Affirmed and Memorandum Opinion filed November 12, 2013.




                                      In the

                       Fourteenth Court of Appeals

                              NO. 14-13-00035-CR

                         FREDDIE JOSEPH, Appellant,
                                        V.

                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 174th District Court
                                Harris County
                        Trial Court Cause No. 1360849

                  MEMORANDUM OPINION


      Appellant Freddie Joseph appeals following his conviction for possession of
a controlled substance and sentence of eight years in prison. In his sole issue,
Joseph contends that the trial court abused its discretion in denying his motion for
mistrial. We affirm.
      I.       Background

      Houston Police Department officers J.R. Sneed and Kendric Stringfellow
observed Joseph standing in an intersection smoking a cigarette on September 11,
2012. The officers testified that when they approached Joseph, they could smell
the odor of phencyclidine (“PCP”). Joseph crushed the cigarette in his hand and
dropped it to the ground. The cigarette was later analyzed by a chemist at the
Houston Police Department Crime Lab and tested positive for PCP.

      At trial, Sneed, Stringfellow, and Mariam Kane, a criminalist with the
Houston Police Department Crime Lab testified on behalf of the State. Joseph did
not testify.    During the prosecutor’s direct examination of Stringfellow, the
following exchange occurred describing when the officers first approached Joseph:

      Prosecutor: Okay. Did the defendant say anything to y’all at that
      point?
      Stringfellow: I can’t recall.
      Prosecutor: Okay.
      Stringfellow: At one point he told us that he was on parole and he was
      stressing and that’s why—
      Defense counsel immediately objected and requested a bench conference.
After approaching the bench, defense counsel objected to Stringfellow’s response
as “highly prejudicial” and argued an instruction to the jurors to disregard the
statement about Joseph’s being on parole would not be effective. Defense counsel
then moved for a mistrial. The trial court denied the motion for mistrial and
instead instructed the jury to disregard Stringfellow’s answer, adding “[y]ou may
not consider it for any purpose whatsoever.”




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      The jury ultimately convicted Joseph of possession of a controlled
substance. The indictment in the case alleged two enhancement paragraphs to
which Joseph pled “True.” Finding both enhancement paragraphs True, the jury
assessed punishment at eight years confinement in the Institutional Division of the
Texas Department of Criminal Justice.          Joseph now appeals in one issue
challenging the denial of a mistrial.

      II.    Analysis

      We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
A trial court does not abuse its discretion unless its decision falls outside the zone
of reasonable disagreement. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim.
App. 1997). The determination of whether a mistrial is required depends on the
facts of a particular case. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.
2000).

      Reference by a witness to a defendant’s prior incarceration violates the rule
of evidence which prohibits the introduction of collateral offenses. See Tex. R.
Evid. 403, 404(b).      However, when a witness inadvertently references an
extraneous offense, it is generally cured by a prompt instruction to disregard the
testimony. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). We
presume a jury will obey the trial court’s instruction. See Ladd v. State, 3 S.W.3d
547, 567 (Tex. Crim. App. 1999).

      For example, in Tennard v. State, the Texas Court of Criminal Appeals held
error was cured by a prompt instruction to the jury to disregard a State witness’s
unresponsive comment that referenced a prior offense. 802 S.W.2d 678, 684−85
(Tex. Crim. App. 1990). In Tennard, the witness stated he saw the appellant after
the appellant “got out of the penitentiary.” Id. at 685. The case at hand involves a
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similar vague reference by a witness to prior offenses. See id. Like in Tennard,
the prompt limiting instruction by the trial judge cured the error. See id.

      A mistrial would be the remedy for improper conduct that is so prejudicial
that expenditure of further time and expense would be futile.          Hawkins, 135
S.W.3d at 77. For example, a mistrial would be appropriate when reference to an
extraneous offense was “clearly calculated to inflame the minds of the jury or was
of such damning character as to suggest it would be impossible to remove the
harmful impression from the jurors’ minds.” Rojas v. State, 986 S.W.2d 241, 250
(Tex. Crim. App. 1998) (holding a witness’s statement that appellant had
committed “past violence” was cured by a prompt instruction to disregard because
the State did not anticipate the comment, the comment was not a “concrete
reference” to an extraneous offense, and the witness was prevented from
elaborating on the extraneous offense because of the prompt objection).

      Joseph argues the witness’s comment that he was out on parole was highly
prejudicial in this case because Joseph declined to testify at trial, fearing the
introduction of his prior convictions. However, like in Rojas, the trial court did not
commit an abuse of discretion by determining the officer’s comment did not
warrant a mistrial: the State’s questioning was developing the narrative, rather than
anticipating a reference to an extraneous offense; the reference was not a concrete
statement of a prior offense; and the prompt objection and instruction to disregard
prevented any elaboration on the offense. See Rojas, 986 S.W.2d at 250. The fact
that Joseph declined to testify does not make this an extreme case. Austin v. State,
222 S.W.3d 801, 815 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding
a mistrial is required only in “extreme” circumstances). Therefore, we overrule
appellant’s sole issue.



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      We therefore affirm the trial court’s judgment.


                               /s/           Marc W. Brown
                                             Justice

Panel consists of Justices Christopher, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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