                                     NO. 07-04-0440-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                  SEPTEMBER 19, 2005
                            ______________________________

                                LEE CORNELIUS MURRAY,

                                                                   Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                     NO. 49,243-B; HON. JOHN BOARD, PRESIDING
                          _______________________________

                                       Opinion
                           _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Lee Cornelius Murray appealed his conviction for burglary of a habitation. Through

two issues, he contended that 1) the trial court erred in failing to grant his motion for mistrial

due to the contamination of the jury panel, and 2) the trial court improperly cumulated his

sentence. We affirm the judgment of the trial court.

       Issue One – Mistrial

       Appellant argued that the jury panel was tainted when venire member Gonzales

stated that he knew the defendant from seeing him in the neighborhood and “[e]verybody

now [sic] how he was.” Though Gonzales was excused for cause from the panel, other
members of the venire heard the comment. Moreover, venire member Ray told the trial

court that she was concerned about it and could not “put it out of [her] mind.” Yet, this

same panel member also cautioned that she was not “saying [she] won’t be objective.”1

At that point, appellant moved for a mistrial. In response to the motion, the trial court

collectively asked the venire members if they heard Gonzales’ utterance and whether it

would “affect” their “ability to be fair” towards appellant “[b]ecause that might come into your

deliberations back in the jury room” or “influence your decisionmaking [sic] in the

punishment phase.” The trial court noted for the record that though most “if not all” of the

venire members indicated that they heard the comment, “[a]bsolutely nobody indicated that

[it] would have anything to do with the verdict.” Given this, the trial court denied the motion.

       We review the denial of a motion for mistrial under the standard of abuse of

discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied,

__U.S.__, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). Next, to be an instance of abused

discretion, the decision must fall outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (defining abused

discretion as a decision falling outside the zone of reasonable disagreement). Furthermore,

mistrial is appropriate only for “highly prejudicial and incurable errors.” Wood v. State, 18

S.W.3d 642, 648 (Tex. Crim. App. 2000). And, it is within the discretion of a trial court to

deny a mistrial when an instruction to disregard the matter would cure any resulting harm.

Young v. State, 137 S.W.3d 65, 72 (Tex. Crim. App. 2004). Finally, an instruction to

disregard may (under certain circumstances) cure alleged harm arising from comments that



       1
           The appellant used one of its p eremptory ch allenges to remove R ay fro m the ultim ate jury p anel.

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purportedly taint a jury venire. See e.g., id. (wherein the Court of Criminal Appeals held

that an instruction to disregard was sufficient to ameliorate any harm arising from particular

comments made during jury selection and heard by the potential jurors).

       At bar, the statement uttered by Gonzales was vague or innocuous. It did not

explain itself. Nor does the record reveal that Gonzales or anyone else explained what was

meant. So too was Gonzales removed from the venire for cause, while venire member Ray

was peremptorily struck. Thus, she had no opportunity to dwell on the matter in the

presence of the jurors ultimately selected to try the cause. The comment was also made

early in the proceeding before the presentation of evidence as opposed to the end of trial

when it would still be fresh in the jurors’ minds as they began to deliberate. More

importantly, though each venire member may have heard it, “[a]bsolutely nobody” indicated

that it would influence their decision or cause them to be unfair towards appellant. This

itself was and is evidence that the utterance was not the type of comment that any

instruction to disregard could not have cured. Given these indicia, we conclude that an

instruction to disregard would have cured the purported evil arising from the utterance and

that the decision to deny a mistrial fell within the zone of reasonable disagreement. Issue

one is overruled.

       Issue Two – Cumulative Sentence

       Appellant next complained that the order providing for cumulative sentencing was

too indefinite to be valid. This was purportedly so because it failed to contain all the indicia

of specificity mentioned in Young v. State, 579 S.W.2d 10 (Tex. Crim. App. 1979). We

overrule the issue.



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       First, the court in Young acknowledged that the five criteria mentioned were simply

“recommended.” Id. at 10. “[O]rders containing less than the recommended elements of

a cumulation order have been upheld,” it continued. Id.

       Second, to be valid, the order directing the sentences to be stacked need only “be

sufficiently specific to allow the Texas Department of Criminal Justice-Institutional

Division . . . to identify the prior with which the newer conviction is cumulated.” Ex parte

San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998); Jones v. State, No. 07-03-0226-

CR, 2004 Tex. App. LEXIS 10892 at *4 (Tex. App.–Amarillo December 2, 2004, no pet.) (not

designated for publication). And, whether this standard was satisfied can be determined

through the consideration of such things as the Young criteria. They include 1) the cause

number of the prior conviction, 2) the correct name of the court from which the prior

conviction emanated, 3) the date and nature of the prior conviction, and 4) whether the

term of years assessed in the prior conviction was mentioned by the trial court. Young v.

State, 579 S.W.2d at 10; Jones v. State, 2004 Tex. App. LEXIS 10892 at *4. Yet, again,

these factors are but guides used to reach the answer; the information to which they allude

need not be in the pronouncement if the pronouncement nonetheless gives the Department

of Criminal Justice sufficient information to identify the prior conviction involved. Hamm v.

State, 513 S.W.2d 85, 86 (Tex. Crim. App. 1974); Jones v. State, 2004 Tex. App. LEXIS

10892 at *5.

       Here, the first page of the judgment (or order) stated that the sentence began “when

the sentence in Cause No. 8649 in the 46th District Court of Wilbarger County, Texas [was]

completed.” Elsewhere in that same document, the trial court further described the prior

conviction as occurring on April 23, 1991, and involving the offense of burglarizing a

                                             4
habitation. The cause number, the trial court involved, the date of conviction, and the

nature of the prior offense is sufficient information to enable the Department of Criminal

Justice to identify the prior conviction to which the current conviction is stacked. See

Matheson v. State, 832 S.W.2d 692, 694 (Tex. App.–Corpus Christi 1992, no pet.) (holding

that the order and judgment taken together which stated the cause number, prior convicted

offense, and name of the court provided sufficient notice).

      Having overruled each issue, we affirm the trial court’s judgment.



                                                Brian Quinn
                                                Chief Justice

Publish.




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