                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-16-00228-CR

                                        Larry Wayne DAVIS,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR8968
                           Honorable Lorina I. Rummel, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: February 8, 2017

AFFIRMED

           A jury found appellant, Larry Wayne Davis, guilty of assault with a deadly weapon, and

the trial court assessed punishment at forty years’ confinement. On appeal, appellant asserts the

trial court erred by denying his motion for mistrial. We affirm.

                                          BACKGROUND

           Appellant shot the complainant at least five times while the complainant was standing in

the street outside appellant’s house with his hands in the air. San Antonio Police Officer Nancy

Olguin testified she responded to a “shots fired” dispatch that directed her to a house located at
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921 Rivas Street. Officer Olguin said she was familiar with the area, and characterized it as a

“high crime area.” San Antonio Police Officer John Silva testified he also was dispatched to Rivas

Street on a “shots fired” call. Officer Silva said he was familiar with the area and when asked

what types of calls he responded to in the neighborhood, he replied:

        Well, that particular area — and I can — I remember one call in particular was an
        accident call and there was — the individuals that were at that accident scene were
        pointing toward that particular house, this particular house [appellant’s house],
        saying that it was a drug house.

        Defense counsel objected on hearsay grounds. The trial court sustained the objection and

instructed the jury to disregard the last statement. The trial court denied defense counsel’s request

for a mistrial.

        On appeal, appellant asserts the trial court erred by denying his motion for mistrial because

the officer’s testimony that appellant’s house was a drug house at some unspecified time in the

past was prejudicial extraneous evidence that tempted the jury to find him guilty on the basis of

character conformity in violation of Texas Rule of Evidence 404(b)(1). Rule 404(b)(1) provides

that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with the character.”

TEX. R. EVID. 404(b)(1).

        However, appellant did not raise a Rule 404(b)(1) objection at trial. He objected only on

the basis of hearsay. Therefore, appellant did not preserve his Rule 404(b)(1) complaint for review.

See Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (holding appellant’s hearsay

and relevancy objections did not address correct evidentiary basis for exclusion of objected-to

testimony because appellant should have objected that evidence was offered to prove an extraneous

uncharged offense not within permissible scope of 404(b) and was offered to show that appellant

was a criminal generally). Accordingly, we address whether the trial court erred by denying


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appellant’s motion for mistrial on the basis that the jury may have been tainted by the hearsay

testimony.

       We review a trial court’s ruling on a motion for mistrial for an abuse of discretion. Simpson

v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Ordinarily, a prompt instruction to

disregard will cure error associated with an improper question and answer. Ovalle v. State, 13

S.W.3d 774, 783 (Tex. Crim. App. 2000). However, a trial court is required to grant a motion for

a mistrial when the improper question is “clearly prejudicial to the defendant and is of such

character as to suggest the impossibility of withdrawing the impression produced on the minds of

the jurors.” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v.

State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). On appeal, we generally presume the jury

follows the trial court’s instructions in the manner presented. Thrift v. State, 176 S.W.3d 221, 224

(Tex. Crim. App. 2005).       The presumption is refutable, but the appellant must rebut the

presumption by pointing to evidence that the jury failed to follow the trial court’s instructions. Id.

       When evaluating the effectiveness of a curative instruction to disregard, we look to “the

nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation;

the particular instruction given; the weight of the incriminating evidence; and the harm to the

accused as measured by the severity of the sentence.” Roberson v. State, 100 S.W.3d 36, 41 (Tex.

App.—Waco 2002, pet. ref’d). Here, there was no indication the State purposefully elicited the

hearsay statement that an unknown person at some unknown point in time had pointed to

appellant’s house as a drug house. Nothing in the hearsay statement indicated appellant lived in

the house at the time. None of the allegations against appellant involved his use, possession, or

distribution of drugs. The hearsay statement was brief, conveyed very little to the jury, was not

further repeated, and was not mentioned by the State in its closing arguments. On this record, we



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conclude the trial court’s instruction was effective to cure the impermissible testimony; therefore,

the trial court did not err by denying appellant’s motion for mistrial.

                                          CONCLUSION

       We overrule appellant’s issue on appeal and affirm the trial court’s judgment.


                                                  Sandee Bryan Marion, Chief Justice

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