                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-10-00046-CR


EQUAILE DE-VAN                                                       APPELLANT
WESTMORELAND A/K/A EQUAILE
WESTMORELAND

                                         V.

THE STATE OF TEXAS                                                         STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------

                                   I. Introduction

      In one point, Appellant Equaile De-Van Westmoreland a/k/a Equaile

Westmoreland asserts that the trial court erred by failing to grant his motions for

mistrial during the punishment phase of trial. We affirm.



      1
       See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      Richard Dowell, the eighteen-year-old victim in this case, was friends with

Westmoreland, one of the leaders of ―Gang B,‖ which was allied with ―Gang A.‖2

Dowell was known by the police as a member of Gang B.

      Happiness Osunde associated with ―Gang C,‖ which was on good terms

with ―Gang D.‖ On July 9, 2007, Dowell called Osunde, seeking to set up a

rematch fight with Desmond Blair of Gang C. Gangs C and D arranged to meet

Gangs A and B for a fistfight that evening. Witnesses estimated that there were

around 100 gang members present that evening for the fight, and fighting

between the gangs erupted before Dowell and Blair could have their rematch:

Osunde testified that the fight began when someone from the Gang A-B side

threw a bottle that hit someone on the Gang C-D side. Gang A members Percy

Demerson and Lamar Stone testified that the Gang C-D side threw the bottles.

      Osunde said that when the fighting began, he heard Westmoreland say, ―f-

-- that,‖ and that he saw Westmoreland draw a gun—either a nine-millimeter or a

.380—from his waist, point it at the crowd, and begin shooting.3 Other members


      2
       We have substituted letters for the gangs’ actual names.
      3
         A minimum of three guns were fired during the incident, and police found
several spent nine-millimeter and .380 casings at the crime scene. The same
nine-millimeter gun was responsible for discharging many—but not all—of the
nine-millimeter casings, and five .380 caliber casings were fired from the same
.380 caliber weapon. The deputy medical examiner testified that the gunshot
that killed Dowell could have been from either a nine-millimeter or a .380 caliber
weapon.


                                        2
of Gangs A and B fired their guns too. Stone testified that Demerson yelled to

the Gang A and B members with guns, ―Shoot, shoot, they’re throwing bottles,‖

and that he heard Westmoreland say, ―Get out the way.‖ As soon as Stone

heard Westmoreland say this, shots were fired.           Demerson testified that

Westmoreland did not shoot at the crowd, but he also admitted that he had told

Arlington police officers that the shots came from where Westmoreland was

standing and that Westmoreland shot level into the crowd.4

      Dowell was in the crowd in the area where Westmoreland fired his gun,

and Stone testified that when Westmoreland started shooting, Dowell was in the

line of fire of Westmoreland’s gun. Dowell was hit by gunfire; he later died at the

hospital during surgery. Westmoreland was charged with engaging in organized

criminal activity (murder). A jury found him guilty and assessed twenty-seven

years’ confinement as punishment.5 This appeal followed.




      4
        Arlington Police Detective Tommy Lenoir testified that he conducted three
interviews with Demerson, who told him that Westmoreland was Dowell’s
shooter. All three interviews were admitted in evidence and published to the jury.
      5
       Murder is a first-degree felony. See Tex. Penal Code Ann. § 19.02(c)
(West 2011); see also id. § 71.02(a)(1), (c) (West 2011) (stating that a person
commits an offense if, with the intent to establish, maintain, or participate in a
combination or in the profits of a combination or as a member of a criminal street
gang, he commits or conspires to commit murder; the punishment range is the
same as for murder). The punishment range for a first-degree felony is from five
to ninety-nine years or life and a fine of up to $10,000. See id. § 12.32 (West
2011).

                                        3
                            III. Motions for Mistrial

      Westmoreland complains that the trial court abused its discretion by

denying his motions for mistrial during the punishment phase of trial ―upon the

erroneous introduction by the State of evidence concerning an allegation against

Appellant that was inadmissible.‖

A. Standard of Review

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

discretion. Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005), cert.

denied, 548 U.S. 926 (2006); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1070 (2000).      Generally, the declaration of a

mistrial is appropriate when the improperly-offered statement of evidence is

―clearly calculated to inflame the members of the jury and is of such a character

as to suggest the impossibility of withdrawing the impression produced on the

minds of the jury.‖ Ladd, 3 S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409,

414 (Tex. Crim. App. 1990), cert. denied, 500 U.S. 960 (1991). That is to say,

the offending statement or erroneously offered evidence must be so prejudicial or

incurable that an instruction to disregard the statement or evidence cannot

withdraw the impression produced on the minds of the jurors, and hence, the

expenditure of further time and expense would be wasteful and futile. Simpson

v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905

(2004).




                                       4
      To determine whether a mistrial should have been granted, we review the

case’s facts and circumstances in light of the arguments that were before the trial

court at the time the ruling was made, bearing in mind that the jury is presumed

to have followed the trial court’s instruction to disregard. Wead v. State, 129

S.W.3d 126, 129 (Tex. Crim. App. 2004); Hinojosa v. State, 4 S.W.3d 240, 253

(Tex. Crim. App. 1999); Hernandez, 805 S.W.2d at 414; Waldo v. State, 746

S.W.2d 750, 754 (Tex. Crim. App. 1998).        Generally, a prompt instruction to

disregard will cure error associated with an improper question and answer.

Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

B. Unadjudicated Offense

      During the punishment phase of trial, Westmoreland’s counsel stated that

he had ―[n]o objection‖ to State’s Exhibits 140 and 141, and the trial court

admitted these exhibits into evidence. These exhibits contained court documents

concerning the revocation of Westmoreland’s deferred adjudications in two

misdemeanor offenses (possession of marihuana under two ounces and criminal

trespass), including copies of the State’s motions to adjudicate guilt based on

alleged violations of the terms of Westmoreland’s community supervision. At a

hearing on these motions, Westmoreland had entered pleas of true to an

allegation that he had violated the terms of his community supervision. Following

the admission of these exhibits, the State, again without objection by

Westmoreland, read the following into the record:




                                        5
      Allegations in both [State’s Exhibits 140 and 141] for the petition to
      revoke his probation constitute the offense here of murder and while
      in the course of committing theft of property and with intent to obtain
      or maintain control of said property, the defendant intentionally or
      knowingly caused serious bodily injury to Pauline Cobb, an elderly
      woman over the age of 65 in Gregg County, Texas, on or about the
      20th day of March 2008.

      Subsequently, during the cross-examination of two defense witnesses, the

State asked about the Pauline Cobb incident.         During cross-examination of

defense witness Reverend Willie Burton,6 the following took place:

      [State]: As it relates to the revocation of his probation, you were in
      here for that being prosecuted by Ms. Simpson. Were you aware of
      the situation involving the aggravated robbery of the elderly lady in
      Gregg County –

      [Witness]: No, sir, I wasn’t.

      [State]: -- that he pled true to?

      [Witness]: Right, I didn’t know about that.

      [Defense Counsel]: Your Honor, I’m going to object to that.

[Emphasis added.]       After a bench conference, during which one of the

prosecutors said, ―I think we inadvertently published allegations,‖ the trial court




      6
       Reverend Burton testified during his direct examination that he had known
Westmoreland as a member of the youth choir at his church in Amarillo, that
Westmoreland had a solid upbringing, and that Westmoreland would do well on
community supervision based on his upbringing. During cross-examination,
before reaching the Pauline Cobb incident, the prosecutor asked the reverend if
he was aware of Westmoreland’s involvement in gang-related fights at a
shopping mall around February 4, 2006, and at a recreation center around
November 11, 2006. Reverend Burton said no to both.


                                          6
sustained Westmoreland’s objection, instructed the jury to disregard the State’s

last statement, and told the jury, ―It is as if it did not happen.‖

      Outside of the jury’s presence, the State acknowledged that there had

been a misunderstanding about whether Westmoreland pleaded true to the

charge involving Cobb, and the trial court stated, ―[Y]our question was about the

robbery of an elderly lady. There is no allegation of an elderly person in this—

that is specifically going into the facts, and you-all know that that’s not allowed.‖7

Westmoreland’s counsel moved for a mistrial, which the trial court denied. The

prosecutor then asked Reverend Burton if he knew that Westmoreland was in a

criminal street gang, and Reverend Burton said no.

      Westmoreland objected again when the prosecutor asked defense witness

Cynthia Westmoreland, Westmoreland’s mother,8 the following:

      7
       The admission of these unproven allegations constituted proof of an
extraneous offense on a non-final conviction and would not have been
admissible over a timely and specific objection. See, e.g., Harris v. State, No.
01-88-00991-CR, 1990 WL 39468, at *2–3 (Tex. App.—Houston [1st Dist.] Apr.
5, 1990, pet. ref’d) (not designated for publication) (holding that appellant’s failure
to object to the admission of unproved burglary allegations submitted as the
basis for revocation of appellant’s probation waived any error).
      8
       During her direct examination, Cynthia testified that Westmoreland was a
good son and that he had ―never been disrespectful to any elderly person that
[she] know[s].‖ During cross-examination, Cynthia stated that prior to the
shooting, she had never heard of her son’s involvement in Gang B, that she
knew he had never been a gang member and had not been involved in Gang B,
that Westmoreland had not been involved in a gang-related fight at a shopping
mall on February 4, 2006, and that he was not involved in a gang-related fight at
a recreation center on November 11, 2006. She denied being aware that
Westmoreland had pleaded guilty to the misdemeanor criminal trespass charge,
but she knew that he had pleaded guilty to the possession of marihuana charge.


                                            7
      [State]: You know that [Westmoreland] was arrested for an offense
      in Gregg County, Texas?

      [Witness]: Yes. They was [sic] doing stops, pulling people over for
      insurance.

      [State]: And the offense was aggravated robbery

      [Witness]: That’s what they say it is.

      [State]: And I’m not alleging there was a weapon, but did you know
      who the victim was?

      [Defense counsel]: Your Honor, again, I object.

The trial court sustained Westmoreland’s objection and instructed the jury to

disregard the last statement by the State.

      When Westmoreland moved for a mistrial, the trial court asked both sides’

attorneys to approach the bench and then asked the State, ―You have a reason

to go into this again?‖ The prosecutor replied, ―Absolutely. . . . They are asking

for probation. I am entitled to test her knowledge of his pending legal issues. He

is still going to have to face these charges after he’s done here.‖ The trial court

asked, ―How would she know anything about it?‖ and the prosecutor replied,

―She’s his mother.‖ The trial court said that it was hearsay and then denied

Westmoreland’s motion for mistrial.

C. Analysis

      Westmoreland articulates his complaint thusly:

      The trial [c]ourt’s instruction to the jury to disregard the erroneous
      evidence may well have been sufficient to vitiate the harm in the first
      instance of error. However, when the State repeated its misconduct,
      requiring the trial [c]ourt to once again instruct the jury, that

                                         8
      instruction has less ameliorating effect. To uphold this misconduct
      by failing to reverse this case for a new trial on punishment would
      encourage the State to repeat this form of conduct. Here, the
      erroneous evidence was not a slight claim of misbehavior on the part
      of [Westmoreland], but a claim that he had robbed an elderly person
      to the extent of causing [her] serious bodily injury. While we may
      speculate that after [the] second infraction by the State that the jury
      somehow overlooked this claim, it strains reason to believe that was
      the case.

Westmoreland cites Cliburn v. State, 661 S.W.2d 731, 732 (Tex. Crim. App.

1983), to support his argument.9

      We first observe that the complained-of allegations concerning the Pauline

Cobb incident were already before the jury and had been admitted without

objection prior to Reverend Burton’s or Cynthia’s testimonies, Westmoreland’s

objections, and Westmoreland’s motions for mistrial during their testimonies.

Specifically, as previously recounted, during the punishment phase of trial, during

the reading of State’s Exhibits 140 and 141 into evidence, the prosecutor recited,

without objection:

      Allegations in both [exhibits 140 and 141] for the petition to revoke
      his probation constitute the offense here of murder and while in the
      course of committing theft of property and with intent to obtain or
      maintain control of said property, the defendant intentionally or
      knowingly caused serious bodily injury to Pauline Cobb, an elderly
      woman over the age of 65 in Gregg County, Texas, on or about the
      20th day of March 2008.




      9
       In Cliburn, the court stated that the State was entitled to show that
probation had been revoked but not the details of the offense upon which the
revocation was based. 661 S.W.2d at 732.


                                        9
[Emphasis added.] See Rico v. State, 707 S.W.2d 549, 553 n.1 (Tex. Crim. App.

1983) (distinguishing Cliburn based on appellant’s failure to object to the

admission of an unadjudicated extraneous offense contained in a motion to

revoke probation); Ytuarte v. State, No. 03-01-00168-CR, 2002 WL 820927, at *2

(Tex. App.—Austin May 2, 2002, pet. ref’d) (not designated for publication)

(stating that although the State incorrectly presented documents concerning the

details of the offenses used to revoke appellant’s probation, appellant did not

object when the evidence was presented and therefore waived error); see also

Tex. R. App. P. 33.1.

      Further, because the jury was already aware of the Pauline Cobb incident

when the State began cross-examining Reverend Burton and Cynthia,

Westmoreland’s only possible objections to the questions to these witnesses

concerned whether Burton was aware Westmoreland “pled true to” the

allegations and whether Cynthia was aware that Westmoreland was arrested for

the offense. And the trial court sustained the objections to both questions and

instructed the jury to disregard each time. See Russeau, 171 S.W.3d at 885

(―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.‖). Under the

circumstances, we cannot say that the questions Westmoreland complains of—

particularly the second question—were of ―such a character as to suggest the

impossibility of withdrawing the impression produced on the minds of the jury,‖ as

the underlying basis for both objections was the State’s unobjected-to recitation

                                       10
that Westmoreland had caused serious bodily injury to an elderly woman while

robbing her. See Hernandez, 805 S.W.2d at 414; see also Rico, 707 S.W.2d at

553 n.1; Yuarte, 2002 WL 820927, at *2; Harris, 1990 WL 39468, at *2–3.

Therefore, we hold that the trial court did not abuse its discretion by denying the

motions for mistrial, and we overrule Westmoreland’s single point.

                                 IV. Conclusion

      Having overruled Westmoreland’s single point, we affirm the trial court’s

judgment.

                                                   PER CURIAM

PANEL: MCCOY, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 7, 2011




                                        11
