                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-13-00595-CR


DANA LANETTE BROCK A/K/A                                          APPELLANT
DANA LANETTE HOGAN A/K/A
DANA LANETTE BROCK
DUNAWAY

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CR13-0371

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                       MEMORANDUM OPINION 1

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      Appellant Dana Lanette Brock a/k/a Dana Lanette Hogan a/k/a Dana

Lanette Brock Dunaway appeals her conviction for burglary of a habitation. 2 In


      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code Ann. § 30.02(a), (c)(2) (West 2011).
her sole point, she argues that the trial court erred by denying her motion for

mistrial following an unresponsive and unsolicited answer from a witness

regarding appellant’s criminal history. We affirm.

                                Background Facts

      A grand jury indicted appellant for burglary of a habitation. At a jury trial,

she pled not guilty. In the middle of the trial, she sought a mistrial because one

of the State’s witnesses provided an unresponsive and unsolicited answer during

his redirect examination. Appellant requested a mistrial on the ground that the

testimony violated the trial court’s ruling on her motion in limine, which prohibited

the introduction of evidence related to extraneous offenses without first

approaching the court. The trial court denied appellant’s motion and instructed

the jury to disregard the witness’s statement. The jury found appellant guilty 3

and assessed her punishment at seventy years’ confinement. 4 The trial court

sentenced appellant in accordance with the jury’s verdict, and this appeal

followed.




      3
       Surveillance video showed appellant near the victim’s home at the time of
the burglary, and a police officer found stolen items—a power washer and a
weed eater—at a home where appellant had been sleeping. Appellant admitted
taking the items but presented the defense at trial that a man had forced her to
commit the burglary.
      4
       Prior felony convictions enhanced appellant’s sentence.


                                         2
                             No Abuse of Discretion

      In her sole point, appellant argues that the trial court abused its discretion

by denying her motion for mistrial following the testimony by the State’s witness

regarding extraneous offenses. We review a trial court’s denial of a motion for

mistrial for an abuse of discretion. Archie v. State, 340 S.W.3d 734, 738–39

(Tex. Crim. App. 2011); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1070 (2000). Thus, we must uphold the trial court’s

ruling if it is within the zone of reasonable disagreement. Marchbanks v. State,

341 S.W.3d 559, 561 (Tex. App.—Fort Worth 2011, no pet.).             A mistrial is

necessary in extreme circumstances when the prejudice caused by an improper

question and answer is incurable. Ladd, 3 S.W.3d at 567; see Whitney v. State,

396 S.W.3d 696, 703–04 (Tex. App.—Fort Worth 2013, pet. ref’d) (mem. op.)

(stating that a mistrial is appropriate when an error is so prejudicial that

expenditure of further time would be futile).

      An instruction to disregard testimony regarding extraneous offenses is

sufficient to cure an alleged harm “unless it appears the evidence was so clearly

calculated to inflame the minds of the jury or is of such damning character as to

suggest it would be impossible to remove the harmful impression from the jury’s

mind.” Drake v. State, 123 S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.]

2003, pet. ref’d) (quoting Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992), cert. denied, 508 U.S. 918 (1993)); see Ovalle v. State, 13 S.W.3d 774,

783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt instruction to disregard will


                                          3
cure error associated with an improper question and answer, even one regarding

extraneous offenses.”). We will generally presume that a jury has followed an

instruction to disregard testimony that should not have been presented. Gardner

v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.), cert. denied, 484 U.S. 905

(1987); see also Kemp, 846 S.W.2d at 308 (holding that a State’s witness’s

reference to the defendant’s prior incarceration was rendered harmless by a

curative instruction); Barney v. State, 698 S.W.2d 114, 124–25 (Tex. Crim. App.

1985) (holding that a witness’s answer that a victim did not like the defendant

because “he was an ex-con,” which violated the defendant’s motion in limine,

was improper but was cured by a jury instruction); Hudson v. State, No. 02-04-

00030-CR, 2005 WL 1244663, at *3–4 (Tex. App.—Fort Worth May 26, 2005,

pet. ref’d) (mem. op., not designated for publication) (concluding that a witness’s

reference to a prior assault was cured by a jury instruction and was not an

“extreme case” warranting a mistrial).

      We have applied this principle. In Hill v. State, we held that a trial court did

not abuse its discretion by denying Hill’s motion for mistrial because an

instruction to disregard was sufficient to cure the harm caused by an officer’s

testimony about extraneous offenses. No. 02-06-00357-CR, 2007 WL 2792863,

at *6 (Tex. App.—Fort Worth Sept. 27, 2007, pet. ref’d) (mem. op., not

designated for publication).   There, the officer gave an unresponsive answer

about “previous burglaries” when the State asked about the officer’s actions after

seeing a car in the driveway of a house. Id. Hill, who had filed a motion in limine


                                          4
concerning extraneous offenses, immediately objected.          Id.   This objection

stopped the testimony, and the trial court promptly instructed the jury to disregard

the officer’s statement and denied Hill’s motion for mistrial. Id. Hill claimed that

the evidence was not relevant and was prejudicial, but we concluded that the

instruction to disregard cured any harm or prejudice caused by the extraneous

offense testimony. Id.

      Similarly, in Keele v. State, our sister court held that there was no abuse of

discretion in denying Keele’s motion for a mistrial. No. 04-02-00132-CR, 2003

WL 21076655, at *3 (Tex. App.—San Antonio May 14, 2003, pet. ref’d) (mem.

op., not designated for publication).     There, the witness mentioned Keele’s

pending “attempted rape” charge, and Keele objected. Id. at *2–3. After the

State asked a few more questions, Keele sought a mistrial because of the

extraneous offense testimony. Id. at *3. The trial court denied the motion but did

not instruct the jury to disregard the testimony because of the belief that

mentioning the statement again would cause more harm. See id. at *3. On

appeal, Keele complained only about the trial court’s failure to grant a mistrial,

not about the lack of a jury instruction. Id. Our sister court concluded that there

was no abuse of discretion in denying the motion for mistrial because the

testimony regarding the attempted rape was “unresponsive and fleeting.” Id.

      Courts have even held that curative instructions are sufficient to correct the

harm caused when witnesses make multiple references to extraneous offenses.

For example, in Lusk v. State, the court of appeals held that a trial court did not


                                         5
abuse its discretion by denying a motion for mistrial when there were multiple

references to prior offenses committed by the defendant because the curative

jury instruction was sufficient to correct any harm.       82 S.W.3d 57, 63 (Tex.

App.—Amarillo 2002, pet. ref’d). On appeal, Lusk argued that the trial court’s

instruction and admonishment of the witnesses failed to correct the harm caused

by the testimony and that a mistrial was the only appropriate remedy. Id. The

appellate court disagreed and concluded that the trial court’s refusal to grant a

mistrial was appropriate because the curative measures were sufficient to correct

any harm caused by the extraneous testimony. Id.

      Here, appellant filed a motion in limine to prohibit the State from

introducing any evidence of her prior crimes. 5 The trial court granted appellant’s

motion prior to the commencement of voir dire. During redirect examination by

the State, Corporal Gary Medlin—a Parker County police officer—spoke about

extraneous offenses. The following exchange occurred:

               [THE STATE:] Corporal Medlin, Counsel described his client
      a little bit. I think she said -- he said she was 5 foot 6. Did y’all have
      . . . a weight on her that you had down in your records?

            [WITNESS:] It would have been in our -- our system.

      5
       The motion stated in part,

             Defendant moves to exclude all extraneous crime or
      misconduct evidence which is not alleged in the [indictment], unless
      it can be shown . . . , outside the presence of the jury . . . , that this
      evidence is relevant to a material issue in the case, other than
      character conformity, and that its probative value outweighs its
      potential for prejudice.


                                          6
            [THE STATE:] Okay. And what did you have her down as?

            [WITNESS:] Previous theft charges.[6]

            [THE STATE:] Well, what was the --

            [DEFENSE COUNSEL]: Your Honor, may we approach?

            THE COURT: Yes.

            ....

             [DEFENSE COUNSEL]: Your Honor, I’m going to ask for a
      mistrial.

            [THE STATE]: I didn’t hear what he said.

             [DEFENSE COUNSEL]:          He said theft charges.       We
      specifically had a Motion in Limine not to bring up any priors. And
      this gentleman brought up a theft. That was not the question. He
      was asked: Did you have it in your information as far as what weight
      you had on her. I’m going to ask for a mistrial at this time.

            [THE STATE]:          We’d just ask for an instruction to
      disregard. . . . I was aiming for the weight is what I was trying to get
      him to tell me.

            THE COURT: . . . I’m going to give them an instruction to
      disregard. . . . [W]hy don’t I give them an instruction to disregard,
      and let’s take a break.

            ....

           [THE STATE]: I didn’t actually understand what he said. So I
      assume you’re going to say disregard the last response by the --

            THE COURT: Yes. Yes.

            ....

      6
        We cannot agree with appellant’s contention on appeal that the “evidence
. . . complained of . . . went into specific instances of conduct.”


                                         7
             THE COURT: Ladies and gentlemen of the jury, you’re
      instructed to disregard the last comment made by this witness. . . .

             ....

            [DEFENSE COUNSEL]: Your Honor, at this point I’m going to
      ask . . . for a mistrial[7] based on this [witness’s] testimony with
      regards to any prior allegations or convictions by my client of any
      bad acts.

            I specifically had this court order and grant a Motion in Limine
      not to bring any of this information out or to invoke this kind of
      testimony. The court granted it. Instructions were given not to bring
      any of this stuff up specifically.

            In fact, we even . . . went out of our way to make sure that the
      video was edited. And, therefore, I’m going to ask for a mistrial. I
      don’t believe an instruction at this point is going to correct the error.
      The bell’s already been rung. . . .

             ....

            THE COURT: . . . The court will deny that motion . . . . The
      court has given an instruction. But Deputy, . . . the question that I
      heard asked was: Did you have anything regarding the Defendant’s
      weight.

             [WITNESS]: I clearly did not understand that. I thought he
      said what -- what did you have down as prior. That would be my
      fault.

      7
        We reject the State’s preservation argument because appellant made the
trial court aware of her complaint through a motion for mistrial and received a
ruling. See Tex. R. App. P. 33.1(a); Young v. State, 137 S.W.3d 65, 69 (Tex.
Crim. App. 2004) (“The essential requirement [for preservation] is a timely,
specific request that the trial court refuses.”). We cannot, as the State contends,
conclude that appellant had a duty to request a jury instruction when the trial
court had already given one on its own accord. See Archie v. State, 221 S.W.3d
695, 699 (Tex. Crim. App. 2007) (“[A] defense request for an instruction to
disregard before requesting a mistrial was unnecessary, as appellant pursued his
objection ‘to an adverse ruling,’ i.e. the denial of his motion for mistrial, and the
trial court did, in effect, instruct the jury to disregard the argument.”).


                                         8
      The matter before us is similar to the cases discussed above where the

courts held that curative jury instructions to disregard were sufficient to correct

any harm caused by introducing evidence of extraneous offenses. Like in Hill,

where the officer’s testimony regarding extraneous offenses was unintentional

and vague, Corporal Medlin stated that he inadvertently testified about

extraneous offenses prohibited by the trial court’s granting of appellant’s motion

in limine.   See 2007 WL 2792863, at *6.       Corporal Medlin admitted that he

misunderstood the question about appellant’s weight and thought that the State

was asking about appellant’s prior offenses. Like the trial court in Hill, the trial

court here responded promptly to Corporal Medlin’s unresponsive and unsolicited

answer by giving an instruction to disregard. See id. Also, like the reference to

the extraneous offense in Keele, Corporal Medlin’s testimony was “unresponsive

and fleeting.” 2003 WL 21076655, at *3. One of the prosecutors for the State

stated that she did not hear Corporal Medlin’s statement, so it is also possible

that the jury did not hear the response. But if the jury did hear Corporal Medlin’s

brief response, the trial court’s prompt, unequivocal instruction to disregard cured

any harm the statement may have caused. 8 See id.

      8
       Appellant argues in part that Corporal Medlin’s comment impacted the
jury’s punishment decision of seventy years’ confinement. But during the
punishment phase of the trial, the jury received evidence of appellant’s multiple
thefts of Christmas decorations and of her multiple felony convictions over the
course of many years. We cannot conclude that Corporal Medlin’s vague
testimony harmed appellant with regard to her punishment when compared with
the other facts that the jury later learned about her during the punishment phase.
See Tex. R. App. P. 44.2(b).


                                         9
      Unlike the multiple references to extraneous offenses in Lusk, Corporal

Medlin made only one unembellished, brief reference to appellant’s prior

offenses. See 82 S.W.3d at 63. There, witnesses made multiple references to

extraneous offenses, and the court still held that the trial court’s instruction to

disregard was sufficient to cure any harm caused by the testimony and that a

mistrial was unnecessary. Id. Because there were no more references to these

extraneous offenses during the guilt phase of the trial, the trial court corrected

any possible harm by issuing a curative jury instruction to disregard Corporal

Medlin’s brief, unsolicited answer.

      Appellant contends that the trial court’s curative instruction failed to cure

any harm for the “same reason that it did so in” Stine v. State, 300 S.W.3d 52

(Tex. App.—Texarkana 2009, pet. dism’d). But the court in Stine held that an

instruction cured harm and that a trial court therefore did not err by overruling a

motion for mistrial. Id. at 59.

      The testimony here was not “so clearly calculated to inflame the minds of

the jury or . . . of such damning character as to suggest it would be impossible to

remove the harmful impression from the jury’s mind.” See Drake, 123 S.W.3d at

603–04.    Therefore, the trial court successfully cured any harm caused by

Corporal Medlin’s unresponsive and unsolicited answer regarding an extraneous

offense by instructing the jury to disregard the statement. 9 See Hackett v. State,

      9
       Similarly, in its charge, the trial court instructed the jury to “not consider,
discuss, or relate any matters not in evidence.”


                                         10
160 S.W.3d 588, 592 (Tex. App.—Waco 2005, pet. ref’d) (“Texas courts have

consistently held that the prejudicial effect of such indirect suggestions can be

cured by an instruction to disregard.”); Wilson v. State, 90 S.W.3d 391, 395 (Tex.

App.—Dallas 2002, no pet.) (“Generally, a prompt instruction to disregard will

cure a witness’s inadvertent reference to an extraneous offense.”). We hold that

the trial court did not abuse its discretion by denying appellant’s motion for

mistrial. See Marchbanks, 341 S.W.3d at 561. Thus, we overrule appellant’s

only point.

                                  Conclusion

      Having overruled appellant’s sole point, we affirm the trial court’s

judgment.


                                                  /s/ Terrie Livingston

                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 11, 2014




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