Roger Dane Owens v. State

IN THE
TENTH COURT OF APPEALS

No. 10-12-00123-CR

ROGER DANE OWENS,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. M200901982

MEMORANDUM OPINION

Appellant, Roger Dane Owens, challenges the trial court’s denials of his motion

to suppress and his motion for mistrial. Specifically, in five issues, appellant complains

that the trial court erred in denying: (1) his motion to suppress because the officer

lacked reasonable suspicion or probable cause to initiate a traffic stop and ultimately

obtain a search warrant to obtain his blood; and (2) his motion for mistrial regarding the

prosecutor’s questions to appellant’s wife regarding an alleged prior driving-while-

intoxicated (“DWI”) offense. We affirm.
 I. BACKGROUND

On the evening of September 6, 2009, Texas Department of Public Safety

Troopers Scott Hewitt and Charles Lindorfer were on routine traffic patrol on Industrial

Boulevard in Cleburne, Texas. At approximately 7:45 p.m., the troopers observed a

white Chevrolet SUV traveling eastbound on Industrial Boulevard. Suddenly, the SUV

“swerved hard to the left across—almost completely across the roadway and then

swerved back onto the right side of the road.” This swerving attracted the attention of

the troopers. As he followed the SUV, Trooper Hewitt noticed that the vehicle did not

have an ordinary license plate on the rear of the vehicle. Instead, the vehicle had what

appeared to be a temporary license plate in the back window. However, Trooper

Hewitt testified that “the window tint on the back window obstructed the license plate.

I wasn’t able to see any of the characters or the state for the license plate.”

Shortly thereafter, the troopers “conducted a traffic stop on the vehicle for the

obstructed license plate.” Trooper Hewitt identified appellant as the driver of the

vehicle. Appellant explained that he had recently purchased the vehicle in Louisiana

and that the license plate in the back window was temporary. He also noted that he

swerved in the roadway to avoid hitting birds. While speaking to appellant, Trooper

Hewitt noticed a strong odor of alcohol on appellant’s breath and emanating from the

vehicle. At that time, Trooper Hewitt requested that appellant exit the vehicle.

After appellant had exited the vehicle, Trooper Hewitt asked appellant where he

was going. Appellant stated that he was coming from a party and that he was heading

home. In addition to the alcohol on appellant’s breath, Trooper Hewitt also observed

Owens v. State Page 2
that appellant’s eyes “were very red and glassy” and that appellant “shuffled his feet,

he seemed to be a little imbalanced.” Trooper Hewitt repeatedly asked appellant if he

had been drinking, and appellant responded that he had not.

Trooper Hewitt also spoke to the vehicle’s passenger, Lanford Lawrence.

Lawrence acknowledged that they had a cooler in the backseat of the vehicle that

contained beer. He also admitted that he had a can of Heineken beer underneath his

seat. When shown the can of beer, Trooper Hewitt noted that it “was cold and wet to

the touch” and about a quarter full. Based on his training and experience, Trooper

Hewitt believed that appellant was intoxicated and began to administer standardized

field-sobriety tests.

Trooper Hewitt administered three tests: the horizontal-gaze nystagmus test, the

walk-and-turn test, and the one-leg stand test. Appellant performed poorly on all three

tests. According to Trooper Hewitt, appellant exhibited four out of six clues on the

horizontal-gaze nystagmus test, four out of eight clues on the walk-and-turn test, and

two out of four clues on the one-leg stand test. Trooper Hewitt explained that, based on

his training, “as the alcohol level in a person rises so do the—the number of clues . . . as

you administer the test.”

After completion of the tests, Trooper Hewitt requested that appellant take a

preliminary breath test. Appellant declined. Trooper Hewitt subsequently placed

appellant under arrest for driving while intoxicated because he felt that appellant “did

not have the normal use of his physical and mental faculties.”

Owens v. State Page 3
 Appellant was taken to a room at the Johnson County Law Enforcement Center

and provided statutory DIC-24 warnings. Appellant was once again asked to provide a

sample of his breath, which he refused. He also refused to voluntarily submit to a

blood draw.

Thereafter, Trooper Hewitt prepared an affidavit “for a blood search warrant”

and submitted it to District Judge C.C. “Kit” Cooke. After reviewing the affidavit,

Judge Cooke signed a warrant authorizing law enforcement to obtain a specimen of

appellant’s blood. Licensed Vocational Nurse James Early conducted the blood draw,

and subsequent testing revealed that appellant had a blood-alcohol level of 0.11 grams

of alcohol per 100 milliliters of blood, which was over the legal limit of 0.08.

Appellant was charged by indictment with driving while intoxicated. In

response, appellant filed a motion to suppress all evidence seized as a result of the

traffic stop because the initial arrest and subsequent search warrant were not supported

by probable cause.

On June 1, 2011, the trial court conducted a hearing on appellant’s motion to

suppress. Trooper Hewitt was the only witness to testify at the hearing. At the

conclusion of the hearing, the trial court denied appellant’s motion to suppress and

made several findings of fact and conclusions of law. The case proceeded to trial.

At trial, appellant called a couple of witnesses—one being his wife, Debra

Owens. Debra testified that appellant was diagnosed with solitary plasmacytoma

cancer in September 2001, and that, as a result of the cancer, appellant has a large tumor

on his hip that affects his gait. She also stated that appellant has hematological cancer,

Owens v. State Page 4
dry eye, and allergies to dust. Debra opined that appellant’s dry eye and allergies likely

caused his eyes to be red on the day of the incident. Lawrence, appellant’s friend, also

testified. He noted that he and appellant were at the Winscott Ranch on the morning of

the incident and that they later went to a “business/social-type luncheon” in Aledo,

Texas, that afternoon. Lawrence admitted seeing appellant drink a beer when he first

arrived at the luncheon. Lawrence also acknowledged that he did not follow appellant

around during the luncheon; thus, Lawrence was unsure about how much appellant

had drank that afternoon. Nevertheless, Lawrence did not believe that appellant was

intoxicated.

After both sides rested, the jury found appellant guilty of the charged offense

and assessed punishment at ninety days in jail and a $1,000 fine with a recommendation

that both the fine and jail sentence be probated for two years. The trial court certified

appellant’s right to appeal, and this appeal followed.

II. MOTION TO SUPPRESS

In his first four issues, appellant complains that the trial court erred in denying

his motion to suppress evidence pertaining to his arrest and the search warrant for his

blood because law enforcement did not have reasonable suspicion or probable cause to

initiate the traffic stop. Specifically, appellant argues that he did not violate any traffic

laws, and as such, the traffic stop and all actions taken thereafter were unjustified and

in violation of the Fourth Amendment of the United States Constitution. We disagree.

Owens v. State Page 5
A. The Stop and Arrest

We review the trial court's ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give

"almost total deference" to the trial court's findings of historical fact that are supported

by the record and to mixed questions of law and fact that turn on an evaluation of

credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial

court's determination of the law and its application of law to facts that do not turn upon

an evaluation of credibility and demeanor. Id. When the trial court has not made a

finding on a relevant fact, we imply the finding that supports the trial court's ruling, so

long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.

Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We

will uphold the trial court's ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006).

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). When reviewing a trial court’s ruling on a motion to suppress, we

view all of the evidence in the light most favorable to the ruling. Garcia-Cantu v. State,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

When a trial judge makes explicit fact findings regarding a motion to suppress,

an “appellate court [must first] determine whether the evidence (viewed in the light

Owens v. State Page 6
most favorable to the trial court's ruling) supports these fact findings.” Kelly, 204

S.W.3d at 818. “The appellate court then reviews the trial court's legal ruling[s] de novo

unless the trial court's supported-by-the-record explicit fact findings are also dispositive

of the legal ruling.” Id.

In a hearing on a motion to suppress evidence based on an alleged Fourth

Amendment violation, the initial burden of producing evidence that rebuts the

presumption of proper police conduct is on the defendant. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005); see State v. Dietiker, 345 S.W.3d 422, 424 (Tex. App.—Waco

2011, no pet.). The defendant's burden may be satisfied by establishing that a search or

seizure occurred without a warrant. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at

424. After this showing is made by the defendant, the State assumes the burden of

demonstrating that the search or seizure was conducted pursuant to a warrant or was

reasonable. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. Here, the record

indicates that the stop was made without a warrant; thus, the State assumed the burden

of proof regarding whether reasonable suspicion for the detention existed. See Ford, 158

S.W.3d at 492.

On appeal, Owens challenges the propriety of the initial traffic stop. The Fourth

Amendment to the United States Constitution provides, in part, that “the right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. CONST. amend. IV. As a general rule,

searches conducted without a warrant are deemed unreasonable unless the situation

presents an exception to the warrant requirement. Hubert v. State, 312 S.W.3d 554, 560

Owens v. State Page 7
(Tex. Crim. App. 2010). One such exception is the Terry stop. See Terry v. Ohio, 392

U.S.1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968). Consistent with Terry, a police

officer may stop and briefly detain a person for investigative purposes if the officer has

reasonable suspicion supported by articulable facts that criminal activity may be afoot,

even if the officer lacks evidence rising to the level of “probable cause.” 392 U.S. at 29,

88 S. Ct. at 1884; see Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

A determination of reasonable suspicion is made by considering the totality of

the circumstances. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In Foster

v. State, the Court of Criminal Appeals repeated the standard for warrantless traffic

stops:

A law enforcement officer may stop and briefly detain a person for
investigative purposes on less information than is constitutionally
required for probable cause to arrest. In order to stop or briefly detain an
individual, an officer must be able to articulate something more than an
inchoate and unparticularized suspicion or hunch. Specifically, the police
officer must have some minimal level of objective justification for making
the stop, i.e., when the officer can point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant the intrusion. The reasonableness of a temporary detention must
be examined in terms of the totality of the circumstances.

326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (internal quotations omitted); see Garcia v.

State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting that reasonable suspicion exists

if the officer has specific articulable facts that, when combined with rational inferences

from those facts, would lead him to reasonably suspect that a particular person has

engaged in or is, or soon will be, engaging in illegal conduct).

Owens v. State Page 8
 Here, Officer Hewitt testified and the trial court’s findings of fact and

conclusions of law stated that appellant was stopped for an obstructed license plate,

pursuant to former section 502.409 of the Texas Transportation Code. See Act of April

19, 2007, 80th Leg., R.S., ch. 30, § 1, 2007 Tex. Gen. Laws 28, 29 (amended 2011) (current

version at TEX. TRANSP. CODE ANN. § 502.475 (West Supp. 2012)). The 2007 version of

former section 502.409 of the Texas Transportation Code that was in effect at the time of

this incident provided as follows, in relevant part:

(a) A person commits an offense if the person attaches to or displays on a
motor vehicle a number plate or registration insignia that:

....

(5) has blurring or reflective matter that significantly impairs the
readability of the name of the state in which the vehicle is registered or the
letters or numbers of the license plate number at any time;

....

(7) has a coating, covering, protective material, or other apparatus that:

(A) distorts angular visibility or detectability;

(B) alters or obstructs one-half or more of the name of the state in
which the vehicle is registered; or

(C) alters or obscures the letters or numbers of the license plate number
or the color of the plate.

Act of April 19, 2007, 80th Leg., R.S., ch. 30, § 1, 2007 Tex. Gen. Laws 28, 29 (amended

2011).

Appellant argues that when the traffic stop occurred, it was dark outside; thus, it

is possible that Trooper Hewitt could not read the characters on the license plate based

Owens v. State Page 9
on the lack of light outside, not the window tint. Appellant also alleges that Trooper

Hewitt stopped him based on a “hunch.” In addition, appellant focuses his arguments

on former section 502.409(a)(5) of the Texas Transportation Code. However, appellant

does not address subsection (a)(7) of former section 502.409.

The trial court concluded that appellant’s “vehicle had an obstructed paper

license plate.” Furthermore, Trooper Hewitt testified that that appellant’s vehicle had a

temporary license plate and that the license plate was “inside of the vehicle in the back

window.” Trooper Hewitt also noted that he was unable to see any of the characters or

the state for the license plate because of the dark window tint. As such, Trooper Hewitt

believed that the visibility and detectability of appellant’s temporary license plate was

distorted and obstructed by the dark window tint on the vehicle. He also stated that the

distortion and obstruction of the temporary license plate by the window tint constituted

a violation of traffic laws.

Considering the totality of the circumstances, see Neal v. State, 256 S.W.3d 264,

280 (Tex. Crim. App. 2008), we conclude that the trial court did not err in determining

that the traffic stop of appellant was supported by specific, articulable facts that a traffic

violation had occurred. Therefore, Trooper Hewitt was authorized to stop and lawfully

detain appellant under these circumstances.1 See id. (citing Ford, 158 S.W.3d at 492)

1 Relying on the Court of Criminal Appeals’ decision in Dodson v. State, appellant seems to

insinuate that his temporary license plate may have been merely faded or weather-beaten; thus, Trooper
Hewitt did not have reasonable suspicion to effectuate the stop. 646 S.W.2d 177 (Tex. Crim. App. 1980),
overruled on other grounds by Black v. State, 739 S.W.2d 240 (Tex. Crim. App. 1987). We note that the record
contains no evidence indicating that appellant’s temporary license plate was faded or weather-beaten. In
fact, the evidence suggests that the temporary license plate likely was not faded or weather-beaten
because appellant recently purchased the vehicle and the new temporary license plate was placed inside

Owens v. State Page 10
(stating that a police officer may lawfully detain a person temporarily if there is

reasonable suspicion to believe that the detained person is violating the law). Whether

the time of night factored into Trooper Hewitt’s inability to read the temporary license

plate was a decision within the province of the trial court, especially considering it

hinged upon a determination of Trooper Hewitt’s credibility and demeanor. See

Guzman, 955 S.W.2d at 89. Thus, we must defer to the trial court’s resolution of that

argument. See Neal, 256 S.W.3d at 280; see also Guzman, 955 S.W.2d at 89.

B. The Search Warrant for a Blood Specimen from Owens

With regard to the search warrant issued to obtain a blood specimen, appellant’s

argument hinges upon a finding that Trooper Hewitt lacked reasonable suspicion or

probable cause to effectuate the traffic stop. And based on such a finding, appellant

contends that the trial court should have suppressed the blood-test results pursuant to

the fruit-of-the-poisonous-tree doctrine.

As a general rule, the “fruit of the poisonous tree” doctrine prohibits the State’s

use of illegally-obtained evidence. Wong Sun v. United States, 371 U.S. 471, 484, 487-88,

83 S. Ct. 407, 415-18, 9 L. Ed. 2d 441 (1963). Moreover, the “fruit of the poisonous tree”

doctrine generally precludes the use of evidence, both direct and indirect, obtained

following an illegal arrest. See State v. Iduarte, 268 S.W.3d 544, 550 (Tex. Crim. App.

the vehicle on the rear window, rather than on the exterior of the vehicle. Moreover, we point out that
the Dodson court analyzed a prior version of former section 502.409 of the Texas Transportation Code,
which, among other things, made a distinction regarding the visibility of license plates “during daylight.”
646 S.W.2d at 182. The version of former section 502.409 at issue in this case does not make such a
distinction. See Act of April 19, 2007, 80th Leg., R.S., ch. 30, § 1, 2007 Tex. Gen. Laws 28, 29 (amended
2011) (current version at TEX. TRANSP. CODE ANN. § 502.475 (West Supp. 2012)).

Owens v. State Page 11
2008); see also Porter v. State, Nos. 05-10-01390-CR, 05-10-01391-CR, 05-10-01393-CR, 2012

Tex. App. LEXIS 4098, at *4 (Tex. App.—Dallas May 23, 2012, pet. ref’d) (mem. op., not

designated for publication).

Here, we have previously held that the trial court did not err in concluding that

appellant had violated a traffic law and that Trooper Hewitt had reasonable suspicion

to effectuate the traffic stop. Furthermore, other than challenging the initial stop,

appellant does not specifically attack the trial court’s finding of fact and conclusion of

law stating that: “[A]fter hearing and viewing all of the evidence, that under the totality

of the circumstances, probable cause existed to arrest the Defendant for Driving While

Intoxicated.” Instead, appellant’s argument pertaining to his arrest is focused on the

propriety of the initial stop. Because appellant neither raises additional grounds to

support his contention that his arrest was illegal nor complains about any other

illegality that could possibly taint the search warrant and resulting blood-test results,

we cannot say that the “fruit of the poisonous tree” doctrine operates to invalidate the

search warrant and, ultimately, preclude the introduction of the blood-test results at

trial. See Wong Son, 371 U.S. at 484, 487-88, 83 S. Ct. at 415-18; Iduarte, 268 S.W.3d at 550;

see also Porter, 2012 Tex. App. LEXIS 4098, at *4.

Therefore, based on the foregoing, we cannot conclude that the trial court abused

its discretion in denying appellant’s motion to suppress. See Crain, 315 S.W.3d at 48;

Guzman, 955 S.W.2d at 88-89. Accordingly, appellant’s first four issues are overruled.

Owens v. State Page 12
 III. MOTION FOR MISTRIAL

In his fifth issue, appellant asserts that the trial court abused its discretion in

denying his motion for mistrial. Specifically, appellant argues that the prosecutor’s

questioning of Debra during the punishment phase regarding whether she was aware

of a prior DWI incident involving appellant when no such conviction existed required

the trial court to grant his motion for mistrial.

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). We must uphold the trial court’s

ruling if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d

695, 699 (Tex. Crim. App. 2007). “Only in extreme circumstances, where the prejudice is

incurable, will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

App. 2004). The trial court’s denial of appellant’s motion for mistrial constitutes error

only if the trial 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).

The determination of whether a given error necessitates a mistrial must be made

by examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409, 414

Owens v. State Page 13
(Tex. Crim. App. 1990). And although not specifically adopted as definitive or

exhaustive, 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. These factors are as

follows: “‘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.’” 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).

In this case, appellant asserts that the State asked an improper question during

the punishment phase of trial. Prior to the State’s question, defense counsel asked

Debra about whether appellant had been previously convicted of any felonies or crimes

of moral turpitude in this or any other state. Debra responded that appellant had not

been previously convicted of any felonies or crimes of moral turpitude. On cross-

examination, the State asked whether Debra had heard “about his [appellant’s] DWI

from 1978 in Hunt County,” to which she replied, “No.” Immediately thereafter, the

jury was excused from the courtroom.

Defense counsel objected to the State’s question, arguing that “it’s certainly

inadmissible, prejudicial, extraneous conduct not reduced to a conviction.” The State

responded that: “I’ve got a TCIC showing a conviction. She can admit it or deny it and

I can’t really go any further unless I can prove it up further from there. But[,] I believe

it’s a fair question.” After allowing defense counsel to ask Debra a few questions on

Owens v. State Page 14
voir dire outside the presence of the jury, the trial court granted a request made by

appellant for an instruction to disregard; however, appellant’s motion for mistrial was

denied. Once the jury returned, the trial judge issued the following instruction: “The

jury is instructed to disregard for all purposes the previous question and answer. You

are not to consider it for any—any purpose or reason.”

The Court of Criminal Appeals has made it clear that a good-faith basis may rest

on evidence that would not necessarily be admissible at trial, such as an offense report,

investigation report, and arrest record. See Starvaggi v. State, 593 S.W.2d 323, 328 (Tex.

Crim. App. 1979); Stone v. State, 583 S.W.2d 410, 416 (Tex. Crim. App. 1979); Love v.

State, 533 S.W.2d 6, 10 (Tex. Crim. App. 1976); see also Murphy v. State, 4 S.W.3d 926, 931

(Tex. App.—Waco 1999, pet. ref’d). This is because such questions “are designed not to

discredit the person on whose behalf the witness is testifying, but . . . to affect the

weight of the witness’s testimony.” Brown v. State, 477 S.W.2d 617, 620 (Tex. Crim. App.

1972); see Murphy, 4 S.W.3d at 931. The risk that the jury will consider the content of the

question as substantive evidence is mitigated by the requirement that the prosecutor

have a good-faith basis to believe that the incident actually occurred. Starvaggi, 592

S.W.2d at 328; see Murphy, 4 S.W.3d at 931.

After reviewing the record, we believe that the prosecutor acted in good-faith

when he posed the question to Debra about appellant’s alleged prior DWI. The

prosecutor informed the trial court that the question was premised on the Texas Crime

Information Center (“TCIC”) report, which allegedly showed that appellant was

involved in a prior DWI incident. Moreover, appellant proffered Debra’s testimony for

Owens v. State Page 15
purposes of establishing his eligibility for probation and to prevent the suspension of

his driver’s license. In doing so, defense counsel asked Debra whether appellant had

previously been convicted of a felony or a crime of moral turpitude in this state or any

other state. Thus, Debra’s testimony placed appellant’s suitability for probation, among

other things, at issue.

The Texas Rules of Evidence and case law provide that a witness who testifies as

to the good character of the defendant may be cross-examined on relevant specific

instances of misconduct that would tend to affect the witness’s opinion. See TEX. R.

EVID. 405(a); Murphy, 4 S.W.3d at 932; Lancaster v. State, 754 S.W.2d 493, 496 (Tex.

App.—Dallas 1988, pet. ref’d). Therefore, because Debra “opened the door” regarding

appellant’s prior criminal history in an attempt to establish his suitability for probation

and to prevent the suspension of his driver’s license, the State had the right to offer

evidence and ask questions tending to rebut appellant’s eligibility for probation and his

request to not suspend his driver’s license and to impeach Debra’s testimony about

appellant’s criminal history using specific instances of misconduct if the prosecutor had

a good-faith belief that the misconduct occurred.2 See TEX. R. EVID. 405(a); Murphy, 4

S.W.3d at 932; Lancaster, 754 S.W.2d at 496.

Furthermore, the trial court issued an instruction to the jury prohibiting them

from considering the complained-of question and answer in their deliberations. See

2 We also note that the trial court allowed defense counsel to call appellant to the stand after

sentencing to create a record for appeal. During this questioning, defense counsel specifically asked
appellant about the 1978 incident, and appellant responded that he was arrested in Hunt County, Texas,
in 1978, for DWI but that the charge was reduced to obstruction of a highway; thus, appellant was not
finally convicted of DWI.

Owens v. State Page 16
Moore, 999 S.W.2d at 405; Wilkerson, 881 S.W.2d at 327; see also Johnson, 83 S.W.3d at 23.

Absent evidence to the contrary, we presume that the jury followed the trial court’s

instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (“On appeal,

we generally presume the jury follows the trial court’s instructions in the manner

presented.”). And, appellant has not adequately shown that the instruction to disregard

failed to cure the alleged prejudicial effect, especially considering, among other things,

the fact that the imposed sentence was probated and his commercial driver’s license

was not suspended. See Waldo, 746 S.W.2d at 754; Searcy, 231 S.W.3d at 549 n.10;

Roberson, 100 S.W.3d at 41; Johnson, 83 S.W.3d at 232.

Based on the foregoing, we cannot say that the trial court abused its discretion in

denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699; Ladd, 3 S.W.3d at

567. Accordingly, we overrule appellant’s fifth issue.

IV. CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.

AL SCOGGINS
Justice

Owens v. State Page 17
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 21, 2013
Do not publish
[CR25]

Owens v. State Page 18