Nickolas Winn Clark v. the State of Texas ( 2023 )

Opinion filed August 31, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00047-CR
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NICKOLAS WINN CLARK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. 26283
MEMORANDUM OPINION
A jury convicted Appellant, Nickolas Winn Clark, of the first-degree felony
offense of burglary of a habitation. See TEX. PENAL CODE ANN. § 30.02(d) (West
2019). In the indictment, the State alleged that Appellant entered a habitation
without the effective consent of the owner and with the intent to commit the offense
of injury to an elderly individual “and/or” did commit the offense of injury to an
elderly individual. See id. The indictment included an enhancement allegation
which, if found to be “true,” would increase the punishment range for the offense
under the habitual offender statute. See id. § 12.42(c)(1). Appellant elected to have
the trial court assess his punishment. The trial court found the enhancement
allegation to be “true” based on Appellant’s plea of “true,” and assessed his
punishment at eighteen years’ imprisonment in the Institutional Division of the
Texas Department of Criminal Justice. In his sole issue on appeal, Appellant asserts
that the trial court abused its discretion when it denied his motion for a mistrial after
a witness referred to Appellant as “a felon” in the presence of the jury.
Factual and Procedural History
On March 13, 2021, Wendell Lee Tipton, recently retired from the Eastland
County Sheriff’s Office, discovered Appellant hiding inside his residence. While
attempting to flee, Appellant pushed Tipton in the chest and caused a cut on his
finger. Tipton testified that the injuries Appellant inflicted caused him pain and that
Appellant entered his habitation without his consent. At the time of the offense,
Tipton was over 65 years old.
During Tipton’s testimony, the State approached the bench to notify the trial
court that it intended to ask Tipton about a reason that he returned home that night:
he had received a text that Appellant was a wanted felon and that he was seen in the
area. During a conference outside of the presence of the jury, Appellant’s trial
counsel made a broad objection to the information revealed by the State because he
believed he had not “opened the door” to the information, and further argued that
the information was hearsay and unduly prejudicial. When the trial court overruled
his objections, Appellant’s trial counsel asked for the trial court “to place some
limitations . . . some parameters” on any references that Appellant was “a wanted
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fugitive and charged language and like that, felon, felony warrant, those types of
things.” The State made suggestions on how to mutually resolve Appellant’s
concerns by stating, “Judge, we would be fine with just stating that he had a -- that
he had a warrant and was a fugitive without going into whether it’s a felony or what
the charge is.” Appellant’s trial counsel did not note any disagreement with the
State’s proposed resolution, nor did he present any additions or objections to the
State’s proposal as it was presented to the trial court. Consistent with the State’s
proposal, the trial court ruled that the State was to limit the testimony to “[t]hat it
was this defendant and that there was a warrant, fugitive, and nothing beyond.” Prior
to the jury’s return, Appellant did not object to, express further problems with, or
suggest any changes to the trial court’s ruling.
Within minutes of the trial court’s ruling, Tipton testified that he received a
text from a neighbor in which “there’s a statement in there that he was a felon.”
Appellant’s trial counsel objected to Tipton’s statement, stating that “[t]he State has
a duty to instruct their witnesses about the Court’s rulings,” and moved for a mistrial.
The trial court immediately instructed the jury to disregard the statement, after which
it denied Appellant’s motion for a mistrial.
Standard of Review
“The denial of a motion for mistrial is reviewed under an abuse of discretion
standard.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (citing
Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999)). Courts continually
acknowledge that “[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.” Ladd, 3 S.W.3d at 567. “Only in extreme circumstances, where the
prejudice is incurable, will a mistrial be required.” Hawkins v. State, 135 S.W.3d
372, 77 (Tex. Crim. App. 2004). “Therefore, a mistrial should be granted only in
cases where the ‘reference was clearly calculated to inflame the minds of the jury or
was of such damning character as to suggest it would be impossible to remove the
harmful impression from the jurors’ minds.’” Young v. State, 283 S.W.3d 854, 878
(Tex. Crim. App. 2009) (quoting Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim.
App. 1998)). Otherwise, sound discretion normally requires the trial judge to
consider less drastic alternatives. Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim.
App. [Panel Op.] 1981).
When a party moves for mistrial, the scope of appellate review is limited to
whether the trial court erred in not taking the most serious action of ending the trial.
Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). An appellate court must
“uphold the trial court’s ruling if it was within the zone of reasonable disagreement.”
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing Wead v. State,
129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We do not substitute our judgment
for the trial court’s judgment. Id. Instead, “we decide whether the trial court’s
decision was arbitrary or unreasonable.” Id.Analysis
In his sole issue on appeal, Appellant asserts that the trial court abused its
discretion when it denied his trial counsel’s motion for a mistrial following Tipton’s
testimony that identified Appellant as a felon.
On its face, the record is clear that a broad and vague objection was originally
made by Appellant’s trial counsel to which the State made suggestions on how to
mutually resolve that objection. There is no disagreement, addition, or objection
made by Appellant to the State’s proposal; consistent with the State’s proposal, the
trial court made its ruling that the use of “fugitive” to describe Appellant would be
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allowed, but not the word “felon.” No party thereafter objected to or expressed
further suggested edits of the court’s ruling. Within the presence of the jury, the
following exchange occurred:
[STATE]: Okay. Was there another reason that you went home that
day?
[TIPTON]: Yes. I had received a text that there was a wanted fugitive
running around in our area.
....
[STATE]: Okay. And what -- what information did you receive?
[TIPTON]: I received a picture and then there’s a statement in there that
he was a felon.
Appellant’s trial counsel objected, stating that the testimony was prejudicial and
violated his oral motion in limine. Appellant further moved for a mistrial because,
he alleged, the error could not be “cured” by an instruction to disregard.
Our review is limited to whether the trial court erred in not taking the most
serious action of ending the trial based on the trial court’s alleged error. Young, 137
S.W.3d at 70. Here, it is apparent from Tipton’s testimony that he did not claim that
Appellant was in fact a felon. There is no information given on why the neighbor
believed that or what was the original source of that information, or its reliability.
There is no confirmation given of the text’s assertion; there is no indication of
the particular felony that Appellant had committed. The trial court appropriately
provided an instruction for the jury to disregard the statement upon Appellant’s
request, and the trial court appropriately denied Appellant’s request for a mistrial.1
See id. at 72; Webb, 232 S.W.3d at 114. “Instructions to the jury are generally
1
Even absent the trial court’s instruction to the jury to disregard, we cannot say that the harm from
the difference in referring to Appellant as a “felon” rather than a “fugitive” would be significant.
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considered sufficient to cure improprieties that occur during trial.” Gamboa, 296
S.W.3d at 580. “And we generally presume that a jury will follow the judge’s
instructions.” Id. (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.
1998).
Here, the trial court, upon Appellant’s request, immediately instructed the jury
to disregard Tipton’s statement. See id. at 581 (“[a]ssuming that the testimony was
improper, the trial judge quickly instructed the jury to disregard the statement and
the question. Nothing in the record suggests that the jury was unable to follow the
instruction.”); see also Colburn, 966 S.W.2d at 520 (jury presumed to disregard
parole during deliberation when so instructed); Kemp v. State, 846 S.W.2d 289, 308
(Tex. Crim. App. 1992) (discussing instruction to disregard in the context of a
motion in limine and extraneous offenses); Waldo v. State, 746 S.W.2d 750 (Tex.
Crim. App. 1988) (jury presumed to follow instruction to disregard testimony
regarding defendant’s post-Miranda silence); Gardner v. State, 730 S.W.2d 675, 696
(Tex. Crim. App. 1987) (jury presumed to follow instruction after accomplice
witness alluded to defendant’s previous incarceration).
When we review the record as a whole and the totality of the circumstances
surrounding Tipton’s statement as set out above, we cannot say that his single,
isolated statement presents a case of “extreme circumstances, where the prejudice is
incurable.” Hawkins, 135 S.W.3d at 77. Moreover, “[t]he trial court could have
reasonably concluded that the answer was not so inflammatory as to be incurable by
an instruction to disregard.” Young, 283 S.W.3d at 878. Accordingly, we conclude
that the trial court did not abuse its discretion when it denied Appellant’s motion for
a mistrial. See Young, 283 S.W.3d at 878; see also Webb, 232 S.W.3d at 112, 114;
Young, 137 S.W.3d at 72. We overrule Appellant’s sole issue on appeal.
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This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
August 31, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Trotter, J.,
Williams, J., and Wright, S.C.J.2
Bailey, C.J., not participating.
2
Jim. R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at
Eastland, sitting by assignment.
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