Affirmed and Substitute Memorandum Opinion filed December 13, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00224-CR
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GARY LLOYD MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 41,468A
S U B S T I T U T E M E M O R A N D U M O P I N I O N
We issued our original opinion on March 29, 2007. Appellant filed a petition for discretionary review in the Court of Criminal Appeals, and on June 14, 2007, we withdrew the March 29 opinion and set this case for re-submission. We now issue this substitute memorandum opinion.
A jury convicted appellant Gary Lloyd Miller of aggravated assault and sentenced him to forty years= imprisonment. Appellant challenges his conviction in two issues, arguing (1) the evidence is factually insufficient and (2) the trial court erred by failing to grant a mistrial following the prosecutor=s erroneous reading of the indictment. We affirm.
I. Factual and Procedural Background
Appellant and Belinda Musgrave met in 2003 and eventually married. Their relationship was often strained and volatile. On Tuesday, December 14, 2004, Musgrave=s employer informed her that she would not receive a Christmas bonus that year. When Musgrave told appellant, he became extremely upset. Appellant believed that Musgrave would not get a bonus because her co-workers did not like him and were trying to hurt him through Musgrave. He yelled and screamed at Musgrave in the car on the way home and continued his tirade until Thursday morning at Musgrave=s home. During this time, he would go to and from the house regularly. At one point, he pulled out Musgrave=s handgun, which she kept under their mattress, and said that he needed to kill himself or someone else because of how he felt. He also pointed the gun at Musgrave=s head, from a distance of approximately thirty inches, and threatened to kill her if he believed she was part of the conspiracy. Musgrave=s adult daughter, who lived with appellant and Musgrave, heard portions of the fight, including appellant checking the handgun to make sure it was loaded and threatening to kill himself or Musgrave.
The State filed charges against appellant, including the underlying charge in this case and other assault charges. A jury convicted appellant and sentenced him to forty years= confinement. Appellant timely filed a notice of appeal. He contends that the evidence is factually insufficient because evidence was introduced during the punishment phase which cast doubt on Musgrave=s credibility and because the evidence does not establish that the threats were of an imminent injury. He further contends that the trial court should have granted a mistrial when the prosecutor erroneously read incorrect language from the indictment before reading the correct language.
II. Analysis
A. Factual Sufficiency
In his first issue, appellant challenges the factual sufficiency of the evidence. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We may set the verdict aside if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006). However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with, unless the verdict represents a manifest injustice even though supported by legally sufficient evidence). Also, in our review, we must discuss the evidence that, according to appellant, most undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon while committing the assault. See Tex. Penal Code Ann. '' 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2006). Appellant argues that because he threatened to shoot Musgrave if he believed she was part of the conspiracy against him, his threat was vague and conditional and thus not a threat of imminent harm. We disagree. A conditional threat can still be imminent, depending on the circumstances. See Tidwell v. State, 187 S.W.3d 771, 774 (Tex. App.CTexarkana 2006, no pet.) (AThe focus of the inquiry should be whether the threat was >imminent=Cnot merely whether the threat was conditional.@); Tanksley v. State, 656 S.W.2d 194, 196 (Tex. App.CAustin 1983, no pet.) (AA threat is essentially conditional in one way or another, and because ' 22.01 defines an intentional threat of imminent bodily injury as an >assault,= the conditional aspect obviously does not prevent the threat from constituting an >assault.=@). Here, appellant pointed a loaded gun at appellant=s head from a distance of thirty inches and threatened to shoot her, causing her to fear for her life. We conclude the evidence is factually sufficient to support the jury=s finding that appellant threatened Musgrave with imminent bodily injury. See Robinson v. State, 596 S.W.2d 130, 133 n.7 (Tex. Crim. App. 1980) (A[T]he display of a deadly weapon of and within itself constitutes a threat of the required imminent harm.@); Tidwell, 187 S.W.3d at 774B75 (finding evidence that defendant pointed a gun at deputy and thus placed deputy in fear of bodily harm sufficient to support conviction for aggravated assault); Sosa v. State, 177 S.W.3d 227, 231 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (concluding evidence sufficient to support finding of threat of imminent harm when defendant pointed a gun at woman and demanded money).
Appellant also argues that the evidence is factually insufficient because Musgrave is not credible, asserting that her credibility was undermined through testimony introduced in the punishment phase. Specifically, appellant contends that Musgrave=s inconsistent statements regarding her previous marijuana use go directly to her credibility before the jury. Appellant contends the evidence is factually insufficient because her testimony was central to the State=s case and, therefore, so was her credibility. However, we are limited in our review to the evidence introduced during the guilt/innocence phase of the trial. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001) (noting that in a bifurcated jury trial on a plea of not guilty, Aevidence that is introduced at the punishment stage of the trial can have little, if any, effect on the force of the evidence on the issue of guilt@ and therefore Aour consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt@ (internal quotation marks omitted)). Therefore, evidence introduced during the punishment phaseCwhen all of the testimony regarding Musgrave=s drug use was introducedCcannot be part of our review. Further, Musgrave=s daughter corroborated much of Musgrave=s testimony, including that appellant threatened Musgrave and that a gun was involved. Thus, even were we to consider punishment-phase evidence that undermined Musgrave=s credibility, the jury could have chosen to credit Musgrave=s testimony in part based on the corroborating testimony from her daughter. The jury chose to believe Musgrave and her daughter, as was its province.
We conclude that the evidence is factually sufficient to support the jury=s verdict, and we overrule appellant=s first issue.
B. Indictment Error
In his second issue, appellant alleges the trial court erred in failing to grant a mistrial after the prosecutor inadvertently read the wrong portion of the indictment. We review a trial court=s denial of a motion for mistrial for abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.CHouston [14th Dist.] 2005, no pet.). AA mistrial is the trial court=s remedy for improper conduct that is >so prejudicial that expenditure of further time and expense would be wasteful and futile.=@ Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Mistrial is required A[o]nly in extreme circumstances, where the prejudice is incurable.@ Id.; see also Hudson, 179 S.W.3d at 738 (AA mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon.@). A prompt instruction to disregard will usually cure any prejudice resulting from improper testimony regarding an extraneous offense. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); Herrero v. State, 124 S.W.3d 827, 836 (Tex. App.CHouston [14th Dist.] 2003, no pet.).
At the beginning of trial, after the jury was sworn, the prosecutor began to read the indictment in the jury=s presence. Although this particular case concerned a charge of threatening Musgrave with a firearm, the prosecutor erroneously read the following portion of the indictment alleging bodily injury before realizing his mistake:
AIn the name and by the authority of the State of Texas, the duly organized Grand Jury of Fort Bend County, Texas presents in the District Court of Fort Bend County, Texas that in Fort Bend County, Texas, Gary Lloyd Miller, hereafter styled the Defendant, heretofore, on or about December 14th, 2004, did then and there intentionally, knowingly and recklessly cause bodily injury to Belinda Musgrave@Cpardon me, causeCthreatenC
(emphasis added). At that point, appellant objected, and the trial court conducted a bench conference outside the presence of the jury. The trial court sustained appellant=s objection, granted a motion to strike the statements, and granted appellant=s motion to instruct the jury regarding the error. The trial court did not grant appellant=s motion for a mistrial.
Once the jury returned, the trial court gave the following instruction:
Ladies and gentlemen of the jury, the prosecutor misspoke when he was presenting the indictment to you. The words that he spoke a while ago are not part of the indictment. He is now going to read the indictment and read it properly.
Appellant did not object to this instruction or request that the trial court provide any additional instruction to the jury. The prosecutor then read the correct indictment.
Appellant argues that by reading the portion of the indictment indicating that appellant actually injured Musgrave as opposed to only threatening her, the prosecutor incurably prejudiced the jury by making it aware of an extraneous offense alleged in the indictment. The few cases we found regarding improper references to other indicted offenses indicate that an instruction to disregard usually cures any prejudice. See Wells v. State, 578 S.W.2d 118, 118B19 (Tex. Crim. App. 1979) (concluding that prosecutor=s ambiguous reference to a previous indictment did not warrant mistrial, particularly because jury was instructed to disregard); Herrera v. State, 111 Tex. Crim. 644, 13 S.W.2d 831, 832 (1929) (finding mistrial not warranted after prosecutor read wrong one of two indictments against defendant when jury given instruction to disregard); cf. Stevens v. State, 94 Tex. Crim. 375, 251 S.W. 505, 505 (1923) (reversing and remanding after wrong indictment was read when there was no curative instruction from the trial court and prosecutor referred to extraneous offense in argument). This is consistent with cases involving references to extraneous offenses from sources other than an indictment, particularly when the reference to the extraneous offense is brief or vague. See Rogers v. State, 200 S.W.3d 233, 238 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Appellant further argues that the comment was so prejudicial that it could not be cured by an instruction to disregard. However, courts have found that extraneous offense references much more egregious than here were not incurable. See, e.g., Paster v. State, 701 S.W.2d 843, 848 (Tex. Crim. App. 1985) (finding instruction to disregard rendered testimony linking defendant to two extraneous murders harmless); Herrero, 124 S.W.3d at 836 (concluding mistrial not warranted for testimony about defendant=s death threat to witness when trial court instructed jury to disregard). The prosecutor=s brief, unembellished reference to an unspecified injury is not so egregious that it cannot be cured.
Appellant asserts that the trial court=s instruction was inadequate because the judge falsely told the jury that the prosecutor=s misspoken words Aare not part of the indictment@ rather than instructing the jury to disregard. Appellant neither objected nor requested that the trial court provide a different instruction, and thus he has waived any such argument on appeal. See Sylvester v. State, No. 06-00-00077-CR, 2001 WL 10617, at *3 (Tex. App.CTexarkana Jan. 5, 2001, no pet.) (not designated for publication) (noting appellant failed to object to instruction that he claimed on appeal was vague); Newcomb v. State, No. C14-92-00711-CR, 1993 WL 381398, at *8 (Tex. App.CHouston [14th Dist.] Sept. 30, 1993, no pet.) (not designated for publication) (rejecting appellant=s argument that trial court=s instruction to disregard was too weak to be effective, noting that he did not ask for a more detailed instruction). Further, even though the trial court did not use the word Adisregard,@ that was the essence of the instructionCthat the prosecutor misspoke and would now read the proper material. This instruction was adequate to cure any prejudice from the prosecutor=s misstatement.
We conclude that the trial court did not abuse its discretion in denying appellant=s motion for mistrial. Therefore, we overrule his second issue.
We affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Substitute Memorandum Opinion filed December 13, 2007.
Panel consists of Justices Yates, Fowler, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).