      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00625-CR



                                  David Daniel Lauer, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 9014067, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant David Daniel Lauer appeals his conviction for capital murder. See Tex.

Pen. Code Ann. § 19.03 (West 2003). Appellant’s punishment is imprisonment for life. Appellant

asserts that the evidence is legally and factually insufficient to support his conviction and that the

trial court erred in failing to suppress evidence and in failing to grant a mistrial. We will affirm the

judgment.


                                                Facts

               In September 1999, appellant, seeking an employee for his business, contacted a trade

school. As a result, appellant employed twenty-one-year-old Helen Frost, a recent graduate of that

school. Helen Frost was employed on an hourly basis to do computer assisted drafting. She worked

in her apartment, in appellant’s office, and in appellant’s trailer home.
               Helen Frost shared an apartment with Amanda Garrett. Amanda worked with Sean

Hackett and she introduced Sean to Helen. Helen and Sean dated and later Sean moved into the

apartment with Helen and Amanda. Although Helen did not know it for some time, she learned that

Sean had been convicted of possessing a controlled substance and was on probation. Also, Sean was

using heroin. Helen was distressed, but she decided to try to help Sean. She helped him get into a

methadone treatment program. Sean testified that he found Helen attractive “because she had such

a clean life style.” She was independent and thought she could take care of herself financially and

physically. She worked more than one job in order to become financially independent; she had

returned a credit card to her parents and asked them to discontinue putting money in her bank

account. To feel more secure, she had taken a course in kick-boxing. Helen had expressed some

concern about working for appellant because he flirted with her and he talked explicitly about his

sexual relationship with his former wife. However, Helen had decided that the problem was not

serious enough for her to terminate her employment with appellant. Helen’s relationship with Sean

became strained because Sean would not make a commitment to her; as a result, Sean moved to an

adjoining apartment complex on Saturday, October 2, 1999.

               On Tuesday evening, October 5, 1999, Helen and Amanda ate and watched television

together. The young ladies had different schedules and Amanda did not see Helen before Helen left

for work the next morning. At 8:26 a.m. on Tuesday, October 6, Callie Jo Castro, a secretary who

answered phone calls for the tenants in the office building where appellant had an office, received

a call from Helen Frost. Castro told Helen that appellant was not in his office. At about 8:30 a.m.

the same morning, Helen had a telephone conversation with Sean, her estranged boyfriend. Helen



                                                2
told Sean that she was going to appellant’s house to pick up her check and to do some work. Helen

and Sean agreed to meet at Helen’s apartment at 3:00 p.m. that afternoon, after Sean finished work,

to discuss resuming their relationship. That afternoon, when Sean went to Helen’s apartment, she

was not there.

                 When Helen Frost did not return to her apartment that Wednesday night, Amanda and

Sean became concerned, but they decided she might have gone to her parents’ home in Seguin.

However, they thought it was very unlike her to leave town without telling them. Later in the

evening, Amanda, Sean, and Helen’s closest friend, Anna Roe, became so worried about Helen that

Sean called Helen’s father. James Frost, Helen’s father, came to Austin. That Thursday evening,

Amanda and Anna called appellant’s phone numbers and left messages on his answering machines

regarding Helen; Amanda and Anna also called a list of Helen’s friends in an attempt to find her.

All of Helen’s friends returned their calls. However, appellant never returned the calls inquiring

about Helen. When they were unable to get any information about where Helen might be, Helen’s

father and Sean contacted Travis and Hays County officials and reported that Helen was missing.

                 Late Thursday night and early Friday morning, Anna Roe and her husband drove from

Austin to Dripping Springs and looked for Helen’s car along the highway where Helen might have

driven Wednesday morning. At about 1:00 a.m. Friday morning, by chance, Anna saw Helen’s car

parked on a grocery store parking lot. Helen’s car was parked well away from the store in a poorly

lighted area of the parking lot. Austin police were notified. Homicide Detective Richard Faithful

met Helen Frost’s family and friends where the car was found. The car was locked and Helen’s

purse was in plain view on the back seat floor board. Anna Roe obtained a spare key for the car at



                                                 3
Helen’s apartment. Detective Faithful unlocked the car. Helen’s wallet was in her purse. In the

wallet, Detective Faithful found a card on which were appellant’s cell, office, and home phone

numbers. The detecive called each of the three numbers and left a message on the answering

machines of two phones. In his message, the detective identified himself and told appellant that

Helen Frost was last known to have been coming to work at his house and that she was now missing.

The detective left his cell phone and pager numbers and asked appellant to call him, but appellant

never returned the detective’s calls.

               On Friday morning, Sean went to the police station to give Detective Mark Gilchrest

a statement, even though he knew he would be arrested for violation of probation. Sean provided

the officers with hair and saliva samples for testing. Sean was in custody for several months because

of his probation violation. While he was incarcerated, Sean identified a ring shown to him as

Helen’s ring. He had seen the ring the previous Saturday morning in Helen’s apartment, before he

left.

               The Rogers family lived in the trailer park next door to appellant’s trailer home. The

Sanchez family lived across the street from appellant’s trailer home. On Wednesday, October 6,

teenaged school girls Lisa Rogers and Marissa Sanchez came home from school about 4:30 p.m.

While they were out in the yard, the girls saw Helen Frost, red-faced, choked up, and crying as she

came out of appellant’s house. Appellant and Helen were arguing. Appellant raised his voice in a

“mean” and “angry” manner and told Helen to “shut-up” and get in his pickup. She said, “No,” but

when appellant for the second time ordered her to get in the pickup, she did. Appellant drove away

rather fast with Helen in his pickup. Helen’s car was parked near appellant’s house. Later that



                                                 4
evening, Helen’s car was gone. Shelley Rogers and Yolanda Sanchez were also witnesses to most

of the incident described by their daughters; the testimony of these women agreed substantially with

their daughters’ version of the incident.

               After finding Helen Frost’s car, officers commenced an investigation to find the

missing young woman. On Friday, October 8, the officers were able to contact appellant; he agreed

to talk with the officers at his trailer home. Appellant told the officers that he had last seen Helen

Frost on Monday, October 4, or perhaps on the previous Friday. Appellant told the officers he had

last talked to Helen Frost by telephone on Tuesday, October 5; at that time he said he told her to

come to his trailer home on Wednesday to pick up some work, but that she did not come and get the

work. While the officers were in appellant’s trailer home, he gave them written consent to search

the house. When the officers were about to search a chest of drawers in appellant’s bedroom,

appellant told them that they might find a ring that belonged to Helen which she had left in his

bathroom.1 The officers found the ring in the chest of drawers. Helen’s friends identified the ring

as Helen’s. Appellant told the officers that he would not agree to come to the police station to make

a statement at that time, but said he would do so on Monday morning, October 11.




       1
           During the time that the officers were searching appellant’s home on Friday, appellant
called a friend, David Shepherd, and told him he was concerned about what the officers might find
in their search.

                                                  5
               Betty Crow, the assistant manager of a convenience store, knew appellant as a store

customer. Also, Crow owned property adjacent to the trailer park where appellant lived. On Friday,

October 8, 1999, at about 9:30 p.m. appellant came into the store. Appellant told Crow that officers

had just searched his trailer home for about four hours. Appellant told Crow that the officers had

questioned him about a young woman who had worked for him who was missing. He told Crow he

thought the officers were watching him and that he was going to stay at an Austin hotel during the

weekend. Appellant then asked Crow if he could trade trucks with her for the weekend. She told

him no. Appellant asked Crow to come to the hotel where he was going to be staying on Saturday

evening and have dinner with him. Appellant told Crow that the police might search her property.

Appellant expressed no concern for his missing employee, Helen Frost. As appellant left the store,

he saw officers in a car nearby. Appellant gave the officers his cell phone number and told them that

he was going to stay in a hotel in Austin that weekend.

               On Monday morning, October 11, at about 8:30 a.m., appellant came to the police

station and was interviewed by Detective Gilchrest and a Texas Ranger.2 The five and one-half hour

interview was videotaped. After the interview, appellant left the police station. During the

interview, appellant was clear about what he did and where he was on Monday, Tuesday, Thursday,


       2
          Before Helen Frost’s body was found, appellant was interviewed at the police station by
Detective Mark Gilchrest and a Texas Ranger. This non-custodial five and one-half hour interview
was videotaped and transcribed. The State did not offer in evidence either the videotape or the
transcription. However, appellant offered and the court admitted the tape and the transcription in
evidence “for purposes of the appellate record.” The State in its brief notes and argues that during
the interview the appellant told the officers that he enjoyed “choking sex” and that a partner could
die from “choking sex.” Because this evidence was admitted “for purposes of the appellate record”
only, it was not in evidence before the jury and cannot be considered in the sufficiency of the
evidence resolution.

                                                 6
and Friday, October 4, 5, 7, and 8, but with regard to Wednesday, October 6, appellant only

remembered that he took his wife Dolly home from spending the night and then he went back to his

home in Dripping Springs; appellant did not remember what else he did on Wednesday until the time

he went back to Dolly’s house on Wednesday night. Appellant had scratches and bruises on his arm,

leg, and the back of his head and neck, which Detective Gilchrest photographed. Appellant said he

did not know when he got the scratches, but he noticed them on Wednesday and thought he might

have been scratched when he was fishing on Tuesday.

               During the interview, appellant told the officers several times that he had a sexual

relationship with Cheryl Cantrell. Appellant also discussed his sexual relationship with his wife

Dolly who stayed with him on some nights but lived with her daughter.

               In October 1999, the witness Cheryl Garcia, formerly Cheryl Cantrell, was a

bookkeeper living in Round Rock. Cheryl was looking for another job, and a friend told her that

appellant wanted to employ a bookkeeper. Cheryl called appellant and arranged for an interview at

his home at 6:00 p.m. on Monday, October 4. After talking to appellant for about forty minutes, she

decided she did not want the job. However, appellant told her he was interested in buying a lap top

computer that Cheryl wanted to sell; it was agreed that appellant would come to Cheryl’s apartment

to examine the computer on the evening of October 5 or 6. On October 6, appellant called Cheryl

and told her he had encountered some problems; he “sounded very strange, very distant, not

businesslike.” On October 7, appellant made arrangements to come to Cheryl’s apartment to inspect

and determine whether he wanted to buy her computer. Appellant did not buy the computer because

Cheryl wanted more money for it than appellant wanted to pay. On Friday, October 8, appellant



                                                7
called Cheryl; he was “very upset” and wanted her to “come and have dinner with him and to be seen

with him” at the hotel where he was staying. Appellant told her that the police “had searched his

home and had confiscated a lot of things.” She did not have dinner with appellant. On Monday,

October 11, appellant called Cheryl and told her the police would be contacting her. He told her not

to tell the police about their meeting on the previous Monday night. Appellant told Cheryl that the

police knew that they had met in her apartment on Thursday. He wanted her to tell the officers that

he had had sex with her in her apartment on Thursday. Also, he wanted her to tell the officers that

“he was a nice guy, that he was gentle.” Cheryl became angry and told him she did not want to hear

from him any more.

                Appellant and David Shepherd had been close friends for ten years. On Wednesday,

October 6, 1999 at about 7:30 p.m., Shepherd drove his white station wagon to appellant’s home.

Appellant was not at home and after about thirty minutes, Shepherd left. At a convenience store on

the county line, Shepherd called appellant’s cell phone number but without success. Shepherd left

appellant a three-minute voice mail message and went on home. Phone records show that at 7:55

p.m. appellant, using his cell phone, called the pay phone from which Shepherd had called. Phone

records also show that appellant made five calls to Shepherd’s home late Wednesday night.

Shepherd testified that both he and his wife talked to appellant.3 During the weekend, appellant

called Shepherd and his wife several times. Appellant was upset and wanted the Shepherds to come

to the hotel where he was staying to have dinner and to talk with him. They did not do so.




       3
           At trial, Shepherd denied that he had helped appellant hide Helen Frost’s body.

                                                 8
               On the night of October 6, 1999, appellant came to the home of his stepdaughter,

Angel Renfroe, where his wife Dolly lived. Appellant appeared to be upset and agitated; he closed

his eyes and looked very tired. At about 9:00 p.m., Angel asked appellant to take her to and drop

her off at the Dallas Nightclub on Burnet Road. During the course of their conversation outside the

night club, appellant told Angel that he wanted to spend a few days with her mother and then he

planned to leave the “state or the country.”

               The record shows that appellant cashed a check for $3,000 dated October 6, 1999.

On Thursday, October 7, workmen were installing an elevator in the building where appellant had

his office. One of the workmen testified that he saw the appellant move several boxes from his

office and load them into his pickup.

               Shana Thompson, another of appellant’s stepdaughters, had dated appellant before

he married her mother, Dolly. Soon after appellant hired Helen Frost, he told Thompson on two

occasions that he had hired a beautiful young girl that he was crazy about and that he wanted to know

her sexually. Speaking of his new employee, appellant told Thompson that he wanted to tie her up;

Thompson testified that this was “an inside joke between the two of us, you know, jokingly [he]

stated he would like to tie her up.”4

               Kimberly Wygant and her fiancée had attempted, but failed, to sell some reptiles that

belonged to appellant. Either when the snakes were consigned for sale or when they were returned

to appellant, appellant had a conversation with Wygant in which he told her that he had just hired




       4
          The joke was not further explained except in appellant’s interview which was not in
evidence before the jury.

                                                 9
a “sweet little thing.” Appellant told Wygant that he wanted to have “relations” with the girl he had

hired. Appellant had previously had other “sexually explicit conversations around” Wygant, and she

understood that appellant was saying that he wanted to have “sexual relations” with his new

employee.

               When officers searched appellant’s pickup, they found three unopened Trojan

condom packages. During the search of the pickup, officers took swabs of three small spots that

tested positive in a presumptive, but inconclusive, test for blood. Forensic specialists were able to

generate a DNA profile from only one of the samples that came from the pickup bed. This DNA

profile matched a known DNA profile of Helen Frost. The probability of finding this particular

DNA profile was one in 22.2 trillion Caucasions. DNA material taken from a sexual assault kit

swab obtained from the body found in the field also matched the known DNA profile of Helen Frost.

               Evidence was offered that on Wednesday, October 6, appellant made eight cell phone

calls before 9:00 a.m. Between 9:00 a.m. and 4:00 p.m., appellant made one cell phone call. That

one minute call was made to Helen Frost’s apartment. After 4:30 p.m. and before 10:11 p.m. that

day, appellant made or received four calls from his wife Dolly, made or received six calls from

David Shepherd or his wife, and made one pay phone call.

               On Monday evening, October 11, 1999, while out for a walk, John Platt smelled the

odor of something dead. He investigated and in a nearby maize field saw a body, “the legs of the

torso and the upper part was a dark mass. I knew it was a body.” Platt called the sheriff’s office.

Platt’s house, about a mile away, was the closest house to the body. The body was naked laying on

its back with the legs and knees bent upwards, the legs spread, in a posture which suggested that the



                                                 10
victim had been sexually assaulted according to Travis County Sheriff’s Office Detective Jackson

Lee Jonos. City of Austin Detective Mark Gilchrest testified that what he saw at the scene was

consistent with someone having been raped and killed in that position at that place. Also, Detective

Gilchrest testified that it was possible to kill someone by asphyxiation without leaving much blood.

No clothing was found at or near the scene. Officers found and collected cans and other items near

the body, including an empty Trojan condom package. The officers were unable to obtain any latent

fingerprints from any of the items. The “decomposed and partially skeletonized” body was identified

by tattoos, dental records, and later DNA, as the body of Helen Frost.

               Dr. Elizabeth Peacock, Travis County Deputy Medical Examiner, testified as an

expert witness using the autopsy report filed by Travis County Chief Medical Examiner Dr. Roberto

Bayardo, his notes, and photographs. It was Dr. Bayardo’s opinion, expressed in the autopsy report,

that “based on the investigation of the circumstances and the autopsy findings that the decedent,

Helen Frost, came to her death as a result of homicidal violence of undetermined type.” Based on

the decomposition and maggot infestation of the body, Dr. Peacock put the time of death in a range

of between four and eight days. Dr. Peacock explained that in conducting the autopsy and in

determining the cause of death, Dr. Bayardo had eliminated natural causes. Also, that Dr. Bayardo

found no skeletal or soft tissue injuries. The level of ethanol found in the body was consistent with,

and resulted from, the degree of decomposition present. Tests revealed no other drugs in the body.

Dr. Peacock testified that death by asphyxiation “absolutely” could not be ruled out in this particular

case and that asphyxial death could be caused by strangulation or hanging. Also, death by




                                                  11
asphyxiation “could be done without leaving any evidence of trauma to the brain or to the internal

organs.”


                              The Charge and Standards of Review

               Appellant was charged with intentionally causing the death of Helen Frost by

asphyxiation in a manner and means unknown to the grand jury,5 while in the course of committing

or attempting to commit6 the offense of aggravated sexual assault,7 or while in the course of

committing or attempting to commit the offense of robbery,8 or while in the course of committing

or attempting to commit the offense of kidnapping.9


       5
           A person commits capital murder if he commits murder as defined under Section
19.02(b)(1) of the penal code and he intentionally commits the murder in the course of committing
or attempting to commit kidnapping, robbery, or aggravated sexual assault. See Tex. Pen. Code Ann.
§ 19.03(a)(2) (West 2003). A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual. Id. § 19.02(b)(1).
       6
          A person commits the offense of criminal attempt if, with specific intent to commit an
offense, he does an act amounting to more than mere preparation that tends but fails to effect the
commission of the offense intended. If a person attempts an offense that may be aggravated, his
conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the
offense accompanies the attempt. It is no defense to prosecution for criminal attempt that the offense
was actually committed. See Tex. Pen. Code Ann. § 15.01(a)(b)(c) (West 2003).
       7
          A person commits the offense of aggravated sexual assault if the person intentionally or
knowingly causes the penetration of the anus or female sexual organ of another person by any means
without that person’s consent and if the person causes serious bodily injury or attempts to cause the
death of the victim in the course of the same criminal episode. See Tex. Pen. Code Ann.
§ 22.021(a)(1)(A)(i), (2)(A)(i) (West 2003).
       8
           A person commits the offense of robbery, if in the course of committing theft and with
intent to obtain or maintain control of the property he intentionally, knowingly, or recklessly causes
bodily injury to another. See Tex. Pen. Code Ann. § 29.02(a)(1) (West 2003).
       9
         A person commits the offense of kidnapping if he intentionally or knowingly abducts
another person. See Tex. Pen. Code Ann. § 20.03 (West 2003).

                                                 12
               In proving capital murder, the State need prove only that appellant committed the

murder while in the course of committing or attempting to commit one of the three alleged

underlying felonies, either robbery, kidnapping or aggravated sexual assault. See Gunter v. State,

858 S.W.2d 430, 439-40 (Tex. Crim. App. 1993); Pinkerton v. State, 660 S.W.2d 58, 62 (Tex. Crim.

App. 1983).

               In reviewing the legal sufficiency of the evidence, the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995);

Aiken v. State, 36 S.W.3d 131, 132 (Tex. App.—Austin 2000, pet. ref’d). The standard of review

is the same whether the evidence is direct, circumstantial, or both. See Kutzner v. State, 994 S.W.2d

180, 184 (Tex. Crim. App. 1999); Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994); Geesa

v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991). All of the evidence that the jury was

permitted, properly or improperly, to consider must be taken into account in determining the legal

sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); see also

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211,

218 (Tex. App.—Austin 1997, no pet.).

               Appellant asserts the evidence fails to establish beyond a reasonable doubt that the

victim’s death resulted from an intentional act or that he caused the victim’s death. Moreover,

appellant contends that the evidence is insufficient to show beyond a reasonable doubt that the




                                                 13
victim’s death was caused by him while in the course of committing or attempting to commit the

offenses of either robbery, kidnapping, or aggravated sexual assault.

                   The jury’s verdict depends upon circumstantial evidence. It appears that the victim

Helen Frost was a healthy, independent, self-reliant, twenty-one-year-old woman on the evening of

Tuesday, October 5, 1999, when she watched television with Amanda Garrett. The victim’s

telephone calls to appellant’s secretary and Sean Hackett early Wednesday morning showed her

intent that day was to go to appellant’s house to obtain her check, do some work, and to return to her

apartment by 3:00 p.m. At approximately 4:30 p.m. that day, four witnesses saw the victim come

out of the appellant’s house crying and obviously in distress. Appellant was angry and he verbally

coerced his employee, even though she protested, to get in his pickup; appellant then took her away,

leaving her car behind. There is no evidence that anyone other than appellant saw the victim alive

after that time.

                   On October 11, 1999, five days later, Helen Frost’s unclothed, maggot infested,

decomposing body and an empty Trojan condom package were found in an isolated maize field. The

position of her body between the rows of maize stubble suggested that she had been sexually

assaulted and murdered where her body was found. On Friday, October 8, when they searched

appellant’s house, the officers noticed scratches on appellant’s arm, leg, and neck that would have

been consistent with having been inflicted by maize stubble or a defensive struggle.

                   On Friday, October 8, appellant told the investigating officers that he had not seen

the victim since Monday, October 4, or on the preceding Friday, October 1; appellant apparently lied.

Four witnesses saw appellant with the victim on Wednesday evening, October 6. Two witnesses



                                                    14
testified that soon after appellant hired the victim, appellant expressed his desire to have sexual

relations with the victim and to one of the witnesses he expressed his desire to tie up the victim.

               On Monday, October 11, officers found in the bed of appellant’s pickup three

unopened Trojan condom packages and traces of some body fluid. From one of the traces of body

fluid, DNA material extracted matched the victim’s DNA profile. The medical examiner ruled that

the victim came to her death as a result of homicidal violence of an undetermined type.

               In addition, there is more circumstantial evidence. When Detective Faithful and the

victim’s friends left messages on appellant’s telephone answering machines that his employee was

missing, appellant did not return the calls. Appellant never expressed any concern for his missing

employee. After officers searched appellant’s house and when he thought he was being followed

by officers, appellant attempted to get an acquaintance to trade trucks with him. In his October 11

interview with officers, appellant told them he had a sexual tryst with a young woman on Thursday,

October 7. After the interview, appellant called the young woman and told her to tell the officers

that they had had a sexual encounter that evening and that appellant had been nice and gentle. The

young woman, whom appellant had just met, testified that she and appellant did not have sexual

relations.

               The victim’s car, which had been parked at appellant’s house when he left with her,

was found in an isolated part of a grocery store parking lot. The victim’s ring, which had been in

the victim’s apartment on Saturday, October 2, was found hidden in a drawer in appellant’s bedroom

on October 8. This evidence contradicted appellant’s explanation for the ring being in his

possession.



                                                 15
               Appellant cashed a check for $3,000 dated October 6, 1999. In the late evening of

October 6, appellant told his step-daughter that he intended to leave the state or the country soon.

On Thursday, October 7, appellant moved several boxes from his office and loaded them into his

pickup.

               When the cumulative, combined circumstantial evidence is viewed in the light most

favorable to the prosecution, the evidence supports a rational finding that the essential elements of

the offense charged were proved beyond a reasonable doubt. The evidence is legally sufficient to

support the jury’s verdict. Appellant’s first point of error is overruled.


                                        Factual Sufficiency

               In his second point of error, appellant insists that the evidence is factually insufficient

to support his conviction for capital murder. Appellant quite correctly argues that evidence which

may be legally sufficient to sustain a conviction may nevertheless be factually insufficient. In

determining factual sufficiency of the evidence, the reviewing court must consider and take a neutral

view of all of the evidence, reversing the judgment if: (1) the evidence demonstrates that the proof

of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or (2)

the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 410 (Tex.

Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). When a jury’s

verdict depends primarily on its evaluation of the witnesses’ demeanor and credibility, it deserves

almost total deference. Johnson, 23 S.W.3d at 8-9; Cain, 953 S.W.2d at 408-09.




                                                  16
                Although the defense presented no evidence, we must apply the factual sufficiency

standard of review to all of the evidence in the record. In his argument under this point of error,

appellant relies upon the same evidence, or the asserted lack of evidence, that he relied upon in his

argument on legal insufficiency.

                The jury is the exclusive judge of the facts, of the credibility of the witnesses, and the

weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 36.13 (West 1981);

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986). Reconciliation of conflicts in the evidence is within the exclusive

province of the jury. Margraves, 34 S.W.3d at 919. The jury may accept portions of a witness’s

testimony and reject portions of the testimony. Id.; Losada v. State, 721 S.W.2d 305, 309 (Tex.

Crim. App. 1986).

                After neutral consideration of all of the evidence and giving proper deference to the

jury’s verdict, we conclude that the evidence of appellant’s guilt is not so weak as to undermine

confidence in the jury’s determination, nor is proof of guilt greatly outweighed by contrary proof.

The evidence is factually sufficient to support the jury’s verdict. Appellant’s second point of error

is overruled.


                                      Suppression of Evidence

                In his third point of error, appellant urges that the trial court “erred in overruling

appellant’s motion to suppress the evidence from the search of his vehicle.” Appellant argues that




                                                   17
the affidavit supporting a search warrant fails to establish probable cause. In view of the record, we

are unable to determine whether there is merit in appellant’s contention. The record does not include

either a search warrant or a supporting affidavit; therefore, nothing is presented for review. See

Bentley v. State, 520 S.W.2d 390, 394 (Tex. Crim. App. 1975); Prudhomme v. State, 495 S.W.2d

941, 943 (Tex. Crim. App. 1973); Townsend v. State, 481 S.W.2d 855, 856 (Tex. Crim. App. 1972);

Satillan v. State, 470 S.W.2d 677, 678 (Tex. Crim. App. 1971); Walsh v. State, 468 S.W.2d 453, 454

(Tex. Crim. App. 1971). Appellant has attached to his appellate brief purported copies of a warrant

and supporting affidavit. We are unable to consider these attachments to appellant’s brief because

they are not part of the record. Appellate courts “will not consider documents attached to appellate

briefs as part of the record on appeal.” Harris v. State, 453 S.W.2d 838, 839 (Tex. Crim. App.

1970); see also Young v. State, 552 S.W.2d 441, 443 (Tex. Crim. App. 1977); Booth v. State, 499

S.W.2d 129, 135 (Tex. Crim. App. 1973); Anderson v. State, 445 S.W.2d 752, 754 (Tex. Crim. App.

1969); Brown v. State, 866 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d);

Gipson v. State, 669 S.W.2d 351, 353 (Tex. App.—Fort Worth 1984, no pet.). Even if a search

warrant and a supporting affidavit were included in the record, appellant would have another

insurmountable problem. Appellant has not identified in his brief any evidence seized by authority

of the purported warrant that should have been suppressed and not admitted in evidence. Moreover,

if any evidence was seized and admitted in evidence, appellant has failed to direct our attention to

the place in the record where he objected to the admission of that evidence on grounds that it had




                                                 18
been unlawfully seized; therefore, nothing is presented for appellate review.10 See Louis v. State, 61

S.W.3d 593, 598-99 (Tex. App.—Amarillo 2001, pet. ref’d); Fain v. State, 986 S.W.2d 666, 681-82

(Tex. App.—Austin 1998, pet. ref’d). Appellant’s third point of error is overruled. There was no

pretrial hearing on appellant’s motion to suppress. Although the trial court and counsel referred to

the suppression hearing as a pretrial hearing, the hearing was conducted after two days of trial

testimony near the end of the trial. Appellant’s third point of error is overruled.


                                           Mistrial Claim

               In his fourth point of error, appellant complains that the trial court erred in failing to

grant a mistrial after the State’s witness informed the jury that appellant was on probation. On direct

examination, Detective Mark Gilchrest testified:


       Q. And then he’s saying that that night he went to Dolly’s house and they ate pizza
          and then they returned to Dripping Springs?

       A. Yes, sir.

       Q. That’s Wednesday, correct?

       A. That’s correct.




       10
           Appellant was allowed to file a post-submission letter brief. In that letter brief, appellant
refers us to the portions of the record in which he says the “trial judge’s rulings on various motions
occurred.” Within the specified portions of the record, no evidence allegedly seized by authority of
the purported search warrant was identified, offered, or admitted in evidence, and within the
specified portion of the record we find no objections to the admission of any specific evidence
allegedly seized.

                                                  19
       Q. Did he tell you what he did on Thursday?

       A. Mr. Lauer stated that on Thursday he was at home until around noon.

       Q. I’m sorry. Did he indicate Dolly was with him?

       A. Dolly was with him, that’s correct. He and Dolly went to Mr. Lauer’s office
          there in Dripping Springs to meet his probation officer.

       MR. DAVIS:        Objection, Your Honor. May we - -

       THE COURT: I’ll sustain the objection. I’ll instruct the jury to disregard the last
                  remarks of the witness.

                         (Outside the hearing of the jury:)

       MR. DAVIS:        I move for a mistrial, Your Honor.

       THE COURT: I’ll overrule that.


               Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable

errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Ordinarily, a prompt instruction

to disregard will cure error associated with an improper question and answer, even one regarding

extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). A trial court’s

denial of a mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999). In this case, the prosecutor did not ask an improper question. The

witness’s answer was non-responsive. The trial court promptly sustained the defense’s objection and

before requested to do so, admonished the jury to disregard the remarks of the witness. The trial

court did not abuse its discretion in overruling appellant’s motion for a mistrial. Appellant’s fourth

point of error is overruled.




                                                 20
               The judgment is affirmed.




                                             __________________________________________

                                             Carl E. F. Dally, Justice

Before Justices Kidd, B. A. Smith and Dally*

Affirmed

Filed: May 30, 2003

Do Not Publish




*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).



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