                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00364-CR

EVERETT JESSE SULLENS                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1303012D

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                        MEMORANDUM OPINION 1

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      Appellant Everett Jesse Sullens appeals his conviction and sentence for

assault bodily injury family member. 2 We affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       This case was originally submitted without oral arguments on
January 31, 2014, before a panel consisting of Chief Justice Livingston, Justice
Dauphinot, and Justice Gardner.        The court, on its own motion of
January 15, 2015, ordered this case reset without oral argument on February
5, 2015; assigned this case to a new panel, consisting of Chief Justice
Livingston, Justice Dauphinot, and Justice Gabriel; and assigned the
undersigned to author this opinion.
                                Background Facts

      On October 2, 2012, Appellant and Dana White, the mother of his two

children, got into an altercation on the front porch of Appellant’s home. Appellant

hit White in the mouth with his fist. White ran next door and asked a neighbor to

call the police. White then went back into Appellant’s house, and Appellant ran

off down the street. White ran after him.

      Police arrived and questioned White and Appellant’s brother, Stacy. Both

said that Appellant had punched White in the mouth.                Appellant was

subsequently arrested and charged.

      A jury found Appellant guilty of assault bodily injury to a family member

and that he had been previously convicted of assault bodily injury to a family

member.     Appellant pleaded true to the repeat offender paragraph of the

indictment, and the trial court assessed punishment of fifteen years’ confinement.

Appellant then filed this appeal.

                                    Discussion

1. White’s testimony

      Appellant’s first two issues concern White’s testimony. In his first issue,

Appellant argues that the trial court erred by not granting a mistrial when White

violated Appellant’s motion in limine. 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). An appellate court must uphold the trial court’s ruling if it was




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within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126,

129 (Tex. Crim. App. 2004).

      To preserve error regarding the admission of evidence in violation of a

motion in limine, the preferred procedure is: (1) a timely, specific objection; (2) a

request for an instruction to disregard; and (3) a motion for mistrial. Young v.

State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).              Generally, a prompt

instruction to disregard will cure a witness’s inadvertent reference to an

extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

Unless the extraneous offense is so calculated to inflame the minds of a jury or is

of such a nature as to suggest the impossibility of withdrawing the impression

produced, an instruction to disregard can cure any improper impression. Kemp

v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). “The party who fails to

request an instruction to disregard will have forfeited appellate review of that

class of events that could have been ‘cured’ by such an instruction.” Young,

137 S.W.3d at 70.

      At trial, the following exchange between White and the State took place:

     Q. And what happened then when he accused you of being at the
     neighbor’s house?

     A. I just—I went to defend myself, like always, and—

Appellant objected and the following bench conference occurred:

      [APPELLANT’S COUNSEL]: I think they better get their witness
      under control, because she’s violating the motion in limine. She’s
      violating the motion in limine.



                                         3
      [STATE]: Okay.

      [APPELLANT’S COUNSEL]: We need to take the jury out, and we
      need to talk about this.

             [STATE]: I think that actually I can limit the damage by telling
      her—

             [APPELLANT’S COUNSEL]: I want to take the jury out.

             [STATE]: We’ll listen [to] the Judge. What would you like to
      do?

             [APPELLANT’S COUNSEL]: She said “as usual,” Judge. She
      said, “I defended myself as usual.” She’s violating the motion in
      limine.

             THE COURT: Uh-huh. Tell her that, please.

             [STATE]: Okay.

             THE COURT: Not to mention anything.

             [STATE]: Yes.

            [APPELLANT’S COUNSEL]: We’re going to object and we’re
      going to move for a mistrial.

             THE COURT: All right. I’m denying that.

      Assuming without deciding that White’s testimony violated the motion in

limine, an instruction to disregard the comment would have been sufficient to

cure the harm.    See Kemp, 846 S.W.2d at 308 (holding that “uninvited and

unembellished reference to appellant’s prior incarceration” was cured by

instruction to disregard); Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (holding that harm of testimony of “repeated

beatings in the days preceding the incident” was cured by instruction to


                                         4
disregard); Drake v. State, 123 S.W.3d 596, 603–04 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d) (holding reference to extraneous bad acts harmless

because trial court instructed jury to disregard).        Because an instruction to

disregard White’s testimony would have cured the prejudicial effect, if any, of her

comment, the trial court did not abuse its discretion by denying Appellant’s

motion for mistrial. See Young, 137 S.W.3d at 72. We overrule Appellant’s first

issue.

         In his second issue, Appellant argues that the trial court erred by overruling

Appellant’s objection that White’s testimony violated rule of evidence 404(b)’s

prohibition of evidence of prior bad acts. See Tex. R. Evid. 404(b). If the trial

court’s ruling was within the “zone of reasonable disagreement,” then there is no

abuse of discretion, and the appellate court must uphold the trial court’s ruling.

Sanders v. State, 255 S.W.3d 754, 758 (Tex. App.—Fort Worth 2008, pet. ref’d).

         At trial, the State asked White why the punch to her face did not cause her

pain. Before White responded, Appellant objected. Outside the presence of the

jury, the State again asked White the question.         She responded, “Because I

became numb to it.” Appellant objected that it was evidence of prior bad acts by

Appellant. The trial court overruled the objection. When the jury returned, the

State again asked White why she did not feel pain when Appellant hit her in the

mouth. White answered, “High tolerance . . . of pain.”

         Appellant argues that the only inference that the jury could make from

White’s testimony that she has a high tolerance for pain is that “she has


                                            5
experienced a lot of physical pain at the hands of [Appellant].” To constitute an

extraneous offense, the evidence must show a crime or bad act, and that the

defendant was connected to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex.

Crim. App. 1992).      White’s statement does not show how Appellant was

connected to her high tolerance for pain or that her tolerance was the result of

some bad act on Appellant’s part. See Johnson v. State, 190 S.W.3d 838, 840

(Tex. App.—Fort Worth 2006, no pet.) (holding that audiotape of phone message

of defendant talking to victim while she was crying was not any evidence of an

extraneous offense or bad act); Mathis v. State, 650 S.W.2d 532, 534 (Tex.

App.—Dallas 1983, pet. ref’d) (holding that testimony that implied that

defendant’s photograph was on file with police department was not evidence of

prior criminal conduct). The trial court did not abuse its discretion in allowing

White’s statement. We overrule Appellant’s second issue.

2. Prior judgments

      In his third issue, Appellant argues that the trial court erred by admitting

four prior judgments during the punishment phase of trial because the State did

not link them to Appellant.

      The State elicited testimony from a Tarrant County sheriff’s deputy that

State’s Exhibits 10 through 19 (criminal dockets, judgments, and sentences)

were all attributed to Appellant. The State offered into evidence the ten prior

convictions, and Appellant objected that the State failed to link Appellant through

the inked fingerprints on the documents. The trial court overruled the objection.


                                        6
Appellant later admitted to six of the judgments. On appeal, he complains only of

the four judgments to which he did not admit.

       To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists

and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d

919, 921 (Tex. Crim. App. 2007). These two elements may be established by

certified copies of a judgment and a sentence, including fingerprints, supported

by expert testimony identifying them as identical with known prints of the

defendant. See Vessels v. State, 432 S.W.2d 108, 117 (Tex. Crim. App. 1968)

(op. on reh’g).   There is no required “mode of proof,” however, for the two

elements; the State may prove them in a number of different ways. Flowers,

220 S.W.3d at 921–22. In proving the elements, the State may use “[a]ny type of

evidence, documentary or testimonial.” Id. at 922; see Human v. State,

749 S.W.2d 832, 836 (Tex. Crim. App. 1988). The factfinder looks at the totality

of the admitted evidence to determine whether there was a previous conviction

and whether the defendant was the person convicted. Flowers, 220 S.W.3d at

923.

       The four complained-of judgments all contain Appellant’s full name and the

same date of birth and county identification number. The same name, date of

birth, and identification number appear in the convictions that Appellant

acknowledged. This was sufficient to link Appellant to the four judgments. See

Goode v. State, No. 02-10-00465-CR, 2011 WL 4502333, at *2 (Tex. App.—Fort


                                        7
Worth Sept. 29, 2011, pet. ref’d) (mem. op., not designated for publication)

(“Given that appellant’s unique, nonrecycled CID appeared in relation to two

Tarrant County convictions concerning a defendant with appellant’s full name

and birth date, we hold that a rational trier of fact could have found the evidence

sufficient to link appellant to the two prior judgments submitted by the State.”).

We overrule Appellant’s third issue.

                                   Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.


                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

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

DELIVERED: June 4, 2015




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