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Opinion filed April 3, 2008
In The
Eleventh Court of Appeals
_________
No. 11-06-00183-CR
________
TERRY LYNN MCDADE, Appellant
vs.
STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-32,582
M E M O R A N D U M O P I N I O N
A jury found Terry Lynn McDade guilty of the offense of aggravated assault with a deadly weapon. Appellant pleaded true to an enhancement paragraph. The jury found the enhancement paragraph to be true and assessed his punishment at confinement for twelve and one-half years. We affirm.
The testimony shows that appellant and his girlfriend, Cynthia Bean, had an intermittent and turbulent relationship. On July 4, they had been watching a fireworks display. After watching the display, appellant and Bean went to appellant=s sister=s apartment to eat and sleep. As Bean slept, appellant began to hit her in the head and face. He also stabbed Bean in the leg with a switchblade knife, kicked her, and Astomped@ on her. He then pulled her out of the house by her hair. Appellant knew the police were coming, and he told Bean, AWhile they are shooting me, I=m going to be stabbing and killing you. We are going to die together.@
Appellant=s first issue on appeal is directed toward the trial court=s failure to grant a Anew trial@ after a portion of Bean=s testimony. Bean testified that, after appellant stomped on her head, she began to have trouble hearing. An objection lodged by appellant was sustained. Appellant asked that the jury be instructed to disregard the statement. The trial court instructed the jury to disregard the statement. Appellant then moved for a Anew trial.@ We will treat appellant=s motion as one for a mistrial.
Normally, an error in the admission of testimony can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A jury is presumed to follow the court=s instructions. Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998). An instruction prevents the need for a mistrial and conserves resources by avoiding starting the trial anew. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). Mistrials should be used in those situations where an instruction to the jury would not leave it Ain an acceptable state to continue the trial.@ Id. Even if we assume that Bean=s testimony regarding her loss of hearing was not admissible, which we do not hold, the trial court quickly instructed the jury to disregard the testimony. We find nothing in the record to indicate that the error, if any, was such that an instruction to disregard would not suffice to cure any error in admitting the testimony. Appellant=s first issue on appeal is overruled.
Appellant filed a pretrial motion in which he alleged that he was Adeaf or hearing-impaired,@ and he wanted the trial court to appoint a sign language interpreter for him. The trial court granted the motion. City of Odessa Detective Kelly Cecil testified at the trial. He was one of the officers who went to arrest appellant. During the trial, the prosecutor asked Detective Cecil whether he was Ainterested to learn that [appellant had] a hearing problem?@ He said that he was. Appellant did not answer his door when Detective Cecil and his partner knocked; however, appellant did come to the door when Detective Cecil=s partner called him by his street name Rabbit. Trial counsel objected because the testimony Aappear[ed] to be a stab at his rights to have a proper representation in the courtroom.@ The trial court overruled the objection.
Appellant claims in his second issue on appeal that he should be granted a new trial because the testimony regarding appellant=s ability to hear was not admissible. A trial court=s decision to grant or deny a motion for new trial is reviewed only for an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). We will not reverse a trial court=s ruling on the denial of a motion for new trial unless the ruling is outside the zone of reasonable disagreement. We review a trial court=s ruling on the admissibility of evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 614 (Tex. Crim. App. 2001). In his brief, appellant has provided us with no citations of authority to show that the admission of the testimony was in error and that, therefore, the failure to grant a new trial was erroneous. Appellant has waived the issue. See Tex. R. App. P. 38.1(h); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001). Moreover, the issue was not presented in appellant=s motion for new trial. In his motion for new trial, he simply avers that the verdict is contrary to the law and the evidence. See Tex. R. App. P. 33.1. Appellant=s second issue on appeal is overruled.
In his final issue on appeal, appellant Achallenges the trial judge=s denial [of] an instructed verdict of >Not Guilty= based on the state=s lack of evidence of serious bodily injury.@ We review an issue on appeal in which appellant complains about a trial court=s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Evidence is legally sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
Appellant=s complaint is Athe evidence of the injuries as inflicted did not show serious bodily injury.@ Appellant was not charged with causing serious bodily injury but, rather, bodily injury. No complaint is made that there was no evidence of bodily injury. We note that appellant does not make any argument on appeal that the State failed to show that the knife used was a deadly weapon. Appellant=s third issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
April 3, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.