         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                            444444444444444444444444444
                              ON MOTION FOR REHEARING
                            444444444444444444444444444


                                      NO. 03-99-00824-CR



                             Corwyn Lamar McGinnis, Appellant

                                                v.

                                  The State of Texas, Appellee



       FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
              NO. 0993421, HONORABLE JON WISSER, JUDGE PRESIDING



               We withdraw our opinion and judgment of March 8, 2001, and substitute this in its

place.

               Appellant Corwyn Lamar McGinnis1 was convicted by a jury of the capital murder of

Leticia Duarte McGhie, who was murdered after attending a New Year’s Eve party on December 31,

1996. Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). The State did not seek the death penalty,

and appellant was automatically sentenced to life imprisonment. Id. § 12.31(a) (West 1994). In six

points of error, appellant contends he should have been granted a mistrial due to inadmissible

extraneous offense evidence and is entitled to a new trial due to prosecutorial misconduct. We will

affirm.


   1
     Throughout the record, appellant’s name is spelled both as “McGinnis” and “McGinnies.” We
use the spelling “McGinnis,” as spelled in the judgment of conviction.
                                        Standard of Review

               We review a trial court’s denial of a motion for mistrial under an abuse of discretion

standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999); Bryant v. State, 25 S.W.3d

924, 926 (Tex. App.—Austin 2000, pet. ref’d). Generally, a prompt instruction to disregard an

improper question, answer, or argument will cure any error. Ovalle v. State, 13 S.W.3d 774, 783

(Tex. Crim. App. 2000); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); Bryant,

25 S.W.3d at 926. We rely on the jury’s ability, when so instructed, to recognize the potential for

prejudice and then consciously discount any prejudice in its deliberations. Gardner, 730 S.W.2d at

696.

               An improper question and answer, even regarding an extraneous offense, is cured by

an instruction to disregard except in extreme cases where the evidence appears clearly calculated to

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

the prejudicial effect. Id. (quoting Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979));

see also Lucas v. State, 378 S.W.2d 340, 341-42 (Tex. Crim. App. 1964) (prejudicial question

violated motion in limine and asserted extraneous offense as fact); Bryant, 25 S.W.3d at 925-26

(State’s question improperly “aggravate[d] any lingering prejudice against interracial couples among

the jurors”); Govan v. State, 671 S.W.2d 660, 663 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)

(witness “recalled solely for the purpose of giving the inadmissible testimony” testified about

inadmissible extraneous offense after State said it would not bring in such evidence; evidence of guilt

not so overwhelming that inadmissible evidence could be considered harmless).




                                                  2
                Except for one sentence at the end of his discussion of his fifth point of error, appellant

urges only non-constitutional errors. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998); Tate v. State, 988 S.W.2d 887, 890 (Tex. App.—Austin 1999, pet. ref’d). Therefore, unless

an error at trial affected his substantial rights, it must be disregarded. Tex. R. App. P. 44.2(b);

Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999); Tate, 988 S.W.2d at 890. To

the extent that appellant raises a meritorious constitutional complaint, we must reverse the judgment

unless we determine beyond a reasonable doubt that the error, if any, did not contribute to appellant’s

conviction. Tex. R. App. P. 44.2(a).


                                 Drug-related Extraneous Offenses

                In his first point of error, appellant contends he should have been granted a mistrial

after Jaclyn Lindsey testified about an extraneous drug-related offense. In his fourth point, he argues

the district court erred in overruling his objection to similar testimony given by Charlene Shannon.

                Lindsey testified she had known appellant since 1995, when she was dealing drugs.

She said she “gave [appellant] some dope to sell for me. We were working together.” Appellant

objected, and the district court sustained the objection, striking the testimony and instructing the jury

to disregard it. Appellant then moved for a mistrial, which was denied. Charlene Shannon admitted

she had been convicted of drug possession, prostitution, and theft, and had used crack cocaine,

marijuana, and PCP. She said she met appellant in late 1997 and eventually became sexually intimate

with him. Shannon said, “It wasn’t actual intercourse. . . . It was oral sex most of the time.” She

then testified that she and appellant usually did drugs while they had oral sex. Appellant objected,

and the district court overruled the objection.



                                                    3
               Reference to a defendant’s drug use or previous drug offenses is usually curable by

a timely instruction to disregard. Dickey v. State, 979 S.W.2d 825, 829 (Tex. App.—Houston [14th

Dist.] 1998), rev’d on other grounds, 22 S.W.3d 490 (Tex. Crim. App. 1999). Further, the record

contains numerous other references to appellant’s involvement with drugs to which no objection was

made. Appellant testified that he had attended the same New Year’s Eve party as the victim, where

he drank and smoked marijuana. He testified about Lindsey, saying, “[S]he was a prostitute of

mine . . . . That means she sold herself for me, brought me the money, I took the money and would

give her crack/cocaine in return and make sure she was safe and gave her a place to live, sir.” He

said, “I’m not denying that I used to be a gang member and I’m not denying I sold drugs or gave

drugs to women or protected women or they sold their self for me.” He testified that he “wouldn’t

keep continuing giving Charlene Shannon drugs, so she had to do what any other woman would do

that was getting drugs for free, earn her money. Because I was out there selling drugs.” Finally, he

said, “I made a lot of enemies out there selling drugs and gang banging.”

               The district court’s instruction to disregard cured any error in Lindsey’s testimony

about appellant’s drug history. See Ovalle, 13 S.W.3d at 783; Dickey, 979 S.W.2d at 829. Assuming

it was error to overrule his objection to Shannon’s testimony about his drug use and sexual behavior,

appellant’s substantial rights were not harmed. See Tex. R. App. P. 44.2(b); Tate, 988 S.W.2d at

890. Appellant admitted he sold and used drugs. Any impact the evidence might have had was

minimal and likely had little, if any, effect on the jury’s verdict. See Stoker v. State, 788 S.W.2d 1,

13 (Tex. Crim. App. 1989). We overrule appellant’s first and fourth points of error.


                      Testimony About Attempts To Intimidate Witnesses

                                                  4
               In his third point of error, appellant argues the district court should have granted him

a mistrial due to Clint Longley’s testimony that he feared he would be hurt if he testified against

appellant. In his fifth point of error, he argues he should have been granted a mistrial due to similar

testimony given by Austin homicide detective Mark Gilchrist.

               When called to testify, Clint Longley stated he did not want to testify. He said, “I

asked you [the prosecuting attorney] if you—you’d have to bring something written on gold to

protect me if I somehow were to come here to testify against [appellant].” The State questioned

Longley as follows:


       Q: After you received [a letter from appellant’s girlfriend], were you concerned
          about testifying in this trial?

       A: Yes.

       Q: Are you currently incarcerated with a relative of the defendant’s?

       A: Not now, no.

       Q: Within the last week or so did you have contact—

       [Appellant’s attorney:] Judge, I’m going to object to this. It is clearly prejudicial.

       The Court:                We’ll sustain the objection.

       [Appellant’s attorney]: I’m going to ask that the jury be asked to disregard the
                               testimony.

       The Court:                What testimony?

       [Appellant’s attorney]: The question and the testimony from the witness.

       The Court:                We will sustain the objection to the question. I don’t think
                                 he answered the question.



                                                  5
       [Appellant’s attorney]: I have an objection to anything, like I said, regarding this
                               area. It is extremely prejudicial and I’m objecting to it and
                               asking for a mistrial.

       The Court:                We will sustain the objection. I will decline the mistrial
                                 request.


               At the point appellant objected, Longley had not answered the State’s question. The

State had not yet finished asking the question. Appellant did not object to the preceding questions

and answers about whether Longley had concerns about testifying.

               Other similar evidence was admitted without appellant’s objection. Lindsey testified

that appellant said he had murdered the victim, which made her “[a] little of it scared of [appellant],

wanting to not upset him, you know, not to—try more or less to forget about it, try to avoid it.”

Initially, she did not tell the police that appellant had admitted to the murder


       [b]ecause at the time I was living a lifestyle where we have a certain code, and that
       code is, you know, you don’t say nothing. The police are on one side and we’re on
       the other, and it’s like two different worlds. You just don’t talk with the police
       and—because you could die. A person can get killed talking to the police. . . . by the
       crowd that you hang out with.


Lindsey later reconsidered and reported her conversation with appellant. She was asked, “Were you

still afraid of [appellant] at that point?” She answered, “Yeah. [Appellant] is a very powerful man.”

Lindsey said appellant’s girlfriend told Lindsey to “stay quiet, to try to not—you know, in other

words, to protect him because if I didn’t, I was going to be hurt.” Lindsey was afraid for herself and

her child and left Austin because she was scared and appellant is powerful.




                                                  6
                Shannon testified that appellant told her he had murdered the victim and said, “Bitch,

I’ll kill you like I did that other one. Don’t mess with me.” Appellant himself testified that “if you

come to me and you do something to me and it hurt [sic] me, I’m going to do something to you that’s

going to hurt you.” Finally, Richard Rushing, a friend of appellant’s, testified about the code of

conduct within the gang to which he and appellant belonged:


        Q: And within the gang, you’d agree with me that it’s against the code to testify
           against another gang member?

        A: Yes, sir.

        Q: People who break that code get hurt?

        A: I would like to think so. You know what I’m saying?


                The question to which appellant objected was incomplete and went unanswered.

Similar unobjected-to testimony indicated that witnesses feared retaliation if they testified against

appellant. The district court did not abuse its discretion in refusing to grant a mistrial based on the

State’s examination of Longley. We overrule appellant’s third point of error.

                Likewise, the district court did not abuse its discretion in refusing to grant a mistrial

as a result of Detective Gilchrest’s testimony. Gilchrest testified about his involvement in the murder

investigation. Asked about the attitudes of potential witnesses, he responded, “Almost everyone we

attempted to contact or did contact expressed a fear of cooperating with the police in any way

regarding this investigation because they were afraid of retaliation by [appellant].” Appellant

objected, and the district court sustained the objection, instructed the jury to disregard the testimony,

and denied appellant’s request for a mistrial. Appellant argues that the detective’s statement denied

                                                   7
him due process under the 4th Amendment and due course of law under Article I, Section 19, and

that therefore the trial court erred by denying his request for mistrial. See U.S. Const. amend. XIV;

Tex. Const. art. I, § 19.

                While we recognize that Gilchrest, as a police officer, is an experienced witness who

should not have introduced evidence of extraneous offenses into his testimony, see Hadden v. State,

829 S.W.2d 838, 843 (Tex. App.—Corpus Christi 1992, pet. ref’d), we do not believe that his

statement that witnesses were reluctant to testify for fear of retaliation was incurable by an instruction

to disregard. Gilchrest’s single response did not rise to the level of seriousness described in Hadden,

in which the police witness intentionally interjected inadmissible evidence despite repeated objections,

admonishments, and instructions by the court not to do so. Id. at 841-42. As noted above, the

record contained other testimony about witnesses fearing retaliation should they harm appellant. We

believe that the instruction by the court cured any error. Further, even assuming the error, if any, to

be of constitutional dimension, we hold beyond a reasonable doubt that, in light of the entire record,

Gilchrest’s stricken statement did not contribute to appellant’s conviction. We overrule appellant’s

fifth point of error.


                            Testimony That Appellant Had Killed Before

                In his second point of error, appellant contends the district court should have granted

a mistrial based on testimony Lindsey gave about a conversation she had with appellant. Lindsey

testified that she had heard rumors about appellant’s involvement in the murder, so she asked him if

he had killed the victim. Lindsey said appellant “laughed and said yes.” He told Lindsey the victim

would not give him sex after he shared his drugs with her, so he killed her. Lindsey further testified

                                                    8
that appellant then said, “It wasn’t the first time.” Appellant objected to this remark, and the district

court sustained the objection and instructed the jury to disregard; the court denied his motion for a

mistrial.

                Appellant cites Robinette v. State, 816 S.W.2d 817 (Tex. App.—Eastland 1991, no

pet.) to support his argument that the district court’s instruction to disregard was insufficient to cure

Lindsey’s testimony that he said it was not the first time he had killed someone. The prosecutor in

Robinette elicited testimony about one extraneous offense, the defendant objected, and the trial court

sustained the objection. Id. at 819. “The prosecutor then immediately returned to the forbidden

extraneous offense area and elicited before the jury testimony that [the defendant] had bragged about

killing a police officer.” Id. In reversing the conviction, the Robinette court emphasized the State’s

bad behavior that led to the introduction of the inadmissible evidence. Id.

                Our case is distinguishable. Lindsey testified that appellant told her he had killed the

victim because she had shared his drugs but refused to have sex with him. The objectionable

testimony came in when the State asked her to recall and relate the exact words appellant used in

talking about the murder. After the district court sustained appellant’s objection and instructed the

jury to disregard the response, the State moved on and did not attempt to pursue the issue of

extraneous offenses. It is not clear from the record that the State purposefully elicited the

inadmissible evidence, nor does it appear that the testimony was “clearly calculated to inflame the

minds of the jury and [was] of such character as to suggest the impossibility of withdrawing the

impression produced on their minds.” Kelley v. State, 677 S.W.2d 34, 36 (Tex. Crim. App. 1984).

The district court did not abuse its discretion in refusing to grant appellant a mistrial. See Richards



                                                   9
v. State, 912 S.W.2d 374, 378 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d); Cooper v. State,

901 S.W.2d 757, 759 (Tex. App.—Beaumont 1995), pet. dism’d, improvidently granted, 933 S.W.2d

495 (Tex. Crim. App. 1996). We overrule appellant’s second point of error.


                                      Prosecutorial Misconduct

                In his sixth point of error, appellant argues he should have a new trial because points

of error one through five “are evidence of prosecutorial misconduct and the State’s attempt to thwart

appellant’s right to a fair trial.” On rehearing, appellant suggests that by overruling his points of error

“the Court of Appeals has put its stamp of approval on this unprofessional conduct . . . .” We

disagree.

                In support of his argument, appellant cites Rogers v. State, 725 S.W.2d 350 (Tex.

App.—Houston [1st Dist.] 1987, no pet.). Rogers involved flagrant and repeated misconduct by the

prosecutor during cross-examination of the defendant and several character witnesses. Id. at 351-58.

The State repeatedly made side-bar remarks and asked improper questions, often asserting as fact

alleged misconduct. Id. at 360. The Rogers court concluded that the prosecutor acted in bad faith

and that her behavior “could serve no purpose other than to inflame and prejudice the minds of the

jurors.” Id. The court noted “many instances where the prosecutor appear[ed] to fabricate

inflammatory facts and suggest[ed] them into evidence by cross-examination,” and concluded that

the “impermissible prejudice permeate[d] the entire record” and even frequent instructions to

disregard would not have cured the error. Id. at 360-61. Although the State’s conduct is not

exemplary in that it could have taken greater care in guarding against inadmissible evidence, the




                                                    10
record does not support appellant’s assertion that the prosecution deliberately solicited improper

testimony.

                The record before us consists of nearly five days of testimony on guilt/innocence by

eighteen State witnesses and ten defense witnesses, including appellant himself. On rehearing, we

have again reviewed the record, and we again conclude that the questions and answers of which

appellant complains do not so permeate this record as to render the district court’s prompt

instructions to disregard ineffectual. We hold that appellant has not shown that the district court

abused its discretion in refusing to grant a mistrial based on the cumulative effect of the inadmissible

evidence. We overrule appellant’s sixth point of error.


                                             Conclusion

                Having overruled all six of appellant’s points of error, we affirm the district court’s

judgment.




                                                Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson.

Affirmed

Filed: May 17, 2001

Do Not Publish

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