                                    NO. 12-14-00210-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

BOBBIE DEWAYNE GRUBBS,                            §      APPEAL FROM THE 273RD
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SHELBY COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Bobbie Dewayne Grubbs appeals his convictions for capital murder and two counts of
aggravated assault, for which he was sentenced to imprisonment for life without parole and two
life terms, respectively. Appellant raises four issues challenging the trial court’s failure to exclude
certain evidence or grant a mistrial, its failure to instruct the jury on involuntary intoxication, and
its failure to suppress his statements to the police. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with capital murder and two counts of aggravated
assault. He pleaded “not guilty,” and the matter proceeded to a jury trial.
       At trial, the evidence showed that Appellant and his wife, Deedra, attempted to kill a
woman at her home and left her for dead. The woman regained consciousness and called the
police. When Appellant and Deedra learned that the police were looking for them, they left town.
They began having vehicle problems and got a room at a motel. Appellant shot three employees at
the motel to obtain a vehicle, killing one of them. Appellant and Deedra left in the stolen vehicle.
       Ultimately, the jury found Appellant “guilty” of the capital murder of one of the motel
employees and the aggravated assaults of the other two. The jury assessed his punishment at
imprisonment for life without parole and two life terms, respectively. This appeal followed.
                       FAILURE TO GRANT MISTRIAL OR EXCLUDE EVIDENCE
       In his first issue, Appellant complains that the trial court erred by denying his motion for
mistrial after the jury heard him refer to his previous penitentiary trip during his police interview.
Alternatively, he argues that the trial court erred by failing to exclude the interview.
Standard of Review and Applicable Law
       A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard, and its
ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330
S.W.3d 253, 292 (Tex. Crim. App. 2010). Generally, it is presumed that the jury can and will
follow a court’s curative instruction to disregard objectionable testimony. See Bauder v. State,
921 S.W.2d 696, 698 (Tex. Crim. App. 1996). Mistrial is an extreme and exceedingly uncommon
remedy that is appropriate only when it is apparent that an objectionable event at trial is so
emotionally inflammatory that curative instructions are not likely to prevent the jury from being
unfairly prejudiced against the defendant. Id. Whether a particular error calls for a mistrial
depends on the peculiar facts and circumstances of the case. Hernandez v. State, 805 S.W.2d 409,
413 (Tex. Crim. App. 1990).
Analysis
       At a pretrial proceeding, the State offered a full videotaped recording of Appellant’s police
interview for the purpose of allowing the trial court to view it and rule on the voluntariness of the
statement. The following exchange occurred regarding the offer:


       PROSECUTOR: [W]e have also tendered to [defense counsel] a redacted version of those discs that
       we intend to introduce at trial, which takes out extraneous offenses material and things like that that
       are discussed between the defendant and the interrogating officers.

                ....

                We’ll just let the Court know, if you see things that are extraneous offenses, we are taking
       some of that out. We have an agreement on that. [Defense counsel] does not agree to introduce the
       entire video. He has agreed that, if the video is going to come in, that our redacted version is
       appropriate.

       DEFENSE COUNSEL: That’s correct, Your Honor.

       At trial, the State offered the redacted DVD, and it was admitted into evidence without
objection. The State began to play the DVD for the jury. At one point, the State paused the DVD
and asked to approach the bench. The State told the court that in its recent preparations for trial, it
had noticed two additional statements by Appellant from which the jury might infer he had



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previously been to prison. The State had subsequently prepared a new DVD with those statements
redacted.
         The State further explained to the trial court that while the video was playing for the jury,
it heard one of the newly redacted statements.1 The State then realized that it had inadvertently
offered the old redacted version. Not wanting to draw the jury’s attention to the statement, the
State allowed the video to continue playing a moment longer before stopping it to approach the
bench.
         To prevent the jury from hearing the other newly redacted statement, and to ensure they
did not hear the first one again, the State proposed replacing the DVD in evidence with the newer
version. Defense counsel objected to publication of the remainder of the video in any form. He
further asked the trial court to strike the entire portion of the video the jury had seen and advise
them not to consider it. The trial court denied the request and noted that the prior version of the
video would not be available to the jury in deliberations.
         The newly redacted DVD was then played for the jury beginning at the point where the
prior one was stopped. Defense counsel renewed his motion to strike the entire video and moved
for a mistrial. The trial court heard arguments from both sides and then told defense counsel that
his objection was overruled.
         On appeal, Appellant argues that the State’s inadvertent publication of the prior redacted
DVD was a violation of an agreed order akin to a motion in limine. He contends that the trial
court abused its discretion by failing to exclude the statement as character conformity evidence
under rule of evidence 404(b). Appellant further contends that the trial court erred by failing to
instruct the jury to disregard the statement and by failing to grant a mistrial. We disagree.
         First, we do not find any order by the trial court that was violated by the playing of the
DVD. The record shows only that the parties had an agreement regarding the video. Moreover,
that agreement did not include redacting the statement Appellant complains of here.                               The
agreement was that the redactions on the DVD that was offered and admitted into evidence were
appropriate. Thus, the playing of the DVD was not a violation of any trial court order or
agreement of the parties.
         Moreover, defense counsel did not ask the trial court to exclude the particular statement
complained of here, or instruct the jury to disregard it after the State brought it to the trial court’s

         1
           Appellant told the police that he told Deedra, “If you move, I’m going to shoot you. I don’t need to go back
to prison.”


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and Appellant’s attention. Defense counsel asked the trial court to exclude the entire video and
instruct the jury not to consider it. He gave the trial court no reason why the entire video should
be excluded.
        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. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). An inadvertent reference
by a witness to an extraneous offense is generally cured by a prompt instruction to disregard. See
Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). Here, an objection to the statement
prior to the admission of the DVD could have kept the statement from the jury entirely.
Furthermore, an instruction to disregard the particular statement, for which Appellant did not ask,
would have cured any harm caused by it. See Nobles, 843 S.W.2d at 514. Because the problem
could have been cured by a less drastic alternative, we conclude that the trial court did not abuse
its discretion by denying the motion for mistrial. See Young, 137 S.W.3d at 70. We further
conclude that the trial court did not err by failing to exclude the entire interview.           See id.
Accordingly, we overrule Appellant’s first issue.


                                               CHARGE ERROR
        In Appellant’s second issue, he argues that the trial court erred by failing to instruct the
jury on involuntary intoxication and its consequences.
Standard of Review and Applicable Law
        The review of an alleged jury charge error in a criminal trial is a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must determine
whether there was error in the jury charge. Id. Then, if there is charge error, the court must
determine whether there is sufficient harm to require reversal. Id. at 731-32. The standard for
determining whether there is sufficient harm to require reversal depends on whether the appellant
objected to the error at trial. Id. at 732.
        If the appellant objected to the error, the appellate court must reverse the trial court’s
judgment if the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM. PROC.
ANN. art. 36.19 (West 2006). This means no more than that there must be some harm to the
accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An
appellant who did not raise the error at trial can prevail only if the error is so egregious and created



                                                    4
such harm that he has not had a fair and impartial trial. Id. “In both situations the actual degree of
harm must be assayed in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.
          The record must show that the defendant suffered actual harm, not merely theoretical
harm. Id. at 174. In assessing whether the trial court erred by denying a requested defensive
instruction, an appellate court must examine the evidence offered in support of the defensive issue
in the light most favorable to the defense. Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim.
App. 2013).
          Generally, a trial court must deliver to the jury “a written charge distinctly setting forth the
law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The charge
must include an instruction on any defensive theory raised by the evidence and properly requested
by the defendant. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). But the trial
court has no duty to instruct the jury sua sponte on unrequested defensive issues because they are
not “the law applicable to the case.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013).
A defendant who fails to preserve his request for a defensive instruction cannot complain about its
omission on appeal because he has procedurally defaulted his complaint. Id.
Analysis
          Appellant argues that the trial court should have instructed the jury on involuntary
intoxication because he presented evidence that around the time of the shootings, he ingested a
substance called Pump-It Powder. Appellant told the court appointed psychiatrist in this case that
the substance caused sleeplessness and paranoia. He also said that it caused people to look
abnormal or demonic.
          Even if such evidence raises a defensive issue based on involuntary intoxication, Appellant
cannot prevail on his complaint. In closing arguments, defense counsel argued that perhaps if
Appellant had not ingested the Pump-It Powder, he would not have committed the crimes. He
further argued that Appellant acted recklessly in ingesting the substance and therefore, if guilty,
was guilty of something less than capital murder.            But defense counsel never requested an
instruction on involuntary intoxication, and he affirmatively stated that he had no objection to the
charge.     Therefore, we conclude that Appellant procedurally defaulted his complaint.                Id.
Accordingly, we overrule Appellant’s second issue.



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                                      MOTION TO SUPPRESS
       In Appellant’s third issue, he argues that his statements to Detective Keith Echols are
inadmissible under Texas law because they were given involuntarily. In Appellant’s fourth issue,
he argues that his statements to Trooper Sean Barnes are inadmissible for the same reason.
Standard of Review and Applicable Law
        We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact and
judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a witness’s
testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       When a question is raised as to the voluntariness of a defendant’s statement, the trial court
must make a finding after a hearing outside the presence of the jury regarding whether the
statement was made under voluntary conditions. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6
(West Supp. 2015). If the trial court finds that the statement was voluntary and admissible as a
matter of law and fact, it must enter an order stating its conclusion and finding of facts upon which
the conclusion was based. Id.
       The determination of whether a confession is voluntary is based on an examination of the
totality of the circumstances surrounding its acquisition. Armstrong v. State, 718 S.W.2d 686,
693 (Tex. Crim. App. 1985). Relevant circumstances to determine if a defendant’s will has been
overborne include length of detention, incommunicado or prolonged interrogation, denying a
family access to a defendant, refusing a defendant’s request to telephone a lawyer or family, and
physical brutality. Id.




                                                 6
       Intoxication, while relevant to the issue, does not automatically render a confession
involuntary. Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App. 1988). The central question
is the extent to which the person was deprived of his faculties due to the intoxication. Id. If the
person’s intoxication rendered him incapable of making an independent, informed choice of free
will, then his confession was given involuntarily. Id.
Analysis
       Evidence in the record shows that sometime after the shootings, the police found Appellant
and Deedra in the stolen vehicle and arrested them. On video from the police vehicle that
transported Appellant to jail, Appellant appears to spontaneously begin talking about his crime.
Trooper Sean Barnes says something inaudible. Then Appellant says, “I know my rights, brother.
I know them. But you got to read them anyway?” Trooper Barnes reads Appellant his rights.
Appellant states, “I’m going to waive everything.” He then begins to freely discuss his crimes
while repeatedly and vehemently declaring Deedra’s innocence.
       A videotape of Appellant’s interview by Detective Echols shows that Appellant was
allowed to speak to his children on the phone before the interview began. Appellant was read his
warnings. He then waived his rights and eagerly talked to the detective. Appellant was brought
coffee and food during the interview. He was also provided cigarettes and multiple cigarette
breaks. After each break, he was read his warnings again, and he waived his rights again.
Appellant maintained throughout the interview that he alone was responsible for the murder and
attempted murders.
       In Appellant’s third issue, he argues that his statements to Detective Echols were
involuntary and are therefore inadmissible under Article 38.22 of the code of criminal procedure.
In support of his contention, Appellant cites the following factors: (1) he was allowed to talk to his
children as a quid pro quo, (2) his back was against a wall in a “relatively small room” for over
three hours, (3) Detective Echols and a Texas Ranger were seated about three to four feet in front
of him, (4) Detective Echols is five feet ten inches tall and weighs around 195 pounds, (5) the
Ranger is a “pretty good sized boy,” (6) Appellant is five feet ten inches tall and weighs 170
pounds, (7) Appellant was nervous and tapping his feet, (8) Appellant’s statements about Deedra’s
involvement did not completely match Echols’s understanding of the events, (9) Appellant was
worried about his children and Deedra, (10) Appellant was recovering from a psychosis caused by




                                                  7
his involuntary intoxication from Pump-It Powder, and (11) Appellant had not slept for several
days.
         In Appellant’s fourth issue, he argues that his statements to Trooper Barnes were
involuntary and are therefore inadmissible as well. In support of this contention, Appellant cites
the following factors: (1) fifteen to twenty law enforcement officers were present at the scene of
his arrest, (2) members of SWAT were present in riot gear and heavily armed, (3) numerous
officers approached Appellant, (4) Appellant was placed on the ground and secured, (5) Deedra
was secured and placed in an ambulance, (6) there was “a lot of commotion and noise” and
“chatter” at the scene, (7) a law enforcement helicopter landed, (8) highway traffic was diverted
around the scene, (9) Appellant was not told that his statements were being recorded, (10)
Appellant did not waive his rights in writing, (11) Appellant was recovering from a psychosis
caused by his involuntary intoxication from Pump-It Powder, (12) Appellant was worried about
his children and Deedra, and (13) Appellant had not slept for several days.
         In the trial court’s written findings of fact and conclusions of law, it found from the totality
of the circumstances that Appellant understood his rights and that he knowingly, intelligently, and
voluntarily waived them. The trial court further found that Appellant was not threatened, coerced,
or promised anything in exchange for making the statements to the police. Based on our review of
the totality of the circumstances, we conclude that the record supports the trial court’s conclusion
that Appellant’s statements to the police were voluntary. See Armstrong, 718 S.W.2d at 693.
Therefore, the trial court did not abuse its discretion by denying Appellant’s motion to suppress.
Accordingly, we overrule Appellant’s third and fourth issues.


                                                   DISPOSITION
         Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial
court’s judgment.
                                                                    BRIAN HOYLE
                                                                       Justice

Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)



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                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                            JULY 20, 2016


                                        NO. 12-14-00210-CR


                                 BOBBIE DEWAYNE GRUBBS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 273rd District Court
                         of Shelby County, Texas (Tr.Ct.No. 14CR19,074)

                        THIS CAUSE came to be heard on the oral arguments, 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.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
