson parked her car facing south on Napoleon
Street, where Shields was standing outside. Robertson testified that Hemphill and
Heard both got out of the car and resumed yelling and fighting. About fifteen
minutes later, Robertson saw a light blue car—which she recognized as the car
Williams was driving when he left the apartment—driving southbound down
Napoleon Street, approaching her car from behind. The car stopped on the opposite

                                         9
side of the street and its lights went off. Robertson then saw Williams get out of the
car holding a gun. She testified that there was no doubt in her mind that it was him
and that she was not on drugs at the time. She called out to Hemphill and Heard
that Williams was there and for them to get back in the car because she was
leaving. Robertson testified she felt nervous that Williams found her and was
thinking, “I’m fixing to get up out of here, because I’m not trying to get killed.”

      Robertson then looked up and saw Williams standing next to her car. He
stuck his gun in her open window and shot a bullet through the car, which passed
through the open passenger’s window. With Heard in the backseat and Hemphill
still standing outside, Robertson put her car in drive and sped away. Williams
continued shooting at her car, and Robertson believed he was trying to blow up the
gas tank. Heard said she had been shot. Robertson’s brother, Ricky Houston, lived
nearby, so Robertson drove to his house and called 911 from the car. When she got
there, she ran inside, leaving Heard in the car. She testified that she was too scared
to go outside to help Heard because she did not know whether Williams had
followed her. The police arrived at Houston’s house five to ten minutes later, and
Robertson explained what happened, named Williams as the shooter, and gave the
police his picture.

      Shields was the second witness to testify at trial. According to him, he was
standing on the corner of Napoleon and Dennis Streets selling crack, and
Robertson, Hemphill, and Heard got there around “9:30, 10:30. Somewhere around
there.” Hemphill and Heard both got out of the car and had a physical fight. After
about five minutes, Shields saw a car driving southbound down Napoleon Street,
approaching Robertson’s car from behind. The driver, a man whom Shields had
never seen before, jumped out of the moving vehicle and ran toward Robertson’s
car with a revolver in hand, while his car continued to roll down the street. Shields

                                          10
heard Robertson call out to Hemphill and Heard, “[T]here go Tinkerman . . . Get in
the car, bitch.” The witnesses consistently testified that Tinkerman was one of
Williams’s nicknames. When asked to describe how Robertson sounded, Shields
said, “[L]ike, something was about to happen. Come on, let’s go.” Hemphill and
Heard both got back in the car, and Robertson drove away quickly. The man began
shooting at Robertson’s car, and Shields ran to the side of a house across the street.
He testified that the man shot five or six times before getting back into his car and
driving away.

       According to Hemphill’s testimony, Robertson did not call Williams from
the car after they left the apartment, although she also said that her “mind was
somewhere else” while they were driving. Hemphill testified that she was high at
the time because she, Robertson, and Heard had taken Xanax. Robertson parked on
Napoleon Street facing south, and Hemphill got out of the car. Heard stayed in the
backseat behind Robertson and was “cursing [Hemphill] out.” About ten minutes
later, Hemphill saw a light blue car driving northbound on Napoleon Street toward
Robertson’s. Hemphill identified Williams as the driver, and Robertson said,
“Bitch. Tinkerman, ho’. Get in the car.”5 Williams got out of the moving car, and it
continued to roll down the street. Robertson began driving away while Hemphill
was still outside, and Williams shot “a good four times” at Robertson’s car.
Meanwhile, Shields ran across the street and continued running through the next
cross street. Williams approached Hemphill, asked her where Robertson went, and
hit her on the head with his gun when she did not answer. Williams then “took
off.” Hemphill did not see where he went because she ran in the opposite direction.
She ran until she saw Robertson, Heard, the police, an ambulance, and the media at

       5
        Hemphill explained that she and Robertson both had “phone chirps. Nextels” at the time
and that Robertson used the “chirps” to tell Hemphill that Williams was there. We believe
Hemphill refers to the walkie-talkie feature that certain Nextel cell phones had at one time.

                                             11
Houston’s house, where she stopped and talked to Officer Robert Lamunyon. She
told him what happened and named Williams as the shooter. She was then taken to
the hospital to have her head examined.6

        Finally, Heard testified that she remembered very little about the day of the
shooting.7 She asserted that, on the night of the shooting, she did not get out of
Robertson’s car and did not know who shot her. She acknowledged, however, that
some time after the incident, Williams apologized for shooting her, said it was an
accident, and explained that he did not know she was in Robertson’s car at the
time.

        For his part, Williams attempted to discredit the State’s witnesses,
particularly Robertson. During opening statements, the defense implied that
Robertson’s alleged jealousy of Grant’s relationship with Williams motivated
Robertson to lie. But there is no evidence to that effect other than Grant’s
testimony that Robertson’s demeanor after the shooting indicated that Robertson
was not happy about Williams and Grant being together. The defense also disputed
Robertson’s and Hemphill’s abilities to identify Williams as the shooter because
they were both intoxicated at the time. Although Hemphill admitted being “pretty
high” and said she and Robertson had both taken Xanax that night, Robertson
denied being on drugs. Further, Officer Lamunyon testified that when he talked to

        6
          Hemphill initially testified that she went to St. Joseph’s Medical Center, but the defense
pointed out that St. Joseph’s has no record of her being there that night. She testified that she was
not positive which hospital she went to, and the evidence showed she actually went to Ben Taub
Hospital. This is consistent with Hemphill’s testimony that the hospital was in a wooded area,
which accurately describes Ben Taub but not St. Joseph’s. Additionally, Susan Meyers, a
counselor from the HPD Family Violence Unit, testified that she called Ben Taub the morning
after the shooting in an attempt to find Hemphill and was told she had been released from the
emergency room.
        7
          Heard was an active runaway and was very uncooperative with the State’s attempts to
get her into court to testify. Ultimately, she came to court only after being told that she could be
arrested if she failed to respond to her subpoena.

                                                 12
Hemphill the night of the shooting, she did not appear to be intoxicated to the level
that she could not talk to him about the case. The defense further attempted to
discredit Robertson by emphasizing the fact that she waited four months to press
charges. But Robertson testified that she was scared of the repercussions of being a
“snitch,” particularly because Williams stalked her after the shooting. She
explained that she called 911 the night of the shooting only because of Heard’s
gunshot wound. Additionally, a number of police officers from the Family
Violence Unit of the Houston Police Department testified that it is not uncommon
for victims to hesitate before pressing charges against loved ones.

      Grant testified on Williams’s behalf and alleged he could not have been the
shooter because he was with her. She testified that, in June of 2006, she and
Williams had a general routine that they followed every day. Grant testified that
because they worked all night, they usually slept all day. When they woke up, they
ate dinner and went to a club called Reminisce. At 1:45 a.m., they went to an after-
hours club called M&Gs, which Grant co-owned, and stayed there for the rest of
the night. On cross-examination, Grant testified that she did not know when the
shooting occurred. She also testified that she worked as a bartender at the club,
which was usually busy and crowded, and could not always see Williams while she
was working. At no point did Grant specifically testify about Williams’s
whereabouts on June 29, 2006.

      In sum, considering the evidence in the light most favorable to the verdict,
we conclude that a rational jury could have found the essential elements of
aggravated assault beyond a reasonable doubt. See Merritt, 368 S.W.3d at 525.
Therefore, we overrule Williams’s second issue.

                                         IV

      In his third issue, Williams argues the trial court erred by denying his motion
                                         13
for mistrial after Robertson testified about inadmissible extraneous offenses during
the punishment hearing.

                                          A

      During direct examination at the punishment hearing, Robertson testified
that Williams stalked her after the shooting and that he pulled a gun on her a
second time, which led her to make another police report. The examination
continued as follows:

      [STATE]: At that point, after you made that police report that he
      pulled a gun on you again, was there another time before he was
      caught that you saw him?
      A: Yes.
      Q: Tell us about that time.
      A: This particular time I think—he used to call me all the time and—
      Q: Was he still calling you?
      A: Yes.
      Q: And what—tell us what he would tell you.
      A: He used to actually tell me about how he murdered people, like
      how he burned up—
      Q: Don’t go into any of that.
      THE COURT: Let me excuse the jury for just a minute.
The jury left the courtroom, and the defense asked the trial judge to instruct the
jury to disregard Robertson’s response. The prosecutor explained that she believed
Robertson’s testimony concerned an extraneous murder that Robertson mentioned
before trial but that the State could not prove. Therefore, the State had no intention
of introducing that offense and Robertson was told not to discuss it, which is why
the defense received no notice of it. The State expected Robertson’s response to be
that Williams was calling her and threatening her. The defense objected to
Robertson’s testimony as nonresponsive, but the court noted that her answer was

                                         14
responsive to the prosecutor’s question, even though it was not the answer the
prosecutor expected. The defense then moved for a mistrial as to the punishment
phase, arguing there was no way to instruct the jury to sufficiently remove the
prejudice of that statement from their minds. The trial judge reserved her ruling on
that motion. She then brought the jury back into the courtroom and instructed them
as follows: “Ladies and gentlemen, the jury is instructed to disregard the last
answer of this witness. You are not to consider it for any purpose whatsoever.” The
defense renewed its motion for mistrial. The trial judge reserved her ruling and
excused the jury for the day. Ultimately, after hearing all the punishment evidence,
the judge denied the motion.

                                          B

      We review the trial court’s denial of a motion for mistrial for clear abuse of
discretion. Rojas v. State, 986 S.W.2d 241, 250–51 (Tex. Crim. App. 1998);
Jackson v. State, 287 S.W.3d 346, 353 (Tex. App.—Houston [14th Dist.] 2009, no
pet.). We must uphold the trial court’s ruling if it was within the zone of reasonable
disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007);
Jackson, 287 S.W.3d at 353.

      A mistrial is appropriate only when highly prejudicial and incurable errors
make the expenditure of further time and expense wasteful and futile. Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); Ladd v. State, 3 S.W.3d 547,
567 (Tex. Crim. App. 1999). In determining whether a prejudicial event was so
harmful as to warrant a mistrial, we consider three factors: (1) the severity of the
misconduct, or the prejudicial effect; (2) curative measures, and (3) the certainty
that the jury would have assessed the same punishment absent the misconduct.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). It is well-settled that
a prompt instruction to disregard will cure error associated with an improper

                                         15
question and answer, including testimony that refers to or implies an extraneous
offense, unless it appears the reference was clearly calculated to inflame the minds
of the jurors or was of such damning character as to suggest it would be impossible
to remove the harmful impression from the jurors’ minds. Ovalle v. State, 13
S.W.3d 774, 783 (Tex. Crim. App. 2000); Kemp v. State, 846 S.W.2d 289, 308
(Tex. Crim. App. 1992); Jackson, 287 S.W.3d at 354. Because we presume
curative instructions are effective, only extreme trial conditions warrant a mistrial.
Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.—Houston [14th Dist.] 2000, pet.
dism’d). The determination of whether a given error necessitates a mistrial must be
made by examining the particular facts of each case. Ladd, 3 S.W.3d at 567.

                                          1

      We first consider the severity of the misconduct, or the magnitude of the
prejudicial effect of Robertson’s remarks. During the bench conference, the
prosecutor explained that before trial, Robertson told her about another extraneous
murder that the prosecutor could not prove beyond a reasonable doubt and had
therefore instructed Robertson not to discuss at trial. To the extent Robertson’s
testimony referred to that extraneous murder, it was improper. See Tex. Code
Crim. Proc. art. 37.07, § 3(a)(1). But Robertson also referred to an extraneous
burning offense, and the State’s subsequent introduction of this evidence (which
was not error, as discussed below) properly explained what Robertson was
referring to. Because the jury was not privy to the discussions during the bench
conference, they may not have realized Robertson’s testimony also referred to an
extraneous murder not involving burning. Therefore, although Robertson’s
testimony was prejudicial to some extent, the prejudicial effect was at least
partially mitigated by the State’s evidence explaining the burning offense.



                                         16
                                         2

      We next consider the curative measures the trial court took. The trial judge
instructed the jurors to disregard Robertson’s answer and not to consider it for any
purpose whatsoever. This conveyed the appropriate message that Robertson’s
statement was not supported by the evidence and was not to be considered. See
Rojas, 986 S.W.2d at 250. At the defense’s request, the judge did not repeat
Robertson’s statement as part of the instruction, despite the fact that the bench
conference was approximately twenty-minutes long.

      For his part, Williams argues, “[t]he trial judge’s error was in not granting a
curative instruction immediately. . . .” We first note that defense counsel did not
immediately request the instruction; he waited until after the jury left the
courtroom, and the judge gave the instruction as soon as the jury returned. Further,
an instruction need not be immediate to be prompt. See Montgomery v. State, 198
S.W.3d 67, 81–82 (Tex. App.—Fort Worth 2006, pet. ref’d) (concluding that when
a witness gave inadmissible testimony and the defense immediately requested a
bench conference, which took place outside the jury’s presence, the error was
cured by an instruction given after the bench conference); see also Escudero v.
State, No. 05-09-01199-CR, 2010 WL 4840501, at *2 (Tex. App.—Dallas Nov.
30, 2010, no pet.) (mem. op., not designated for publication) (considering a
witness’s inadmissible, prejudicial testimony that was followed by a bench trial
during which the defense requested a curative instruction, but which the court did
not give until the following morning; the appellate court concluded the instruction
was sufficient to cure the error); Ramirez v. State, No. 14-07-00464-CR, 2008 WL
4472936, at *2 (Tex. App.—Houston [14th Dist.] Oct. 7, 2008, no pet.) (mem. op.,
not designated for publication) (concluding that a witness’s improper testimony
was cured by an instruction given to the jury following a bench conference).

                                         17
Therefore, we do not find Williams’s argument persuasive.

      In addition to the trial judge’s instruction, the other circumstances
surrounding Robertson’s answer had a curative effect. Specifically, the prosecutor
interrupted Robertson, her own witness, to prevent her from completing her
answer, and the judge immediately ordered a bench conference outside the jury’s
presence. When the jury was brought back into the courtroom, the judge issued her
curative instruction, and the defense moved for a mistrial. Accordingly, the actions
of the prosecutor, the defense attorney, and the trial judge conveyed to the jury that
Robertson’s statement was unsupported and inadmissible.

      Finally, the jury charge also served to cure the error because the judge
properly instructed the jurors not to consider extraneous acts or offenses unless
they believed the State proved those acts or offenses beyond a reasonable doubt.
The evidence does not rebut the legal presumption that instructions to disregard
and other cautionary instructions will be duly obeyed by the jury. See Archie, 340
S.W.3d at 741. In light of these circumstances, the jury likely understood that
Robertson had misspoken and that her comments were not to be considered in
assessing Williams’s punishment.

                                          3

      We must also consider the certainty that the jury would have assessed the
same punishment absent the misconduct. In this case, Williams was convicted of
aggravated assault, and because of a prior felony conviction, the applicable range
of punishment was 5 years to life in prison and a $10,000 fine. The jury assessed
his punishment at 70 years’ imprisonment and a $10,000 fine. It is relevant that
Williams used a deadly weapon—a pistol—to commit the charged offense.
Additionally, the State introduced extensive evidence of Williams’s criminal
history and prior bad acts to support the lengthy sentence.
                                         18
      The jury heard evidence of Williams’s propensity for violence, specifically
against women. Additionally, two female witnesses testified that while they were
teenagers and Williams was in his thirties, they not only had sexual intercourse
with him but also prostituted themselves to a number of different men on a nightly
basis at Williams’s request. A number of witnesses consistently testified that
Williams was the leader of the Bloods, which was corroborated by a gang expert’s
testimony that Williams’s tattoos indicated his affiliation to the 59 Bounty Hunter
Bloods—the second-largest criminal street gang in the greater-Houston area—and
specifically indicated that he was the five-star general, or the leader, of the gang.

      Additionally, it is undisputed that Williams had prior convictions for
delivery of a controlled substance (cocaine) which is a felony; carrying a weapon,
which was reduced from a third-degree felony; and injury to a child. The evidence
also showed that while incarcerated, Williams was kept on a high-risk floor and
received three major sanctions for fighting with other inmates, as well as three
minor sanctions for disruptive and disobedient behavior.

      The State also introduced evidence that Williams was a party to the capital
murder of Alex Mitchell. Specifically, the evidence showed that five young men—
Dewayne Champion, Dre Randall, Rasiya Thompson, Deandre “House”
Humphreys, and Anthony Somerfield—lured Mitchell to an abandoned house and
severely beat him after Humphreys’s girlfriend, Olivia Ford, claimed Mitchell
raped her. After the assault, Mitchell was put in the trunk of his car, which
Thompson and Humphreys drove around for several hours. The jury watched a
videotape of Williams’s interview with two police officers, in which he said that he
knew some of those young men from a trailer park and they were affiliated with
the Bloods.8 He said he knew Humphreys but had never met Thompson before that

      8
          Specifically, Williams said some of the kids from the trailer park were Piru and some
                                              19
night. He also said Humphreys called him “OB,” which stands for “older Blood” or
“older Blood brother.”

       Williams explained that on the evening of Mitchell’s murder, Thompson and
Humphreys drove to his house and told him what they did to Mitchell. They said
Mitchell was still alive in the trunk and asked Williams for a pistol they could use
to kill him. In the video, Williams claimed that he told Thompson and Humphreys
not to kill Mitchell, explaining that if they did, they would also have to kill Ford
because she knew about the attack and may tell the police. Williams explained that,
because he knew Humphreys was not going to kill his girlfriend, they should not
kill Mitchell either. Although Williams initially denied that he gave anything to
Thompson and Humphreys, he ultimately admitted that he gave them a gas can and
told them to burn the car to destroy evidence of their involvement. Williams also
admitted that he gave them $5 for gas. Nevertheless, he maintained that he advised
them to drop Mitchell off at a local fire station and not to kill him. Williams
acknowledged that he knew Thompson and Humphreys planned to kill Mitchell
when they left his house, but he denied telling them to burn Mitchell’s body as part
of destroying the evidence. Ultimately, the evidence showed that someone drove
Mitchell’s car to a field, poured gasoline around the inside of the vehicle, and lit it
on fire while Mitchell was alive in the trunk. His autopsy showed that his cause of
death was smoke inhalation.

                                              4

       Balancing those factors, we conclude that the trial court did not abuse its
discretion by denying Williams’s motion for mistrial. Although the misconduct
may have had some prejudicial effect, it was not so egregious that it was

were Bounty Hunter, but he explained, “Don’t get me wrong, they all Bloods.” Piru, like Bounty
Hunter, is a set (or subsidiary gang) of the Bloods.

                                             20
impossible to remove the harmful impression from the jurors’ minds. The trial
judge gave a prompt curative instruction that, along with the other circumstances
surrounding Robertson’s comment, conveyed the appropriate message to the jury.
And it is highly likely that the jury would have assessed the same punishment
absent the misconduct, given Williams’s use of a deadly weapon in the present
offense along with his string of prior convictions, his reputation for violence and
gang affiliation.

                                          V

      In his fourth and final issue, Williams argues the trial court erred by
overruling his objection to the evidence of the extraneous capital murder during the
punishment phase. In response, the State argues Williams failed to preserve this
error for appeal and, alternatively, the extraneous offense was admissible.

                                          A

      The rules for preservation of error are discussed above. We further note that
the objection must be sufficiently specific to apprise the trial judge of what the
objecting party wants, why the objecting party thinks himself entitled to relief, and
the objection and request are clear enough for the judge to understand at a time
when the trial court is in a position to do something about it. Lankston v. State, 827
S.W.2d 907, 908–09 (Tex. Crim. App. 1992). Nevertheless, the court of criminal
appeals has warned the courts of appeals not to “split hairs” when confronted with
a waiver question. Lankston, 827 S.W.2d at 909; Mosley v. State, 931 S.W.2d 670,
674 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). “We are to reach the
merits of a complaint ‘without requiring that the parties read some special script to
make their wishes known.’” Mosley, 931 S.W.2d at 674 (quoting Lankston, 827
S.W.2d at 909).


                                         21
       Before Williams’s punishment hearing began, the defense objected to any
evidence of the events that occurred prior to Thompson and Humphreys going to
Williams’s house on the night of Mitchell’s murder. The defense stated that,
because the State could not suggest or imply Williams was involved in the
planning of the attack or in the attack itself, those facts were irrelevant and the
prejudice “totally outweighs” any probative value. The judge asked what the
significance of Williams giving them a gas can would be if the State could not
introduce those facts. The defense responded that the State could not “really truly
tie that that gas can was even connected to that car because they don’t have—
they’re not bringing anybody to testify who was there at the scene,” and further
asserted that Thompson and Humphreys decided to kill Mitchell before going to
Williams’s house. The judge reminded the defense that the jury could not consider
the offense unless they believed it beyond a reasonable doubt and further noted that
if Williams was, in fact, a party to the offense, it is irrelevant when the decision to
kill Mitchell was made. The trial court then overruled the objection.

       Before the second day of the punishment hearing began, the defense raised
this objection again. Although the defense initially seemed to argue the State could
not prove the offense beyond a reasonable doubt, he summed up the objection by
explaining, “I’m objecting to all of the testimony, all of the events that leads [sic]
up to Thomas [sic] and Humphreys coming to Mr. Williams’ house because I don’t
see what the relevance is. Prejudice is just overwhelming.” The judge overruled
this objection.9 The defense then obtained a running objection to all of the
testimony regarding the objected-to events.


       9
         The defense specifically objected to any evidence that Champion and Randall were
smoking marijuana and PCP on the morning of Mitchell’s homicide. The State agreed not to
introduce those facts, and the trial court sustained the defense’s objection as to that evidence
only.

                                              22
       On appeal, Williams argues the trial court erred by allowing the State to
introduce any evidence of the capital murder. But the defense’s objection at trial
was not so broad. And although we do not require the objecting party to read any
special script to make his wishes known, the objection must be sufficiently specific
to apprise the trial judge of what the objecting party wants. See Lankston, 827
S.W.2d at 909. On this record, the defense clearly apprised the trial judge of the
objection to evidence of the events that took place before Williams became
involved in the crime, but not to the entire offense. Although the defense had a
running objection, it was only “for the previous reasons stated” and was thus no
broader than his initial objections.

                                                B

       To the extent we can interpret Williams’s complaint on appeal to comport
with the objections made at trial, we find no error in the court’s ruling. Under the
law of parties, a “person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” Tex. Penal Code § 7.01(a). A person is
“criminally responsible” for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.
Id. § 7.02(a)(2). Because a reasonable jury could have concluded beyond a
reasonable doubt that Williams is criminally responsible for the offense committed
by the conduct of Thompson and Humphreys, the pre-involvement evidence was
properly admitted.10


       10
           “‘[A]dmissibility of evidence at the punishment phase of a non-capital felony offense
is a function of policy rather than relevancy.’ . . . Determining what is relevant then should be a
question of what is helpful to the jury in determining the appropriate sentence for a particular
defendant in a particular case.” Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)
                                                23
       We conclude the trial court did not abuse its discretion by allowing the State
to introduce the underlying facts of the extraneous capital murder, and we therefore
overrule Williams’s fourth issue.

                                            ***

       For the foregoing reasons, we affirm the judgment of the trial court.




                                           /s/     Jeffrey V. Brown
                                                   Justice



Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




(quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)).

                                              24
