                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


                                               '
 BILLY CHEEKS,                                                No. 08-10-00353-CR
                                               '
                       Appellant,                                 Appeal from
                                               '
 v.                                                           168th District Court
                                               '
 THE STATE OF TEXAS,                                        of El Paso County, Texas
                                               '
                       Appellee.                              (TC # 20100D02976)
                                               '



                                        OPINION

       Billy Cheeks appeals his conviction of family violence assault enhanced by a prior

conviction of family violence assault. The indictment charged Appellant with aggravated assault

in Count I and family violence assault (enhanced) in Count II. A jury acquitted Appellant of

aggravated assault but found him guilty of Count II. At the conclusion of the punishment phase

of trial, the trial court found Appellant had previously been convicted of attempted murder as

alleged in the enhancement paragraph and assessed his punishment at imprisonment for a term of

twelve years. We affirm.

                                    FACTUAL SUMMARY

       Petra Chriktane Triplett was living with Appellant on June 1, 2009. That morning,

Appellant went to the store to buy beer, wine, and cigarettes. Appellant returned home and

discovered that the clerk had not put the cigarettes in the bag. Appellant became furious and

blamed Triplett even though she had not gone to the store with him. Appellant told her to shut

up and go stay in the bedroom until he told her she could come out. Triplett left the apartment

and went to a friend’s house where she stayed until the evening. Appellant sent Triplett several
text messages while she was gone and accused her of having an affair. Triplett returned to the

apartment at 9 p.m. and Appellant began yelling at her.            He also shoved her around the

apartment. Triplett turned to leave the apartment when Appellant grabbed her and threw her into

the hallway. He forced her into the bedroom and suddenly kicked her in the ribs which caused

her to fly into the wall and fall to the floor. Triplett described it as a “karate kick jump.” Triplett

could not breathe and felt tremendous pain in the rib area. While Triplett was on the floor

clutching her ribs, Appellant began punching her in the back, neck, and head. He also put both

hands around her neck and choked her until she could not breathe until he suddenly stopped and

returned to the living room to watch television. After a few minutes, Triplett went into the living

room and told Appellant she needed to go to the hospital but Appellant initially refused because

he thought they would think he had beat her up. Appellant eventually relented and took Triplett

to the VA hospital but he dropped her off about one hundred yards from the entrance. The

medical records and photographs taken at the hospital reflect that Triplett had a broken rib and

multiple bruises, including bruises on her neck.

       Appellant testified that he is a Vietnam veteran and he has been 100 percent disabled

since 1981. He has had two spinal laminectomy surgeries and his knees are held together by

screws. Additionally, his left thumb has been “totally reconstructed.” He was convicted of

aggravated assault with a deadly weapon and attempted murder in 2000. Appellant recalled that

when he left the apartment on June 1, 2009, Triplett was going to do the dishes and start looking

for a job because she had recently been fired. She needed to work because he had recently

moved into a more expensive apartment to accommodate her.                 When he returned to the

apartment from a doctor’s appointment at about 12:15 p.m., he noticed that the dishes had not

been done and Triplett was not home. She had not opened the newspaper to the classified

section, so he called her and asked where she was. Based on what she told him, Appellant

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decided Triplett needed to move out and he would move back to the smaller apartment because

she did not want to work. Appellant got some boxes out of the storage shed and told Triplett in a

text that she needed to pack up her belongings and leave. When Triplett returned, Appellant saw

that she was intoxicated. He told her that she could not even sit down and she needed to just

pack up and leave. Appellant denied hitting or punching Triplett. He denied kicking her and

said that if he jumped it would “crack the bones” in his leg and back. Despite these denials, he

admittedly took Triplett to the hospital when she asked. He dropped her off outside of the gate

to Fort Bliss because he did not have auto insurance and could not drive on base without it.

       The jury found Appellant not guilty of aggravated assault (Count I) but found him guilty

of family violence assault (Count II).      Appellant elected that his punishment would be

determined by the trial court. Appellant entered a plea of true to the enhancement paragraph and

the trial court found Appellant had previously been convicted of attempted murder. The court

assessed Appellant’s punishment at imprisonment for a term of twelve years.

                             PROSECUTORIAL MISCONDUCT

       Appellant raises three issues related to alleged prosecutorial misconduct that occurred

when the prosecutor asked Appellant whether he had been convicted of attempted murder for

shooting his ex-wife.    Appellant had previously been convicted of attempted murder and

aggravated assault with a deadly weapon (firearm).        Prior to trial, the trial court granted

Appellant’s motion in limine and required the State to approach the bench before attempting to

go into the facts underlying Appellant’s prior convictions. Appellant testified during the guilt-

innocence phase and admitted he had been convicted on October 25, 2000 of aggravated assault

with a deadly weapon and attempted murder. During cross-examination by the State, Appellant

testified that he did not have problems with his temper. The prosecutor then asked him: “And

you pled guilty to attempted murder for having shot your ex-wife?” The trial court sustained

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Appellant’s objection that the State could not question him about the underlying facts of the prior

conviction and the court instructed the jury to disregard the prosecutor’s question. The court

denied Appellant’s request for a mistrial. Later during cross-examination, the prosecutor asked

Appellant whether, despite having all of his injuries, he had the physical capability to commit the

offenses of aggravated assault and attempted murder, and Appellant admitted that he did.

                                  Denial of Motion for Mistrial

       We will begin with Issue Three which is related to the trial court’s denial of Appellant’s

motion for mistrial. We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Wead v. State, 129

S.W.3d 126, 129 (Tex.Crim.App. 2004). A mistrial is the trial court’s remedy for improper

conduct that is so prejudicial and incurable that expenditure of further time and expense would

be wasteful and futile.    Hawkins, 135 S.W.3d at 77; Ladd v. State, 3 S.W.3d 547, 567

(Tex.Crim.App. 1999). The determination of whether a given error necessitates a mistrial must

be made by examining the particular facts of the case. Ladd, 3 S.W.3d at 567. To determine

whether a trial court abused its discretion in denying a defendant’s motion for a mistrial, we

consider three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the

misconduct (the efficacy of any cautionary instruction by the trial court); and (3) the certainty of

conviction absent the misconduct (the strength of the evidence supporting the conviction).

Hawkins, 135 S.W.3d at 77.

       Looking first at the severity of the misconduct, it is undisputed that the prosecutor

confused the facts of the two prior convictions when he asked Appellant whether he had pled

guilty to attempted murder for shooting his ex-wife. The aggravated assault conviction involved

a firearm but the attempted murder conviction did not. The judgment of conviction reflects that

the court made an affirmative finding that Appellant’s hands were deadly weapons.

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Consequently, the prosecutor’s question was based on inaccurate facts. We do not necessarily

agree that the prosecutor’s attempt to go into the underlying facts of the conviction was improper

because the details of the prior attempted murder conviction might have been admissible to rebut

Appellant’s defense that he was physically unable to assault Triplett. The trial court overruled

Appellant’s objections and permitted the State to cross-examine Appellant generally on this

matter but the prosecutor did not attempt to go into the facts of the prior convictions. Because

that theory of admissibility was not fully developed at trial, we will assume for the sake of

argument that the prosecutor’s attempt to go into the details of the prior conviction was improper

impeachment. The prosecutor could, however, properly ask Appellant whether he had been

convicted of attempted murder on October 25, 2000 in the 41st District Court. The prosecutor

asked the improper portion of the question only once. We conclude that the prejudicial effect of

the question was slight.

       The trial court promptly instructed the jury to disregard the prosecutor’s question. In the

absence of anything in the record leading us to conclude that the jury did not or could not obey

the trial court’s instruction, we will presume that jury followed the trial court’s instruction. See

Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009)(a reviewing court generally

considers instructions given to the jury to be sufficient to remedy most improprieties that occur

during a trial and presumes that a jury will follow the trial court’s instructions).

       Finally, with regard to the strength of the evidence supporting Appellant’s conviction, the

jury had to decide the case based on the competing testimony of Triplett and Appellant.

Triplett’s description of the assault is corroborated by medical evidence and photographs. While

Appellant claimed he did not have a temper and did not have the physical ability to assault

Triplett, the State properly impeached Appellant with evidence he had previously been convicted

of two violent crimes, attempted murder and aggravated assault.

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         A mistrial is reserved for those rare circumstances when the objectionable action was so

emotionally inflammatory that curative instructions are not likely to prevent the jury from being

unfairly prejudiced against the defendant. Young v. State, 137 S.W.3d 65, 71 (Tex.Crim.App.

2004).    We conclude that the improper portion of the prosecutor’s question was not so

inflammatory that the trial court’s instruction to disregard would have been ineffective in

preventing unfair prejudice. Having found no abuse of discretion, we overrule Issue Three.

                                   Denial of Motion for New Trial

         In Issues One and Two, Appellant contends that the trial court erred by denying his

motion for new trial based on prosecutorial misconduct and violation of the order in limine.

These issues relate to the same facts as in Issue Three.

         Appellant filed a motion for new trial raising the issue of prosecutorial misconduct based

on the prosecutor attempting to elicit details about the attempted murder conviction during cross-

examination. At the hearing, the prosecutor admitted he should have approached the bench

before asking Appellant any details about the attempted murder conviction. The trial court

denied the motion for new trial.

         We review the trial court’s denial of a motion for new trial for an abuse of discretion.

Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). We view the evidence in the light

most favorable to the trial court’s ruling and uphold the ruling if it falls within the zone of

reasonable disagreement. Webb, 232 S.W.3d at 112. Further, we do not substitute our judgment

for that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or

unreasonable. Id.

         We examine claims of prosecutorial misconduct on a case-by-case basis. Stahl v. State,

749 S.W.2d 826, 830 (Tex.Crim.App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.--

El Paso 1995, no pet.). Prosecutorial misconduct has been found where: (1) the prosecutor’s

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actions deliberately violated an express court order; (2) where the prosecutor’s misconduct was

so blatant as to border on being contumacious; and (3) where the prosecutor asked a question

which was clearly calculated to inflame the minds of the jury and was of such a character so as to

suggest the impossibility of withdrawing the impression produced. See Stahl, 749 S.W.2d at

831; Perkins, 902 S.W.2d at 96.

       Appellant’s claim is based on a single violation of the order in limine. There is no

evidence in the record that the prosecutor deliberately violated the order to elicit inadmissible

evidence or that his conduct was so blatant that it bordered on being contumacious. Finally, as

we have already discussed, the prosecutor’s question is not so inflammatory that the trial court’s

prompt instruction could not have cured any prejudice caused by it. Accordingly, the trial court

did not abuse its discretion by denying the motion for new trial. We overrule Issues One and

Two. Having overruled all issues for review, we affirm the judgment of the trial court.


January 16, 2012                             __________________________________________
                                             ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior)
Chew, C.J. (Senior), sitting by assignment

(Do Not Publish)




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