                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00511-CR


Raymond Charles White                   §    From the 371st District Court

                                        §    of Tarrant County (1230480D)

v.                                      §    February 21, 2013

                                        §    Opinion by Justice Walker

The State of Texas                      §    (p)

                                 JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in part of the trial court’s judgment.     It is ordered that the

judgment of the trial court is vacated and dismissed in part and affirmed in part.

We vacate and dismiss the trial court’s judgment on count two and affirm the trial

court’s judgment on count one.

                                    SECOND DISTRICT COURT OF APPEALS



                                    By_________________________________
                                      Justice Sue Walker
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00511-CR


RAYMOND CHARLES WHITE                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                                    OPINION

                                      ----------

                                 I. INTRODUCTION

      Appellant Raymond Charles White appeals his convictions for burglary of a

habitation with intent to commit sexual assault (count one) and burglary of a

habitation with intent to commit assault (count two). In five issues, he argues that

his convictions violate double jeopardy, that the trial court erred by denying his

motion to suppress and his motion for mistrial, and that the trial court’s charge on

guilt-innocence was erroneous.     We will vacate and dismiss the trial court’s


                                          2
judgment on count two as violative of double jeopardy and affirm the conviction

for count one.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Claire Buckholz and her six-year-old son were asleep in her bed in her Fort

Worth house one night. She awoke to the sound of strange noises around 4:30

a.m. She opened her eyes and saw a man wearing dark clothing with a hoodie

pulled over his head standing in the doorway of her bedroom. She screamed.

The man jumped on top of Buckholz and punched her several times. When he

began choking her, she bit his finger as hard as she could. He punched her in

the face again. The man told Buckholz’s son to go to his room, but he would not

leave his mother. The man began pulling off Buckholz’s pajama bottoms, and

she stopped him by telling him that she had herpes. As the man was leaving, he

took Buckholz’s cell phone. Buckholz and her son ran to the neighbor’s house

and called 911.

      Fort Worth police traced Buckholz’s cell phone activity to a house in

southwest Fort Worth.     Detective Felicia Cleveland went to that house and

recovered the phone from Fernando Ruis, who said he got it from his son-in-law.

The detective spoke to the son-in-law, as well as several other individuals who

had possessed the phone, and ultimately traced it back to White. Police located

White at a nearby park.

      Detectives Cleveland and Sullivan went to the park to speak to White.

They told him that they wanted to talk to him about a stolen cell phone and asked


                                       3
if he would go with them to the police station for questioning. They saw a band-

aid on White’s finger. White agreed, but he asked to call his grandmother, whom

he lived with, first. After calling his grandmother, White left with the detectives.

They told him that he was not being arrested and that they would take him back

to his grandmother’s house after the interview.

      During the videotaped interview, which lasted about one hour, White

initially denied burglarizing Buckholz’s home. He said he had cut his finger while

watching a television program. White then admitted to going into Buckholz’s

bedroom, putting his hand over her mouth to keep her from screaming, and

taking her cell phone.    He also admitted that Buckholz bit him.       He denied

attempting to sexually assault her. The detectives took photographs of the cut on

White’s finger. After the interview, the police returned White to his grandmother’s

house. Police then obtained an arrest warrant and arrested him at the park

about an hour and a half later.

      Buckholz’s pajama bottoms tested positive for blood. DNA testing of the

blood on the pajama bottoms revealed that White was a major contributor to the

mixture.

      White was indicted for one count of burglary of a habitation with intent to

commit sexual assault and one count of burglary of a habitation with intent to

commit assault.    See Tex. Penal Code Ann. § 30.02(a), (c)(2), (d)(2) (West

2011). The State did not introduce evidence of White’s confession during its

case-in-chief. After the defense called White’s grandmother to testify that White


                                         4
had been at home the night of the burglary, the State on rebuttal introduced

evidence of White’s confession.

      A jury convicted White of both counts, and after the jury was unable to

reach a unanimous verdict on punishment, the trial court granted a mistrial on

punishment.     After a new trial on punishment before a new jury, the jury

assessed White’s punishment at eighteen years’ confinement on each count.

The trial court sentenced him accordingly, ordering that the sentences run

concurrently.

                        III. DOUBLE JEOPARDY VIOLATION

      In his second issue, White argues that his convictions of two counts of

burglary of a habitation violated double jeopardy when only one offense of

burglary of a habitation was committed.      The State concedes that convicting

White of two counts of burglary arising from the same act was a double jeopardy

violation. See Ex parte Cavazos, 203 S.W.3d 333, 336–37 (Tex. Crim. App.

2006) (holding that convictions for burglary of habitation with intent to commit

theft and burglary of habitation with intent to commit sexual assault for same

entry violated double jeopardy because the allowable unit of prosecution was the

unlawful entry). Thus, we will address the appropriate remedy, that is, which of

the two offenses should be vacated and dismissed and which should be retained

as the “most serious offense.” See id. at 338.

      When a defendant has been prosecuted and convicted in a single criminal

action of two or more offenses that constitute the same offense, in violation of


                                        5
double jeopardy, the remedy is to apply “the most serious offense” test and retain

the conviction for the “most serious” offense. Id. The “most serious” offense is

the offense for which the greatest sentence was assessed.           Id. (overruling

Landers v. State, 957 S.W.2d 558, 559–60 (Tex. Crim. App. 1997), which held

that other factors—such as the degree of the felony, range of punishment, and

rules governing parole eligibility and awarding of good-conduct time—should be

used in that determination); see also Evans v. State, 299 S.W.3d 138, 141 (Tex.

Crim. App. 2009); Bigon v. State, 252 S.W.3d 360, 372–73 (Tex. Crim. App.

2008).

       But when, as here, the punishment for each conviction is identical, we

cannot look to only the sentences imposed to determine the most serious

offense. See Bigon, 252 S.W.3d at 373. In Bigon, faced with a situation similar

to the one here, the court of criminal appeals looked at the degree of each

offense in determining the most serious offense:

              Only because the sentences are identical do we have to look
       to another criteria for determining which offense is the most serious.
       In this case, we look to the degree of felony for each offense. While
       the sentences assessed for each of the convictions on this case is
       the same, felony murder is a first-degree felony, while intoxication
       manslaughter and manslaughter are second-degree felonies. As
       such, felony murder is clearly the most serious offense and we affirm
       the court of appeals’ decision to retain this conviction.

Id.1


       1
       Other “tie-breakers” recognized by the court of criminal appeals in
conducting a “most serious offense” test when both convictions have the same
imprisonment punishment include deadly-weapon findings, see Villanueva v.

                                         6
      White urges a percentage-of-maximum-possible-punishment approach to

determining which of the two offenses is the most serious in this case.         He

argues that the most serious offense is the burglary of a habitation with intent to

commit assault (count two) because the eighteen-year sentence assessed by the

jury for that count is approximately ninety percent of the maximum twenty-year

imprisonment sentence for a second-degree felony. See Tex. Penal Code Ann.

§ 12.33(a) (West 2011) (providing range of imprisonment between two and

twenty years as second-degree-felony punishment). White points out that, in

contrast, the eighteen-year sentence assessed by the jury for count one is only

one-fifth of the maximum imprisonment sentence for burglary of a habitation with

intent to commit sexual assault, a first-degree felony. See id. § 12.32(a) (West

2011) (providing range of imprisonment between five and ninety-nine years or life

as first-degree-felony punishment). White argues that, consequently, “this jury

saw the offense alleged in ‘Count Two’ as the more serious of the two.”2

      But following our court of criminal appeals’ precedent, as we must, we will

look to the degree of felony for the two offenses to determine the “most serious”

State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007), and restitution, see Ex parte
Cavazos, 203 S.W.3d at 338. No restitution was assessed and no deadly-
weapon finding was entered for either of White’s convictions.
      2
       White further argues that, all things being equal, he should be given the
choice of remedy for this violation of his constitutional rights, but the court of
criminal appeals has stated that “the ‘most serious offense’ test attempts to take
into account which conviction prosecutors would choose to retain, while also
continuing to meet the other policy considerations.” Bigon, 252 S.W.3d at 373
(emphasis added).


                                        7
offense. See Bigon, 252 S.W.3d at 373. Because burglary of a habitation with

intent to commit sexual assault is a first-degree felony and burglary of a

habitation with intent to commit assault is a second-degree felony, see Tex.

Penal Code Ann. § 30.02(c)(2), (d)(2), count one—burglary with intent to commit

sexual assault—is the most serious offense here. See id. We will vacate White’s

conviction for count two (burglary of a habitation with intent to commit assault).

See id.; see also Tex. R. App. P. 43.2(e). We sustain White’s second issue in

part and, to the extent he requests we vacate his conviction for count one,

overrule it in part.3

                             IV. MOTION TO SUPPRESS

       In his first issue, White complains that the trial court erred by denying his

motion to suppress evidence of his confession because it was obtained in

violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and

because the detectives’ promises rendered the confession involuntary.

                             A. Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

       3
        Because we set aside one of White’s convictions on double jeopardy
grounds, we need not address his third issue, arguing that the jury charge
erroneously charged two counts of burglary, and his fourth issue, arguing
ineffective assistance to the extent that his second issue was not preserved. See
Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary
to disposition of appeal).


                                         8
In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court’s ruling, or when there are no explicit fact findings and neither party timely


                                           9
requested findings and conclusions from the trial court, we imply the necessary

fact findings that would support the trial court’s ruling if the evidence, viewed in

the light most favorable to the trial court’s ruling, supports those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214

S.W.3d at 25. We then review the trial court’s legal ruling de novo unless the

implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly, 204 S.W.3d at 819.

                      B. Miranda Warnings Not Required

      The State may not use a defendant’s statements, whether exculpatory or

inculpatory, stemming from a custodial interrogation unless the State

demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.   Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.

Additionally, article 38.22 of the code of criminal procedure precludes the use of

statements that result from a custodial interrogation without compliance with

certain procedural safeguards. See Tex. Code Crim. Proc. Ann. art. 38.22 (West

2005). If an investigation is not at an accusatorial or custodial stage, a person’s

Fifth Amendment rights have not yet come into play, and the voluntariness in

waiving those rights is not implicated. Melton v. State, 790 S.W.2d 322, 326

(Tex. Crim. App. 1990).

      There are at least four general situations when a suspect’s detention may

constitute custody: (1) when the suspect is physically deprived of his freedom of

action in any significant way, (2) when a law enforcement officer tells the suspect


                                        10
that he cannot leave, (3) when law enforcement officers create a situation that

would lead a reasonable person to believe that his freedom of movement has

been significantly restricted, and (4) when there is probable cause to arrest and

law enforcement officers do not tell the suspect that he is free to leave. Dowthitt

v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); McCulley v. State, 352

S.W.3d 107, 115–16 (Tex. App.—Fort Worth 2011, pet. ref’d). In the first through

third situations, the restriction upon freedom of movement must amount to the

degree associated with an arrest as opposed to an investigative detention.

Dowthitt, 931 S.W.2d at 255; McCulley, 352 S.W.3d at 116. Concerning the

fourth situation, which is of interest in this case, the officers’ knowledge of

probable cause must be manifested to the subject, and such manifestation may

occur if information sustaining the probable cause is related by the officers to the

suspect or by the suspect to the officers. Dowthitt, 931 S.W.2d at 255; McCulley,

352 S.W.3d at 116.      Situation four, however, will not automatically establish

custody; rather, custody is established if the manifestation of probable cause,

combined with other circumstances, would lead a reasonable person to believe

that he is under restraint to the degree associated with an arrest. Dowthitt, 931

S.W.2d at 255; McCulley, 352 S.W.3d at 116.

      In this case, two detectives approached White in a park and detained him

until Detectives Cleveland and Sullivan arrived about five minutes later.

Detectives Cleveland and Sullivan told White that they were investigating a

stolen cell phone and asked if White would go to the station with them for


                                        11
questioning. White agreed, asking if he could call his grandmother first. The

detectives allowed him to do so. They told White that he was not being arrested,

that he was not in custody, and that after the interview, they would return him to

his grandmother’s house, which they did. He was not handcuffed.

      White first argues that he was in custody for Miranda purposes from the

moment that police traced Buckholz’s phone to him and saw the band-aid on his

finger at the park because a reasonable person would believe he was under

arrest. But even if the detectives had probable cause to arrest White at that

point, it was not manifested to him by the officers (nor by White to the officers) at

that time. See Dowthitt, 931 S.W.2d at 255; see also Herrera v. State, 241

S.W.3d 520, 525–26 (Tex. Crim. App. 2007); cf. McCulley, 352 S.W.3d at 116.

To the contrary, the detectives told him more than once that he was not under

arrest, and he voluntarily consented to going to the police station for questioning.

See Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987) (“[W]here a

person voluntarily accompanies investigating police officers to a certain location,

and he knows or should know that the police officers suspect that he may have

committed or may be implicated in committing a crime, that person is not

‘restrained’ or ‘in custody.’”), cert. denied, 487 U.S. 1210 (1988); Miller v. State,

196 S.W.3d 256, 266 (Tex. App.—Fort Worth 2006, pet. ref’d) (reasoning that

appellant’s choice to voluntarily meet with police demonstrated that police

encounter was initially noncustodial).




                                         12
      White also argues that the encounter became a custodial interrogation

during the police station interview because a reasonable person would have

believed he was under arrest. He relies heavily on Xu v. State to support his

argument. See 100 S.W.3d 408, 414 (Tex. App.—San Antonio 2002, pet. ref’d).

There, the court analyzed the following factors to determine that Xu was subject

to a custodial interrogation from the moment he made a “pivotal admission” to

officers about his wife’s murder during a stationhouse interrogation: (1) whether

the suspect arrived at the place of interrogation voluntarily—Xu voluntarily

submitted to questioning, but the court stressed his distraught emotional state

and the facts that he was born in China, where there are no Miranda rights, and

that he spoke little English; (2) the length of the interrogation—Xu had been

interrogated by multiple officers during separate interviews over the course of

eighteen hours and had been at the police station for five hours before making

his pivotal admission; (3) whether the suspect’s requests to see relatives and

friends are refused—Xu’s friend was not allowed to speak to him at the station;

(4) the degree of control exercised over the suspect—Xu had not been told that

he was free to leave for approximately five hours before his pivotal admission,

and he received one bottle of water and one restroom break during that time; and

(5) whether a “pivotal admission” established custody—Xu made such an

admission in the second interview, shortly after officers confronted him with

evidence pointing to him as the suspect and said they did not believe his story.

Id. at 414–15.


                                       13
      In this case, White voluntarily went with the police to the station for an

interview. The interview lasted approximately one hour.4 Prior to the interview,

the detectives asked if White needed to use the restroom or anything to eat or

drink; White did not ask for anything or to see anyone during the interview.

Detective Sullivan told White that he could terminate it at any time and that the

detectives would take him home. The detectives told White that he needed to tell

them the truth because it would go easier on him and that they needed to know

what kind of person they are dealing with. White initially said he got the cell

phone from a kid at school, but approximately thirty minutes into the interview,

Detective Sullivan asked if there was any reason White’s DNA would be in

Buckholz’s house and if White would provide a DNA sample after the interview.

The detectives said they knew White’s story was false and that they “could prove

it,” but they reiterated that they would take White home no matter what he said.

See Dowthitt, 931 S.W.2d at 255 (noting that manifestation of probable cause

must, combined with other circumstances, lead a reasonable person to believe

that he is under restraint to the degree associated with an arrest). Detective

Sullivan then told White that police were investigating a burglary and attempted

sexual assault; he asked White about the injury on his finger, saying he “[knew]


      4
        Detective Cleveland testified that the interview lasted about an hour and a
half, but she later testified that the interview started at 5:02 and ended at 5:56.
The videotape reveals that the interview concluded after about one hour but that
White remained in the room for another thirty minutes after the interview so that
officers could photograph him and his injuries.


                                        14
how that happened.” White then admitted that he entered Buckholz’s home to

look for money, covered her mouth to prevent her from screaming, and ran out

with her phone.

      The detectives continued to question White, telling him that they did not

think he was telling the truth about his motives or about not taking Buckholz’s

purse. White never admitted that he had attempted to sexually assault her or

that he had taken her purse. He maintained that he had told them everything,

and the detectives then ended the interview.        Thus, even assuming White’s

“pivotal admission” turned the interview into a custodial interrogation, the

continued interrogation did not reveal any additional admissions subject to

suppression. See Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. [Panel

Op.] 1979) (holding that suspect’s statement that he shot victim “immediately

focused the investigation on him and furnished probable cause to believe that he

had committed an offense”; “[a]fter that time, the continued interrogation must be

considered a custodial one”).

      The objective circumstances surrounding White’s encounter with the

detectives do not show that a reasonable person in White’s situation would

believe that he was under restraint to the degree associated with an arrest. See

Dowthitt, 931 S.W.2d at 255; see also Estrada v. State, 313 S.W.3d 274, 294–95

(Tex. Crim. App. 2010) (finding no custodial interrogation when appellant

voluntarily went to police station, police told him several times that he was free to

leave, and appellant said he wanted to leave several times during the five-hour


                                         15
interrogation), cert. denied, 131 S. Ct. 905 (2011); see also Oregon v. Mathiason,

429 U.S. 492, 495–46, 97 S. Ct. 711, 714 (1977) (holding defendant not in

custody for Miranda purposes when he went to station voluntarily upon police

request, was informed that he was not under arrest, and was allowed to leave

station after thirty-minute interview during which police falsely stated that his

fingerprints were found at the scene). Thus, the record supports the trial court’s

implied findings and conclusions that White’s confession was not obtained as a

result of a custodial interrogation in violation of Miranda. See Estrada, 313

S.W.3d at 294–95. We overrule this portion of White’s first issue.

                          C. No Improper Inducement

        White also argues that his confession was involuntary because the

detectives made the following “promises” to him: they told him that they would

return him to his grandmother’s house after the interview regardless of what he

told them, and they told him that he needed to tell the truth, that “it would go

easier on him,” and that they “needed to know what kind of person he really

was.”

        The court of criminal appeals has held that a four-prong test must be met

in order to render a confession obtained by a promise of a benefit involuntary.

Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991), abrogated on

other grounds by Graham v. State, 994 S.W.2d 651 (Tex. Crim. App.), cert.

denied, 528 U.S. 974 (1999); see also Fisher v. State, 379 S.W.2d 900, 902

(Tex. Crim. App. 1964).      The promise must be (1) of some benefit to the


                                        16
defendant, (2) positive, (3) made or sanctioned by a person in authority, and (4)

of such character as would be likely to influence the defendant to speak

untruthfully. Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997),

cert. denied, 525 U.S. 978 (1998).       In our review, we look to whether the

circumstances of the promise would reasonably induce a defendant to admit to a

crime he did not commit. Sossamon, 816 S.W.2d at 345.

      Here, none of the detectives’ statements to White were of such an

influential nature as to likely influence White to confess untruthfully.        The

detectives did not condition their returning White to his home upon him telling the

truth; the detectives simply said they would drive White home after the interview,

and they did so. See Henderson, 962 S.W.2d at 564; see also Renfro v. State,

958 S.W.2d 880, 884 (Tex. App.—Texarkana 1997, pet. ref’d) (noting that an “if-

then” relationship is required to establish a promise, in other words, a conditional

agreement in which a confession is exchanged for favorable treatment). And

telling White that it would be “easier on him” if he told the truth was not the type

of “promise” that would make White believe that his condition would be bettered

by confessing, even falsely. See Janecka v. State, 937 S.W.2d 456, 466 (Tex.

Crim. App. 1996), cert. denied, 522 U.S. 825 (1997); see also Herrera v. State,

194 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding

officer’s statement that he would “talk to the District Attorney and would get an

offer” was not specific enough to influence an untruthful confession). In fact,

Detective Sullivan told White that he was just a gatherer of information and would


                                        17
forward the information to the district attorney’s office, which will “decide what

happens.”

        This is not a situation in which the defendant “had nothing to lose and

everything to gain whether or not his confession was truthful.” Cf. Sossamon,

816 S.W.2d at 345 (holding defendant’s confession was involuntary when he was

promised immunity from prosecution for information regarding crimes in which he

was involved). Viewing the record in the light most favorable to the trial court’s

ruling and deferring as we must to the trial court’s credibility determinations, we

cannot say that the trial court erred by finding that White’s confession was made

voluntarily.   See Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at 818.             We

overrule the remainder of White’s first issue.

                              V. MOTION FOR MISTRIAL

        In his fifth issue, White argues that the trial court abused its discretion by

denying his motion for mistrial at the second punishment trial after Buckholz

testified that she “knew that [White] had probably been in [her] house earlier that

day.”    White’s trial counsel objected to this testimony on extraneous offense

grounds; the trial court sustained the objection and, per trial counsel’s request,

instructed the jury to disregard the testimony.         The trial court denied trial

counsel’s motion for mistrial.

        When the trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether the

trial court abused its discretion by denying the mistrial. Hawkins v. State, 135


                                          18
S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme

circumstances—when the prejudice caused by the improper question and

answer is incurable, i.e., “so prejudicial that expenditure of further time and

expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). In most instances, an

instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d

103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).           We

consider the following factors in determining whether the trial court abused its

discretion by denying a motion for a mistrial: (1) the severity of the misconduct,

(2) curative measures, and (3) the certainty of punishment assessed absent the

misconduct. Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

      Here, Buckholz was recounting the events of the burglary and assault at

punishment and was explaining what White did after she told him that she had

herpes when she made the complained-of statement:

             He stopped fighting. He stopped pulling [my pajama pants]
      down. He just froze. And then he said that he didn’t believe me.
      And I said that he could go and check in the cabinets in the kitchen
      [to look for medication]. And I knew that he had probably been in my
      house earlier that day . . . because my house—

Other than this vague reference to White being “in [her] house” earlier that day,

no further references were made to the previous day’s burglary during the

second punishment trial, and any reference made to it at the guilt-innocence




                                       19
stage of trial was made in front of a different jury.5 The trial court immediately

instructed the jury to disregard the statement, and the court’s charge on

punishment instructed the jury that it could consider extraneous offense evidence

only if it believed beyond a reasonable doubt that White committed such acts.

We presume the jury followed these instructions absent evidence to the contrary.

See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). The State

presented compelling evidence that White entered Buckholz’s home and

attempted to sexually assault her while her son was in the room, including

evidence that White’s blood was found on her pajama pants, and the State

presented evidence of the injuries sustained by Buckholz—a black eye, a busted

lip, and injuries to her teeth. White was sentenced to eighteen out of a possible

ninety-nine years’ imprisonment for count one. See Tex. Penal Code Ann. §

12.32(a). We hold that any harm caused by the complained-of statement was

cured by the instruction to disregard and that, consequently, the trial court did not

abuse its discretion by denying White’s motion for mistrial. We overrule White’s

fifth issue.




       5
        During the guilt-innocence stage (in front of the prior jury), Buckholz
testified that her home had been burglarized the day before White burglarized
her home, but she did not testify, and the State did not attempt to prove, that
White was involved in this burglary.


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                                 VI. CONCLUSION

      Having sustained White’s second issue in part and overruled the reminder

of White’s issues, we vacate and dismiss the trial court’s judgment on count two

and affirm the trial court’s judgment on count one.



                                                      SUE WALKER
                                                      JUSTICE

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

PUBLISH

DELIVERED: February 21, 2013




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