                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________
                               NO. 09-13-00180-CR
                               NO. 09-13-00181-CR
                               NO. 09-13-00182-CR
                               NO. 09-13-00183-CR
                              ___________________

                      PETER JAMES MARTIN, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                 On Appeal from the 221st District Court
                       Montgomery County, Texas
            Trial Cause No. 12-03-02604-CR (Counts 1, 2, 3, 4)
__________________________________________________________________

                          MEMORANDUM OPINION

      Arguing that the prosecutor elicited prejudicial testimony about his criminal

history from a witness during the guilt-innocence phase of his trial, Peter James

Martin contends he is entitled to receive a new trial. With respect to Martin’s

complaint, the record shows the trial court instructed the jury to disregard Martin’s

sister’s testimony that Martin had been in and out of prison. Because the

instruction sufficiently cured any harm that resulted from the jury hearing the
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question and testimony at issue, the trial court’s decision to deny Martin’s motion

for mistrial was not an abuse of discretion.

                                       Background

          In a four-count indictment, the State charged Martin with aggravated assault

against a public servant (Count One), evading arrest/detention with a vehicle

(Count Two), tampering with physical evidence (Count Three), and possession of a

controlled substance (Count Four). See Tex. Penal Code Ann. § 22.02(b)(2) (West

2011), § 38.04(b)(2)(A) 1 (West Supp. 2013), § 37.09(d) (West Supp. 2013); Tex.

Health & Safety Code Ann. § 481.115 (West 2010). Seeking to enhance Martin’s

punishment, the State also alleged that Martin had previously been convicted of

several prior felonies.

          Martin pled not guilty to each of the four counts of the indictment; the jury

found him guilty on all four counts following the guilt/innocence phase of his trial.

Additionally, the jury found that Martin used a deadly weapon while evading

arrest.



          1
       The judgment of conviction related to Martin’s conviction cites section
38.04(b)(1), making evading arrest or detention with a vehicle a state jail felony if
the defendant is shown to have a prior conviction for evading arrest or detention
under section 38 of the Penal Code. However, the factual allegations in Martin’s
indictment and the evidence introduced during the trial show that he evaded arrest
or detention by using a vehicle, a third-degree felony under 38.04(b)(2)(A) of the
Penal Code. In the opinion, we cite to the correct statute.
                                            2
      During the punishment phase of the trial, Martin pled “not true” regarding

all the enhancement allegations in the indictment. At the conclusion of the

punishment phase of Martin’s case, the jury returned “true” verdicts regarding

three of Martin’s prior felonies. Given its enhancement findings, the jury

considered an enhanced range of punishment regarding three of the four crimes on

which it convicted Martin of committing. On each of the felonies that were the

subjects of the jury’s enhancement findings (aggravated assault against a public

servant, evading arrest, and tampering with physical evidence), the jury assessed

separate life sentences. For possessing a controlled substance, the felony not

subject to any of the jury’s enhancement findings, the jury assessed a sentence of

twenty years.

                                      Analysis

      The record shows that during the prosecutor’s cross-examination of Martin’s

sister, the prosecutor asked her if she knew that Martin had “been in and out of

prison[.]” After Martin’s sister answered, Martin objected to the question and

asked that the trial court instruct the jury to disregard it. The trial court sustained

Martin’s objection, and then instructed the jury “to disregard the testimony about

being in and out of prison.” Martin then moved for a mistrial; however, the trial

court denied Martin’s request.


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      In a single issue, Martin contends the prosecutor purposely elicited

inadmissible testimony showing that he had been in and out of prison. According

to Martin, given the nature of the charges against him, the evidence about having

been in prison was extremely prejudicial.

      We review Martin’s issue complaining of the trial court’s decision to deny

his request for a mistrial under an abuse of discretion standard. See Hawkins v.

State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Asking an “improper

question will seldom call for a mistrial, because, in most cases, any harm can be

cured by an instruction to disregard.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.

App. 1999). “A mistrial is required only when the improper question is clearly

prejudicial to the defendant and is of such character as to suggest the impossibility

of withdrawing the impression produced on the minds of the jurors.” Id. In

considering whether an abuse of discretion occurred, we consider the severity of

the alleged misconduct, the curative effect of the trial court’s instruction to

disregard, and the certainty of the punishment assessed assuming the misconduct

had not occurred. See Hawkins, 135 S.W.3d at 77.

      Martin argues that his sister’s testimony concerning his prior incarceration

was so prejudicial that it was impossible for the jury to disregard it. On the record

before us, we disagree that the evidence was very prejudicial. Before Martin’s

sister testified, a statement that Martin gave to the police was admitted into
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evidence without objection: in that statement, Martin said that he did not pull over

because he was on drugs and on parole. Because the jury could infer directly from

Martin’s statement to the police that he had been in prison, and because the

statement was admitted without objection, the additional testimony of Martin’s

sister about Martin having been in prison was cumulative of other evidence that

was properly before the jury. See Austin v. State, 222 S.W.3d 801, 816 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d) (determining the prejudicial impact

by considering the evidence in the context of the entire trial).

      The record also shows that the trial court took prompt curative action in an

effort to prevent the jury from considering the testimony at issue. The trial court

instructed the jury to disregard the testimony just after Martin’s sister agreed that

she knew that Martin had been in and out of prison. Generally, a prompt

instruction to disregard is sufficient to cure the possible prejudice that may result

when objectionable testimony about a defendant’s prior incarceration is mentioned

by a witness. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992)

(explaining that a witness’s reference to the defendant having been in prison was

cured by an instruction to disregard); Nobles v. State, 843 S.W.2d 503, 514 (Tex.

Crim. App. 1992) (concluding a witness’s reference to the defendant having been

incarcerated was cured by an instruction to disregard). The trial court’s prompt


                                           5
instruction, in our opinion, sufficiently cured any unfair prejudice which may have

resulted from the question or the answer at issue. See Kemp, 846 S.W.2d at 308.

      The evidence of Martin’s guilt leads to the conclusion that Martin’s

prospects of being acquitted on any of the charges for which he was tried were

highly unlikely. When considering the record as a whole, nothing in the record

shows that Martin might have received a different punishment. For example,

regarding Martin’s conviction for evading arrest, the entire pursuit was captured on

a video that the jury reviewed during Martin’s trial. See Tex. Penal Code Ann. §

38.04(b)(2)(A). The video shows that Deputy Chris Azwell, after observing that

Martin was not maintaining his speed and that he was operating his vehicle in an

unsafe manner, activated his overhead lights and siren in an effort to get Martin to

stop. The video further shows that Martin failed to stop, and that he committed

additional traffic violations while evading Deputy Azwell’s attempt to pull him

over. Additionally, after the State finished its closing argument and with the jury

present, Martin’s attorney requested that Martin be allowed to plead guilty to the

charge of evading arrest. In closing argument, Martin’s attorney agreed that Martin

was guilty of evading arrest.

      With respect to Martin’s conviction for aggravated assault against a public

servant, Deputy Azwell testified that Martin, in attempting to evade arrest, tried to

run over him with his car. See id. § 22.02(b)(2). Martin did not testify at the trial,
                                          6
and the video admitted into evidence that captured Martin evading arrest does not

include the part where Martin used his car in an effort to run over Deputy Azwell.

Nonetheless, Deputy Azwell’s testimony about Martin’s having driven directly at

him as the chase was ending is not contradicted. According to Deputy Azwell, he

fired several shots at Martin’s car when Martin drove toward him. Based on

Deputy Azwell’s testimony, it is unlikely that the jury would have chosen to acquit

Martin on the charge that he committed an aggravated assault against a public

servant. Additionally, nothing in the record supports a conclusion that the jury

might have given Martin another punishment on the charge.

      Martin’s conviction for knowingly possessing a controlled substance also

finds ample support in the evidence. See Tex. Health & Safety Code Ann. §

481.115. The testimony from the trial shows that after Martin’s arrest, a crime

scene investigator retrieved a small plastic baggy containing a white powder from

the floorboard on the driver’s side of Martin’s car. See Washington v. State, 215

S.W.3d 551, 554-57 (Tex. App.—Texarkana 2007, no pet.) (finding the evidence

sufficient to prove that the defendant knowingly possessed a controlled substance

where the facts and circumstances linked the defendant to the cocaine found in the

floorboard of his car). Additional evidence in the record shows that the substance

in the baggy was tested by a forensic scientist, who found that the powdery

substance was cocaine. Other evidence admitted during Martin’s trial shows that
                                        7
Martin was the only person in the car, that the car contained other drug

paraphernalia, and that Martin indicated he was on drugs shortly after he was

stopped. See id. at 556-57. We are not persuaded that Martin would have been

acquitted on this charge had the testimony at issue never been introduced.

      The evidence further supports Martin’s conviction for tampering with

physical evidence. See Tex. Penal Code Ann. § 37.09(d)(1) (providing that a

person, who knows that an offense has been committed, commits the offense of

tampering with evidence, if the person alters, destroys, or conceals anything with

the intent to impair its availability as evidence). According to Deputy Azwell,

while pursuing Martin’s vehicle, he saw Martin throw a spoon and several syringes

out of his car’s window. Syringes that the police recovered from the area where

Deputy Azwell observed Martin throwing things from his car were admitted into

evidence during Martin’s trial. Thus, the record allowed the jury to infer that

Martin, knowing that he was in possession of a controlled substance, tampered

with evidence by attempting to dispose of evidence relevant to his guilt for

possessing a controlled substance. See Stewart v. State, 240 S.W.3d 872, 873-84

(Tex. Crim. App. 2007) (“The tampering with evidence statute requires intent as to

a particular result, namely, impairing a thing’s availability as evidence.”).

      Considering the entire record, the trial court could have reasonably believed

that its instruction eliminated any prejudice from the question and answer at issue.
                                           8
Therefore, we conclude the trial court did not abuse its discretion in denying

Martin’s request for a mistrial. See Hawkins, 135 S.W.3d at 85. We overrule

Martin’s sole issue. Martin’s convictions and sentences in trial cause numbers 12-

03-02604-CR Count One, 12-03-02604-CR Count Two, 12-03-02604-CR Count

Three, and 12-03-02604-CR Count Four are affirmed.

      AFFIRMED.




                                             ___________________________
                                                    HOLLIS HORTON
                                                         Justice


Submitted on April 21, 2014
Opinion Delivered May 21, 2014
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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