Coleman, Marque Jamal ( 2015 )


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  •                                                                                PD-0551-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    June 17, 2015                                              Transmitted 6/17/2015 12:41:44 PM
    Accepted 6/17/2015 12:49:25 PM
    ABEL ACOSTA
    NO. PD-0551-15
    CLERK
    IN THE COURT OF CRIMINAL APPEALS OF TEXAS
    AT AUSTIN
    NO. 14-13-00921-CR
    IN THE COURT OF APPEALS FOR THE
    FOURTEENTH DISTRICT OF TEXAS
    AT HOUSTON
    MARQUE JAMAL COLEMAN,                       APPELLANT
    V.
    THE STATE OF TEXAS,                         APPELLEE
    APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
    Danny K. Easterling
    Easterling & Easterling, P.C.
    Texas Bar No. 06362100
    1018 Preston, 6,h Floor
    Houston, TX 77002
    (713)228-4441
    E-mail:eaepc@swbell.net
    Counsel for Appellant,
    Court-appointed on appeal.
    ORAL ARGUMENT REQUESTED.
    STATEMENT REGARDING ORAL ARGUMENT
    The appellant requests oral argument because of the novelty and importance
    of the issues presented.
    LIST OF INTERESTED PARTIES
    Marque Jamal Coleman                      Appellant, Defendant in trial court
    Cheryl Irvin                              Appellant's Counsel at trial
    917 Franklin, Fourth Floor
    Houston, TX 77002
    Equator L. Turner
    440 Louisiana, Suite 900
    Houston, TX 77002
    Danny K. Easterling                       Appellant's counsel on appeal
    1018 Preston, 6th Floor
    Houston, TX 77002
    Devon Anderson                            Harris County District Attorney
    1201 Franklin, Suite 600
    Houston, TX 77002
    Stuart Ladner                              Assistant District Attorneys
    Gretchen Flader
    Melissa Hervey
    Hon. Leslie Brock Yates                    Visiting Judge, 174th District Court
    Harris County, Texas
    TABLE OF CONTENTS
    Statement Regarding Oral Argument                                                  i
    List of Authorities                                                            iv
    Statement of the Case                                                          1
    Statement of Procedural History                                                2
    Questions Presented                                                            2
    1. Did the Court of Appeals err in holding that the appellant was not
    entitled to the submission of a jury instruction on Theft from Person
    as a lesser included offense because evidence did not directly
    address the appellant's state of mind?
    2. Did the Court of Appeals' err in holding that an instruction to
    disregard evidence sufficiently cured guilt-stage testimony indicating
    that Coleman had some connection with a gang?
    Argument                                                                       3
    Reasons for Review of Question One                                       3
    A.       The Applicable Law                                       3
    B.       The Scintilla - or More - of Evidence                    5
    C.       The Court of Appeals'Narrow View of the Standard         5
    Reasons for Review of Question Two                                       9
    A.       The Applicable Law                                       9
    B.       The Improper Revelation                                  11
    C.       The Inadequacy of an Instruction                         12
    Prayer for Relief                                             15
    Certificate of Compliance                                     15
    Certi ficate of Service                                       16
    Appendix: Court of Appeals' Memorandum Opinion and Judgment
    in
    LIST OF AUTHORITIES
    Cases                                                                      Page
    Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974)                          14
    Anderson v. State, 
    901 S.W.2d 946
    (Tex. Crim. App. 1995)                      11
    Barclay v. Florida, 463 U.S. 939,103 S.Ct. 3418,77 L.Ed.2d 1134 (1983)       10
    Dawson v. Delaware, 
    503 U.S. 159
    , 
    112 S. Ct. 1093
    , 
    117 L. Ed. 2d 309
    (1992)      10
    Earls v. State, 
    707 S.W.2d 82
    (Tex. Crim. App. 1986)                           4
    Fuller v. State, 
    829 S.W.2d 191
    (Tex. Crim. App. 1992)                     10-11
    Hall v. State, 
    225 S.W.3d 524
    (Tex. Crim. App. 2007)                     3-4, 10
    McKay v. State, 
    707 S.W.2d 23
    (Tex. Crim. App. 1985)                       11-12
    Nguyen v. State, No. 14-11-00706-CR, 
    2012 WL 3043063
    , at *3
    (Tex. App.-Houston [14th Dist.] July 26, 2012, pet.ref d)                 9
    Schweinle v. State, 
    915 S.W.2d 17
    (Tex. Crim. App. 1996)                       4
    UnitedStates v. Lemon, 
    723 F.2d 922
    (D.C. Cir. 1983)                          11
    Wesbrook v. State, 
    29 S.W.3d 103
    (Tex. Crim. App. 2000)                       12
    Constitutional Provisions. Statutes, and Rules
    TEX. CODE CRIM. PROC. Art. 37.09                                               3
    TEX. CONST. Art. I, § 10                                                     8-9
    TEX. PENAL CODE §6.03©                                                         7
    TEX. PENAL CODE §6.03(d)                                                       7
    iv
    TEX. PENAL CODE §29.02(a)( 1)       5
    TEX. PENAL CODE §31.03(e)(4)(B)    4
    TEX. R. APP. PROC. 66.3(b)        6-7
    U.S. CONST. Amend. V              8-9
    TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
    COMES NOW the appellant, Marque Jamal Coleman (hereinafter "Coleman"),
    through the undersigned court-appointed counsel on appeal, and respectfully
    requests that this Court grant discretionary review of the decision in this cause by
    the Court of Appeals for the Fourteenth District of Texas, for reasons set forth as
    follows.
    STATEMENT OF THE CASE
    Coleman was indicted for Robbery in Cause Number 1347307 in the 174th
    District Court of Harris County, Texas (CR-9).l A jury found Coleman guilty as
    charged (CR-607). At the punishment stage Coleman stated that two enhancement
    allegations relating to prior felony convictions were true (RR V-5). Coleman also
    stipulated that he had other prior convictions for diverse offenses (RR VIII, Exh.
    1). The visiting trial judge, Hon. Leslie Brock Yates, assessed punishment at
    confinement for thirty years in the Texas Department of Criminal Justice,
    Correctional Institutions Division (CR-609). Coleman gave timely notice of appeal
    (CR-614).
    On appeal Coleman presented two points of error. First he argued that the
    trial court judge should have instructed the jury on Theft from Person as a lesser
    included offense for the charged offense of Robbery. Coleman also argued that a
    1 The clerk's record containing court documents is designated by "CR" herein. The reporter's record is designated
    by "RR." with Roman numerals for volume numbers. The Court of Appeals' memorandum opinion is designated by
    "Mem. Opin."
    detective interjected error into the proceedings when she revealed that a photo of
    Coleman was taken from a "gang tracker database." The Court of Appeals
    overruled both points of error and affirmed the judgment and sentence in a
    memorandum opinion.
    STATEMENT OF PROCEDURAL HISTORY
    The Court of Appeals rendered its decision and delivered its memorandum
    opinion on April 16, 2015.       No motion for rehearing was filed. This Court
    extended the time for filing a petition for discretionary review until June 17, 2015.
    QUESTIONS PRESENTED
    This petition presents two questions for review:
    1. Did the Court of Appeals err in holding that the appellant was not
    entitled to the submission of a jury instruction on Theft from Person
    as a lesser included offense because evidence did not directly
    address the appellant's state of mind?
    2. Did the Court of Appeals' err in holding that an instruction to
    disregard evidence sufficiently cured guilt-stage testimony indicating
    that Coleman had some connection with a gang?
    ARGUMENT
    REASONS FOR REVIEW OF QUESTION ONE
    Did the Court of Appeals err in holding that the appellant was not
    entitled to the submission of a jury instruction on Theft from
    Person as a lesser included offense because evidence did not
    directly address the appellant's state of mind?
    A. The Applicable Law
    Hall v. State, 
    225 S.W.3d 524
    (Tex. Crim. App. 2007), observed that TEX.
    CODE CRIM. PROC. Art. 37.09 sets forth the ways in which an offense may
    constitute a lesser included offense of the offense charged in the indictment. An
    offense is a lesser included offense if:
    (1) It is established by proof of the same or less than all the facts
    required to establish the commission of the offense charged;
    (2) It differs from the offense charged only in the respect that a less
    serious injury or risk of injury to the same person, property, or public
    interest suffices to establish its commission;
    (3) It differs from the offense charged only in the respect that a less
    culpable mental state suffices to establish its commission; or
    (4) It consists of an attempt to commit the offense charged or an
    otherwise included offense.
    Under Hall, supra at 531, "when the greater offense may be committed in more
    than one manner, the manner alleged will determine the availability of lesser-
    included offenses. In this cause, for example, the indictment alleged that Coleman
    caused bodily injury, rather than threatening it, so the analysis must focus on what
    lesser offenses might apply to that form of Robbery.
    Hall specifically held that the determination as to whether a charged offense
    includes another particular offense as a lesser included offense, under the first
    alternative in Article 37.09, "should be made by comparing the elements of the
    greater offense, as the State pled it in the indictment, with the elements in the
    statute that defines the lesser offense." 
    Id., at 525.
    The controlling test is whether
    "the elements of the lesser offense are established by proof of the same or less than
    all the facts required to establish the commission of the charged offense." 
    Id., at 536.
      In this cause the State conceded - and the Court of Appeals held (Mem.
    Opin., p. 4) - that the offense of Theft from Person, under TEX. PENAL CODE
    §31.03(e)(4)(B), can be a lesser included offense of Robbery. This Court had so
    held in Earls v. State, 
    707 S.W.2d 82
    (Tex. Crim. App. 1986).
    That statute-based determination is the first step in a two-step analysis. The
    second step is to determine whether or not a lesser included offense has been raised
    in a particular case. The test for this second step is whether there is "some evidence
    which would permit a rational jury to find that if guilty, the defendant is guilty
    only ofthe lesser offense." Schweinle v. State, 
    915 S.W.2d 17
    (Tex. Crim. App.
    1996). "Anything more than a scintilla ofevidence from any source is sufficient to
    entitle a defendant to submission of the issue." 
    Id. The Court
    of Appeals held that
    this prong of the test was not met and therefore overruled the point of error.
    B. The Scintilla - or More - of Evidence
    Hortensia Garza testified that she was returning home from work at around 2
    a.m. on April 28 2012 (RR III- 13-14). Garza had parked her car at her apartment
    complex and was walking toward her apartment. As she got close to her apartment
    a man appeared, about only two feet from her (RR 111-23). She thought he was a
    resident and smiled at him but did not say anything (RR 111-23). As the man
    walked past, he tried to grab a backpack that Garza was carrying over her left
    shoulder (RR 111-26). Garza "fought" to keep the backpack for about 30 seconds
    until the man "shoved" Garza in the face with the palm of his hand (RR 111-28).
    That knocked Garza down, and the man ran off with the backpack. As a result of
    falling to the ground, Garza hit her head, but she did not claim any injury from that
    (RR 111-29). Garza broke a finger as she landed on the ground (RR 111-29-30).
    Garza identified the appellant in court as the man who assaulted her (RR 111-30).
    C. The Court of Appeals' Narrow View of the Standard
    Coleman argued in the Court of Appeals that there was some evidence that he
    shoved Garza without having the mens rea required for Robbery under TEX.
    PENAL CODE §29.02(a)(l), i.e./'intentionally, knowingly, or recklessly" causing
    bodily injury. Coleman argued that his goal was to steal, not to hurt Garza. There
    was at least some indication that Garza fell, and thereby broke her finger, because
    of her size and weight. Garza said "I am short, but I got some weight on me. In
    order to knock me down, you have to push me hard."
    Another indication that Coleman only intended to make a quick grab and run
    off to the escape vehicle with his plunder was his method of walking past and
    catching Garza off guard. Coleman pushed Garza instead of using the kind of
    fighting blows like punching, kicking, etc., which would be more consistent with
    an intent to actually injure someone. The act of pushing may indicate a mere desire
    to create distance between the assailant and the victim, thus preventing hand-to-
    hand resistance and giving the assailant a head start in any ensuing chase.
    The Court of Appeals nevertheless declined to consider testimony about the
    physical contact and how it led to a broken finger as evidence which might go to
    the question of mens rea, stating:
    Garza's testimony only speaks to causation, not Coleman's mental
    state as to whether he intended to cause Garza bodily injury.
    (Mem. Opin., pp. 6-7). But did the testimony only have relevance to causation?
    This Court is presented with an important but unsettled legal question: May
    the "scintilla" of evidence to show a lesser culpable mental state, and thus justify a
    jury instruction, consist of indirect or circumstantial evidence regarding actions
    and consequences? By effectively holding that it may not, the Court of Appeals is
    giving too narrow a reading to the second prong of the test for entitlement to an
    instruction. This is an issue worthy of this Court's examination under TEX. R.
    APP. PROC. 66.3(b).
    Consider the difference between "recklessness" (which is the lowest of the
    three levels of mens rea for Robbery under the "causes injury" prong of the statute)
    and "criminal negligence." TEX. PENAL CODE §6.03(c) provides:
    A person acts recklessly, or is reckless, with respect to circumstances
    surrounding his conduct or the result of his conduct when he is aware
    of but consciously disregards a substantial and unjustifiable risk that
    the circumstances exist or the result will occur. The risk must be of
    such a nature and degree that its disregard constitutes a gross
    deviation from the standard of care that an ordinary person would
    exercise under all the circumstances as viewed from the actor's
    standpoint.
    In the context of a Robbery prosecution based on "causing" injury, the recklessness
    would apply to the result of conduct, i.e. causing the particular injury suffered by
    the complainant. Criminal negligence, under TEX. PENAL CODE §6.03(d), is
    distinguishable in that the actor need not actually be "aware" of the risk. It is
    applicable when a reasonable person ought to be aware of the risk.
    An actor's state of mind often is suggested by his specific actions and/or by
    the circumstances of an encounter. The State has advanced that proposition in
    thousands ofjury arguments over the years, and that logic is well embedded in case
    law too. Should not the same principle apply when the issue is whether another
    offense may be indicated? In this cause Coleman's actions do not indicate that he
    actually was aware that his "push and grab" theft technique was designed to cause
    injury. Nor does the evidence indicate that the risk that Garza could break her
    finger by falling was a "substantial" one in a "push and grab" theft.
    Thus some of the evidence pointed more towards criminal negligence than it
    pointed towards recklessness with respect to physical injury. That should be
    enough to justify a lesser included offense instruction, for the only way to raise the
    question of a lesser mens rea and actually rule out a greater mens rea would be for
    the defendant to testify. Surely the second prong of the test should not be pushed to
    the point where it virtually requires a defendant to testify, since that would
    undermine constitutional rights under U.S. CONST. Amend. V and TEX. CONST.
    Art. I, §10.
    Coleman realizes that it could be argued that, if the mens rea of recklessness
    is doubtful, the trial court should simply instruct that reasonable doubt on the mens
    rea requires acquittal. In practice, however, it is likely that a jury will not
    completely acquit a defendant who is shown to have committed at least a state jail
    felony offense. Furthermore, for defense counsel to have to argue for a complete
    acquittal, based on a lack of clarity as to whether a defendant was reckless or only
    criminally negligent, would itself be perilous to the Fifth Amendment privilege
    (and the similar privilege under Article I, Section 10), for the jury would know that
    only one person could give testimony making such a fine distinction.
    In fact, a case cited by the Court of Appeals suggests that even abandoning
    constitutional protections might be to no avail in obtaining an instruction on the
    theory of a lesser offense. A memorandum opinion, Nguyen v. State, No. 14-11-
    00706-CR, 
    2012 WL 3043063
    , at *3 (Tex. App.-Houston [14th Dist.] July 26,
    2012, pet.refd) was cited as "holding that [the] defendant was not entitled to a
    lesser included offense instruction because the evidence showed that he acted
    intentionally, despite claiming that 'he never intended to harm the complainant.'"
    Finally, there is room here even for a more fundamental consideration of
    whether the "guilty only" element of the standard needs to be reconsidered, or at
    least not applied to charge requests centered on mens rea. In the long run that
    would simplify the law, aid jury deliberations, and avoid some appellate litigation,
    all at the relatively small cost of adding a page to some jury charges. Whatever the
    right solution is, the first step is to grant discretionary review.
    REASONS FOR REVIEW OF QUESTION TWO
    Did the Court of Appeals err in holding that an instruction to
    disregard evidence sufficiently cured guilt-stage testimony
    indicating that Coleman had some connection with a gang?
    A. Applicable Law
    It is a cardinal principle of criminal law that a felony defendant should be
    tried for the offense charged in the indictment. Hall, supra at 532 called this
    principle an "ancient doctrine of both the common law and of our Constitution."
    One way in which this doctrine can be breached is through evidence which
    improperly reveals other criminal conduct or suggests the bad character of the
    defendant at the guilt stage of trial. One type of such evidence is testimony which
    links a defendant to organized criminal activity or to a group identified as a "gang"
    by the police.
    In Dawson v. Delaware, 
    503 U.S. 159
    , 
    112 S. Ct. 1093
    , 
    117 L. Ed. 2d 309
    (1992), the Supreme Court held that evidence showing that Dawson was a member
    of a prison gang affiliated with the Aryan Brotherhood was not relevant to
    sentencing, Dawson distinguished cases such as Barclay v. Florida, 463 U.S.
    939,103 S.Ct.3418,77 L.Ed.2d 1134 (1983), where the crime was a racially-
    motivated murder. In the wake of Dawson, this Court has approved of introducing
    gang-affiliation evidence in some cases. In Fuller v. State, 
    829 S.W.2d 191
    (Tex.
    10
    Crim. App. 1992), the Court appeared to approve a three-part relevancy test for
    admission of such evidence, derived from United States v. Lemon, 
    723 F.2d 922
    ,941 (D.C. Cir. 1983), although Fuller is a little murky in that respect because
    the issue in Fuller ultimately was decided on the basis of procedural default.
    Under the Lemon test, evidence of group affiliation is not to be admitted at the
    punishment stage unless it establishes that (1) the defendant is a member of the
    group, (2) the group's aims are illegal, and (3) the defendant intended to further
    those illegal aims. 
    Fuller, supra
    ; 
    Lemon, supra
    . See also Anderson v. State, 
    901 S.W.2d 946
    (Tex. Crim. App. 1995). It has never been suggested by this Court that
    proof of the Lemon factors would be sufficient to justify admission of gang
    affiliation evidence at the guilt stage of trial.
    As with other evidence, a witness could step over the line and introduce the
    fact of gang affiliation. As with other improper, an objection is required, and if it
    is sustained, then the trial court judge should be requested to give an instruction
    that the jury must disregard the improper testimony. Once that is done, the question
    becomes whether a requested mistrial also should be granted. That issue is the basis for
    this point of error.
    The Court of Appeals accurately summarized the general rule in this area, stating:
    Generally, any error resulting from improper testimony is cured by an
    instruction to disregard the same except in extreme cases where it
    appears that the evidence is clearly calculated to inflame the minds of
    11
    the jury and is of such a character as to suggest the impossibility of
    withdrawing the impression produced on their minds. McKay v. State,
    
    707 S.W.2d 23
    , 36 (Tex. Crim. App. 1985). In most instances, an
    instruction to disregard the remark will cure the error. Wesbrook v.
    State, 
    29 S.W.3d 103
    , 115 (Tex. Crim. App. 2000). "Only offensive or
    flagrant error warrants reversal when there has been an instruction to
    disregard ... ." 
    Id. at 116.
    The question is whether that general rule should apply.
    B. The Improper Revelation
    Coleman was tracked down through information about a vehicle which was used in
    his escape. Houston Police Detective S. Spivey testified that a photo of Coleman's
    picture was in a "gang tracker" database used by the Houston Police (RR IV-31-32).
    Spivey mentioned discovering "all the evidence"in that review, but, as the Court of
    Appeals observed, without explaining what that meant (Mem. Opin., p. 8).
    Defense counsel promptly objected. The objection was sustained, and a
    perfunctory instruction to ignore the evidence was given, but the request by
    Coleman's counsel for a mistrial was denied (RR IV- 34-35).
    C. The Inadequacy of an Instruction
    It is useful to begin by recognizing the obvious: Anyone on the jury would infer
    that Coleman's picture was in that police database because the police had some reason
    to think that Coleman was a member of a criminal gang or otherwise was affiliated
    with a gang.     Spivey's vagueness about the "evidence" derived from the "gang
    tracker" hardly mattered.
    12
    The Court of Appeals held that the instruction adequately cured the harm. The
    Court of Appeals "presume[d] that the jury followed the trial court's instruction to
    disregard." Should that presumption apply, however, when the concept of "guilt
    by association" is implied? That concept is inimical to one of the most basic tenets
    of the law, as discussed in Part 
    A, supra
    . The Court of Appeals cited a pair of
    intermediate appellate opinions finding no harm in a witness' allusion to a gang,
    but no petitions for discretionary review were filed in those cases (Mem. Opin., pp.
    9-10). The very fact that this problem continues to arise, in diverse courts around
    the State, suggests that it is time for this Court to provide guidance. The mere
    spectre of a mistrial or reversal does not seem to be an effective deterrent.
    The Court of Appeals noted that the officer's testimony "was immediately
    cut off by the defense counsel" (Mem. Opin., p. 9). After that, it was not mentioned
    again. 
    Id. Thank goodness
    for that, but the sound of one firecracker can be loud
    enough. The Court of Appeals also pointed out that "Officer Spivey did not
    provide any detail as to which gang Coleman was affiliated with nor did she
    expand on any information surrounding the gang tracker database" (Mem. Opin., p.
    9). It is impossible to know, however, if the lack of clarification helped or hurt,
    once the horse was out of the barn. Say "Gang" and most people will think of the
    Cosa Nostra, the Crips or Bloods, MS-13, or the kind of motorcycle gangs which
    were involved in the recent Waco incident. The only thing the jurors would know
    13
    for sure was that this "gang," whatever its size, principles, or activities, was
    involved in enough bad things to justify being monitored by the police. The Court
    of Appeals said that Spivey's particular statement was not "flagrant" or
    "offensive," but that misses the point: criminal gangs are inherently offensive to
    jurors, and the risk of tainting the guilt-stage deliberations is genuine and
    substantial.
    It is true that there have been many cases, spanning decades, which have relied
    upon the adequacy of a curative instruction when extraneous misconduct is dredged
    up by a witness. See Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974) and cases
    cited therein. In most of those cases, however, the evidence concerned a defendant's own
    conduct or reputation, and the nature of the extraneous misconduct was clear enough that
    a jury would not be invited to speculate about "what else" a defendant might have done.
    Once evidence of gang affiliation appears, however, the jurors' imaginations can run
    wild. It may well be futile, or even counterproductive, to tell jurors to "pay no attention
    to that gang of men behind the curtain."
    14
    PRAYER FOR RELIEF
    Wherefore Coleman prays that discretionary review be granted as to both
    questions.
    Respectfully submitted,
    /s/ Danny K. Easterling
    Danny K. Easterling
    Easterling & Easterling, PC
    Texas Bar No. 06362100
    1018 Preston, 6lh Floor
    Houston, TX 77002
    (713)228-4441
    E-mail: eaepc@swbell.net
    Counsel for Appellant,
    Court-appointed on appeal.
    CERTIFICATE OF COMPLIANCE
    I certify that this petition was prepared using Wordperfect with fourteen-
    point font, and twelve-point font for footnotes, in Times New Roman typeface.
    Omitting the portions not included for the word limit, this petition contains 3100
    words.
    /s/ Danny K. Easterling
    Danny K. Easterling
    15
    CERTIFICATE OF SERVICE
    I certify that a copy of this petition has been served on counsel for the State
    at the following addresses on this the 17th day of June, 2015:
    Harris County District Attorney's Office       Lisa McMinn
    Appellate Division                             State Prosecuting Attorney
    Attention: Melissa Hervey                      P.O. Box 12405
    1201 Franklin, Suite 600                       Austin, TX 78711
    Houston, TX 77002
    /s/ Danny K. Easterling
    Danny K. Easterling
    16
    Affirmed and Memorandum Opinion filed April 16, 2015.
    In The
    JffnurteEntJj (Enurt of Appeals
    NO. 14-13-00921-CR
    MARQUE JAMAL COLEMAN, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 174th District Court
    Harris County, Texas
    Trial Court Cause No. 1347307
    MEMORANDUM                     OPINION
    Following a jury trial, appellant Marque Jamal Coleman was found guilty of
    the second degree felony offense of robbery. Coleman pleaded true to two
    enhancements and the trial court assessed punishment at thirty years'
    imprisonment. In this appeal, Coleman contends that the trial court erred in not
    submitting the lesser included offense of theft from a person in the jury charge and
    by not granting a mistrial after a police officer stated that Coleman's photo was
    taken from a "gang tracker" database. We affirm.
    Background
    On April 28, 2012, at approximately 1:45 a.m., Hortensia Garza was leaving
    HEB where she worked as a night stocker. Garza arrived home to her apartment
    complex located at 9550 Long Point Road, Houston, Texas. Garza parked her car,
    grabbed her items, and began walking toward her apartment. When Garza was
    about five feet away from her apartment, she saw a man walking in her direction.
    Garza believed that the man was a resident of the apartment complex so she smiled
    at him. As the man passed by Garza's left side, he grabbed her backpack from her
    shoulder. Garza and the man fought over the backpack for approximately thirty
    seconds until the man shoved Garza in the face with the palm of his hand. Garza
    fell to the ground, hit her head, and broke her finger. The man grabbed the
    backpack, ran, and jumped into a vehicle. Garza's backpack contained her wallet,
    driver's license, debit card, flex-pay card, and headphones.
    Garza screamed throughout the duration of the struggle and a security guard
    appeared. By the time the security guard arrived, the man had taken off in the
    vehicle. Garza saw the vehicle attempt to exit the apartment complex, but the gate
    was locked. Officer Brian Foley arrived at the scene at 2:11 a.m. and interviewed
    Garza and the security guard. Garza described the man as a black male, between
    the ages of twenty and twenty-five, with a short black afro. Garza also stated that
    the man was wearing a black shirt and red shorts. A green GMC Yukon was
    discovered at another area of the apartment complex. The Yukon had crashed into
    a corner apartment and had been abandoned. The Yukon was towed to the police
    storage lot.
    On April 30, 2012, the case was assigned to Officer Spivey. Officer Spivey
    ran the license plate from the Yukon discovered at the scene and found that it was
    2
    registered to Almador Juanes. At the time, Juanes was already contacting the
    police in order to obtain his vehicle from the tow lot. Officer Spivey spoke to
    Juanes and learned that on the night of the incident, Juanes loaned his vehicle to
    his friend, Blanca Diaz. Based on this conversation, Officer Spivey also discovered
    that a man named "Que" was with Diaz when Juanes loaned her the vehicle.
    Officer Spivey then ran a check on Diaz to see who she was associated with or
    whether she had a boyfriend and found Coleman's name.
    Officer Spivey developed a photo spread, using Coleman's photo from a
    database along with five other black males' photos. Officer Spivey contacted
    Garza and drove to her family member's home, where she was residing at the time.
    When Officer Spivey showed Garza the photo spread, she said "that is him" within
    seconds and became very emotional. Garza selected Coleman's photo from the
    spread and identified him as the man who robbed her. Garza became upset and
    repeatedly told Officer Spivey "that is him." At trial, Garza testified that when
    Coleman was two feet away from her, she clearly saw his face. Garza stated that
    when she identified Coleman from the photo spread, she was 100 percent sure it
    was him and that there was no doubt in her mind. Garza further testified that it was
    easy to identify him.
    Officer Spivey showed the same photo spread to Juanes, who identified
    Coleman as the man he knew as "Que." Juanes also identified Coleman as the
    person he saw in the passenger side of his vehicle with Diaz the night he loaned his
    Yukon to her.
    On May 17, 2012, Coleman was indicted for the second degree felony
    offense of robbery, enhanced by two prior felony convictions. Tex. Penal Code §
    29.02(a)(1); 
    Id. § 29.02(b).
    The jury found Coleman guilty as charged in the
    indictment. At the punishment stage, Coleman pleaded true to both of the State's
    punishment enhancement allegations. On September 25, 2013, the trial court found
    the enhancement allegations to be true and sentenced Coleman to thirty years'
    imprisonment. Coleman filed a motion for new trial on October 11, 2013, which
    was overruled by operation of law.
    Issues and Analysis
    On appeal, Coleman contends that the trial court erred in refusing his
    requested jury instruction on the lesser included offense of theft from a person.
    Coleman also asserts that the trial court erred in denying his motion for mistrial
    when Officer Spivey testified that she retrieved Coleman's photo from a gang
    tracker database.
    I.     Lesser Included Offense
    In his first issue, Coleman argues that the trial court erred in failing to charge
    the jury on the lesser included offense of theft from a person.
    We apply a two-prong test when determining whether a defendant is entitled
    to an instruction on a lesser included offense. State v. Meru, 
    414 S.W.3d 159
    , 162
    (Tex. Crim. App. 2013); see also Rousseau v. State, 
    855 S.W.2d 666
    , 672-73
    (Tex. Crim. App. 1993); Royster v. State, 
    622 S.W.2d 442
    , 446 (Tex. Crim. App.
    1981) (op. on reh'g). We first consider whether the offense contained in the
    requested instruction is a lesser included offense of the charged offense. Goad v.
    State, 
    354 S.W.3d 443
    , 446 (Tex. Crim. App. 2011). If so, we must decide whether
    the admitted evidence supports the instruction. 
    Id. The State
    concedes that in this case, theft from a person can be a lesser
    included offense of robbery. See Earls v. State, 
    707 S.W.2d 82
    , 84-85 (Tex. Crim.
    App. 1986) ("Theft, by whatever method committed, is necessarily included in the
    alleged elements of the greater offense of robbery, when, as in the instant case, the
    indictment alleged 'in the course of committing theft.'"). Thus, we need only
    address the second prong in our analysis to determine whether the admitted
    evidence supports the instruction.
    The evidence supports an instruction on a lesser included offense if it
    permits a rational jury to find the defendant guilty only of the lesser included
    offense. 
    Goad, 354 S.W.3d at 446
    . There must be some evidence directly germane
    to the lesser included offense for the factfinder to consider before an instruction on
    the lesser included offense is warranted. 
    Id. We review
    all of the evidence
    presented at trial in making this determination. 
    Id. The evidence
    must establish that
    the lesser included offense is a valid, rational alternative to the charged offense.
    See Segundo v. State, 
    270 S.W.3d 79
    , 91 (Tex. Crim. App. 2008). Anything more
    than a scintilla of evidence is sufficient to entitle a defendant to the lesser included
    offense instruction.' See 
    Goad, 354 S.W.3d at 446
    . In making this determination,
    we may not consider "[t]he credibility of the evidence and whether it conflicts with
    other evidence or is controverted." 
    Id. at 446-47
    (quoting Banda v. State, 
    890 S.W.2d 42
    , 60 (Tex. Crim. App. 1994)).
    The offense of robbery requires proof that a defendant intentionally,
    knowingly, or recklessly caused bodily injury to another. Tex. Penal Code §
    29.02(a)(1). The offense of theft from a person does not require proof of this
    element. See Tex. Penal Code § 31.03(a) (providing that a person commits theft "if
    he unlawfully appropriates property with intent to deprive the owner of property").
    1 The test for determining whether evidence is legally sufficient and the test for
    determining whether to submit a lesser included offense jury instruction are "quite different."
    Dixon v. State, 
    358 S.W.3d 250
    , 257 (Tex. App.—Houston [1st Dist.] 2011, pet. refd) (quoting
    Wasylina v. State, 
    275 S.W.3d 908
    , 909 (Tex. Crim. App. 2009)). The evidence could easily be
    legally sufficient to support a conviction for a lesser included offense but not justify the
    submission of a lesser included offense instruction because the evidence does not show that the
    defendant is guilty only of the lesser included offense. 
    Id. at 258.
    To be entitled to a reversal, Coleman must show some evidence in the record that
    would have permitted a rational jury in his case to find that he was guilty only of
    theft from a person.
    Coleman argues that he was entitled to a jury instruction on the lesser
    included offense of theft from a person because there was some evidence in the
    record that he shoved Garza in the face without "intentionally, knowingly, or
    recklessly" causing her bodily injury. See Tex. Penal Code § 29.02(a)(1).
    Specifically, Coleman argues that there is evidence in the record that (1) Garza fell
    because of her size and weight; (2) he intended it to be a quick theft; and (3) he
    pushed her instead of using a fighting tactic.
    The evidence of how the offense occurred came from the testimony of
    Garza, who testified that Coleman shoved her face with his palm in an attempt to
    steal the backpack when they were struggling over it. Garza testified that the shove
    caused her to fall to the ground, where Garza fell on her head and broke her finger.
    Coleman directs this court to Garza's testimony in which she "attributed the
    result of falling to the ground to the fact she was short and had 'some weight on
    me.'" Coleman alleges that he did not intend to break Garza's finger or force her to
    fall because her testimony reflected that she fell because of her height and weight,
    rather than his forceful shove. However, there is no evidence that Garza attributed
    her fall to anything other than Coleman shoving her backwards. At trial Garza
    actually stated, "I am short, but I got some weight on me. In order to knock me
    down, you have to push me hard." Garza's testimony reflected that she fell to the
    ground and broke her finger because Coleman shoved her in the face with his palm
    in order to retrieve the backpack. Garza's testimony only speaks to causation, not
    Coleman's mental state as to whether he intended to cause Garza bodily injury.
    Coleman further asserts that he did not intend to cause Garza bodily injury
    because he intended for it to be a quick theft which was evidenced by how quickly
    he fled the scene on foot. Coleman also argues that he did not act with the requisite
    mens rea because he pushed her in the face, instead of using a "'piledriver' blow or
    a leg-tipping maneuver, such as a fighting tactic."
    Coleman's evidence does not provide any evidence that would permit a
    rational jury to believe he committed the robbery without intentionally, knowingly,
    or recklessly causing Garza bodily injury. See Nguyen v. State, No. 14-11-00706-
    CR, 
    2012 WL 3043063
    , at *3 (Tex. App.—Houston [14th Dist.] July 26, 2012, pet.
    refd) (mem. op.) (not designated for publication) (holding that defendant was not
    entitled to a lesser included offense instruction because the evidence showed that
    he acted intentionally, despite claiming that "he never intended to harm the
    complainant"). Therefore, the evidence does not support the conclusion that if
    Coleman is guilty, he is guilty of only theft from a person.
    Because there is no evidence in the record that would permit a jury rationally
    to find that if he is guilty, he is guilty only of the lesser included offense of theft
    from a person, the trial court did not err in denying Coleman's requested lesser
    included offense instruction.
    We overrule Coleman's first issue regarding the lesser included offense.
    II.     Motion for Mistrial
    In his second issue, Coleman contends that the trial court erred in denying
    his motion for mistrial after Officer Spivey stated that Coleman's photo was taken
    2 Coleman does not dispute causation and admits that "[i]f the only question was
    causation, then it fairly could be said the Coleman's action caused the broken finger, which is a
    'bodily injury."'
    from a gang tracker database.
    While on redirect, the prosecutor asked Officer Spivey what evidence, other
    than the witness's identification, she used in order to make a final determination. In
    response, Officer Spivey stated, "[w]hen I found Que on the gang tractor [sic]
    system and it came back to Marque Coleman and such, just all the evidence." The
    defense counsel immediately objected to the comment and approached the bench.
    Outside the presence of the jury, defense counsel again objected. She asked the
    court to strike Officer Spivey's testimony, requested a jury instruction, and moved
    for a mistrial. The court sustained the objection, but denied the motion for a
    mistrial. When the jury was brought back into the courtroom, the judge
    immediately stated "[t]he jury is instructed to disregard that portion of the last
    answer."
    The denial of a motion for mistrial is reviewed for abuse of discretion.
    Trevino v. State, 
    991 S.W.2d 849
    , 851 (Tex. Crim. App. 1999). We view the
    evidence in the light most favorable to the trial court's ruling, considering only
    those arguments before the court at the time of the ruling. Ocon v. State, 
    284 S.W.3d 880
    , 884 (Tex. Crim. App. 2009). A trial court does not abuse its discretion
    when its decision is within the zone of reasonable disagreement. See id.;
    Montgomery v. State, 810 S.W.2d 372,391 (Tex. Crim. App. 1991) (op. on reh'g).
    A mistrial is an appropriate remedy in "extreme circumstances" for a narrow
    class of highly prejudicial and incurable errors. 
    Ocon, 284 S.W.3d at 884
    . A
    mistrial halts trial proceedings when the error is so prejudicial that expenditure of
    further time and expense would be wasteful and futile. 
    Id. Whether an
    error
    requires a mistrial must be determined by the particular facts of the case. 
    Id. Generally, any
    error resulting from improper testimony is cured by an
    instruction to disregard the same except in extreme cases where it appears that the
    8
    evidence is clearly calculated to inflame the minds of the jury and is of such a
    character as to suggest the impossibility of withdrawing the impression produced
    on their minds. McKay v. State, 
    707 S.W.2d 23
    , 36 (Tex. Crim. App. 1985). In
    most instances, an instruction to disregard the remark will cure the error. Wesbrook
    v. State, 
    29 S.W.3d 103
    , 115 (Tex. Crim. App. 2000). "Only offensive or flagrant
    error warrants reversal when there has been an instruction to disregard ...." 
    Id. at 116.
    After Officer Spivey mentioned that Coleman's photo was taken from a
    gang tracker database, defense counsel immediately objected and asked to
    approach. The jury was removed from the courtroom and upon returning, the trial
    court sustained defense counsel's objection and promptly instructed the jury to
    disregard the remark. We presume that the jury followed the trial court's
    instruction to disregard. 
    Id. Although Officer
    Spivey mentioned that the photo was
    taken from a gang tracker database, her testimony was immediately cut off by the
    defense counsel. Officer Spivey did not provide any detail as to which gang
    Coleman was affiliated with nor did she expand on any information surrounding
    the gang tracker database. After Officer Spivey's testimony, the gang tracker
    database was never mentioned again at trial.
    We cannot say that Officer Spivey's statement was so offensive or flagrant
    as to warrant the drastic remedy of a mistrial. Further, the comment was not so
    offensive or flagrant that the trial court's instruction to the jury to disregard the
    statement was insufficient to cure any error. See Bridgewater v. State, 
    905 S.W.2d 349
    , 354 (Tex. App.—Fort Worth 1995, no pet.) (holding that any possible error
    from witness' statement of "[h]e's already said that I can't say the thing about
    gangs" was cured by trial court's instruction to disregard); Villarreal v. State, 
    821 S.W.2d 682
    , 686 (Tex. App.—San Antonio 1991, no pet.) (stating that the
    prosecutor's mentioning of defendant being in a gang during the guilt/innocence
    phase of trial was cured by the court's instruction to disregard the statement). The
    trial court did not abuse its discretion in denying Coleman's motion for a mistrial.
    We overrule Coleman's second issue regarding the motion for mistrial.
    Conclusion
    We overrule both of Coleman's issues and affirm the judgment of the trial
    court.
    /s/        Ken Wise
    Justice
    Panel consists of Justices McCally, Brown, and Wise.
    Do Not Publish — Tex. R. App. P. 47.2(b).
    10
    April 16, 2015
    JUDGMENT
    QUje Jfloisrteentff Court af Appeals
    MARQUE JAMAL COLEMAN, Appellant
    NO. 14-13-00921-CR                         V.
    THE STATE OF TEXAS, Appellee
    This cause was heard on the transcript of the record of the court below.
    Having considered the record, this Court holds that there was no error in the
    judgment. The Court orders the judgment AFFIRMED.
    We further order this decision certified below for observance.