                                       NO. 12-14-00110-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

JOHN ROBERT MCDONALD,                                  §       APPEAL FROM THE 3RD
APPELLANT

V.                                                     §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                               §       ANDERSON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       John Robert McDonald appeals his conviction for theft of a firearm. He raises one issue
on appeal. We affirm.


                                               BACKGROUND
       An Anderson County grand jury indicted Appellant for the offense of theft of a firearm
alleged to have occurred on or about October 4, 2012. Thereafter, the State filed a notice of
enhancement, increasing the punishment range from a state jail felony to a second degree
felony.1
       Appellant pleaded ―not guilty,‖ and a jury trial was held. The jury found Appellant
guilty, found the enhancement paragraphs true, and assessed punishment at imprisonment for
twenty years and a fine of $2,000.00. This appeal followed.


                                   DENIAL OF MOTION FOR MISTRIAL
       In his sole issue, Appellant argues that the trial court erred by denying his motion for
mistrial. A mistrial is a device used to halt trial proceedings when error is so prejudicial that



       1
           See TEX. PENAL CODE ANN. §§ 12.425(b), 31.03(e)(4)(C) (West Supp. 2014).
expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d
547, 567 (Tex. Crim. App. 1999).
Standard of Review
       A trial court‘s denial of a mistrial is reviewed for abuse of discretion. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009); Archie v. State, 221 S.W.3d 696, 699 (Tex. Crim.
App. 2007). We view the evidence in the light most favorable to the trial court‘s ruling
considering only those arguments before the court at the time of the ruling. Ocon, 284 S.W.3d at
884. We will uphold the trial court‘s ruling if it was within the zone of reasonable disagreement.
Id.; Archie, 221 S.W.3d at 699.
Applicable Law
       A motion in limine may be used to request that the state not be permitted to mention any
evidence of prior convictions to the jury until a hearing has been held outside the presence of the
jury to determine the admissibility of the evidence. Westmoreland v. State, 174 S.W.3d 282,
290 (Tex. App.—Tyler 2005, pet. ref‘d) (citing Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim.
App. 2003)). Once the motion in limine is violated, counsel must obtain an adverse ruling to
preserve the complaint. Id.
       Although a request for a lesser remedy is not a prerequisite to a motion for mistrial, we
will not reverse a trial court‘s judgment if the problem could have been cured by a less drastic
alternative. See Ocon, 284 S.W.3d at 885; Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.
2004). The request for an instruction to disregard is essential only when such an instruction
could have had the desired effect—the continuation of a trial by an impartial jury. Id. But when
a party moves for a mistrial without first requesting a less drastic alternative, he forfeits appellate
review of that class of events that could have been cured by the lesser remedy, and the scope of
review is limited to the question of whether the trial court erred in not taking the most serious
action of ending the trial. Ocon, 284 S.W.3d at 886–87; Young, 137 S.W.3d at 70.
       Generally, a mistrial is required ―only when the improper evidence or testimony is
‗clearly calculated to inflame the minds of the jury and is of such a character as to suggest the
impossibility of withdrawing the impression produced on the minds of the jury.‘‖ Hinojosa v.
State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999) (citations omitted). Whether the erroneous
admission of evidence requires a mistrial is determined by looking at the facts and circumstances
of the case. Id.



                                                  2
Discussion
       Appellant was incarcerated in the Houston County jail when law enforcement officers
recovered a gun that Gerald Morris had reported stolen. Before trial, Appellant filed a motion in
limine that sought to prohibit the State from eliciting testimony about ―why‖ Appellant was
incarcerated. The trial court granted the motion, but Appellant agreed that the State could
present evidence that he was incarcerated at the time the gun was found.
       Appellant‘s wife, Leah Nicole Reed a/k/a Nicole McDonald, testified that she had been
married to Appellant for three years and that Gerald Morris was her stepfather. Morris had
accused her and Appellant of stealing his gun. On the day the gun was found, Appellant had
called Reed to bond him out of jail. Reed testified that she told Appellant that Morris (a bail
bondsman) would not let her get Appellant out of jail until his gun was found. Eventually,
Appellant told Reed where to look in ―the woods‖ and the gun was found.
       Reed testified that she had been looking for the gun ―a long time,‖ and that she knew
where to look because Appellant told her. The following discourse then took place:


       State: Okay. Did he call you from the jail?

       Reed: Yes, sir.

       State: And what was he telling you from jail?

       Reed: To go look in the woods, to come get him out because his federal parole got word that he
       was in jail.


Immediately thereafter, Appellant‘s attorney approached the bench, arguing ―that‘s a clear
violation of the motion in limine. It prejudices the [j]ury to find my client has not only been
convicted of a felony, now he‘s on federal parole.‖ The trial court responded that the State‘s
question had not dictated Reed‘s response and suggested an instruction to disregard, but none
was ever requested or given. Instead, Appellant‘s attorney made a motion for a mistrial, which
the trial court denied. The record does not show any other violation of the motion in limine.
Conclusion
       There is nothing in the record that indicates the State knew its question would trigger a
response that Appellant was on federal parole. See Hinojosa, 4 S.W.3d at 253. Reed‘s answer
was an isolated event and did not create such an extreme circumstance of incurable prejudice that
a mistrial was required. See Archie, 221 S.W.3d at 699. Additionally, the prejudice Appellant


                                                       3
complains of could have been cured by a less drastic alternative—an instruction to disregard.
See Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) (en banc) (―A manner of
lessening the prejudice from the extraneous offense is to give a limiting instruction to the jury.‖);
see also Marshall v. State, 210 S.W.3d 618, 628-29 (Tex. Crim. App. 2006) (trial court‘s
instruction to disregard reference to extraneous offense cured any harm or prejudice); Boyd v.
State, 643 S.W.2d 700, 705–06 (Tex. Crim. App. [Panel Op.] 1982) (trial court‘s instruction to
jury to disregard witness statement about extraneous offense cured any harm that might have
occurred); Dickson v. State, 492 S.W.2d 267, 272 (Tex. Crim. App. 1973) (holding that although
complaint was not properly preserved, appellant would have nothing to complain about because
jury was instructed to disregard testimony relating to extraneous offense); Westmoreland, 173
S.W.3d at 291 (presuming that jury followed court‘s instruction to disregard).
         Because a less drastic alternative was available but not requested, the trial court did not
abuse its discretion by denying Appellant‘s motion for mistrial. See Ocon, 284 S.W.3d at 884,
887; Young, 137 S.W.3d at 70. Accordingly, we overrule Appellant‘s sole issue.


                                                    DISPOSITION
         Having overruled Appellant‘s sole issue, we affirm the judgment of the trial court.

                                                                  JAMES T. WORTHEN
                                                                     Chief Justice

Opinion delivered December 10, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



                                                           4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 10, 2014


                                          NO. 12-14-00110-CR


                                  JOHN ROBERT MCDONALD,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31410)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
