                                  IN THE
                          TENTH COURT OF APPEALS

                              No. 10-11-00214-CR

MICHAEL BLAKENEY,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                          From the 66th District Court
                              Hill County, Texas
                             Trial Court No. 36382


                          MEMORANDUM OPINION


      A jury found Appellant Michael Charles Blakeney guilty of the offense of

unauthorized use of a motor vehicle, and the trial court assessed his punishment,

enhanced by previous felony convictions, at eleven years’ confinement. This appeal

ensued. We will affirm.

                                   Jury Charge

      In his first issue, Blakeney contends that the trial court erred in denying his

requested jury charge.    Blakeney submitted the following proposed jury charge
language in writing to the trial court: “If the State is to prove the accused’s guilt as a

party, it must first prove the giult [sic] of another person as the Primary actor. Barns

[sic] v. State[,] 62 S[.]W[.]3d 288, 296 [(Tex. App.—Austin 2001, pet. ref’d) (]citing

Richardson v. State[,] 879 S[.]W[.]2d 874, 882 (Tex. Crim. App. 1993)[)].” This statement

would presumably be added to the abstract portion of the charge.           Blakeney also

requested on the record that the charge contain “extended sentences that the agreement,

if any, must be before or contemporaneous with the criminal event and that the

evidence must show at the time of the commission of the offense the parties were acting

together, each doing some part of the execution of the common design.”                These

“extended sentences” also appear to be proposed additions to the abstract portion of the

charge.    The trial court adopted some of the proposed language and rejected or

overruled the remaining portion of Blakeney’s proposal.

        The jury charge ultimately defined the law of parties in the abstract portion of

the charge as follows:

               All persons are parties to an offense who are guilty of acting
        together in the commission of the offense. A person is criminally
        responsible as a party to an offense if the offense is committed by his own
        conduct, by the conduct of another for which he is criminally responsible,
        or both.

              A person is criminally responsible for an offense committed by the
        conduct of another if, acting with intent to promote or assist the
        commission of the offense, he solicits, encourages, directs, aids, or
        attempts to aid the other person to commit the offense. Mere presence
        alone will not constitute one a party to an offense.

The application paragraph of the charge stated:



Blakeney v. State                                                                     Page 2
                 Now if you find from the evidence beyond a reasonable doubt that
        . . . the defendant, MICHAEL CHARLES BLAKENEY did then and there
        intentionally or knowingly operate one (1) motor-propelled vehicle, to-
        wit: a John Deere Tractor, knowing that he did not have the effective
        consent of the owner, Paula Quisenberry, you will find the defendant,
        MICHAEL CHARLES BLAKENEY, guilty of unauthorized use of a motor
        vehicle as alleged in the indictment, or now if you find from the evidence
        beyond a reasonable doubt that . . . the defendant, MICHAEL CHARLES
        BLAKENEY, with the intent to promote or assist the commission of the
        offense of unauthorized use of a motor vehicle from Paula Quisenberry,
        solicited, encouraged, directed, aided or attempted to aid Neil Gormley in
        the operation of the John Deere tractor, without consent of the owner,
        Paula Quisenberry, you will find the defendant MICHAEL CHARLES
        BLAKENEY guilty as a party, as that term is hereinbefore defined, of
        unauthorized use of a motor vehicle as alleged in the indictment.

Blakeney argues that he was entitled to greater clarification of the “parties charge.” He

states that the charge as given did not provide sufficient guidance to the jury.

        A claim of jury-charge error is reviewed using the procedure set out in Almanza.

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g). The first step is to determine whether

there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

Only if we find error, do we then analyze that error for harm. Id.

        Article 36.14 of the Code of Criminal Procedure requires that a trial court provide

a jury charge “distinctly setting forth the law applicable to the case.” TEX. CODE CRIM.

PROC. ANN. art. 36.14 (West 2007). Abstract or definitional paragraphs serve as a kind of

glossary to help the jury understand the meaning of concepts and terms used in the

application paragraphs of the charge. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim.

App. 1996), rev’d on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.

1997). The abstract portion of the charge tracked the applicable statutes regarding the

Blakeney v. State                                                                    Page 3
law of parties. See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2) (West 2011). There is

nothing incorrect or misleading with this language. Thus, it was not error for the trial

court to refuse a more specific instruction on the law of parties in the abstract portion of

the charge. See Dorsey v. State, 940 S.W.2d 169, 173 (Tex. App.—Dallas 1996, pet. ref’d)

(concluding that similar charge instructed jurors that before defendant could be

convicted as a party they would have to conclude beyond a reasonable doubt that some

other person actually committed the underlying offense); see also Ramirez v. State, No.

10-10-00163-CR, 2011 WL 2937468, at *2-3 (Tex. App.—Waco Jul. 13, 2011, pet. ref’d)

(mem. op., not designated for publication). We overrule Blakeney’s first issue.

                             Curative Effect of Instruction

        In his second issue, Blakeney contends that the trial court’s instruction to

disregard a comment concerning his post-arrest silence was not specific enough to cure

its prejudicial effect and that the trial court should thus have granted a mistrial. The

following exchange took place while Hill County Sheriff’s Department Deputy James

McClanahan was testifying:

               Q [By prosecutor] Okay. And did you attempt to make -- or take
        a statement from either of the men?

               A     Neither one of them I did. They were read their rights, and I
        was -- and they were asked at that time if they wished to discuss any of it
        and they chose not to. So there was no statement taken from them at that
        time.

                   [Defense counsel]:      Objection, Your Honor.          He was
        commenting on the defendant’s silence.

                     THE COURT: All right. The last part of the response
        doesn’t appear to be responsive. However, the part of the response that is

Blakeney v. State                                                                     Page 4
        responsive about neither of them making a statement, that is admitted.
        All right. Sustained in part; overruled in part.

                     [Defense counsel]: I would ask that the jury be asked to
        disregard that statement.

                     THE COURT:       All right.   The last part you will be so
        instructed. Proceed.

                      [Defense counsel]: And then I would ask for a mistrial, Your
        Honor.

                      THE COURT: Denied.

        We review a trial court’s denial of a motion for mistrial for abuse of discretion.

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The trial court’s denial of

Blakeney’s motion for mistrial constitutes error only if the court’s instruction to

disregard was inadequate to cure the prejudicial effect of the improper comment. See

Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994); Johnson v. State, 83 S.W.3d

229, 231 (Tex. App.—Waco 2002, pet. ref’d). As we determine whether the instruction

was adequate, we must bear in mind that an instruction is presumptively inadequate

only in the most blatant cases. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App.

1999) (citing Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995)); Roberson v.

State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. ref’d). Although not specifically

adopted as definitive or exhaustive, the courts have looked to several factors to

determine whether an instruction to disregard cured the prejudicial effect. See Waldo v.

State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988); Roberson, 100 S.W.3d at 41; Johnson, 83

S.W.3d at 232.      They are as follows:   “the nature of the [improper comment]; the

persistence of the prosecutor; the flagrancy of the violation; the particular instruction

Blakeney v. State                                                                    Page 5
given; the weight of the incriminating evidence; and the harm to the accused as

measured by the severity of sentence.” Searcy v. State, 231 S.W.3d 539, 549 n.10 (Tex.

App.—Texarkana 2007, pet. ref’d) (quoting Roberson, 100 S.W.3d at 41).

Nature of the Improper Comment

        Blakeney acknowledges that the nature of the improper comment made by

Deputy McClanahan is not such that an instruction to disregard can never cure it. See

Waldo, 746 S.W.2d at 754.

Persistence and Flagrancy

        Unlike the repeated improper comments in Veteto v. State, 8 S.W.3d 805, 811 (Tex.

App.—Waco 2000, pet. ref’d), abrogated on other grounds by State v. Crook, 248 S.W.3d 172

(Tex. Crim. App. 2008), the State did not persistently or flagrantly pursue an improper

line of questioning. In fact, the State immediately passed the witness after Blakeney’s

motion for mistrial was denied.

Particular Instruction Given

        The crux of Blakeney’s argument on this issue involves the particular instruction

given. Blakeney states in his brief, “The sustained portion of the statement by the

testifying officer . . . was not easily distinguishable.       Therefore, the unspecific

instruction to disregard could not cure the prejudicial effect of the comment.” To

support this argument, Blakeney cites Veteto, in which this Court stated, “[B]ased upon

the facts and circumstances presented by this record, [the instruction, ‘You’ll

disregard,’] was not particularly effective in curing the prejudice created by the State.”

Id. at 812. But as just stated, the “facts and circumstances” in Veteto were that the State

Blakeney v. State                                                                    Page 6
“persistently and flagrantly pursued an improper line of questioning.” Id. at 811. Such

was not the case here. Under the circumstances of this case, we cannot conclude that

the instruction that was given was inadequate.         See Waldo, 746 S.W.2d at 756

(concluding “[j]ury is instructed to disregard the last comment of the witness” was

adequate instruction). Furthermore, we note that Blakeney did not request a more

specific instruction before moving for a mistrial.

Weight of the Evidence

        The question at trial was whether Blakeney operated the vehicle or solicited,

encouraged, directed, aided or attempted to aid Neil Gormley in the operation of the

vehicle. Defense witness Cheryl Chaney testified that on March 25, 2010, she, Blakeney,

and Neil Gormley were all at a friend’s house when Gormley asked Blakeney for a ride

home. Chaney wanted to go for a ride, so the three left the friend’s house in Blakeney’s

truck at about 1:30 or 2:00 a.m. Blakeney’s truck subsequently got stuck in the mud on a

county road. It was cold, and they could not get a signal on a cell phone, so they went

to sleep. When Chaney woke up, Blakeney was still asleep in the truck. Chaney then

saw Gormley coming down the road on a tractor. Gormley hit the tailgate and bed of

Blakeney’s truck with the tractor, which woke up Blakeney. Blakeney then got out of

the truck and started yelling at Gormley. The tractor had put a hole in Blakeney’s truck

right beside the gas tank. Blakeney then began walking up a hill toward a gas well to

get help and to try to get a signal on his cell phone. When Blakeney left, Gormley was

trying to get the tractor, which was now also stuck, out of the mud, but when he could

not move it, he got back into the truck with Chaney. Chaney never saw Blakeney get

Blakeney v. State                                                                 Page 7
onto the tractor or try to move the tractor in any way. Gormley was the only one who

got into the cab of the tractor.

        State’s witness Charles Ellis testified otherwise. Ellis testified that he operates

and manages gas leases for Devon Energy and that, on March 25, 2010, he had gone to

work on a gas well that belonged to either Gene Harris or his daughter’s family (the

Quisenberrys). When Ellis got to the well at about 7:30 a.m., he noticed both a pickup

truck and a tractor stuck in the mud “down below.” At first, Blakeney was inside the

tractor rocking it back and forth, raising and lowering the fork, revving the motor, and

trying to get it unstuck and out of the ditch. Blakeney then got down off the tractor and

another man got in to drive it. Blakeney then climbed through the fence and walked up

to where Ellis was. Blakeney asked Ellis if he could give him a ride, but Ellis refused.

Ellis asked if Blakeney was the landowner and how he had gotten stuck. Blakeney

replied that he had been out drinking and had gotten the pickup stuck. Blakeney

looked like he had not had much sleep and smelled of alcohol.            Ellis then asked

Blakeney whose tractor it was and how he had gotten it. Blakeney pointed in the

direction of the Quisenberrys’ place and said that “we” had gone up and gotten it.

Blakeney asked Ellis once again for a ride, but Ellis again refused. Ellis then asked

Blakeney once again how he had gotten the tractor, and Blakeney just walked away

from him.

        Although Ellis was the only person to testify that he actually witnessed Blakeney

operating the tractor, the jury was also charged on the law of parties. Thus, the jury

could have convicted Blakeney of the offense of unauthorized use of a motor vehicle

Blakeney v. State                                                                    Page 8
without finding that he operated the tractor if the jury found that, with the intent to

promote or assist the commission of the offense of unauthorized use of a motor vehicle

from the tractor’s owner Paula Quisenberry, Blakeney solicited, encouraged, directed,

aided or attempted to aid Gormley in the operation of the tractor, without consent of

the owner. See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2), 31.07(a) (West 2011).

        Jose Reyes, a ranch hand who had worked for Mr. Harris/the Quisenberrys for

six or seven years, testified that on the morning of March 25, 2010, he met Blakeney at

the door of the barn where the tractors are kept. Blakeney told him that he needed help

getting a truck and a tractor out of a ditch because they were stuck. Reyes replied that

he could not help him because the tractors did not belong to him.              Blakeney

nevertheless stated that if Reyes would just help him with the big tractor, he would be

able to pull out the truck and the tractor that he had already taken. Reyes then asked

Blakeney if he already had a tractor over there. Blakeney replied, “Yes, I took it last

night.” Reyes then asked Blakeney who had lent him the tractor. Blakeney replied that

he paid $50 to a friend named Jose who had been riding with him. But Reyes said that

there was no one else on the ranch named Jose except for him. Reyes pointed Blakeney

toward the office and told him to ask his boss for help, and if his boss agreed, he would

help Blakeney. Ms. Quisenberry later told Reyes that Blakeney never arrived at the

office. Reyes stated that he did not give Blakeney permission to take the tractor, and

although Blakeney offered him money to borrow a second tractor, Reyes did not lend a

tractor to him. This testimony supports Blakeney being convicted as a party to the

offense.

Blakeney v. State                                                                   Page 9
        The totality of the evidence, other than Chaney’s testimony, thus supports the

jury’s conviction of Blakeney for unauthorized use of a motor vehicle and supports the

conclusion that the improper comment was not “so detrimental to [Blakeney’s]

defensive posture as to suggest the impossibility of removing it from the jurors’ minds.”

See Waldo, 746 S.W.2d at 757.

Severity of Punishment

        Blakeney was convicted of the state jail felony offense of unauthorized use of a

motor vehicle, which was enhanced to a second degree felony because of Blakeney’s

previous felony convictions. See TEX. PENAL CODE ANN. § 12.425 (West Supp. 2012), §

31.07. Punishment for a second-degree felony is imprisonment for two to twenty years

and a fine of up to $10,000. Id. § 12.33 (West 2011). Blakeney’s punishment was eleven

years’ imprisonment and no fine. Considering the nature of the offense committed

along with Blakeney’s previous felony convictions, we cannot conclude that the brief

improper comment increased the severity of the sentence.

Summary

        The nature of the improper comment made by Deputy McClanahan is not such

that an instruction to disregard can never cure it. The violation was not flagrant, and

the State did not persist in its questioning on the subject. Under the circumstances of

this case, the particular instruction given was adequate. Although one defense witness

testified otherwise, the totality of the evidence supports the jury’s conviction of

Blakeney. And considering the nature of the offense committed along with Blakeney’s

previous felony convictions, we cannot conclude that Deputy McClanahan’s brief

Blakeney v. State                                                                 Page 10
improper comment increased the severity of Blakeney’s sentence.           Therefore, we

conclude that the trial court’s instruction cured any prejudicial effect caused by the

improper comment concerning Blakeney’s post-arrest silence and that the trial court did

not abuse its discretion in denying the motion for mistrial. We overrule Blakeney’s

second issue.

        Having overruled both of Blakeney’s issues, we affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 15, 2012
Do not publish
[CR25]




Blakeney v. State                                                                  Page 11
