In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-15-00120-CR
JEREMY DAVID LUMMUS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court Nos. 1394641D, Honorable David Hagerman, Presiding
October 19, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Jeremy David Lummus, appeals his conviction for possessing at least
four but no more than 200 grams of a controlled substance (that is, methamphetamine)
with intent to deliver.1 Three issues pend for our determination. Through the first, he
contends that the trial court erred in refusing to grant him a mistrial. The second
involves whether the trial court erred in denying him an instruction on a lesser included
1
Because the appeal was initiated in and transferred to us from the Fort Worth Court of Appeals,
we must apply that court’s precedent as opposed to the precedent of this court. See TEX. R. APP. 41.3.
offense. Through the last issue, appellant believes that evidence collected at the scene
of the crime should have been suppressed. We affirm.
Issue One – Mistrial
According to appellant, “[t]he trial court erred when it overruled [his] motion for
mistrial after an officer testified to extraneous offense information.” The “extraneous
offense information” consisted of the officer stating that he came to know appellant
“from a prior case.” The reply also violated the terms of a previously granted motion in
limine, in appellant’s estimation. We overrule the issue.
Appellant’s objection to the evidence was sustained by the trial court. Per his
request, the trial court also “instructed [the jury] to disregard the last answer of this
witness.” His ensuing request for a mistrial was denied, though. Appellant cites us to
no evidence indicating that the jury failed to abide by the trial court’s directive to
disregard the evidence. This is of import since we generally presume that the
instruction was heeded. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005);
Hart v. State, No. 02-14-00268, 2015 Tex. App. LEXIS 10445, at *15 (Tex. App—Fort
Worth October 8, 2015, no pet. h.) (mem. op., not designated for publication). And, it
falls upon the complaining party to “point[ ] to evidence” illustrating that it was not. Thrift
v. State, 176 S.W.3d at 224. Again, appellant did not satisfy the latter obligation here.
See Turner v. State, No. 02-13-00487-CR, 2015 Tex. App. LEXIS 8559 at *28 (Tex.
App.—Fort Worth August 13, 2015, no pet.) (mem. op., not designated for publication).
(also involving the denial of a mistrial after the jurors were instructed to disregard the
evidence and observing that “[w]e presume that the jury followed the trial court’s
instruction absent evidence to the contrary”).
2
Furthermore, a mistrial is a device used to halt a proceeding when error is so
prejudicial that expenditure of further time and expense would be wasteful and futile.
Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). It should be granted only
in those situations where the objectionable evidence was clearly calculated to inflame
the minds of the jurors or was of such a damning nature that it would be impossible to
remove the harmful impression from the jurors’ minds. Id. We also note that where the
evidence involves the inadvertent reference to an extraneous offense, a prompt
instruction to disregard it generally cures the situation. Id.
In Young, the appellant was charged with and convicted of capital murder.
During his trial, a testifying officer mentioned that the weapon used by the defendant
was “stolen.” The testimony elicited an objection, which was sustained, and an
instruction to disregard, which was provided. However, the request for a mistrial was
denied, like here. Though reference to the weapon being stolen served to interject
evidence of an extraneous offense, the Court of Criminal Appeals held that the trial
court “could have reasonably concluded that the answer was not so inflammatory as to
be incurable by an instruction to disregard.” Id. This was especially so since the
witness “did not actually assert that the appellant stole the weapon or that he knew it
was stolen.” Id. No less is true here.
The officer at bar did not say that the “prior case” involved appellant’s possession
or sale of drugs. Additionally, the witness’s allusion to a “prior case” could reasonably
be construed by a trial judge as no more inflammatory than identifying the firearm used
in a murder as “stolen.” Nor have we been cited to anything of record indicating that
the inadmissible information was reiterated elsewhere. Given these circumstances and
3
the ruling in Young, we cannot say that the trial court abused its discretion when
denying the request for a mistrial. See West v. State, 121 S.W.3d 95, 100 (Tex. App.—
Fort Worth 2003, pet. ref’d). (holding that the denial of a motion for mistrial is reviewed
under the standard of abused discretion); see also Turner v. State, supra (involving
reference to appellant selling illegal cable boxes when being tried for aggravated
assault and concluding that it was not error to deny mistrial because the objection was
sustained, the trial court instructed the jury to disregard the improper testimony, the
reference to the improper evidence was brief and went unrepeated, and the remark was
not so inflammatory as to be beyond amelioration through an instruction to disregard).
Issue Two – Lesser Included Offense
Next, appellant argues that the trial court erred in denying him an instruction on
the lesser included offense of possessing one or more but less than four grams of a
controlled substance. We overrule the issue.
A two-step procedure is utilized in determining whether an appellant was entitled
to a lesser-included offense instruction. Acosta v. State, No. 02-13-00470-CR, 2015
Tex. App. LEXIS 10463, at *13-14 (Tex. App.—Fort Worth October 8, 2015, no pet. h.)
(mem. op., not designated for publication). Not only must we determine if the purported
lesser offense is a lesser offense within the scope of article 37.09 of the Code of
Criminal Procedure but also if some evidence exists of record that would permit a jury to
rationally find that if the appellant is guilty, he is guilty only of the lesser offense. Acosta
v. State, supra. The latter prong is determined by reviewing the evidence in the context
of the entire record. Id. That is, there must be some evidence from which a rational jury
could acquit the appellant of the greater offense while convicting him of only the lesser-
4
included offense. Id. And, whether the evidence is credible, controverted, or in conflict
with other evidence does not matter. Id. Anything more than a scintilla of evidence may
be enough. Id.
It is the second prong that goes unsatisfied here. Appellant believes that the
record contained evidence indicating that the amount of controlled substance he
possessed was less than four grams. Again, he was charged with possessing four or
more but less than 200 grams of contraband with intent to deliver.
The evidence to which he alludes came from the testifying chemist. He spoke of
1) weighing the crystalline substance taken from appellant’s car after removing debris
that was included within the packet delivered to him and 2) determining that the
crystalline substance contained methamphetamine. The weight of the crystalline
substance was 23.78 grams, according to the chemist. The latter also testified that he
could not determine the amount or weight of pure methamphetamine within the
crystalline substance. That is, he could not determine how much of the substance
constituted methamphetamine and how much constituted dilutants and adulterants.
Then he admitted it was “possible” that the pure methamphetamine within the totality of
the crystalline substance weighed less than four grams.
Because the actual methamphetamine may have weighed less than four grams,
according to appellant, the record allegedly contained evidence entitling him to an
instruction permitting conviction for possessing, with the intent to deliver, from one to
less than four grams of a controlled substance. The argument is flawed in a most
obvious way, though, due to its premise that only contraband in its pure form goes into
the calculus.
5
The statute criminalizing appellant’s act permits the inclusion of the dilutants and
adulterants in the equation. That is, it specifies that a person commits a felony of the
first degree if he knowingly or intentionally possesses, with intent to deliver, a controlled
substance “if the amount of the controlled substance . . . is, by aggregate weight,
including adulterants or dilutants, four grams or more but less than 200 grams.” TEX.
HEALTH & SAFETY CODE ANN. § 481.112(a) & (e) (West 2010) (emphasis added). At no
time did the chemist testify that the weight of the crystalline substance containing the
methamphetamines with adulterants and dilutants was less than four grams. So,
evidence that the amount of the pure methamphetamine, without its accompanying
dilutants and adulterants, may be less than four grams does not acquit him of the
greater offense and convict him of only the lesser. It did and does not entitle him to the
lesser included offense instruction he desired.
Issue Three—Suppression of Evidence
In his final issue appellant contends that trial court erred in denying his oral
motion to suppress. The substance of appellant’s argument consists of the following:
Here, law enforcement officers unlawfully detained and intruded upon the
privacy of Appellant without lawful authority, without probable cause and
without a valid warrant. The detention and intrusion were followed by the
entry and search of a vehicle and seizure and search of materials and
items without consent or lawful authority and without a valid search
warrant or probable cause.
To that he adds:
The detention, intrusion, invasion, search of Appellant, as well as the
seizure and search of materials and items therefrom violated Appellant’s
rights under the First, Fourth, Fifth, Sixth, Ninth and Fourteenth
Amendments to the United States Constitution and under Article I,
Sections 9, l0 and l9 of the Texas Constitution; as well as Articles 38.21
and 38.22 of the Texas Code of Criminal Procedure.
6
Missing, however, is any discussion of why the facts at bar amounted to an unlawful
detention and illegal search. This omission proves fatal.
It is not enough to simply conclude that a stop and search was improper or
violated constitutional prohibition. An appellant has the obligation to provide us with a
“clear and concise argument for the contentions made with appropriate citations to
authorities and to the record.” TEX. R. APP. 38.1(i). Encompassed within that duty is the
task of placing flesh on bare-bone allegations . . . of explaining or discussing why his
argument has substance. As stated in Bell v. State, 90 S.W.3d 301 (Tex. Crim. App.
2002), “[t]o brief a . . . constitutional issue adequately, appellant must present specific
arguments and authorities supporting his contentions . . . [and where] he has failed to
meet this burden, appellant's . . . constitutional claim is inadequately briefed and is,
therefore, overruled.” Id. We overrule the constitutional issue appellant proffered at bar
due to inadequate briefing.
The judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish
7