Ronald Gene Grizzle, Jr. v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00204-CR
RONALD GENE GRIZZLE, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. F48507
MEMORANDUM OPINION
In eight issues, appellant, Ronald Gene Grizzle Jr., challenges his convictions for
one count of aggravated sexual assault of a child, two counts of indecency with a child
by contact, and two counts of indecency with a child by exposure.1 See TEX. PENAL
1 For the count of aggravated sexual assault of a child, the jury imposed a sixty-year sentence.
Appellant also received ten-year sentences for the two counts of indecency with a child by contact. With
respect to the two counts of indecency with a child by exposure, appellant received five-year sentences,
which were probated for a period of ten years. And in response to the State’s written motion, the trial
court cumulated the sentences imposed for the one count of aggravated sexual assault of a child and the
two counts of indecency with a child by contact.
CODE ANN. § 21.11(a)(1), (a)(2)(A) (West 2011); see also id. § 22.021(a)(1)(B)(ii) (West
Supp. 2014). We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his first five issues, appellant argues that the evidence is insufficient to
support his convictions for one count of aggravated sexual assault of a child, two counts
of indecency with a child by contact, and two counts of indecency with a child by
exposure.
A. Standard of Review
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
“familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. “Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.
Id.
Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
Grizzle v. State Page 2
the conflicts in favor of the prosecution and therefore defer to that determination.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial
evidence are treated equally: “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that
the factfinder is entitled to judge the credibility of the witnesses and can choose to
believe all, some, or none of the testimony presented by the parties. Chambers v. State,
805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
B. Aggravated Sexual Assault of a Child
Under section 22.021(a)(1)(B)(ii) of the Penal Code, the State must prove beyond
a reasonable doubt that appellant intentionally or knowingly caused the penetration of
the mouth of a child by his sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii).
Here, the child victim, H.H., testified that she was fourteen years old at the time of trial
and that she reported numerous instances of sexual misconduct perpetrated by
Grizzle v. State Page 3
appellant when she was twelve years old. Later, H.H. recalled one evening where
appellant agreed to pull her loose tooth. Specifically, H.H. stated the following:
And I walked in the bathroom, and I was like, Ronnie, will you pull my
tooth? And he said, [“]Yeah.[“] And then he sat there like a minute and
he said, [“]Let me go get the flashlight.[“] So he went in the room and got
the flashlight and came out. And he’s like [“]let me turn out the light cuz
[sic] I can see better,[“] so he turned off the light. And he like gave me the
flashlight so I was holding it, and then he like pulled down his pants and I
kind of like—I wasn’t sure what he was doing, so I starting moving the
light around to figure it out, and then I saw that he had it to my mouth.
H.H. later clarified that, on this occasion, appellant had placed his penis in her mouth.
H.H. testified that it did not appear to her that appellant had accidentally put his penis
in her mouth; rather, “[h]e was trying to do it to me.”
Appellant testified that he did not remember ever pulling H.H.’s tooth in the
bathroom or anything “going wrong” with pulling H.H.’s teeth. However, appellant’s
testimony was undermined by Sheila Batson, who corroborated H.H.’s story about
appellant going into the bathroom to pull H.H.’s tooth. Additionally, Batson noted that
she found H.H. crying in her bedroom after the incident and that H.H. had called
appellant “a jerk.”
A child victim’s testimony alone is sufficient to support a conviction for
aggravated sexual assault of a child or indecency with a child. TEX. CODE CRIM. PROC.
ANN. art. 38.07 (West Supp. 2014); Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco
2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d); see
also Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.).
The courts will give wide latitude to testimony given by child victims of
sexual abuse. The victim’s description of what happened need not be
Grizzle v. State Page 4
precise, and the child is not expected to communicate with the same level
of sophistication as an adult. Corroboration of the victim’s testimony by
medical or physical evidence is not required.
Cantu, 366 S.W.3d at 776 (internal citations omitted).
To the extent that appellant’s testimony differs from that of H.H., we note that a
jury may believe all, some, or none of any witness’s testimony. See Chambers, 805
S.W.2d at 461. And by finding appellant guilty, the jury obviously believed H.H.’s
version of the incident. Therefore, viewing all the evidence in the light most favorable
to the verdict, we conclude that a rational trier of fact could have concluded that
appellant committed the offense of aggravated sexual assault of a child. See TEX. PENAL
CODE ANN. § 22.021(a)(1)(B)(ii); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio,
351 S.W.3d at 894; Hooper, 214 S.W.3d at 13.
C. Indecency With a Child by Contact
Appellant was also convicted of two counts of indecency with a child by contact,
which occurs if a person engages in “sexual contact” with a child younger than
seventeen years of age. See TEX. PENAL CODE ANN. § 21.11(a)(1). The Penal Code’s
definition of “sexual contact” includes the touching of the anus, breast, or any part of
the genitals of a child with the intent to arouse or gratify the sexual desire of any
person. Id. § 21.11(c). The specific intent to arouse or gratify the sexual desire of any
person, as required by section 21.11(c), can be inferred from the defendant’s conduct,
his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216
(Tex. Crim. App. 1981); Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio
2013, no pet.). Further, a “‘complainant’s testimony alone is sufficient to support a
Grizzle v. State Page 5
conviction for indecency with a child.’” Moore, 397 S.W.3d at 754 (quoting Connell v.
State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no pet.)).
On appeal, appellant specifically challenges the sufficiency of the evidence
regarding his intent to arouse or satisfy his sexual desire when he touched H.H.’s
breast. Appellant also complains that H.H. only described one specific instance of
touching.
At trial, H.H. testified that appellant “would come in there and at night and
watch me sleep, or he would touch my breast at night.” Later, H.H. stated that she
knew appellant was touching her breast “[b]ecause I—one day I was laying [sic] down
and I woke up to him put [sic] his hand on my shoulder. And I moved like that and he
jerked it back. And then I waited a little while and he put it back on my—he put it on
my breast.” H.H. recounted that appellant touched her breast often and that she had
“gotten used to it where he would do it every night and so I kind of expected it.” H.H.
also testified that some days appellant would touch her breast over her clothes, and
other days he would touch her breast underneath her clothes. Additionally, H.H.
recounted other incidents of sexual misconduct perpetrated by appellant and noted that
she did not believe that appellant’s touching of her breast was an accident. She also
recalled that appellant told her that he had “prayed to God about it” and that God had
said that it was okay for him to have sex with H.H.
Based on appellant’s conduct, remarks, and the surrounding circumstances, we
conclude that a rational factfinder could have concluded that appellant touched H.H.’s
breast on more than one occasion and that he had the specific intent to arouse or gratify
Grizzle v. State Page 6
his own sexual desire each time he touched H.H.’s breast. See McKenzie, 617 S.W.2d at
216; see also Moore, 397 S.W.3d at 754. Therefore, viewing the evidence in the light most
favorable to the verdict, we conclude that a rational trier of fact could have concluded
that appellant committed the offense of indecency with a child by contact on two
occasions. See TEX. PENAL CODE ANN. § 21.11(a)(1); see also Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13.
D. Indecency With a Child by Exposure
To support a conviction for indecency with a child by exposure, the State was
required to prove beyond a reasonable doubt that: (1) the child was within the
protected age group and not married to the accused; (2) the child was present; (3) the
accused had the intent to arouse or gratify someone’s sexual desire; (4) the adult knew
that a child was present; and (5) the accused exposed his anus or genitals. See TEX.
PENAL CODE ANN. § 21.11(a)(2)(A). The record reflects that H.H. testified regarding two
specific instances of appellant exposing his genitals to her. The first instance transpired
when she was working with appellant in appellant’s chicken coop. H.H. testified that
appellant instructed her to sit in a chair and that he turned off the lights. According to
H.H., appellant then walked closer to her and pulled down his pants. H.H. could see
that appellant had also pulled down his underwear. H.H. was shocked and afraid.
H.H. believed that appellant’s exposure of his genitals was not an unrelated event but,
instead, was intended for her. H.H. told T.H. about the incident shortly after it
happened, and T.H. echoed H.H.’s testimony about the chicken-coop incident.
Grizzle v. State Page 7
In addition, H.H. testified about a second incident that transpired while she was
sleeping in a recliner. Specifically, H.H. recalled waking up to find appellant standing
behind the recliner with his boxers pulled down and his bare penis near her mouth.
Appellant explained that he was fixing a nearby curtain, but H.H. testified that she
believed that appellant was intentionally exposing his penis to her. The record also
contains testimony from H.H. regarding other instances where appellant would take off
his clothing or towel to expose his bare penis to her.
Viewing the evidence in the light most favorable to the verdict, we conclude that
a rational factfinder could conclude that appellant exposed his genitals to H.H., a child
under seventeen years of age, on more than one occasion with the specific intent to
arouse or gratify his sexual desire. See id.; see also Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. As such, we hold that the
evidence is sufficient to support appellant’s convictions for indecency with a child by
exposure. See TEX. PENAL CODE ANN. § 21.11(a)(2)(A); see also Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. Because we have
concluded that appellant’s convictions are supported by sufficient evidence, we
overrule appellant’s first five issues on appeal.
II. THE TRIAL COURT’S CUMULATION ORDER
In his sixth issue, appellant contends that the trial court erred in cumulating the
imposed sentences in Counts 1, 2, and 3 because the cumulation order violated the
principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and because the jury, rather than the trial court, should determine whether the
Grizzle v. State Page 8
sentences should be cumulated. In his seventh issue, appellant argues that the trial
court committed reversible error during the punishment phase of trial by denying his
request for special instructions in the jury charge regarding consecutive sentencing.
A. Apprendi v. New Jersey
First, we address appellant’s assertion that the trial court’s cumulation order
violated Apprendi. In Apprendi, the United States Supreme Court determined that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. The Court of
Criminal Appeals has stated that Apprendi and its progeny clearly deal with the upper-
end extension of individual sentences, when that extension is contingent upon findings
of fact that were never submitted to the jury. Barrow v. State, 207 S.W.3d 377, 379 (Tex.
Crim. App. 2006). These decisions do not, however, speak to a trial court’s authority to
cumulate sentences when that authority is provided by statute and is not based upon
discrete fact-finding, but is wholly discretionary. Id.; see TEX. CODE CRIM. PROC. ANN.
art. 42.08(a). Here, the trial court imposed a valid sentence within the statutorily-
prescribed punishment range for each of appellant’s convictions. See Barrow, 207
S.W.3d at 379. Accordingly, we cannot say that the trial court’s cumulation order
violated Apprendi. See id.
B. Whether the Trial Court Had Authority to Cumulate Appellant’s Sentences
Next, appellant argues that the jury, rather than the trial court, had the authority
to determine whether his sentences should be cumulated. We disagree.
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Texas trial courts have the discretion to order cumulative sentences in virtually
every case. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2014); Millslagle v.
State, 150 S.W.3d 781, 784 (Tex. App.—Austin 2004, pet. dism’d untimely filed); see also
York v. State, No. 10-11-00413-CR, 2012 Tex. App. LEXIS 4963, at *6 (Tex. App.—Waco
June 20, 2012, pet. ref’d) (mem. op., not designated for publication). However, when
multiple offenses arising out of the same criminal episode are consolidated for a single
trial, and the defendant is found guilty of more than one offense, section 3.03(a) of the
Texas Penal Code provides a limit on the trial court’s discretion to cumulate the
sentences. See TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2014); Millslagle, 150 S.W.3d
at 784; see also York, 2012 Tex. App. LEXIS 4963, at **6-7. Section 3.03(b)(2)(A) creates an
exception to this exception; that is, it exempts certain offenses, including indecency with
a child and aggravated sexual assault of a child, from the application of section 3.03(a).
See TEX. PENAL CODE ANN. § 3.03(b)(2)(A); Millslagle, 150 S.W.3d at 784; see also York,
2012 Tex. App. LEXIS 4963, at *7.
In the instant case, appellant was convicted of one count of aggravated sexual
assault of a child, two counts of indecency with a child by contact, and two counts of
indecency with a child by exposure. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), (a)(2)(A),
22.021(a)(1)(B)(ii). Each of these offenses are included in the section 3.03(b)(2)(A)
exceptions to the exception. See id. § 3.03(b)(2)(A). As such, we conclude that the trial
court had the discretion to order cumulative sentences in this case. See TEX. CODE CRIM.
PROC. ANN. art. 42.08(a); Millslagle, 150 S.W.3d at 784; see also York, 2012 Tex. App.
LEXIS 4963, at *6.
Grizzle v. State Page 10
C. The Jury Charge
And finally, appellant argues that the trial court committed reversible error
during the punishment phase of trial by denying his request for special instructions in
the jury charge regarding consecutive sentencing. In support of this argument,
appellant, once again, relies on Apprendi.
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Under Texas law, the trial court must provide the jury with “a written charge
setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007); see Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2008). However,
this Court has noted that the “Penal Code and Code of Criminal Procedure assign to the
trial judge the responsibility for determining whether to cumulate sentences or allow
them to run concurrently, when there is an option.” Manzano v. State, No. 10-04-00323-
Grizzle v. State Page 11
CR, 2006 Tex. App. LEXIS 1285, at *13 (Tex. App.—Waco Feb. 15, 2006, pet. ref’d) (mem.
op., not designated for publication) (citing TEX. CODE CRIM. PROC. ANN. art. 42.08(a);
TEX. PENAL CODE ANN. § 3.03(a)-(b)). “No factual determinations are required, so there
is nothing for a jury to determine. We hold that due process does not require that the
jury be given information about the trial court’s ability to cumulate sentences or order
them to run concurrently.” Id.; see Marrow v. State, 169 S.W.3d 328, 330-31 (Tex. App.—
Waco 2005, pet. ref’d); see also Lacy v. State, Nos. 14-05-00775-CR, 14-05-00776-Cr, 14-05-
00777-CR, 14-05-00778-CR, 2006 Tex. App. LEXIS 8723, at *6 (Tex. App.—Houston [14th
Dist.] Oct. 10, 2006, no pet.) (mem. op., not designated for publication) (“As such,
contrary to appellant’s assertion, the trial court’s authority to cumulate the aggravated
sexual assault sentences did not hinge on an implicit finding of fact that the offenses
arose out of the same criminal episode. . . . [B]oth federal and state courts have
consistently found no Apprendi violation where ‘a trial court orders the cumulation of
sentences which individually lie within the statutory range of punishment but for
which the cumulative total exceeds the prescribed statutory maximum for any single
offense.’” (quoting Baylor v. State, 195 S.W.3d 157, 160 (Tex. App.—San Antonio 2006, no
pet.))).
Therefore, based on the foregoing and our review of the record, we cannot say
that the trial court’s denial of appellant’s special instructions on cumulative sentencing
amounted to a jury-charge error. See Hutch, 922 S.W.2d at 170. We overrule appellant’s
sixth and seventh issues.
Grizzle v. State Page 12
III. APPELLANT’S MOTION FOR MISTRIAL
In his eighth issue, appellant asserts that the trial court erred during the guilt-
innocence phase of trial when it denied his motion for mistrial regarding the
prosecutor’s direct examination of T.H.
A. Standard of Review
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings
when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a
narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its
discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be
reached” or a conviction would have to be reversed on appeal due to “an obvious
procedural error.” Wood, 18 S.W.3d at 648 (“A mistrial is required only when the
improper question is clearly prejudicial to the defendant and is of such character to
suggest the impossibility of withdrawing the impression produced on the minds of the
jurors.”); see Ladd, 3 S.W.3d at 567.
Grizzle v. State Page 13
B. Discussion
During its case-in-chief, the State called T.H., H.H.’s brother, as a witness. On re-
direct examination, the State asked T.H. whether he believed his sister’s allegations
against appellant. T.H. responded, “Yes, sir, I do.” At this point, appellant objected
that the question invaded the province of the jury regarding the credibility of H.H.’s
allegations. The trial court sustained appellant’s objection and, upon request, instructed
the jury to disregard the question and not consider T.H.’s answer for any purpose in the
case. Thereafter, appellant moved for a mistrial, which was denied by the trial court.
On appeal, appellant argues that the aforementioned question and answer
amounted to improper bolstering of the State’s case and the testimony of H.H, which, in
turn, deprived him of a fair trial. We disagree.
“A timely and specific objection is required to preserve error for appeal.” Luna v.
State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). “An
objection is timely if it is made as soon as the ground for the objection becomes
apparent, i.e., as soon as the defense knows or should know that an error has occurred.”
Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing Neal v.
State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)). “If a party fails to object until after
an objectionable question has been asked and answered, and he can show no legitimate
reason to justify the delay, his objection is untimely and error is waived.” Id. (citing
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc)). There are,
however, the following two exceptions to the proposition of law that a party must
object each time he thinks inadmissible evidence is being offered: (1) when the party
Grizzle v. State Page 14
has secured a running objection on the issue he deems objectionable; or (2) when the
defense counsel lodges a valid objection to all the testimony he deems objectionable on
a given subject outside of the presence of the jury. Ethington v. State, 819 S.W.2d 854,
858-59 (Tex. Crim. App. 1991). Furthermore, “‘[a]n error [if any] in the admission of
evidence is cured when the same evidence comes in elsewhere without objection.” Lane
v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998)); see Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.
2003) (“In addition, a party must object each time the inadmissible evidence is offered
or obtain a running objection.”).
At trial, both Sheila and Brooke Batson were asked whether they believed the
child victim’s testimony or, in other words, the same question that was asked of T.H.
Both witnesses testified that they believed the child victim’s testimony, and the record
does not reflect that appellant objected to these questions at the time they were asked or
obtained a running objection. Accordingly, because the same testimony was elicited
from two other witnesses without an objection, we conclude that the error, if any,
pertaining to T.H.’s testimony was cured. See Lane, 151 S.W.3d at 193; Valle, 109 S.W.3d
at 509; Grant, 345 S.W.3d at 512.
Furthermore, we note that “[a] mistrial is an appropriate remedy in ‘extreme
circumstances’ for a narrow class of highly prejudicial and incurable errors.” Ocon v.
State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial should be granted only
when less drastic alternatives fail to cure the prejudice. Id. at 884-85. In the instant case,
the trial court instructed the jury to disregard the State’s question and T.H.’s answer.
Grizzle v. State Page 15
We presume that the jury obeyed the instruction and that the instruction was effective.
See Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) (“The law generally
presumes that instructions to disregard and other cautionary instructions will be duly
obeyed by the jury.”). Moreover, appellant has not adequately explained how the
question and answer was so clearly prejudicial to the defendant and is of such character
to suggest the impossibility of withdrawing the impression produced on the minds of
the jurors, especially in light of the overwhelming record evidence indicating guilt. See
Wood, 18 S.W.3d at 648; see also Ladd, 3 S.W.3d at 567. As such, we cannot say that the
trial court abused its discretion in denying appellant’s motion for mistrial. See Archie,
221 S.W.3d at 699-700. We overrule appellant’s eighth issue.
IV. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgments of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 15, 2015
Do not publish
[CRPM]
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