COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00511-CR
Raymond Charles White § From the 371st District Court
§ of Tarrant County (1230480D)
v. § February 21, 2013
§ Opinion by Justice Walker
The State of Texas § (p)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in part of the trial court’s judgment. It is ordered that the
judgment of the trial court is vacated and dismissed in part and affirmed in part.
We vacate and dismiss the trial court’s judgment on count two and affirm the trial
court’s judgment on count one.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00511-CR
RAYMOND CHARLES WHITE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
Appellant Raymond Charles White appeals his convictions for burglary of a
habitation with intent to commit sexual assault (count one) and burglary of a
habitation with intent to commit assault (count two). In five issues, he argues that
his convictions violate double jeopardy, that the trial court erred by denying his
motion to suppress and his motion for mistrial, and that the trial court’s charge on
guilt-innocence was erroneous. We will vacate and dismiss the trial court’s
2
judgment on count two as violative of double jeopardy and affirm the conviction
for count one.
II. FACTUAL AND PROCEDURAL BACKGROUND
Claire Buckholz and her six-year-old son were asleep in her bed in her Fort
Worth house one night. She awoke to the sound of strange noises around 4:30
a.m. She opened her eyes and saw a man wearing dark clothing with a hoodie
pulled over his head standing in the doorway of her bedroom. She screamed.
The man jumped on top of Buckholz and punched her several times. When he
began choking her, she bit his finger as hard as she could. He punched her in
the face again. The man told Buckholz’s son to go to his room, but he would not
leave his mother. The man began pulling off Buckholz’s pajama bottoms, and
she stopped him by telling him that she had herpes. As the man was leaving, he
took Buckholz’s cell phone. Buckholz and her son ran to the neighbor’s house
and called 911.
Fort Worth police traced Buckholz’s cell phone activity to a house in
southwest Fort Worth. Detective Felicia Cleveland went to that house and
recovered the phone from Fernando Ruis, who said he got it from his son-in-law.
The detective spoke to the son-in-law, as well as several other individuals who
had possessed the phone, and ultimately traced it back to White. Police located
White at a nearby park.
Detectives Cleveland and Sullivan went to the park to speak to White.
They told him that they wanted to talk to him about a stolen cell phone and asked
3
if he would go with them to the police station for questioning. They saw a band-
aid on White’s finger. White agreed, but he asked to call his grandmother, whom
he lived with, first. After calling his grandmother, White left with the detectives.
They told him that he was not being arrested and that they would take him back
to his grandmother’s house after the interview.
During the videotaped interview, which lasted about one hour, White
initially denied burglarizing Buckholz’s home. He said he had cut his finger while
watching a television program. White then admitted to going into Buckholz’s
bedroom, putting his hand over her mouth to keep her from screaming, and
taking her cell phone. He also admitted that Buckholz bit him. He denied
attempting to sexually assault her. The detectives took photographs of the cut on
White’s finger. After the interview, the police returned White to his grandmother’s
house. Police then obtained an arrest warrant and arrested him at the park
about an hour and a half later.
Buckholz’s pajama bottoms tested positive for blood. DNA testing of the
blood on the pajama bottoms revealed that White was a major contributor to the
mixture.
White was indicted for one count of burglary of a habitation with intent to
commit sexual assault and one count of burglary of a habitation with intent to
commit assault. See Tex. Penal Code Ann. § 30.02(a), (c)(2), (d)(2) (West
2011). The State did not introduce evidence of White’s confession during its
case-in-chief. After the defense called White’s grandmother to testify that White
4
had been at home the night of the burglary, the State on rebuttal introduced
evidence of White’s confession.
A jury convicted White of both counts, and after the jury was unable to
reach a unanimous verdict on punishment, the trial court granted a mistrial on
punishment. After a new trial on punishment before a new jury, the jury
assessed White’s punishment at eighteen years’ confinement on each count.
The trial court sentenced him accordingly, ordering that the sentences run
concurrently.
III. DOUBLE JEOPARDY VIOLATION
In his second issue, White argues that his convictions of two counts of
burglary of a habitation violated double jeopardy when only one offense of
burglary of a habitation was committed. The State concedes that convicting
White of two counts of burglary arising from the same act was a double jeopardy
violation. See Ex parte Cavazos, 203 S.W.3d 333, 336–37 (Tex. Crim. App.
2006) (holding that convictions for burglary of habitation with intent to commit
theft and burglary of habitation with intent to commit sexual assault for same
entry violated double jeopardy because the allowable unit of prosecution was the
unlawful entry). Thus, we will address the appropriate remedy, that is, which of
the two offenses should be vacated and dismissed and which should be retained
as the “most serious offense.” See id. at 338.
When a defendant has been prosecuted and convicted in a single criminal
action of two or more offenses that constitute the same offense, in violation of
5
double jeopardy, the remedy is to apply “the most serious offense” test and retain
the conviction for the “most serious” offense. Id. The “most serious” offense is
the offense for which the greatest sentence was assessed. Id. (overruling
Landers v. State, 957 S.W.2d 558, 559–60 (Tex. Crim. App. 1997), which held
that other factors—such as the degree of the felony, range of punishment, and
rules governing parole eligibility and awarding of good-conduct time—should be
used in that determination); see also Evans v. State, 299 S.W.3d 138, 141 (Tex.
Crim. App. 2009); Bigon v. State, 252 S.W.3d 360, 372–73 (Tex. Crim. App.
2008).
But when, as here, the punishment for each conviction is identical, we
cannot look to only the sentences imposed to determine the most serious
offense. See Bigon, 252 S.W.3d at 373. In Bigon, faced with a situation similar
to the one here, the court of criminal appeals looked at the degree of each
offense in determining the most serious offense:
Only because the sentences are identical do we have to look
to another criteria for determining which offense is the most serious.
In this case, we look to the degree of felony for each offense. While
the sentences assessed for each of the convictions on this case is
the same, felony murder is a first-degree felony, while intoxication
manslaughter and manslaughter are second-degree felonies. As
such, felony murder is clearly the most serious offense and we affirm
the court of appeals’ decision to retain this conviction.
Id.1
1
Other “tie-breakers” recognized by the court of criminal appeals in
conducting a “most serious offense” test when both convictions have the same
imprisonment punishment include deadly-weapon findings, see Villanueva v.
6
White urges a percentage-of-maximum-possible-punishment approach to
determining which of the two offenses is the most serious in this case. He
argues that the most serious offense is the burglary of a habitation with intent to
commit assault (count two) because the eighteen-year sentence assessed by the
jury for that count is approximately ninety percent of the maximum twenty-year
imprisonment sentence for a second-degree felony. See Tex. Penal Code Ann.
§ 12.33(a) (West 2011) (providing range of imprisonment between two and
twenty years as second-degree-felony punishment). White points out that, in
contrast, the eighteen-year sentence assessed by the jury for count one is only
one-fifth of the maximum imprisonment sentence for burglary of a habitation with
intent to commit sexual assault, a first-degree felony. See id. § 12.32(a) (West
2011) (providing range of imprisonment between five and ninety-nine years or life
as first-degree-felony punishment). White argues that, consequently, “this jury
saw the offense alleged in ‘Count Two’ as the more serious of the two.”2
But following our court of criminal appeals’ precedent, as we must, we will
look to the degree of felony for the two offenses to determine the “most serious”
State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007), and restitution, see Ex parte
Cavazos, 203 S.W.3d at 338. No restitution was assessed and no deadly-
weapon finding was entered for either of White’s convictions.
2
White further argues that, all things being equal, he should be given the
choice of remedy for this violation of his constitutional rights, but the court of
criminal appeals has stated that “the ‘most serious offense’ test attempts to take
into account which conviction prosecutors would choose to retain, while also
continuing to meet the other policy considerations.” Bigon, 252 S.W.3d at 373
(emphasis added).
7
offense. See Bigon, 252 S.W.3d at 373. Because burglary of a habitation with
intent to commit sexual assault is a first-degree felony and burglary of a
habitation with intent to commit assault is a second-degree felony, see Tex.
Penal Code Ann. § 30.02(c)(2), (d)(2), count one—burglary with intent to commit
sexual assault—is the most serious offense here. See id. We will vacate White’s
conviction for count two (burglary of a habitation with intent to commit assault).
See id.; see also Tex. R. App. P. 43.2(e). We sustain White’s second issue in
part and, to the extent he requests we vacate his conviction for count one,
overrule it in part.3
IV. MOTION TO SUPPRESS
In his first issue, White complains that the trial court erred by denying his
motion to suppress evidence of his confession because it was obtained in
violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and
because the detectives’ promises rendered the confession involuntary.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
3
Because we set aside one of White’s convictions on double jeopardy
grounds, we need not address his third issue, arguing that the jury charge
erroneously charged two counts of burglary, and his fourth issue, arguing
ineffective assistance to the extent that his second issue was not preserved. See
Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary
to disposition of appeal).
8
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). 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); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial
court’s ruling, or when there are no explicit fact findings and neither party timely
9
requested findings and conclusions from the trial court, we imply the necessary
fact findings that would support the trial court’s ruling if the evidence, viewed in
the light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214
S.W.3d at 25. We then review the trial court’s legal ruling de novo unless the
implied fact findings supported by the record are also dispositive of the legal
ruling. Kelly, 204 S.W.3d at 819.
B. Miranda Warnings Not Required
The State may not use a defendant’s statements, whether exculpatory or
inculpatory, stemming from a custodial interrogation unless the State
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.
Additionally, article 38.22 of the code of criminal procedure precludes the use of
statements that result from a custodial interrogation without compliance with
certain procedural safeguards. See Tex. Code Crim. Proc. Ann. art. 38.22 (West
2005). If an investigation is not at an accusatorial or custodial stage, a person’s
Fifth Amendment rights have not yet come into play, and the voluntariness in
waiving those rights is not implicated. Melton v. State, 790 S.W.2d 322, 326
(Tex. Crim. App. 1990).
There are at least four general situations when a suspect’s detention may
constitute custody: (1) when the suspect is physically deprived of his freedom of
action in any significant way, (2) when a law enforcement officer tells the suspect
10
that he cannot leave, (3) when law enforcement officers create a situation that
would lead a reasonable person to believe that his freedom of movement has
been significantly restricted, and (4) when there is probable cause to arrest and
law enforcement officers do not tell the suspect that he is free to leave. Dowthitt
v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); McCulley v. State, 352
S.W.3d 107, 115–16 (Tex. App.—Fort Worth 2011, pet. ref’d). In the first through
third situations, the restriction upon freedom of movement must amount to the
degree associated with an arrest as opposed to an investigative detention.
Dowthitt, 931 S.W.2d at 255; McCulley, 352 S.W.3d at 116. Concerning the
fourth situation, which is of interest in this case, the officers’ knowledge of
probable cause must be manifested to the subject, and such manifestation may
occur if information sustaining the probable cause is related by the officers to the
suspect or by the suspect to the officers. Dowthitt, 931 S.W.2d at 255; McCulley,
352 S.W.3d at 116. Situation four, however, will not automatically establish
custody; rather, custody is established if the manifestation of probable cause,
combined with other circumstances, would lead a reasonable person to believe
that he is under restraint to the degree associated with an arrest. Dowthitt, 931
S.W.2d at 255; McCulley, 352 S.W.3d at 116.
In this case, two detectives approached White in a park and detained him
until Detectives Cleveland and Sullivan arrived about five minutes later.
Detectives Cleveland and Sullivan told White that they were investigating a
stolen cell phone and asked if White would go to the station with them for
11
questioning. White agreed, asking if he could call his grandmother first. The
detectives allowed him to do so. They told White that he was not being arrested,
that he was not in custody, and that after the interview, they would return him to
his grandmother’s house, which they did. He was not handcuffed.
White first argues that he was in custody for Miranda purposes from the
moment that police traced Buckholz’s phone to him and saw the band-aid on his
finger at the park because a reasonable person would believe he was under
arrest. But even if the detectives had probable cause to arrest White at that
point, it was not manifested to him by the officers (nor by White to the officers) at
that time. See Dowthitt, 931 S.W.2d at 255; see also Herrera v. State, 241
S.W.3d 520, 525–26 (Tex. Crim. App. 2007); cf. McCulley, 352 S.W.3d at 116.
To the contrary, the detectives told him more than once that he was not under
arrest, and he voluntarily consented to going to the police station for questioning.
See Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987) (“[W]here a
person voluntarily accompanies investigating police officers to a certain location,
and he knows or should know that the police officers suspect that he may have
committed or may be implicated in committing a crime, that person is not
‘restrained’ or ‘in custody.’”), cert. denied, 487 U.S. 1210 (1988); Miller v. State,
196 S.W.3d 256, 266 (Tex. App.—Fort Worth 2006, pet. ref’d) (reasoning that
appellant’s choice to voluntarily meet with police demonstrated that police
encounter was initially noncustodial).
12
White also argues that the encounter became a custodial interrogation
during the police station interview because a reasonable person would have
believed he was under arrest. He relies heavily on Xu v. State to support his
argument. See 100 S.W.3d 408, 414 (Tex. App.—San Antonio 2002, pet. ref’d).
There, the court analyzed the following factors to determine that Xu was subject
to a custodial interrogation from the moment he made a “pivotal admission” to
officers about his wife’s murder during a stationhouse interrogation: (1) whether
the suspect arrived at the place of interrogation voluntarily—Xu voluntarily
submitted to questioning, but the court stressed his distraught emotional state
and the facts that he was born in China, where there are no Miranda rights, and
that he spoke little English; (2) the length of the interrogation—Xu had been
interrogated by multiple officers during separate interviews over the course of
eighteen hours and had been at the police station for five hours before making
his pivotal admission; (3) whether the suspect’s requests to see relatives and
friends are refused—Xu’s friend was not allowed to speak to him at the station;
(4) the degree of control exercised over the suspect—Xu had not been told that
he was free to leave for approximately five hours before his pivotal admission,
and he received one bottle of water and one restroom break during that time; and
(5) whether a “pivotal admission” established custody—Xu made such an
admission in the second interview, shortly after officers confronted him with
evidence pointing to him as the suspect and said they did not believe his story.
Id. at 414–15.
13
In this case, White voluntarily went with the police to the station for an
interview. The interview lasted approximately one hour.4 Prior to the interview,
the detectives asked if White needed to use the restroom or anything to eat or
drink; White did not ask for anything or to see anyone during the interview.
Detective Sullivan told White that he could terminate it at any time and that the
detectives would take him home. The detectives told White that he needed to tell
them the truth because it would go easier on him and that they needed to know
what kind of person they are dealing with. White initially said he got the cell
phone from a kid at school, but approximately thirty minutes into the interview,
Detective Sullivan asked if there was any reason White’s DNA would be in
Buckholz’s house and if White would provide a DNA sample after the interview.
The detectives said they knew White’s story was false and that they “could prove
it,” but they reiterated that they would take White home no matter what he said.
See Dowthitt, 931 S.W.2d at 255 (noting that manifestation of probable cause
must, combined with other circumstances, lead a reasonable person to believe
that he is under restraint to the degree associated with an arrest). Detective
Sullivan then told White that police were investigating a burglary and attempted
sexual assault; he asked White about the injury on his finger, saying he “[knew]
4
Detective Cleveland testified that the interview lasted about an hour and a
half, but she later testified that the interview started at 5:02 and ended at 5:56.
The videotape reveals that the interview concluded after about one hour but that
White remained in the room for another thirty minutes after the interview so that
officers could photograph him and his injuries.
14
how that happened.” White then admitted that he entered Buckholz’s home to
look for money, covered her mouth to prevent her from screaming, and ran out
with her phone.
The detectives continued to question White, telling him that they did not
think he was telling the truth about his motives or about not taking Buckholz’s
purse. White never admitted that he had attempted to sexually assault her or
that he had taken her purse. He maintained that he had told them everything,
and the detectives then ended the interview. Thus, even assuming White’s
“pivotal admission” turned the interview into a custodial interrogation, the
continued interrogation did not reveal any additional admissions subject to
suppression. See Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. [Panel
Op.] 1979) (holding that suspect’s statement that he shot victim “immediately
focused the investigation on him and furnished probable cause to believe that he
had committed an offense”; “[a]fter that time, the continued interrogation must be
considered a custodial one”).
The objective circumstances surrounding White’s encounter with the
detectives do not show that a reasonable person in White’s situation would
believe that he was under restraint to the degree associated with an arrest. See
Dowthitt, 931 S.W.2d at 255; see also Estrada v. State, 313 S.W.3d 274, 294–95
(Tex. Crim. App. 2010) (finding no custodial interrogation when appellant
voluntarily went to police station, police told him several times that he was free to
leave, and appellant said he wanted to leave several times during the five-hour
15
interrogation), cert. denied, 131 S. Ct. 905 (2011); see also Oregon v. Mathiason,
429 U.S. 492, 495–46, 97 S. Ct. 711, 714 (1977) (holding defendant not in
custody for Miranda purposes when he went to station voluntarily upon police
request, was informed that he was not under arrest, and was allowed to leave
station after thirty-minute interview during which police falsely stated that his
fingerprints were found at the scene). Thus, the record supports the trial court’s
implied findings and conclusions that White’s confession was not obtained as a
result of a custodial interrogation in violation of Miranda. See Estrada, 313
S.W.3d at 294–95. We overrule this portion of White’s first issue.
C. No Improper Inducement
White also argues that his confession was involuntary because the
detectives made the following “promises” to him: they told him that they would
return him to his grandmother’s house after the interview regardless of what he
told them, and they told him that he needed to tell the truth, that “it would go
easier on him,” and that they “needed to know what kind of person he really
was.”
The court of criminal appeals has held that a four-prong test must be met
in order to render a confession obtained by a promise of a benefit involuntary.
Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991), abrogated on
other grounds by Graham v. State, 994 S.W.2d 651 (Tex. Crim. App.), cert.
denied, 528 U.S. 974 (1999); see also Fisher v. State, 379 S.W.2d 900, 902
(Tex. Crim. App. 1964). The promise must be (1) of some benefit to the
16
defendant, (2) positive, (3) made or sanctioned by a person in authority, and (4)
of such character as would be likely to influence the defendant to speak
untruthfully. Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997),
cert. denied, 525 U.S. 978 (1998). In our review, we look to whether the
circumstances of the promise would reasonably induce a defendant to admit to a
crime he did not commit. Sossamon, 816 S.W.2d at 345.
Here, none of the detectives’ statements to White were of such an
influential nature as to likely influence White to confess untruthfully. The
detectives did not condition their returning White to his home upon him telling the
truth; the detectives simply said they would drive White home after the interview,
and they did so. See Henderson, 962 S.W.2d at 564; see also Renfro v. State,
958 S.W.2d 880, 884 (Tex. App.—Texarkana 1997, pet. ref’d) (noting that an “if-
then” relationship is required to establish a promise, in other words, a conditional
agreement in which a confession is exchanged for favorable treatment). And
telling White that it would be “easier on him” if he told the truth was not the type
of “promise” that would make White believe that his condition would be bettered
by confessing, even falsely. See Janecka v. State, 937 S.W.2d 456, 466 (Tex.
Crim. App. 1996), cert. denied, 522 U.S. 825 (1997); see also Herrera v. State,
194 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding
officer’s statement that he would “talk to the District Attorney and would get an
offer” was not specific enough to influence an untruthful confession). In fact,
Detective Sullivan told White that he was just a gatherer of information and would
17
forward the information to the district attorney’s office, which will “decide what
happens.”
This is not a situation in which the defendant “had nothing to lose and
everything to gain whether or not his confession was truthful.” Cf. Sossamon,
816 S.W.2d at 345 (holding defendant’s confession was involuntary when he was
promised immunity from prosecution for information regarding crimes in which he
was involved). Viewing the record in the light most favorable to the trial court’s
ruling and deferring as we must to the trial court’s credibility determinations, we
cannot say that the trial court erred by finding that White’s confession was made
voluntarily. See Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at 818. We
overrule the remainder of White’s first issue.
V. MOTION FOR MISTRIAL
In his fifth issue, White argues that the trial court abused its discretion by
denying his motion for mistrial at the second punishment trial after Buckholz
testified that she “knew that [White] had probably been in [her] house earlier that
day.” White’s trial counsel objected to this testimony on extraneous offense
grounds; the trial court sustained the objection and, per trial counsel’s request,
instructed the jury to disregard the testimony. The trial court denied trial
counsel’s motion for mistrial.
When the trial court sustains an objection and instructs the jury to
disregard but denies a defendant’s motion for a mistrial, the issue is whether the
trial court abused its discretion by denying the mistrial. Hawkins v. State, 135
18
S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme
circumstances—when the prejudice caused by the improper question and
answer is incurable, i.e., “so prejudicial that expenditure of further time and
expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). In most instances, an
instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d
103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We
consider the following factors in determining whether the trial court abused its
discretion by denying a motion for a mistrial: (1) the severity of the misconduct,
(2) curative measures, and (3) the certainty of punishment assessed absent the
misconduct. Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
Here, Buckholz was recounting the events of the burglary and assault at
punishment and was explaining what White did after she told him that she had
herpes when she made the complained-of statement:
He stopped fighting. He stopped pulling [my pajama pants]
down. He just froze. And then he said that he didn’t believe me.
And I said that he could go and check in the cabinets in the kitchen
[to look for medication]. And I knew that he had probably been in my
house earlier that day . . . because my house—
Other than this vague reference to White being “in [her] house” earlier that day,
no further references were made to the previous day’s burglary during the
second punishment trial, and any reference made to it at the guilt-innocence
19
stage of trial was made in front of a different jury.5 The trial court immediately
instructed the jury to disregard the statement, and the court’s charge on
punishment instructed the jury that it could consider extraneous offense evidence
only if it believed beyond a reasonable doubt that White committed such acts.
We presume the jury followed these instructions absent evidence to the contrary.
See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). The State
presented compelling evidence that White entered Buckholz’s home and
attempted to sexually assault her while her son was in the room, including
evidence that White’s blood was found on her pajama pants, and the State
presented evidence of the injuries sustained by Buckholz—a black eye, a busted
lip, and injuries to her teeth. White was sentenced to eighteen out of a possible
ninety-nine years’ imprisonment for count one. See Tex. Penal Code Ann. §
12.32(a). We hold that any harm caused by the complained-of statement was
cured by the instruction to disregard and that, consequently, the trial court did not
abuse its discretion by denying White’s motion for mistrial. We overrule White’s
fifth issue.
5
During the guilt-innocence stage (in front of the prior jury), Buckholz
testified that her home had been burglarized the day before White burglarized
her home, but she did not testify, and the State did not attempt to prove, that
White was involved in this burglary.
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VI. CONCLUSION
Having sustained White’s second issue in part and overruled the reminder
of White’s issues, we vacate and dismiss the trial court’s judgment on count two
and affirm the trial court’s judgment on count one.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
PUBLISH
DELIVERED: February 21, 2013
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