                                                                               PD-0551-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
 June 17, 2015                                              Transmitted 6/17/2015 12:41:44 PM
                                                              Accepted 6/17/2015 12:49:25 PM
                                                                               ABEL ACOSTA
                          NO. PD-0551-15
                                                                                       CLERK

     IN THE COURT OF CRIMINAL APPEALS OF TEXAS


                            AT AUSTIN



                         NO. 14-13-00921-CR

                 IN THE COURT OF APPEALS FOR THE


                  FOURTEENTH DISTRICT OF TEXAS


                           AT HOUSTON



MARQUE JAMAL COLEMAN,                       APPELLANT

V.


THE STATE OF TEXAS,                         APPELLEE




 APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



                               Danny K. Easterling
                               Easterling & Easterling, P.C.
                               Texas Bar No. 06362100
                                1018 Preston, 6,h Floor
                               Houston, TX 77002
                               (713)228-4441
                               E-mail:eaepc@swbell.net
                               Counsel for Appellant,
                               Court-appointed on appeal.


                   ORAL ARGUMENT REQUESTED.
                STATEMENT REGARDING ORAL ARGUMENT


      The appellant requests oral argument because of the novelty and importance

of the issues presented.

                           LIST OF INTERESTED PARTIES


Marque Jamal Coleman                      Appellant, Defendant in trial court

Cheryl Irvin                              Appellant's Counsel at trial
917 Franklin, Fourth Floor
Houston, TX 77002

Equator L. Turner
440 Louisiana, Suite 900
Houston, TX 77002

Danny K. Easterling                       Appellant's counsel on appeal
1018 Preston, 6th Floor
Houston, TX 77002

Devon Anderson                            Harris County District Attorney
1201 Franklin, Suite 600
Houston, TX 77002

Stuart Ladner                              Assistant District Attorneys
Gretchen Flader
Melissa Hervey

Hon. Leslie Brock Yates                    Visiting Judge, 174th District Court
                                           Harris County, Texas
                               TABLE OF CONTENTS


Statement Regarding Oral Argument                                                  i

List of Authorities                                                            iv


Statement of the Case                                                          1


Statement of Procedural History                                                2

Questions Presented                                                            2

      1. Did the Court of Appeals err in holding that the appellant was not
      entitled to the submission of a jury instruction on Theft from Person
      as a lesser included offense because evidence did not directly
      address the appellant's state of mind?

      2. Did the Court of Appeals' err in holding that an instruction to
      disregard evidence sufficiently cured guilt-stage testimony indicating
      that Coleman had some connection with a gang?

Argument                                                                       3

      Reasons for Review of Question One                                       3

             A.       The Applicable Law                                       3

             B.       The Scintilla - or More - of Evidence                    5


             C.       The Court of Appeals'Narrow View of the Standard         5

      Reasons for Review of Question Two                                       9

             A.       The Applicable Law                                       9

             B.       The Improper Revelation                                  11

             C.       The Inadequacy of an Instruction                         12
Prayer for Relief                                             15

Certificate of Compliance                                     15

Certi ficate of Service                                       16

Appendix: Court of Appeals' Memorandum Opinion and Judgment




                                    in
                           LIST OF AUTHORITIES


Cases                                                                      Page

Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974)                          14

Anderson v. State, 901 S.W.2d 946 (Tex. Crim. App. 1995)                      11

Barclay v. Florida, 463 U.S. 939,103 S.Ct. 3418,77 L.Ed.2d 1134 (1983)       10

Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)      10

Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986)                           4

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992)                     10-11

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)                     3-4, 10

McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985)                       11-12

Nguyen v. State, No. 14-11-00706-CR, 2012 WL 3043063, at *3
     (Tex. App.-Houston [14th Dist.] July 26, 2012, pet.ref d)                 9

Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996)                       4

UnitedStates v. Lemon, 723 F.2d 922 (D.C. Cir. 1983)                          11

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)                       12

Constitutional Provisions. Statutes, and Rules


TEX. CODE CRIM. PROC. Art. 37.09                                               3


TEX. CONST. Art. I, § 10                                                     8-9

TEX. PENAL CODE §6.03©                                                         7

TEX. PENAL CODE §6.03(d)                                                       7


                                        iv
TEX. PENAL CODE §29.02(a)( 1)       5

TEX. PENAL CODE §31.03(e)(4)(B)    4

TEX. R. APP. PROC. 66.3(b)        6-7

U.S. CONST. Amend. V              8-9
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:


     COMES NOW the appellant, Marque Jamal Coleman (hereinafter "Coleman"),

through the undersigned court-appointed counsel on appeal, and respectfully

requests that this Court grant discretionary review of the decision in this cause by

the Court of Appeals for the Fourteenth District of Texas, for reasons set forth as

follows.


                                  STATEMENT OF THE CASE


      Coleman was indicted for Robbery in Cause Number 1347307 in the 174th

District Court of Harris County, Texas (CR-9).l A jury found Coleman guilty as

charged (CR-607). At the punishment stage Coleman stated that two enhancement

allegations relating to prior felony convictions were true (RR V-5). Coleman also

stipulated that he had other prior convictions for diverse offenses (RR VIII, Exh.

1). The visiting trial judge, Hon. Leslie Brock Yates, assessed punishment at

confinement for thirty years in the Texas Department of Criminal Justice,

Correctional Institutions Division (CR-609). Coleman gave timely notice of appeal

(CR-614).

        On appeal Coleman presented two points of error. First he argued that the

trial court judge should have instructed the jury on Theft from Person as a lesser

included offense for the charged offense of Robbery. Coleman also argued that a

1 The clerk's record containing court documents is designated by "CR" herein. The reporter's record is designated
by "RR." with Roman numerals for volume numbers. The Court of Appeals' memorandum opinion is designated by
"Mem. Opin."
detective interjected error into the proceedings when she revealed that a photo of

Coleman was taken from a "gang tracker database." The Court of Appeals

overruled both points of error and affirmed the judgment and sentence in a

memorandum opinion.

                 STATEMENT OF PROCEDURAL HISTORY


     The Court of Appeals rendered its decision and delivered its memorandum

opinion on April 16, 2015.       No motion for rehearing was filed. This Court

extended the time for filing a petition for discretionary review until June 17, 2015.

                           QUESTIONS PRESENTED


   This petition presents two questions for review:

      1. Did the Court of Appeals err in holding that the appellant was not

      entitled to the submission of a jury instruction on Theft from Person

      as a lesser included offense because evidence did not directly

      address the appellant's state of mind?

      2. Did the Court of Appeals' err in holding that an instruction to

      disregard evidence sufficiently cured guilt-stage testimony indicating

      that Coleman had some connection with a gang?
                                    ARGUMENT


                REASONS FOR REVIEW OF QUESTION ONE

      Did the Court of Appeals err in holding that the appellant was not
      entitled to the submission of a jury instruction on Theft from
      Person as a lesser included offense because evidence did not
      directly address the appellant's state of mind?

                               A. The Applicable Law

      Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), observed that TEX.

CODE CRIM. PROC. Art. 37.09 sets forth the ways in which an offense may

constitute a lesser included offense of the offense charged in the indictment. An

offense is a lesser included offense if:

      (1) It is established by proof of the same or less than all the facts
      required to establish the commission of the offense charged;

      (2) It differs from the offense charged only in the respect that a less
      serious injury or risk of injury to the same person, property, or public
       interest suffices to establish its commission;

      (3) It differs from the offense charged only in the respect that a less
      culpable mental state suffices to establish its commission; or

      (4) It consists of an attempt to commit the offense charged or an
      otherwise included offense.


Under Hall, supra at 531, "when the greater offense may be committed in more

than one manner, the manner alleged will determine the availability of lesser-

included offenses. In this cause, for example, the indictment alleged that Coleman
caused bodily injury, rather than threatening it, so the analysis must focus on what

lesser offenses might apply to that form of Robbery.

       Hall specifically held that the determination as to whether a charged offense

includes another particular offense as a lesser included offense, under the first

alternative in Article 37.09, "should be made by comparing the elements of the

greater offense, as the State pled it in the indictment, with the elements in the

statute that defines the lesser offense." Id., at 525. The controlling test is whether

"the elements of the lesser offense are established by proof of the same or less than

all the facts required to establish the commission of the charged offense." Id., at

536.   In this cause the State conceded - and the Court of Appeals held (Mem.

Opin., p. 4) - that the offense of Theft from Person, under TEX. PENAL CODE

§31.03(e)(4)(B), can be a lesser included offense of Robbery. This Court had so

held in Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986).

       That statute-based determination is the first step in a two-step analysis. The

second step is to determine whether or not a lesser included offense has been raised

in a particular case. The test for this second step is whether there is "some evidence

which would permit a rational jury to find that if guilty, the defendant is guilty

only ofthe lesser offense." Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App.

1996). "Anything more than a scintilla ofevidence from any source is sufficient to
entitle a defendant to submission of the issue." Id. The Court of Appeals held that

this prong of the test was not met and therefore overruled the point of error.

                     B. The Scintilla - or More - of Evidence


      Hortensia Garza testified that she was returning home from work at around 2

a.m. on April 28 2012 (RR III- 13-14). Garza had parked her car at her apartment

complex and was walking toward her apartment. As she got close to her apartment

a man appeared, about only two feet from her (RR 111-23). She thought he was a

resident and smiled at him but did not say anything (RR 111-23). As the man

walked past, he tried to grab a backpack that Garza was carrying over her left

shoulder (RR 111-26). Garza "fought" to keep the backpack for about 30 seconds

until the man "shoved" Garza in the face with the palm of his hand (RR 111-28).

That knocked Garza down, and the man ran off with the backpack. As a result of

falling to the ground, Garza hit her head, but she did not claim any injury from that

(RR 111-29). Garza broke a finger as she landed on the ground (RR 111-29-30).

Garza identified the appellant in court as the man who assaulted her (RR 111-30).

            C. The Court of Appeals' Narrow View of the Standard

    Coleman argued in the Court of Appeals that there was some evidence that he

shoved Garza without having the mens rea required for Robbery under TEX.

PENAL CODE §29.02(a)(l), i.e./'intentionally, knowingly, or recklessly" causing
bodily injury. Coleman argued that his goal was to steal, not to hurt Garza. There

was at least some indication that Garza fell, and thereby broke her finger, because

of her size and weight. Garza said "I am short, but I got some weight on me. In

order to knock me down, you have to push me hard."

      Another indication that Coleman only intended to make a quick grab and run

off to the escape vehicle with his plunder was his method of walking past and

catching Garza off guard. Coleman pushed Garza instead of using the kind of

fighting blows like punching, kicking, etc., which would be more consistent with

an intent to actually injure someone. The act of pushing may indicate a mere desire

to create distance between the assailant and the victim, thus preventing hand-to-

hand resistance and giving the assailant a head start in any ensuing chase.

      The Court of Appeals nevertheless declined to consider testimony about the

physical contact and how it led to a broken finger as evidence which might go to

the question of mens rea, stating:

      Garza's testimony only speaks to causation, not Coleman's mental
      state as to whether he intended to cause Garza bodily injury.

(Mem. Opin., pp. 6-7). But did the testimony only have relevance to causation?

      This Court is presented with an important but unsettled legal question: May

the "scintilla" of evidence to show a lesser culpable mental state, and thus justify a

jury instruction, consist of indirect or circumstantial evidence regarding actions
and consequences? By effectively holding that it may not, the Court of Appeals is

giving too narrow a reading to the second prong of the test for entitlement to an

instruction. This is an issue worthy of this Court's examination under TEX. R.

APP. PROC. 66.3(b).

      Consider the difference between "recklessness" (which is the lowest of the

three levels of mens rea for Robbery under the "causes injury" prong of the statute)

and "criminal negligence." TEX. PENAL CODE §6.03(c) provides:

      A person acts recklessly, or is reckless, with respect to circumstances
      surrounding his conduct or the result of his conduct when he is aware
      of but consciously disregards a substantial and unjustifiable risk that
      the circumstances exist or the result will occur. The risk must be of
      such a nature and degree that its disregard constitutes a gross
      deviation from the standard of care that an ordinary person would
      exercise under all the circumstances as viewed from the actor's
      standpoint.

In the context of a Robbery prosecution based on "causing" injury, the recklessness

would apply to the result of conduct, i.e. causing the particular injury suffered by

the complainant. Criminal negligence, under TEX. PENAL CODE §6.03(d), is

distinguishable in that the actor need not actually be "aware" of the risk. It is

applicable when a reasonable person ought to be aware of the risk.

      An actor's state of mind often is suggested by his specific actions and/or by

the circumstances of an encounter. The State has advanced that proposition in

thousands ofjury arguments over the years, and that logic is well embedded in case
law too. Should not the same principle apply when the issue is whether another

offense may be indicated? In this cause Coleman's actions do not indicate that he

actually was aware that his "push and grab" theft technique was designed to cause

injury. Nor does the evidence indicate that the risk that Garza could break her

finger by falling was a "substantial" one in a "push and grab" theft.

      Thus some of the evidence pointed more towards criminal negligence than it

pointed towards recklessness with respect to physical injury. That should be

enough to justify a lesser included offense instruction, for the only way to raise the

question of a lesser mens rea and actually rule out a greater mens rea would be for

the defendant to testify. Surely the second prong of the test should not be pushed to

the point where it virtually requires a defendant to testify, since that would

undermine constitutional rights under U.S. CONST. Amend. V and TEX. CONST.

Art. I, §10.

       Coleman realizes that it could be argued that, if the mens rea of recklessness

is doubtful, the trial court should simply instruct that reasonable doubt on the mens

rea requires acquittal. In practice, however, it is likely that a jury will not

completely acquit a defendant who is shown to have committed at least a state jail

felony offense. Furthermore, for defense counsel to have to argue for a complete

acquittal, based on a lack of clarity as to whether a defendant was reckless or only
criminally negligent, would itself be perilous to the Fifth Amendment privilege

(and the similar privilege under Article I, Section 10), for the jury would know that

only one person could give testimony making such a fine distinction.

      In fact, a case cited by the Court of Appeals suggests that even abandoning

constitutional protections might be to no avail in obtaining an instruction on the

theory of a lesser offense. A memorandum opinion, Nguyen v. State, No. 14-11-

00706-CR, 2012 WL 3043063, at *3 (Tex. App.-Houston [14th Dist.] July 26,

2012, pet.refd) was cited as "holding that [the] defendant was not entitled to a

lesser included offense instruction because the evidence showed that he acted

intentionally, despite claiming that 'he never intended to harm the complainant.'"

      Finally, there is room here even for a more fundamental consideration of

whether the "guilty only" element of the standard needs to be reconsidered, or at

least not applied to charge requests centered on mens rea. In the long run that

would simplify the law, aid jury deliberations, and avoid some appellate litigation,

all at the relatively small cost of adding a page to some jury charges. Whatever the

right solution is, the first step is to grant discretionary review.
                 REASONS FOR REVIEW OF QUESTION TWO

      Did the Court of Appeals err in holding that an instruction to
      disregard evidence sufficiently cured guilt-stage testimony
      indicating that Coleman had some connection with a gang?

                                A. Applicable Law

      It is a cardinal principle of criminal law that a felony defendant should be

tried for the offense charged in the indictment. Hall, supra at 532 called this

principle an "ancient doctrine of both the common law and of our Constitution."

One way in which this doctrine can be breached is through evidence which

improperly reveals other criminal conduct or suggests the bad character of the

defendant at the guilt stage of trial. One type of such evidence is testimony which

links a defendant to organized criminal activity or to a group identified as a "gang"

by the police.

      In Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309

(1992), the Supreme Court held that evidence showing that Dawson was a member

of a prison gang affiliated with the Aryan Brotherhood was not relevant to

sentencing, Dawson distinguished cases such as Barclay v. Florida, 463 U.S.

939,103 S.Ct.3418,77 L.Ed.2d 1134 (1983), where the crime was a racially-

motivated murder. In the wake of Dawson, this Court has approved of introducing

gang-affiliation evidence in some cases. In Fuller v. State, 829 S.W.2d 191 (Tex.



                                         10
Crim. App. 1992), the Court appeared to approve a three-part relevancy test for

admission of such evidence, derived from United States v. Lemon, 723 F.2d

922,941 (D.C. Cir. 1983), although Fuller is a little murky in that respect because

the issue in Fuller ultimately was decided on the basis of procedural default.

Under the Lemon test, evidence of group affiliation is not to be admitted at the

punishment stage unless it establishes that (1) the defendant is a member of the

group, (2) the group's aims are illegal, and (3) the defendant intended to further

those illegal aims. Fuller, supra; Lemon, supra. See also Anderson v. State, 901

S.W.2d 946 (Tex. Crim. App. 1995). It has never been suggested by this Court that

proof of the Lemon factors would be sufficient to justify admission of gang

affiliation evidence at the guilt stage of trial.

       As with other evidence, a witness could step over the line and introduce the

fact of gang affiliation. As with other improper, an objection is required, and if it

is sustained, then the trial court judge should be requested to give an instruction

that the jury must disregard the improper testimony. Once that is done, the question

becomes whether a requested mistrial also should be granted. That issue is the basis for

this point of error.

       The Court of Appeals accurately summarized the general rule in this area, stating:

       Generally, any error resulting from improper testimony is cured by an
       instruction to disregard the same except in extreme cases where it
       appears that the evidence is clearly calculated to inflame the minds of

                                             11
      the jury and is of such a character as to suggest the impossibility of
      withdrawing the impression produced on their minds. McKay v. State,
      707 S.W.2d 23, 36 (Tex. Crim. App. 1985). In most instances, an
      instruction to disregard the remark will cure the error. Wesbrook v.
      State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "Only offensive or
      flagrant error warrants reversal when there has been an instruction to
      disregard ... ." Id. at 116.

The question is whether that general rule should apply.

                             B. The Improper Revelation

       Coleman was tracked down through information about a vehicle which was used in

his escape. Houston Police Detective S. Spivey testified that a photo of Coleman's

picture was in a "gang tracker" database used by the Houston Police (RR IV-31-32).

Spivey mentioned discovering "all the evidence"in that review, but, as the Court of

Appeals observed, without explaining what that meant (Mem. Opin., p. 8).

       Defense counsel promptly objected. The objection was sustained, and a

perfunctory instruction to ignore the evidence was given, but the request by

Coleman's counsel for a mistrial was denied (RR IV- 34-35).

                       C. The Inadequacy of an Instruction

       It is useful to begin by recognizing the obvious: Anyone on the jury would infer

that Coleman's picture was in that police database because the police had some reason

to think that Coleman was a member of a criminal gang or otherwise was affiliated

with a gang.     Spivey's vagueness about the "evidence" derived from the "gang

tracker" hardly mattered.


                                            12
      The Court of Appeals held that the instruction adequately cured the harm. The

Court of Appeals "presume[d] that the jury followed the trial court's instruction to

disregard." Should that presumption apply, however, when the concept of "guilt

by association" is implied? That concept is inimical to one of the most basic tenets

of the law, as discussed in Part A, supra. The Court of Appeals cited a pair of

intermediate appellate opinions finding no harm in a witness' allusion to a gang,

but no petitions for discretionary review were filed in those cases (Mem. Opin., pp.

9-10). The very fact that this problem continues to arise, in diverse courts around

the State, suggests that it is time for this Court to provide guidance. The mere

spectre of a mistrial or reversal does not seem to be an effective deterrent.

      The Court of Appeals noted that the officer's testimony "was immediately

cut off by the defense counsel" (Mem. Opin., p. 9). After that, it was not mentioned

again. Id. Thank goodness for that, but the sound of one firecracker can be loud

enough. The Court of Appeals also pointed out that "Officer Spivey did not

provide any detail as to which gang Coleman was affiliated with nor did she

expand on any information surrounding the gang tracker database" (Mem. Opin., p.

9). It is impossible to know, however, if the lack of clarification helped or hurt,

once the horse was out of the barn. Say "Gang" and most people will think of the

Cosa Nostra, the Crips or Bloods, MS-13, or the kind of motorcycle gangs which

were involved in the recent Waco incident. The only thing the jurors would know

                                           13
for sure was that this "gang," whatever its size, principles, or activities, was

involved in enough bad things to justify being monitored by the police. The Court

of Appeals said that Spivey's particular statement was not "flagrant" or

"offensive," but that misses the point: criminal gangs are inherently offensive to

jurors, and the risk of tainting the guilt-stage deliberations is genuine and

substantial.


      It is true that there have been many cases, spanning decades, which have relied

upon the adequacy of a curative instruction when extraneous misconduct is dredged

up by a witness. See Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974) and cases

cited therein. In most of those cases, however, the evidence concerned a defendant's own

conduct or reputation, and the nature of the extraneous misconduct was clear enough that

a jury would not be invited to speculate about "what else" a defendant might have done.

Once evidence of gang affiliation appears, however, the jurors' imaginations can run

wild. It may well be futile, or even counterproductive, to tell jurors to "pay no attention

to that gang of men behind the curtain."




                                            14
                            PRAYER FOR RELIEF


      Wherefore Coleman prays that discretionary review be granted as to both

      questions.

                               Respectfully submitted,

                               /s/ Danny K. Easterling
                               Danny K. Easterling
                               Easterling & Easterling, PC
                               Texas Bar No. 06362100
                               1018 Preston, 6lh Floor
                               Houston, TX 77002
                               (713)228-4441
                               E-mail: eaepc@swbell.net

                               Counsel for Appellant,
                               Court-appointed on appeal.


                     CERTIFICATE OF COMPLIANCE


      I certify that this petition was prepared using Wordperfect with fourteen-

point font, and twelve-point font for footnotes, in Times New Roman typeface.

Omitting the portions not included for the word limit, this petition contains 3100

words.


                                     /s/ Danny K. Easterling
                                     Danny K. Easterling




                                        15
                          CERTIFICATE OF SERVICE


      I certify that a copy of this petition has been served on counsel for the State

at the following addresses on this the 17th day of June, 2015:

      Harris County District Attorney's Office       Lisa McMinn
      Appellate Division                             State Prosecuting Attorney
      Attention: Melissa Hervey                      P.O. Box 12405
      1201 Franklin, Suite 600                       Austin, TX 78711
      Houston, TX 77002



                                        /s/ Danny K. Easterling
                                        Danny K. Easterling




                                          16
Affirmed and Memorandum Opinion filed April 16, 2015.




                                      In The


                    JffnurteEntJj (Enurt of Appeals

                              NO. 14-13-00921-CR


                  MARQUE JAMAL COLEMAN, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                              Harris County, Texas
                        Trial Court Cause No. 1347307


                 MEMORANDUM                     OPINION



      Following a jury trial, appellant Marque Jamal Coleman was found guilty of
the second degree felony offense of robbery. Coleman pleaded true to two
enhancements and the trial court assessed punishment at thirty years'
imprisonment. In this appeal, Coleman contends that the trial court erred in not
submitting the lesser included offense of theft from a person in the jury charge and
by not granting a mistrial after a police officer stated that Coleman's photo was
taken from a "gang tracker" database. We affirm.

                                   Background

      On April 28, 2012, at approximately 1:45 a.m., Hortensia Garza was leaving
HEB where she worked as a night stocker. Garza arrived home to her apartment
complex located at 9550 Long Point Road, Houston, Texas. Garza parked her car,
grabbed her items, and began walking toward her apartment. When Garza was
about five feet away from her apartment, she saw a man walking in her direction.
Garza believed that the man was a resident of the apartment complex so she smiled
at him. As the man passed by Garza's left side, he grabbed her backpack from her
shoulder. Garza and the man fought over the backpack for approximately thirty
seconds until the man shoved Garza in the face with the palm of his hand. Garza
fell to the ground, hit her head, and broke her finger. The man grabbed the
backpack, ran, and jumped into a vehicle. Garza's backpack contained her wallet,
driver's license, debit card, flex-pay card, and headphones.

      Garza screamed throughout the duration of the struggle and a security guard
appeared. By the time the security guard arrived, the man had taken off in the
vehicle. Garza saw the vehicle attempt to exit the apartment complex, but the gate
was locked. Officer Brian Foley arrived at the scene at 2:11 a.m. and interviewed
Garza and the security guard. Garza described the man as a black male, between
the ages of twenty and twenty-five, with a short black afro. Garza also stated that
the man was wearing a black shirt and red shorts. A green GMC Yukon was
discovered at another area of the apartment complex. The Yukon had crashed into
a corner apartment and had been abandoned. The Yukon was towed to the police
storage lot.

       On April 30, 2012, the case was assigned to Officer Spivey. Officer Spivey
ran the license plate from the Yukon discovered at the scene and found that it was
                                          2
registered to Almador Juanes. At the time, Juanes was already contacting the
police in order to obtain his vehicle from the tow lot. Officer Spivey spoke to
Juanes and learned that on the night of the incident, Juanes loaned his vehicle to
his friend, Blanca Diaz. Based on this conversation, Officer Spivey also discovered
that a man named "Que" was with Diaz when Juanes loaned her the vehicle.
Officer Spivey then ran a check on Diaz to see who she was associated with or
whether she had a boyfriend and found Coleman's name.

      Officer Spivey developed a photo spread, using Coleman's photo from a
database along with five other black males' photos. Officer Spivey contacted
Garza and drove to her family member's home, where she was residing at the time.
When Officer Spivey showed Garza the photo spread, she said "that is him" within
seconds and became very emotional. Garza selected Coleman's photo from the
spread and identified him as the man who robbed her. Garza became upset and
repeatedly told Officer Spivey "that is him." At trial, Garza testified that when
Coleman was two feet away from her, she clearly saw his face. Garza stated that
when she identified Coleman from the photo spread, she was 100 percent sure it
was him and that there was no doubt in her mind. Garza further testified that it was

easy to identify him.

      Officer Spivey showed the same photo spread to Juanes, who identified
Coleman as the man he knew as "Que." Juanes also identified Coleman as the
person he saw in the passenger side of his vehicle with Diaz the night he loaned his
Yukon to her.

      On May 17, 2012, Coleman was indicted for the second degree felony
offense of robbery, enhanced by two prior felony convictions. Tex. Penal Code §
29.02(a)(1); Id. § 29.02(b). The jury found Coleman guilty as charged in the
indictment. At the punishment stage, Coleman pleaded true to both of the State's
punishment enhancement allegations. On September 25, 2013, the trial court found
the enhancement allegations to be true and sentenced Coleman to thirty years'
imprisonment. Coleman filed a motion for new trial on October 11, 2013, which
was overruled by operation of law.

                               Issues and Analysis

      On appeal, Coleman contends that the trial court erred in refusing his
requested jury instruction on the lesser included offense of theft from a person.
Coleman also asserts that the trial court erred in denying his motion for mistrial
when Officer Spivey testified that she retrieved Coleman's photo from a gang
tracker database.

      I.     Lesser Included Offense

      In his first issue, Coleman argues that the trial court erred in failing to charge
the jury on the lesser included offense of theft from a person.

      We apply a two-prong test when determining whether a defendant is entitled
to an instruction on a lesser included offense. State v. Meru, 414 S.W.3d 159, 162
(Tex. Crim. App. 2013); see also Rousseau v. State, 855 S.W.2d 666, 672-73
(Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App.
1981) (op. on reh'g). We first consider whether the offense contained in the
requested instruction is a lesser included offense of the charged offense. Goad v.
State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). If so, we must decide whether
the admitted evidence supports the instruction. Id.

      The State concedes that in this case, theft from a person can be a lesser
included offense of robbery. See Earls v. State, 707 S.W.2d 82, 84-85 (Tex. Crim.
App. 1986) ("Theft, by whatever method committed, is necessarily included in the
alleged elements of the greater offense of robbery, when, as in the instant case, the
indictment alleged 'in the course of committing theft.'"). Thus, we need only
address the second prong in our analysis to determine whether the admitted
evidence supports the instruction.

       The evidence supports an instruction on a lesser included offense if it
permits a rational jury to find the defendant guilty only of the lesser included
offense. Goad, 354 S.W.3d at 446. There must be some evidence directly germane
to the lesser included offense for the factfinder to consider before an instruction on

the lesser included offense is warranted. Id. We review all of the evidence

presented at trial in making this determination. Id. The evidence must establish that
the lesser included offense is a valid, rational alternative to the charged offense.
See Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008). Anything more
than a scintilla of evidence is sufficient to entitle a defendant to the lesser included

offense instruction.' See Goad, 354 S.W.3d at 446. In making this determination,
we may not consider "[t]he credibility of the evidence and whether it conflicts with
other evidence or is controverted." Id. at 446-47 (quoting Banda v. State, 890
S.W.2d 42, 60 (Tex. Crim. App. 1994)).

       The offense of robbery requires proof that a defendant intentionally,
knowingly, or recklessly caused bodily injury to another. Tex. Penal Code §
29.02(a)(1). The offense of theft from a person does not require proof of this
element. See Tex. Penal Code § 31.03(a) (providing that a person commits theft "if
he unlawfully appropriates property with intent to deprive the owner of property").


       1 The test for determining whether evidence is legally sufficient and the test for
determining whether to submit a lesser included offense jury instruction are "quite different."
Dixon v. State, 358 S.W.3d 250, 257 (Tex. App.—Houston [1st Dist.] 2011, pet. refd) (quoting
Wasylina v. State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009)). The evidence could easily be
legally sufficient to support a conviction for a lesser included offense but not justify the
submission of a lesser included offense instruction because the evidence does not show that the
defendant is guilty only of the lesser included offense. Id. at 258.
To be entitled to a reversal, Coleman must show some evidence in the record that
would have permitted a rational jury in his case to find that he was guilty only of
theft from a person.

      Coleman argues that he was entitled to a jury instruction on the lesser
included offense of theft from a person because there was some evidence in the
record that he shoved Garza in the face without "intentionally, knowingly, or
recklessly" causing her bodily injury. See Tex. Penal Code § 29.02(a)(1).
Specifically, Coleman argues that there is evidence in the record that (1) Garza fell
because of her size and weight; (2) he intended it to be a quick theft; and (3) he
pushed her instead of using a fighting tactic.

      The evidence of how the offense occurred came from the testimony of
Garza, who testified that Coleman shoved her face with his palm in an attempt to
steal the backpack when they were struggling over it. Garza testified that the shove
caused her to fall to the ground, where Garza fell on her head and broke her finger.

      Coleman directs this court to Garza's testimony in which she "attributed the
result of falling to the ground to the fact she was short and had 'some weight on
me.'" Coleman alleges that he did not intend to break Garza's finger or force her to
fall because her testimony reflected that she fell because of her height and weight,
rather than his forceful shove. However, there is no evidence that Garza attributed
her fall to anything other than Coleman shoving her backwards. At trial Garza
actually stated, "I am short, but I got some weight on me. In order to knock me
down, you have to push me hard." Garza's testimony reflected that she fell to the
ground and broke her finger because Coleman shoved her in the face with his palm
in order to retrieve the backpack. Garza's testimony only speaks to causation, not
Coleman's mental state as to whether he intended to cause Garza bodily injury.

       Coleman further asserts that he did not intend to cause Garza bodily injury
because he intended for it to be a quick theft which was evidenced by how quickly
he fled the scene on foot. Coleman also argues that he did not act with the requisite
mens rea because he pushed her in the face, instead of using a "'piledriver' blow or
a leg-tipping maneuver, such as a fighting tactic."

       Coleman's evidence does not provide any evidence that would permit a
rational jury to believe he committed the robbery without intentionally, knowingly,
or recklessly causing Garza bodily injury. See Nguyen v. State, No. 14-11-00706-
CR, 2012 WL 3043063, at *3 (Tex. App.—Houston [14th Dist.] July 26, 2012, pet.
refd) (mem. op.) (not designated for publication) (holding that defendant was not
entitled to a lesser included offense instruction because the evidence showed that

he acted intentionally, despite claiming that "he never intended to harm the
complainant"). Therefore, the evidence does not support the conclusion that if
Coleman is guilty, he is guilty of only theft from a person.

       Because there is no evidence in the record that would permit a jury rationally
to find that if he is guilty, he is guilty only of the lesser included offense of theft
from a person, the trial court did not err in denying Coleman's requested lesser
included offense instruction.

       We overrule Coleman's first issue regarding the lesser included offense.

       II.     Motion for Mistrial

       In his second issue, Coleman contends that the trial court erred in denying
his motion for mistrial after Officer Spivey stated that Coleman's photo was taken

       2 Coleman does not dispute causation and admits that "[i]f the only question was
causation, then it fairly could be said the Coleman's action caused the broken finger, which is a
'bodily injury."'
from a gang tracker database.

      While on redirect, the prosecutor asked Officer Spivey what evidence, other
than the witness's identification, she used in order to make a final determination. In
response, Officer Spivey stated, "[w]hen I found Que on the gang tractor [sic]
system and it came back to Marque Coleman and such, just all the evidence." The
defense counsel immediately objected to the comment and approached the bench.
Outside the presence of the jury, defense counsel again objected. She asked the
court to strike Officer Spivey's testimony, requested a jury instruction, and moved
for a mistrial. The court sustained the objection, but denied the motion for a
mistrial. When the jury was brought back into the courtroom, the judge
immediately stated "[t]he jury is instructed to disregard that portion of the last
answer."

      The denial of a motion for mistrial is reviewed for abuse of discretion.

Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). We view the
evidence in the light most favorable to the trial court's ruling, considering only
those arguments before the court at the time of the ruling. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009). A trial court does not abuse its discretion
when its decision is within the zone of reasonable disagreement. See id.;
Montgomery v. State, 810 S.W.2d 372,391 (Tex. Crim. App. 1991) (op. on reh'g).

      A mistrial is an appropriate remedy in "extreme circumstances" for a narrow
class of highly prejudicial and incurable errors. Ocon, 284 S.W.3d at 884. A
mistrial halts trial proceedings when the error is so prejudicial that expenditure of
further time and expense would be wasteful and futile. Id. Whether an error
requires a mistrial must be determined by the particular facts of the case. Id.

       Generally, any error resulting from improper testimony is cured by an
instruction to disregard the same except in extreme cases where it appears that the
                                          8
evidence is clearly calculated to inflame the minds of the jury and is of such a
character as to suggest the impossibility of withdrawing the impression produced
on their minds. McKay v. State, 707 S.W.2d 23, 36 (Tex. Crim. App. 1985). In
most instances, an instruction to disregard the remark will cure the error. Wesbrook
v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "Only offensive or flagrant
error warrants reversal when there has been an instruction to disregard ...." Id. at
116.

       After Officer Spivey mentioned that Coleman's photo was taken from a
gang tracker database, defense counsel immediately objected and asked to
approach. The jury was removed from the courtroom and upon returning, the trial
court sustained defense counsel's objection and promptly instructed the jury to
disregard the remark. We presume that the jury followed the trial court's
instruction to disregard. Id. Although Officer Spivey mentioned that the photo was
taken from a gang tracker database, her testimony was immediately cut off by the
defense counsel. Officer Spivey did not provide any detail as to which gang
Coleman was affiliated with nor did she expand on any information surrounding
the gang tracker database. After Officer Spivey's testimony, the gang tracker
database was never mentioned again at trial.

       We cannot say that Officer Spivey's statement was so offensive or flagrant
as to warrant the drastic remedy of a mistrial. Further, the comment was not so
offensive or flagrant that the trial court's instruction to the jury to disregard the
statement was insufficient to cure any error. See Bridgewater v. State, 905 S.W.2d
349, 354 (Tex. App.—Fort Worth 1995, no pet.) (holding that any possible error
from witness' statement of "[h]e's already said that I can't say the thing about
gangs" was cured by trial court's instruction to disregard); Villarreal v. State, 821
S.W.2d 682, 686 (Tex. App.—San Antonio 1991, no pet.) (stating that the
prosecutor's mentioning of defendant being in a gang during the guilt/innocence
phase of trial was cured by the court's instruction to disregard the statement). The
trial court did not abuse its discretion in denying Coleman's motion for a mistrial.

         We overrule Coleman's second issue regarding the motion for mistrial.

                                    Conclusion

         We overrule both of Coleman's issues and affirm the judgment of the trial
court.




                                        /s/        Ken Wise
                                                   Justice




Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                              10
                                                                      April 16, 2015




                                JUDGMENT

                QUje Jfloisrteentff Court af Appeals
                 MARQUE JAMAL COLEMAN, Appellant

NO. 14-13-00921-CR                         V.

                      THE STATE OF TEXAS, Appellee




     This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.

     We further order this decision certified below for observance.
