Larry W. Mishler v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00055-CR
LARRY W. MISHLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Larry W. Mishler appeals his conviction for assault—bodily
injury. In one point, Mishler argues that the trial court erred by denying his
request that a limiting instruction be included in the guilt-innocence-stage jury
charge. We will affirm.
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See Tex. R. App. P. 47.4.
II. BACKGROUND
According to the testimony of Damon Bullock, in the late evening of May 6,
2010, Mishler and his wife, June, arrived at a bar that they owned. Bullock, the
bartender and Mishler’s employee, stated that Mishler and June had arrived with
their friend, Chris Currier, and that all three of them were intoxicated. As the
evening turned into the early morning of May 7, Bullock averred that Mishler had
knocked a handful of receipts out of his hand, had started shoving him, and that
then Bullock and Mishler had gotten into a physical altercation. After announcing
that she was going to get her gun, June left the bar area, returned to the bar with
her gun, and fired a shot. By Bullock’s account, Currier caught the act of June
shooting her gun on his cell phone and announced that he had done so.
Bullock testified that as Currier began to leave, Mishler demanded Currier
hand over his cell phone and then Mishler ―started hitting [Currier] in the back of
the head.‖ Even though this case involves Mishler’s altercation with Currier, both
the State and Mishler discussed the altercation between Mishler and Bullock that
preceded June’s gunshot during their opening arguments. Furthermore, both the
State and Mishler elicited testimony from Bullock concerning the physical
altercation between Bullock and Mishler. Mishler never objected to these
opening arguments or Bullock’s testimony regarding his and Mishler’s fight. After
the evidence closed, Mishler requested that an extraneous offense instruction be
included in the court’s charge. The trial court denied this request. The jury
returned a verdict of guilty. After suspending the imposition of his 365 days’ jail
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sentence, the trial court placed Mishler on probation for two years. This appeal
followed.
III. DISCUSSION
In his sole point, Mishler argues that the trial court erred by refusing his
request for a limiting instruction regarding the altercation between Mishler and
Bullock. We disagree.
―[A] limiting instruction concerning the use of extraneous offense evidence
should be requested, and given, in the [guilt-innocence-stage] jury charge only if
the defendant requested a limiting instruction at the time the evidence was first
admitted.‖ Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).
―Once evidence has been admitted without a limiting instruction, it is part of the
general evidence and may be used for all purposes.‖ Id.
Here, Mishler did not request a limiting instruction at the time Bullock’s
testimony was admitted. Thus, the trial court had no obligation to limit the use of
that evidence later in the jury charge. Id. (stating that if a defendant does not
request a limiting instruction at the time that evidence is admitted, ―then the trial
judge has no obligation to limit the use of that evidence later in the jury charge‖);
Prescott v. State, 123 S.W.3d 506, 515–16 (Tex. App.—San Antonio 2003, no
pet.) (defendant who failed to request limiting instruction concerning use of
extraneous offenses ―at the moment the evidence [was] admitted‖ was not
entitled to limiting instruction in jury charge). Therefore, we hold that the trial
court did not err by refusing to include a limiting instruction in the guilt-innocence-
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stage jury charge regarding the physical altercation between Mishler and Bullock.
We overrule Mishler’s sole point.
IV. CONCLUSION
Having overruled Mishler’s sole point on appeal, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 22, 2013
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