COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00177-CR
DONALD RAY SPARKS, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1268922R
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MEMORANDUM OPINION1
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Appellant Donald Ray Sparks, Jr. appeals his conviction for murder. In five
issues, Sparks argues that the trial court erred by admitting extraneous-offense
1
See Tex. R. App. P. 47.4.
evidence, by denying his motion for a mistrial, and by denying his request for a
limiting instruction. We will affirm.2
Brittany left her house to go to work at around 8:00 p.m. on April 28, 2010.
Sparks had been at Brittany’s house all day and agreed to watch her four young
children until Mar’sha, Brittany’s friend, finished attending church and could come
over to relieve him.
Mar’sha headed to Brittany’s house sometime around 9:00 p.m. and
discovered that an iron screen door, which was usually unlocked, was locked.
After speaking to Brittany on the cell phone, Mar’sha knocked on a bedroom
window and told Brittany’s son Brian,3 who had opened the curtain, to open the
door. Sparks, who was sweaty and not wearing a shirt, opened the door. He
said nothing to Mar’sha and went to Brittany’s bedroom.
Mar’sha proceeded to the children’s bedroom and saw Brian and two of
Brittany’s daughters but not B.N., Brittany’s two-year-old daughter. Mar’sha then
went to Brittany’s bedroom and found B.N. lying face down on the bed, naked
and covered with a towel. Sparks was standing by the closet; he said nothing to
Mar’sha and did not seem upset. Mar’sha thought that B.N. was asleep, and she
put underwear on B.N. and picked her up. When Mar’sha did that, she noticed
that B.N. was limp and unresponsive, that her eyes were rolled back, and that
2
This cause was assigned for writing to the author on January 31, 2014.
3
We use an alias to protect the minor’s identity. See Tex. R. App. P.
9.10(a)(3); 2nd Tex. App. (Fort Worth) Loc. R. 7.
2
she had a bruise on her head, by her temple. Sparks told Mar’sha that the
children were playing in the room and that B.N. had hit the side of her head on
the bed. He also said that he had put B.N. in the bathtub to keep her awake but
that she had slipped and hit her head again. Sparks had not called Brittany or an
ambulance. Mar’sha, however, spoke to Brittany and called 911.
The fire department arrived at Brittany’s house at approximately 9:40 p.m.,
shortly before an ambulance and the police arrived. One of the firefighters who
attended to B.N. noticed that she had bruising on her left forehead, right temple,
right cheek, upper chest, and abdomen and on both arms and legs and that there
were several small piles of bloody vomit on the floor near her. Sparks, who was
in the living room chain smoking, told the firefighter the same thing that he had
told Mar’sha—that B.N. had hit her head twice. B.N.’s condition was
deteriorating rapidly, and during the ambulance ride to Cook Children’s Medical
Center, responders noticed that the bruises on her head and abdomen had
become darker.
At the hospital, a CT scan revealed that B.N. had sustained several
abdominal injuries—her inferior vena cava (one of the largest veins in the body)
was lacerated and actively bleeding, her liver was lacerated and actively
bleeding, and her pancreas and spleen were damaged. B.N.’s abdomen became
distended, and when physicians performed surgery on her, she arrested three
times and had her blood volume replaced four or five times. After surgery, a
3
pediatric nurse who examined B.N. noted that she had significant bruising on her
genitals.
Meanwhile, when police returned to Brittany’s house at approximately
10:50 p.m., they discovered Sparks cleaning it; trash bags were filled and the
washing machine was running with only a few articles of children’s and adult’s
clothing inside. Detectives interviewed Sparks three times, and he consistently
recalled that B.N. had hit her head twice, even after being informed that B.N. had
sustained traumatic abdominal injuries.
B.N. died approximately twenty-six hours after arriving at the ER. A grand
jury later indicted Sparks for capital murder. At trial, the ER physician who
performed surgery on B.N. testified that she had experienced severe blunt force
trauma to her abdomen from her front side. Similarly, the physician who
performed B.N.’s autopsy concluded that although B.N. had sustained several
subarachnoid hemorrhages, those injuries to her head were not fatal; her death
was caused by “internal hemorrhage associated with shock due to blunt trauma
to the abdomen.” The nurse who examined B.N. after her surgery testified that
there was no way her injuries were accidental. The jury convicted Sparks of
murder and assessed his punishment at ninety-nine years’ confinement.
Sparks argues in his second, third, and fourth issues that the trial court
abused its discretion by admitting evidence that B.N. had sustained injuries to
her thigh and genitals. He contends that the “clear implication” of those injuries
was that B.N. had been sexually assaulted, and because the indictment
4
contained no allegation of sexual assault, the testimony constituted evidence of
an inadmissible extraneous offense, which was not admissible as same-
transaction contextual evidence, as an exception to rule 404(b), or under rule
403.
We review the trial court’s admission of evidence for an abuse of
discretion. Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—Fort Worth 2014, pet.
ref’d); see Montgomery v. State, 810 S.W.2d 372, 390‒91 (Tex. Crim. App. 1991)
(op. on reh’g). The trial court’s ruling will be upheld as long as it falls within the
“zone of reasonable disagreement” and is correct under any theory of law
applicable to the case. Kirk, 421 S.W.3d at 782.
Same-transaction contextual evidence is evidence reflecting the context in
which a criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.
Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). It is a recognition that
events do not occur in a vacuum, and a jury has a right to hear what occurred
immediately before and after the offense in order to realistically evaluate the
evidence. Id. Extraneous offenses may be admissible as same-transaction
contextual evidence when several crimes are intermixed, or blended with one
another, or connected so that they form an indivisible criminal transaction. Prible
v. State, 175 S.W.3d 724, 731‒32 (Tex. Crim. App.), cert. denied, 546 U.S. 962
(2005). This type of evidence results when an extraneous matter is so
intertwined with the State’s proof of the charged offense that avoiding reference
to it would make the State’s case incomplete or difficult to understand. Id. at 732.
5
Under rule 404(b), evidence of an accused’s “other crimes, wrongs or acts
is not admissible to prove the character of a person in order to show conformity
therewith.” Tex. R. Evid. 404(b). Evidence of extraneous acts “may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident[.]” Id.
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403.
The evidence that B.N. sustained trauma to her thigh and genitals was
admissible as same-transaction contextual evidence. B.N. suffered injuries to
numerous parts of her body, including her head, arms, abdomen, and buttocks.
The injuries that she simultaneously sustained to her thigh and genitals served to
inform the jury of both the full extent of her injuries and of the complete facts
surrounding Spark’s criminal conduct, both of which the jury had a right to know
and to evaluate as part of its responsibility as the factfinder. At no point during
the trial did the State intentionally elicit any evidence, or even imply, that a
sexually-related offense had occurred.4
4
Indeed, at the hearing outside of the jury’s presence in which the trial
court considered the admissibility of the evidence, the State confirmed that it
“intend[ed] to discuss these [injuries] as physical injuries. Don’t intend to use
anything about the term ‘aggravated sexual assault’ or ‘sexual assault.’”
6
The evidence was also admissible to show that B.N.’s injuries were not
sustained accidentally. See Tex. R. Evid. 404(b). Sparks elicited testimony from
the physician who performed B.N.’s autopsy that her abdominal injuries could
have been caused by children jumping on her abdomen. On redirect, however,
the physician confirmed that the injuries to B.N.’s genitals could not have been
caused by children jumping on her abdomen. Thus, the complained-of evidence
was additionally admissible to demonstrate the absence of accident. See id.
For all of these reasons, we also hold that the probative value of the
evidence that B.N. sustained injuries to her thigh and genitals was not
substantially outweighed by the danger of unfair prejudice or any other rule-403
concern. See Tex. R. Evid. 403; Gigliobianco v. State, 210 S.W.3d 637, 641‒42
(Tex. Crim. App. 2006) (identifying balancing analysis). We overrule Sparks’s
second, third, and fourth issues.
In his first issue, Sparks argues that the trial court erred by denying his
motion for a mistrial. The trial court granted a motion in limine at the outset of the
trial regarding the evidence that B.N. had sustained injuries to her thigh and
genitals. Before the trial court ruled that the evidence was admissible, Brittany
gave the following testimony in response to the State’s question asking her what
Sparks had told her on the telephone when she was at the hospital:
He said that they was trying to make it look like -- well, they were
saying that he did it. He told me that they told him that she had
been raped, and he said he told them they can take his DNA. And
then he said, “They almost had me,” and then he paused, and he
was like, “They going to hang me for this.” [Emphasis added.]
7
The prosecutor apologized to the trial court and explained that she had not
intended to elicit Brittany’s comments about rape. Sparks said that he did not
want to ask for an instruction to disregard because it would have done nothing
other than draw additional attention to the testimony, and he moved for a mistrial.
We review the trial court’s ruling on a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A
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. Id. When
a defendant moves for a mistrial without first requesting an instruction to
disregard, as occurred here, he will obtain reversal only if the error could not
have been cured by an instruction to disregard. Young v. State, 137 S.W.3d 65,
70 (Tex. Crim. App. 2004).
Considering Brittany’s testimony and the circumstances surrounding it, we
cannot conclude that it was “so clearly calculated to inflame the minds of the jury”
or that it was “of such damning character as to suggest it would be impossible to
remove the harmful impression from the jury’s mind.” Kemp v. State, 846 S.W.2d
289, 308 (Tex. Crim. App. 1992) (stating that it is well settled that testimony
referring to extraneous offenses can be rendered harmless by an instruction to
disregard). Thus, contrary to Sparks’s opinion at trial, Brittany’s uninvited
testimony was not so prejudicial that it could not have been cured by an
instruction to disregard, had one been requested. See id. Moreover, as the
8
State points out, to the extent that Sparks thought Brittany’s testimony violated
the motion in limine, the evidence that was the subject of that order was
admissible as same-transaction contextual evidence and to rebut Sparks’s
defensive theory of accident, as we already explained. We hold that the trial
court did not abuse its discretion by denying Sparks’s motion for a mistrial, and
we overrule his first issue.
Sparks argues in his fifth issue that the trial court erred by not giving the
jury a limiting instruction when the State elicited testimony that B.N. had
sustained injuries to her thigh and genitals.5 No instruction was required
because the evidence was admissible as same-transaction contextual evidence.
See Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim. App. 2011) (“This Court
has held that a limiting instruction is not required when evidence is admitted as
same-transaction contextual evidence.”). We overrule Sparks’s fifth issue.
Having overruled all of Sparks’s issues, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 31, 2014
5
The trial court included a limiting instruction in the jury charge on guilt.
9