Ronnie Lee Dixon v. State ( 2005 )

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Opinion issued October 13, 2005



  In The

Court of Appeals

For The

First District of Texas

NOS. 01–04–01100–CR

           01–04–01101–CR

RONNIE LEE DIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 179th District Court

Harris County, Texas

Trial Court Cause Nos. 959564 and 959565

MEMORANDUM OPINION

          A jury convicted appellant, Ronnie Lee Dixon, of attempted sexual assault and kidnapping. The trial court found the enhancement allegations of prior convictions of kidnapping and aggravated robbery to be true and assessed punishment at 40 years in prison for each offense, to be served concurrently. Raising three points of error in each appellate cause, appellant challenges the legal and factual sufficiency of the evidence to support the convictions and contends that the trial court abused its discretion in denying his motion for mistrial.

          We affirm.Background

          On the night of August 24, 2003, and into the early morning of August 25, 2003, Trisanne Duffy worked as a bartender at Texas Saloon, located in Pasadena, Texas. At approximately 7:45 p.m., appellant arrived at Texas Saloon and sat down at the bar. Duffy and appellant engaged in casual conversation and discussed appellant’s motorcycle and job. Appellant’s demeanor made Duffy feel uneasy. Appellant tried to move close to Duffy and continually stared at her. Appellant remained seated at the bar until approximately 9:30 p.m., when Duffy saw appellant leave behind another patron.

          Appellant later returned to the bar at approximately 1:00 a.m. At that time, there were three people in the bar other than appellant: Duffy, Lawrence Garcia, and another patron. Garcia was the custodian for the bar and arrived that night at approximately 11:00 p.m. When he arrived, Garcia saw a motorcycle parked outside the bar. At approximately 2:00 a.m., appellant was asked to leave because the bar was closing. After appellant left, and after Duffy and Garcia finished their shifts, Garcia took Duffy home at approximately 3:00 a.m. Duffy noticed a motorcycle parked outside the bar as they left.

          After Garcia dropped Duffy off at her home, and as he was driving away, he noticed in his rear-view mirror that a man wearing a white T-shirt and red cap was running behind his truck and toward Duffy’s house. Garcia thought little of it and continued driving. Duffy was near the front of her house when appellant approached her from behind, grabbed her hair, and covered her mouth with his hand. Appellant then dragged Duffy, who was screaming, to a grassy area near her driveway and threw her to the ground. Duffy’s face was in the grass and appellant was lying on top of her. Appellant told Duffy that he would cut her throat if she did not stop screaming. Appellant then asked Duffy for her keys and purse. Duffy complied and told appellant that there was money in the purse. Appellant hesitated for a moment and then placed Duffy’s keys and purse near her roommate’s car, which was parked in the driveway. Appellant instructed Duffy to get up. He then dragged her by her hair toward the back of her next-door-neighbor’s house. The neighbor, James Price, had recently moved in and had not yet put up blinds or curtains, giving the house an appearance of being vacant.

          As appellant dragged her to the back of Price’s house, Duffy continued screaming and struggling with appellant, hoping to get Price’s attention. Duffy’s screams and the noise from the struggle awoke Price’s dog, which began barking. During this time, appellant continued to threaten Duffy, telling her that he would cut her throat if she continued to scream.

          Appellant dragged Duffy toward a grassy area in the back of Price’s house and pushed her down. While Duffy lay face down in the grass, appellant got on top of her and grabbed her hair. Appellant punched Duffy in the head, and she continued to scream. Appellant again told Duffy that he would cut her throat if she was not quiet. Duffy stopped screaming, and appellant took his right hand from her mouth and grabbed her breast twice. Duffy began screaming again, and appellant began choking her to the point that she could not breathe. Appellant told her that he would allow her to breathe if she would stop screaming.

          During this time, Price was awakened by Duffy’s screams and his barking dog. When he looked out the window, Price saw Duffy and appellant standing in front of one another. Price thought that Duffy and appellant were merely arguing and decided to go back to bed. However, shortly thereafter, Price heard whimpering. Price looked out his window and saw appellant on top of Duffy. Price observed that appellant had his hand over Duffy’s mouth and heard appellant tell Duffy to “shut up.”

          Price called 9-1-1 and went out to his truck, retrieved his gun, and yelled at appellant to stop what he was doing. Appellant immediately ran from the scene. Duffy went into Price’s house and was described later by Price at trial as being “hysterical.” Price also testified that Duffy’s blouse was ripped open, exposing her bra.

          Canine Officer Greg Carlson of the Pasadena Police Department responded to the call and apprehended appellant one street over from the street where Duffy and Price lived. When the police brought him back to Duffy’s house, Duffy identified appellant as her attacker.

          Appellant was charged with attempted sexual assault and kidnapping. The jury found appellant guilty of both offenses.

SUFFICIENCY OF THE EVIDENCE

          In two points of error, appellant challenges the legal and factual sufficiency of the evidence as to each offense.

A.      Standards of Review

          A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

          In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481–82. Our evaluation may not intrude upon the fact-finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). As the evaluator of credibility and demeanor, the fact-finder alone determines what weight to place on contradictory testimonial evidence. Id. at 408. The fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407. In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

          The standards of review for legal and factual sufficiency challenges are the same for direct and circumstantial evidence cases. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

B.      Attempted Sexual Assault

          As to the conviction for attempted sexual assault, appellant contends, in his first two points of error that the evidence was legally and factually insufficient to prove that he had the specific intent to sexually assault Duffy.

          1.       The Offense of Attempted Sexual Assault

          A person commits sexual assault if he intentionally or knowingly (1) causes the penetration of the anus or sexual organ of another person by any means, without that persons consent; (2) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or (3) causes the sexual organ of another person, without that persons consent, to contact or to penetrate the mouth, anus, or sexual organ of another person, including the actor. Tex. Pen. Code Ann. § 22.011(a)(1) (Vernon Supp. 2004–2005). A person commits the offense of attempted sexual assault if, with specific intent to commit sexual assault, he does an act amounting to more than mere preparation that tends but fails to effect the commission of sexual assault. Tex. Pen. Code Ann. §§ 15.01(a), 22.01(a)(1) (Vernon 2003 & Supp. 2004–05); see Moreno v. State, 872 S.W.2d 1, 3 (Tex. App—Houston [1st Dist.] 1993, no pet.). The “specific intent” element means that the accused must intend to bring about the desired result. See Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1982).

          2.       Legal Sufficiency of the Evidence to Prove Specific Intent

          Appellant contends that legally insufficient evidence was presented from which the jury could have reasonably inferred that he possessed the requisite specific intent to sexually assault Duffy. We disagree.

          A person’s intent to commit an offense generally must be established by circumstantial evidence and may be inferred from the person’s acts, words, and conduct. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); see Lindsey v. State, 764 S.W.2d 376, 378 (Tex. App.—Texarkana 1989, no pet.) (involving intent to commit sexual assault when charged offense was attempted sexual assault). Duffy testified that appellant’s demeanor and conduct at the bar had made her feel uncomfortable. When appellant returned to the bar the second time, he followed Duffy to the back area of the bar, where Duffy had gone to get more beer. Appellant asked Duffy what she was doing and where the “other guy” was, referring to Garcia.

          Garcia also testified that he remembered appellant being at the bar. Garcia recalled that appellant was “just not acting right” and was “kind of weird.” Garcia stated that appellant was “just hanging around” and was “asking questions.” Duffy and Garcia each testified that appellant had to be asked more than once to leave the bar at closing time.

          Duffy also provided the jury with a detailed account of her attack by appellant. She testified that, after she arrived home, appellant grabbed her from behind, dragged her, threw her down, and threatened to cut her throat, if she was not quiet. Duffy gave appellant her keys and purse and told appellant that there was money in her purse. Rather than leaving with Duffy’s purse, appellant hesitated, set the purse down, and forcibly dragged Duffy to the back of Price’s home, which appeared to be vacant. Appellant then threw Duffy to the ground, punched her in the head, again threatened to cut her throat, and grabbed Duffy’s breast twice. When Duffy resumed screaming, appellant choked her and told her that he would allow her to breathe if she would stop screaming. Only when Price came out of his house and yelled did appellant stop his assault on Duffy and run away. Price testified that Duffy’s blouse had been torn open, exposing her bra.

          Appellant contends that the evidence showing that he grabbed Duffy from behind, dragged her to back of Price’s house, shoved her to the ground, and grabbed her breast is legally insufficient evidence to establish that he intended to sexually assault Duffy. Appellant first contends that the female breast is not a sexual organ within the definition of applicable Penal Code section. Appellant asserts that it follows that Duffy’s testimony that he grabbed her breast twice cannot serve to support a finding that appellant had the intent to sexually assault Duffy. Although appellant is correct that the female breast is not a sexual organ within the context of the sexual assault statute, appellant’s conduct in twice grabbing Duffy’s breast was overtly sexual. It is common knowledge that, in our society, the female breast is associated with sexuality and sexual arousal.

          Appellant also points out that the State presented no evidence that he (1) touched Duffy’s genital area, (2) removed his own clothing, (3) removed or attempted to remove Duffy’s clothing, or (4) verbally indicated that he wanted to engage in sexual intercourse with Duffy. Appellant cites numerous attempted-sexual-assault cases in which such evidence was presented to show a defendant’s intent to commit sexual assault. Appellant is correct that many attempted-sexual-assault cases in which a conviction has been upheld on appeal contain such facts. But it does not necessarily follow that the lack of such evidence makes the evidence in this case legally insufficient to support the finding of intent. See Allen v. State, 245 S.W.2d 707, 708 (Tex. Crim. App. 1952) (holding that evidence was sufficient to support burglary-with-intent-to-commit rape conviction even though defendant made no statements to victim of sexual nature); Moreno, 872 S.W.2d at 3 (concluding that lack of physical contact between defendant and victim does not negate intent to commit aggravated sexual assault); Walker v. State, 859 S.W.2d 566, 569 (Tex. App.—Waco 1993, pet. ref’d) (affirming attempted sexual-assault-conviction, noting that sexual assault does not require exposure of defendant’s genitals). In sum, the criminal attempt statute does not require that every act short of actual commission be accomplished in order for a defendant to be convicted of an attempted offense. See Lindsey, 764 S.W.2d at 378 (concluding that failure to complete act of sexual assault does not negate defendant’s intent).

          The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. See Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Here, the following is particularly probative of appellant’s intent to sexually assault Duffy: (1) appellant’s unusual behavior at the bar, i.e., appellant’s staring at Duffy, appellant’s following Duffy to the back when she went to get more beer, appellant’s asking questions, and Garcia’s assessment of Duffy as acting strange; (2) appellant’s failure to take Duffy’s purse containing money and leave when given the opportunity; (3) appellant’s act of then dragging Duffy behind what appeared to be a vacant house; (4) appellant’s use of threats and violence against Duffy to subjugate her; (5) the overtly sexual act by appellant of twice grabbing Duffy’s breast; and (6) Duffy’s torn blouse, leaving her bra exposed.

          From this evidence, a rational jury could infer that appellant intended to sexually assault Duffy and that he did an act amounting to more than mere preparation that tended, but failed, to effect the commission of sexual assault. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support appellant’s conviction for attempted sexual assault.

          We overrule appellant’s first point of error as it relates to the attempted-sexual-assault offense.

          3.       Factual Sufficiency of the Evidence

          In his second point of error relating to the conviction of attempted sexual assault, appellant contends that the evidence is factually insufficient because the testimony of the witnesses, particularly that of Duffy and Garcia, is weak and contradictory. Appellant contends that Duffy’s testimony conflicts with Garcia’s with respect to how they decided to share a ride home on the night of the assault. Appellant further contends that the evidence suggests that it was impossible for appellant to hide in the bed of Garcia’s truck to travel to Duffy’s house, as suggested by the State at trial.

          Appellant also cites differing testimony regarding whether it was Duffy or Garcia who asked appellant to leave the bar. Furthermore, appellant points out that Garcia testified that appellant kept asking questions, while Duffy testified that appellant simply sat in the bar. Appellant also points out that, though Duffy said that there was never a time when she could have gotten away from appellant during the attack, Price testified that he saw appellant and Duffy standing in front of each other for 30 seconds. Appellant posits that this was a time during which Duffy could have escaped.

          None of these facts definitively favor the verdict one way or another. Rather, they bear on the credibility of the witnesses and whose testimony, if any, should be given more weight than the other. It is elemental that a jury’s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410. It was the jury’s role as fact finder to resolve any discrepancies or inconsistencies in the evidence, to determine the credibility and weight to be given the evidence, and to draw reasonable inferences from the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Concomitantly, the jury may believe or disbelieve all or part of any witness’s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998).

          The inconsistencies cited by appellant were all before the jury, and such inconsistencies were for the jurors to resolve. The jury could have reasonably determined that any perceived inconsistencies in the witnesses’ testimony about how Duffy and Garcia decided to share a ride, who asked appellant to leave the bar, whether appellant asked questions while at the bar, or whether Duffy was ever in a position to flee during the attack did not create a reasonable doubt about whether appellant committed attempted sexual assault. The same can be said regarding the evidence supporting the State’s suggested theory that appellant had hitched a ride in the back of Garcia’s truck.

          Appellant has not demonstrated that the evidence is so weak that his conviction is clearly wrong and manifestly unjust or that, based on the contrary evidence, the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing it in a neutral light, we hold that the evidence is factually sufficient to support appellant’s conviction for attempted sexual assault.
          We overrule appellant’s second point of error as to that offense.

C.      Kidnapping

          Appellant contends in his first and second points of error regarding the kidnapping conviction that the evidence was legally and factually insufficient to support his conviction.

          1.       The Offense of Kidnapping

          A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. Tex. Pen. Code Ann. § 20.03 (Vernon 2003). The Penal Code defines “abduct” as

          “restrain[t of] a person with intent to prevent his liberation by:

(A) secreting or holding him in a place where he is not likely to be found; or

                    (B) using or threatening to use deadly force.

Id. § 20.01(2)(A)–(B) (Vernon Supp. 2004–2005). The Texas Court of Criminal Appeals has explained that secretion and the use of deadly force are part of the mens rea element of abduction, rather than the actus reus. Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995); see also Brimage v. State, 918 S.W.2d 466, 475–76 (Tex. Crim. App. 1994). The sole “act” involved in a kidnapping is “restraint.” Mason, 905 S.W.2d at 575. The Penal Code further defines “restrain” as meaning “to restrict a person’s movements without consent, so as to interfere substantially with [her] liberty, by moving [her] from one place to another or by confining [her].” Tex. Pen. Code Ann. § 20.01(1). Restraint is “without consent” if it is accomplished by force, intimidation, or deception. Id. 20.01(1)(A).

          2.       Legal sufficiency

          In his first point of error relating to the kidnapping conviction, appellant argues that the evidence is legally insufficient to support a conviction for the completed offense of kidnapping as opposed to attempted kidnapping. Appellant first contends that he did not restrain Duffy. We disagree.

          A reasonable jury in this case could have inferred that appellant restricted Duffy’s movements without her consent, so as to interfere substantially with her liberty. See Tex. Pen. Code Ann. § 20.01(1). It is not necessary for appellant to have taken Duffy a certain distance or to have held her for a specific amount of time before he could be convicted of kidnapping. Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002). The evidence showed that appellant “restrained” Duffy by dragging her behind Price’s house, where he forced her to lie face down in the grass, while he was on top of her, and where he punched her in the head and choked her. Duffy’s restraint began when appellant grabbed her from behind near the front of her house and ended when Price frightened appellant away. Thus, the only remaining issue is whether appellant had the specific intent to prevent Duffy’s liberation by secreting her in a place where she was not likely to be found or using or threatening to use deadly force. See Mason, 905 S.W.2d at 575. Appellant also challenges the legal sufficiency of the evidence to support the intent element.

          As stated, the requirement of preventing a victim’s liberation by (1) secreting her where she will likely not be found or (2) using or threatening to use deadly force is a part of the mens rea of the offense, not the actus reus. Brimage, 918 S.W.2d at 475. Thus, if the actor intended at any time during the restraint to secrete or to hold the victim in a place where she is not likely to be found, the offense is complete. Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997); Mason, 905 S.W.2d at 575. Appellant appears to argue that he cannot be guilty of kidnapping because he did not succeed in depriving Duffy of her liberation by secreting her or by using the threat of deadly force. However, the relevant inquiry is whether appellant intended to prevent Duffy’s liberation either (1) by secreting her in a place where she was not likely to be found or (2) by threatening to use deadly force. See Tex. Pen. Code Ann. § 20.01(2)(A)–(B). Conversely, the relevant inquiry is not whether appellant actually accomplished his purpose of depriving her of her liberty by either means. King v. State, 961 S.W.2d 691, 694 (Tex. App.—Austin 1998, pet. ref’d).

          Here, the evidence showed that, at 3:00 a.m., appellant forcibly restrained Duffy, dragging her from her the front of her house to the back of Price’s home, which appeared not to be occupied. While restraining her, appellant used verbal and physical means to quiet Duffy. From such evidence, a jury could have reasonably inferred that appellant had the specific intent to secrete Duffy in a place where she was not likely to be found, i.e., behind a “vacant” house in the middle of the night, for the purpose of sexually assaulting her.

          The evidence also showed that appellant intended to prevent Duffy’s liberation by threatening to use deadly force. Appellant threatened to cut Duffy’s throat if she did not stop screaming. A reasonable inference from such evidence is that appellant used the threat to intimidate Duffy and to make her compliant with his demands for silence to successfully effectuate his restraint of her. From such evidence, a jury could have reasonably inferred that appellant intended to deprive Duffy of her liberty by using the threat of deadly force.

          Viewing it in a light most favorable to the verdict, we hold that the evidence was legally sufficient to support appellant’s kidnapping conviction.

          We overrule appellant’s first point of error as to the kidnapping offense.

          3.       Factual Sufficiency

          In his second point of error relating to the kidnapping conviction, appellant asserts that the evidence is factually insufficient.

          Appellant contends that the evidence supports the inference that he did not intend to secrete Duffy in a place where she was not likely to be found “because no person would consider the area to be such a place.” Appellant points out that a car was parked in Duffy’s driveway and that a there was a trailer park across from Duffy’s house. Appellant also contends that Price’s yard was not remote “in light of Ms. Duffy’s ability to scream.” Even assuming that appellant’s contention is correct, the State presented evidence that appellant acted to silence Duffy to prevent detection. The evidence showed that appellant attempted to silence Duffy by threatening repeatedly to cut her throat and by choking her. Such evidence is evidence from which the jury could have inferred that appellant intended to secrete Duffy in a place where she was not likely to be found. It is reasonable to assume that, if she had not screamed, Duffy’s neighbors likely would not have known that she was being attacked in Price’s back yard in the middle of the night. The fact that appellant was not successful in secreting her is not determinative.

          Appellant further contends that he did not expect his threats to succeed in preventing Duffy’s liberation because she continued to scream after he had threatened to cut her throat. Specifically, appellant asserts that, because Duffy continued to scream after being threatened with deadly force, “she wasn’t buying that threat.” Appellant points out that Duffy admitted on cross-examination that she concluded that appellant did not have a knife after appellant grabbed her breast. Appellant argues that he did not have the requisite culpable state of mind to prevent Duffy’s liberation by threatening the use of deadly force because he did not believe that Duffy was affected by the threat.

          The evidence showed that appellant repeatedly threatened to cut Duffy’s throat, even though Duffy continued to scream. The evidence also showed that appellant’s threats succeeded in silencing Duffy, but that Duffy resumed screaming when appellant grabbed her breast. At that point, appellant began choking Duffy and told her that he would allow her to breathe if she stopped screaming. However, appellant’s choking of Duffy does not necessarily negate his intent to prevent Duffy’s liberation when he threatened to cut her throat. Regardless of whether appellant believed that his threats to cut Duffy’s throat had succeeded, the evidence supports an inference that appellant intended, at that point, for such threats to effectuate a deprivation of Duffy’s liberty.

          Appellant has not demonstrated that the evidence is so weak that his kidnapping conviction is clearly wrong and manifestly unjust or that, based on the contrary evidence, the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing it in a neutral light, we hold that the evidence is factually sufficient to support appellant’s kidnapping conviction.

          We overrule appellant’s second point of error relating to the kidnapping offense.

DENIAL OF MOTION FOR MISTRIAL

          In his third point of error, as to each offense, appellant contends that the trial court abused its discretion in denying his motion for mistrial.

          1.       Standard and Scope of Review

          The standard of review for a trial court’s denial of a motion for mistrial is abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We uphold the trial court’s ruling if that ruling was within the zone of reasonable disagreement. Wead, 129 S.W.3d at 129; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on rehearing).

          Mistrial is an extreme remedy that is appropriate only when the objectionable event is so emotionally inflammatory that a curative instruction is not likely to prevent the jury from being unfairly prejudiced against the defendant. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). To determine whether a given error necessitates a mistrial, the reviewing court examines the particular facts of the case. Wead, 129 S.W.3d at 129.

          2.       No Abuse of Discretion in Denying Motion for Mistrial

          On the first day of trial, the defense filed two motions. The first was a “Theus motion,” asking the court to allow appellant to testify, free from impeachment, about his prior convictions of kidnapping in 1985, robbery in 1985, and aggravated robbery in 1990. The second was a motion in limine, requesting the court to exclude certain evidence pertaining to past crimes committed by appellant, specifically “any reference, either directly or indirectly, to the fact that the defendant has a criminal record, has been in jail/prison, or was on parole at the time of the offense.” That day, the court denied the Theus motion, finding that the probative value of the convictions outweighed any prejudicial effect. No ruling was made on the motion in limine.

          The State’s last witness, Officer Carlson, who apprehended appellant, testified as follows during the defense’s cross-examination:

          Q. [Defense counsel]: Once he surrendered, did he give you any trouble?

          A. [Officer Carlson]: No, sir, he did not.

          Q. Was he belligerent?

A. No, sir. He apologized for running. He was scared because he was on parole.

          [Defense counsel]: Well, Your Honor, I’m going to object to that.

          The Court: Sustained.

          [Defense counsel]: Ask the jury to disregard, Your Honor.

The Court: Ladies and gentlemen, disregard the last statement by the police officer.

          [Defense counsel]: Move for mistrial.

          The Court: Denied at this time.

(Emphasis added.) After the State had rested, defense counsel re-urged the motion for mistrial, citing an agreement between the defense and the prosecution. The agreement provided that no witnesses would testify about appellant’s criminal record. Defense counsel explained that he had not previously “urged” the motion in limine or obtained a ruling on it because of the agreement. The court again denied the motion for mistrial.

          Appellant argues that the testimony regarding appellant’s parole was precisely what the defense sought to have excluded in its motion in limine. However, the defense readily admitted that it neither urged nor obtained a ruling on the motion in limine. In any event, an instruction to disregard is generally sufficient to cure error when evidence of an extraneous offense is placed before the jury in violation of a motion in limine. See Barney v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985).           Appellant further contends that the instruction to disregard did not cure the harm and that the denial of the motion for mistrial was an abuse of discretion. Appellant specifically contends that the reference to appellant’s previous criminal record influenced the jury’s deliberations.

          It is an established principle that a defendant should not be tried for collateral crimes or for generally being a criminal. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). But a witness’s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). An exception exists when the testimony is clearly calculated to inflame the minds of the jury or was of such damning character as to suggest that it would be impossible to reverse the harmful impression from the juror’s minds. Id.

          From the record, Officer Carlson’s reference to appellant’s parole appears to have been inadvertent and not clearly calculated to inflame the minds of the jurors. The statement was not solicited by the prosecution, but was made during the defense’s cross-examination. The unresponsive portion of Officer Carlson’s answer did not divulge for what crimes appellant was on parole nor did the jury learn any details about the previous offenses. The trial court immediately instructed the jury to disregard the officer’s statement, and no further mention was made of appellant’s offenses to the jury. Absent any evidence to the contrary, we presume that the jury followed the instructions given by the trial judge. See Herrera v. State, 11 S.W.3d 412, 415–16 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). We hold that the trial court did not abuse its discretion in denying appellant’s motion for mistrial.

          We overrule appellant’s third point of error relating to both offenses. Conclusion

          We affirm the judgments of the trial court.

                                                   Laura Carter Higley

                                                   Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).