                                                                                    ACCEPTED
                                                                                 06-17-00162-cr
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                            1/10/2018 12:22 AM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                     CAUSE NO. 06-17-00162-CR

                  IN THE SIXTH COURT OF APPEALS         FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
                        TEXARKANA, TEXAS
                                                 1/10/2018 12:22:35 AM
                                                      DEBBIE AUTREY
________________________________________________________________
                                                          Clerk

JESSIE DEE SPENCE
                                                                 Appellant

VS.


THE STATE OF TEXAS
                                                          Appellee
________________________________________________________________

          On Appeal from the District Court of Cass County, Texas
                            5th Judicial District
________________________________________________________________

                       BRIEF OF APPELLEE
________________________________________________________________

                               Respectfully submitted,

                               Nicholas J. Ross
                               Cass County Asst. District Attorney
                               Texas Bar No. 24085565

                               Post Office Box 839
                               Linden, Texas 75563
                               Telephone: 903.756.7541
                               Facsimile: 903.756.3210

                               Attorney for Appellee,
                               The State of Texas
                        IDENTITY OF PARTIES AND COUNSEL

      Pursuant to the Texas Rules of Appellate Procedure Rule 38.1(a), the

following list is a complete list of all parties to the trial court’s judgment and the

names and addresses of all trial and appellate counsel:


      1.     Hon. Donald Dowd - Judge, Cass County County Court at Law
             sitting for the 5th Judicial District Court, Cass County, Texas

      2.     Jessie Dee Spence – Appellant
             TDCJ-ID # 02153451
             Joe F. Gurney Unit
             1385 FM 3328
             Palestine, Texas 75803

      3.     Ms. Cyndia Hammond - Appellant’s trial & appellate counsel
             P.O. Box 91
             Texarkana, Texas 75504-0091

      4.     Mrs. Virginia Ann Prazak – Appellant’s trial counsel
             1903 Mall Dr.
             Texarkana, Texas 75503

      5.     Mr. Nicholas J. Ross - Appellee’s appellate counsel
             Cass County Assistant District Attorney
             Post Office Box 839
             Linden, Texas 75563




                                         -2-
                                              TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Argument and Authorities

         Issue 1:           The trial court did not abuse its discretion in denying a
                            motion for mistrial after Appellee violated Appellant’s
                            motion in limine when the trial court instructed the jury to
                            disregard the testimony and there was overwhelming
                            evidence admitted at trial that proved Appellant’s guilt . . .
                            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




                                                           -3-
                                  INDEX OF AUTHORITIES

CASES                                                                                  PAGE


Brossette v. State, 99 S.W.3d 377 (Tex.App.-Texarkana 2003) . . . . . . . . . . . . 15

Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984) . . . . . . . . . . . . . . . . . 13

Hernandez v. State, 805 S.W.2d 409 (Tex.Crim.App.1990) . . . . . . . . . . . . . . . .14

Hill v. State, 817 S.W.2d 816 (Tex.App.-Eastland 1991) . . . . . . . . . . . . . . . . . . 13

Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . .14

Grayson v. State, 786 S.W.2d 504 (Tex.App.-Dallas 1990) . . . . . . . . . . . . . . . .14

Griffin v. State, 850 S.W.2d 246 (Tex.App.-Houston [1st Dist.] 1993) . . . . . . . . 14

Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . . . . . . . . .15

Oberg v. State, 890 S.W.2d 539 (Tex.App.-El Paso 1994) . . . . . . . . . . . . . . . . .14

Scruggs v. State, 782 S.W.2d 499 (Tex.App.-Houston [1st Dist.] 1989) . . . . . . .13

Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983) . . . . . . . . . . . . . . . 14

State v. Gonzalez, 855 S.W.2d 692 (Tex.Crim.App.1993) . . . . . . . . . . . . . . . . 13




                                              -4-
                         STATEMENT OF ORAL ARGUMENT

      Appellee does not request an oral argument in this case. The facts, trial

transcripts, and arguments presented by the parties in each of their respective

briefs are sufficient for the Court to decide the issues presented.




                                         -5-
                              ISSUES PRESENTED

Issue 1:   The trial court did not abuse its discretion in denying a motion for
           mistrial after Appellee violated Appellant’s motion in limine when the
           trial court instructed the jury to disregard the testimony and there
           was overwhelming evidence admitted at trial that proved Appellant’s
           guilt.




                                      -6-
                            STATEMENT OF THE FACTS

      Appellant, Jessie Dee Spence, was charged by indictment in Cause No.

2017F00103 with the third degree felony offense of Possession of a Controlled

Substance – Methamphetamine. A jury found him guilty, and he was sentenced

to six (6) years in the Texas Department of Criminal Justice Institutional Division.

      On the night of November 6, 2016, Jessie Dee Spence was driving a

borrowed 1998 Chevy Impala near the intersection of 3rd and Harrison Street in

Hughes Springs, Texas. (R.R. Vol. IV, 101). Office Jimmy Simpler of the Hughes

Springs Police Department observed the vehicle had expired registration and

initiated a traffic stop. (R.R. Vol. IV, 102) Upon making contract with the driver,

Officer Simpler saw that it was Appellant, who Officer Simpler knew from

previous interactions. (R.R. Vol. IV, 102). Officer Simpler proceeded to check him

for warrants and he found that he had an active misdemeanor warrant for

resisting arrest. (R.R. Vol. IV, 108). Officer Simpler ordered Appellant out of the

vehicle and asked if he had anything illegal on him and he admitted that he had a

knife and a small bag of marijuana in his pocket. (R.R. Vol. IV, 105). Asked if

there were any other illegal substances in the car, Appellant said there were not.

Officer simpler then proceeded to search the vehicle for any illegal drugs or other

contraband and he found a bag of methamphetamine and a hypodermic needle.

(R.R. Vol. IV, 111, 127). A passenger, Jerry Richardson, was in the vehicle as

well. (R.R. Vol. IV, 103) Richardson was the brother of Amanda Forshee, the

                                         -7-
girlfriend of Appellant. Appellant picked Richardson up from a friend’s house

shortly before they were pulled over. Upon finding the methamphetamine, Officer

Simpler asked the passenger if the drugs were his. He denied they were his

(R.R. Vol. IV, 114). Officer Simpler asked Appellant if the drugs were his. He

admitted they were his. (R.R. Vol. IV, 119) In addition to his verbal admission he

also wrote a statement admitted that the drugs belonged to him and not the

passenger. (See State’s Exhibit 1).

      Before trial, Appellant filed a motion in limine seeking to prevent any

mention of Appellant’s outstanding warrant for resisting arrest or the found

marijuana. At the trial, as discussed in Appellant’s Brief, the Hon. Judge Donald

Dowd ruled that before any mention of the warrant or marijuana, counsel for the

State would need to approach the bench and obtain a ruling as to the

admissibility of the evidence. State’s counsel then asked for a brief recess to

confer with State’s witnesses and relay the Court’s ruling regarding the motion in

limine. (R.R. Vol. IV, 93) After the recess the jury was brought back into the

courtroom and both sides delivered their opening statements which lasted

approximately 10 to 15 minutes.       The State then called their first witness,

arresting Officer Jimmy Simpler to the stand. Approximately 10-15 minutes into

the testimony, State’s counsel began to ask the Officer about the moments and

circumstances leading up to the finding of the marijuana and the discovery of the

outstanding warrant. (R.R. Vol. IV, 104) State’s counsel asked the Officer if any

                                       -8-
illegal items were found on the Appellant. The Officer answered as State’s

counsel anticipated that a Bowie knife was found and then proceeded to testify

that the bag of marijuana was also found. Appellant’s counsel did not object.

(R.R. Vol. IV, 105). Hearing no objection, State’s counsel then asked several

follow up questions about the marijuana, and then asked about the warrant. At

this, Appellant’s counsel did raise an objection and the Court ordered counsel to

approach the bench. (R.R. Vol. IV, 108)

      (The following occurred at the bench,
      outside hearing of the jury.)

      THE COURT: You're supposed to approach
      the bench.

      MR. ROSS: Well I was waiting for an
      objection, Your Honor.

      THE COURT: Okay. Well, I'd already ruled
      on that.

      MR. ROSS: Okay. I mean, I did lay the
      proper foundation. But then the circumstances of the
      case it was leading up to and involved directly in this
      incident that we're here on today. I mean, it's not a
      remote or . . . .

      THE COURT: I'm not saying it's not
      admissible. I'm just saying you're supposed to approach
      the bench before you bring it out.


      MR. ROSS: Yes, sir.

State’s counsel mistakenly believed that since an objection was not raised, the

questions leading up to the Officer’s testimony mentioning the marijuana had laid



                                          -9-
the proper contextual foundation to get the evidence in, and, therefore, the

requirement to approach the bench no longer applied. The Court admonished

Appellee’s counsel who then realized the were mistaken in their line of

questioning. (R.R. Vol. IV, 108). Appellee’s counsel does not – cannot – deny

that the motion in limine was violated, however the violation was not done

maliciously, but rather due to inexperience and confusion in the heat of trial as

can be seen by Counsel’s response at the bench conference. (R.R. Vol. IV, 108).

The Court ruled that the testimony should be stricken, the jury was ordered to

disregard the testimony, and State’s counsel moved on to a different line of

questioning and never mentioned the marijuana or the warrant. (R.R. Vol. IV,

109).

        Officer Simpler went on to testify that he found the meth in the front seat

area and that Appellant admitted it was his. (R.R. Vol. IV, 111). He admitted this

orally and also in a written statement. The passenger stated that the drugs were

not his. (R.R. Vol. IV, 114).

        During the Defendant’s case in chief, Appellant called his girlfriend to

testify. She stated that the car was not actually her car it was her husband’s car

and that they didn’t drive it very often. (R.R. Vol. IV, 158) Her testimony was

disputed by her own brother, the passenger Jerry Richardson who stated that her

husband had been out of state for 10 years. (R.R. Vol. IV, 180).



                                        -10-
      In closing argument Appellee did not discuss or mention the marijuana or

the   warrant,   but   focused   on   Appellant’s   own   admission    that   the

methamphetamine was his and the lies told by Appellant’s girlfriend on the stand.




                                       -11-
                            SUMMARY OF THE ARGUMENT

Issue 1:     The trial court did not abuse its discretion in denying a motion
             for mistrial after Appellee violated Appellant’s motion in limine
             when the trial court instructed the jury to disregard the
             testimony and there was overwhelming evidence admitted at
             trial that proved Appellant’s guilt.

      A trial court's denial of a mistrial is reviewed under an abuse of discretion

standard. Generally, a jury's exposure to improper testimony is cured by an

instruction from the trial court to disregard the improper evidence. In the instant

case, the trial court properly instructed the jury to disregard the statements

objected to by Appellant, and in light of all the other overwhelming evidence

presented by the State, the trial court did not abuse its discretion in denying

Appellant’s Motion for a Mistrial.




                                       -12-
                            ARGUMENTS AND AUTHORITIES

Issue 1:     The trial court did not abuse its discretion in denying a motion

             for mistrial after Appellee violated Appellant’s motion in limine

             when the trial court instructed the jury to disregard the

             testimony and to not consider it during deliberations.



      A trial court's denial of a mistrial is reviewed under an abuse of discretion

standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993).

Generally, a jury's exposure to improper testimony is cured by an instruction from

the trial court to disregard the improper evidence. Coe v. State, 683 S.W.2d 431,

436 (Tex.Crim.App.1984). Such an instruction is not sufficient, however, in an

extreme case, where it appears that the evidence is clearly calculated to inflame

the minds of the jury. Hill v. State, 817 S.W.2d 816, 817 (Tex.App.-Eastland

1991, pet. ref'd). When the attempted introduction of the improper evidence is

carried out deliberately and blatantly in violation of the ruling of the trial court, and

the improper evidence is repeated and emphasized by the State, the instruction

to disregard is not sufficient, and the failure to grant a mistrial becomes reversible

error. Hill, 817 S.W.2d at 817; Scruggs v. State, 782 S.W.2d 499, 501 (Tex.App.-

ouston [1st Dist.] 1989,pet. ref'd). However, when the jury is exposed to otherwise

inadmissible evidence through an inadvertent comment or nonresponsive answer

of a witness, with no further attempt by the State to pursue the matter, the

                                          -13-
instruction to disregard is sufficient and there is no reversible error in the failure

to grant a mistrial. Oberg v. State, 890 S.W.2d 539, 545 (Tex.App.-El Paso 1994,

pet. ref'd); Griffin v. State, 850 S.W.2d 246, 249 (Tex.App.-Houston [1st Dist.]

1993, pet. ref'd); Grayson v. State, 786 S.W.2d 504, 505-06 (Tex.App.-Dallas

1990, no pet.).

      A mistrial is a device used to halt trial proceedings when error is so

prejudicial that expenditure of further time and expense would be wasteful and

futile. Thus, a trial court may properly exercise its discretion to declare a mistrial

if an impartial verdict cannot be reached, or if a verdict of conviction could be

reached but would have to be reversed on appeal due to an obvious procedural

error. Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983). The

determination of whether a given error necessitates a mistrial must be made by

examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409,

413–414 (Tex.Crim.App.1990), cert. denied. The asking of an improper question

will seldom call for a mistrial, because, in most cases, any harm can be cured by

an instruction to disregard. Ibid. A mistrial is required only when the improper

question is clearly prejudicial to the defendant and is of such character as to

suggest the impossibility of withdrawing the impression produced on the minds of

the jurors. Ibid. A court presumes that a jury followed the trial court’s admonition

to   disregard    the   testimony   Hinojosa    v.   State,   4   S.W.3d   240,   253

(Tex.Crim.App.1999).

                                         -14-
      In Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App.1999), the court found that

the denial of a motion for a mistrial was not error. In that case appellant argued

that the trial court erred in denying his motion for mistrial. In that case the State

asked a prosecution witness, “Mr. [Troy] Guthrie, were you aware of whether or

not Mr. Ladd and Mr. [Johnny] Roberson were together smoking crack cocaine ...

on the night ... and the morning that [the victim] was missing and was found?”

Before the witness could answer, appellant objected, asked for an instruction to

disregard, and moved for a mistrial. The trial court sustained the objection on the

ground that the State's question violated a motion in limine. The trial court then

instructed the jury to disregard the question, but the court denied a mistrial.

      In Brossette v. State, 99 S.W.3d 377 [Tex.App.–Texarkana] 2003, citing

Ladd, the Court held that one of the factors that is considered when determining

whether a motion to disregard testimony is curative is whether the question was

asked to elicit a specific extraneous bad act. In Brossette, after laying the

foundation that a law enforcement officer was responsible for investigating all

abuse and neglect allegations concerning children for Wood County, the State

asked the witness, “[h]ave you had any prior occasion to have contact with

[Brossette]?” In Brossette the State asked a question of the witness, intending to

elicit an answer that concerned a subject covered in a motion in limine. The trial

court recognized that the State should have approached the bench before



                                         -15-
attempting to ask that type of question. The trial court sustained Brossette's

objection and instructed the jury to disregard, but denied the mistrial.

      In the instant case, the denial of the motion for a mistrial was not an abuse

of discretion and thus not reversible error because the trial court could, and did,

properly cure any violation of the motion in limine with a prompt instruction to the

jury to disregard the evidence. While the violation of the motion in limine in this

case is not in dispute, the effect of the violation was minimal, and far outweighed

by the overwhelming evidence against Appellant.

      The marijuana and the warrant were not central to the state’s theory of the

case. Rather they were only brought up in the first place as a prologue to the

search that was conducted on Appellant’s vehicle. And after being admonished

by the Court, Appellee’s counsel did not attempt to bring up the off limit subjects

again during any subsequent questioning and did not refer to them in closing

argument.

      The mentioning of a warrant and the existence of marijuana was not so

egregious that it would so inflame the jury against Appellant that the instruction

given by the trial court wasn’t enough to cure the violation. Indeed, if anything the

mentioning of the marijuana was minimized, since Officer Simpler testified that

he was simply going to write Appellant a Class C drug paraphernalia ticket after

finding the marijuana. Regarding the warrant, the testimony elicited was merely

that a warrant existed and not that it was a warrant for a felony or a particularly

                                         -16-
bad act. In light of all the other evidence that was presented at trial, the Court’s

instruction to disregard these relatively inconsequential facts was more than

sufficient to prevent the jury from considering them during deliberations.

      Simply put, Appellee’s case was as open and shut as any juror could ask

for. Appellant was driving the vehicle and had been before the passenger got in

the vehicle. The drugs were found inside the vehicle within inches from where

Appellant sat. The passenger denied the drugs were his and his testimony was

not contradicted by any other evidence. Appellant gave not only a verbal

confession but also a written confession that the methamphetamine belonged to

him. Not only did he admit that it was his, but he explicitly stated that the

methamphetamine did not belong to the passenger.

      Appellant’s argument that the marijuana being brought to the jury’s

attention discredited the testimony of Amanda Forshee, Appellant’s girlfriend, is

unpersuasive. This argument ignores the fact that it wasn’t only marijuana found

that night, but the actual drugs at issue in this case – the 3.24 grams of

methamphetamine – was found as well (RR pg. 125). The jury didn’t need the

marijuana to discredit Forshee’s testimony, because the methamphetamine also

allowed them to draw the conclusion that she was not credible.

      Given the overwhelming evidence in this case, and the instruction provided

to the jury to disregard the excluded testimony, the Court’s denial of the motion

for a mistrial was not an abuse of discretion and was not reversible error.

                                        -17-
                                   PRAYER

      WHEREFORE, premises considered, Appellee respectfully requests that

the adjudication of Appellant and corresponding sentence imposed by the trial

court be in all things AFFIRMED.

                                   Respectfully submitted,


                                   _____________________________
                                   Nicholas J. Ross
                                   Cass Co. Asst. District Attorney
                                   Texas Bar No. 24085565

                                   Post Office Box 839
                                   Linden, Texas 75563
                                   Telephone: 903.756.7541
                                   Facsimile: 903.756.3210
                                   nross@casscountytx.org

                                   Attorney for Appellee,
                                   The State of Texas




                                    -18-
                             CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing

Brief of Appellee was forwarded via First Class mail on January 9, 2018, to the

following attorneys of record and interested parties:

      Appellant                                Appellant’s Trial and
      Jessie Dee Spence                        Appellate Attorney
      TDCJ-ID # 02153451                       Cyndia Hammond
      Joe F. Gurney Unit                       P.O. Box 91
      1385 FM 3328                             Texarkana, Texas 75504-0091
      Palestine, Texas 75803

      Appellant’s Trial Attorney               Trial Court Judge
      Virginia Ann Prazak                      Hon. Judge Donald Dowd
      1903 Mall Dr.                            Sitting for the 5th Judicial District
      Texarkana, Texas 7550                    Court
                                               P.O. Box 510
                                               Linden, Texas 75563




                                               _____________________________
                                               Nicholas J. Ross




                                        -19-
                          CERTIFICATE OF COMPLIANCE

       Relying on the word count function in the word processing software used
to produce this document, I certify that the number of words in this reply
(excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix) is 2,425.

                                      ________________________________
                                      Nicholas J. Ross




                                       -20-
