Jessie Dee Spence v. State

ACCEPTED
06-17-00162-cr
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/10/2018 12:22 AM
DEBBIE AUTREY
CLERK
CAUSE NO. 06-17-00162-CR
IN THE SIXTH COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
TEXARKANA, TEXAS
1/10/2018 12:22:35 AM
DEBBIE AUTREY
________________________________________________________________
Clerk
JESSIE DEE SPENCE
Appellant
VS.
THE STATE OF TEXAS
Appellee
________________________________________________________________
On Appeal from the District Court of Cass County, Texas
5th Judicial District
________________________________________________________________
BRIEF OF APPELLEE
________________________________________________________________
Respectfully submitted,
Nicholas J. Ross
Cass County Asst. District Attorney
Texas Bar No. 24085565
Post Office Box 839
Linden, Texas 75563
Telephone: 903.756.7541
Facsimile: 903.756.3210
Attorney for Appellee,
The State of Texas
IDENTITY OF PARTIES AND COUNSEL
Pursuant to the Texas Rules of Appellate Procedure Rule 38.1(a), the
following list is a complete list of all parties to the trial court’s judgment and the
names and addresses of all trial and appellate counsel:
1. Hon. Donald Dowd - Judge, Cass County County Court at Law
sitting for the 5th Judicial District Court, Cass County, Texas
2. Jessie Dee Spence – Appellant
TDCJ-ID # 02153451
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803
3. Ms. Cyndia Hammond - Appellant’s trial & appellate counsel
P.O. Box 91
Texarkana, Texas 75504-0091
4. Mrs. Virginia Ann Prazak – Appellant’s trial counsel
1903 Mall Dr.
Texarkana, Texas 75503
5. Mr. Nicholas J. Ross - Appellee’s appellate counsel
Cass County Assistant District Attorney
Post Office Box 839
Linden, Texas 75563
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TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Argument and Authorities
Issue 1: The trial court did not abuse its discretion in denying a
motion for mistrial after Appellee violated Appellant’s
motion in limine when the trial court instructed the jury to
disregard the testimony and there was overwhelming
evidence admitted at trial that proved Appellant’s guilt . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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INDEX OF AUTHORITIES
CASES PAGE
Brossette v. State, 99 S.W.3d 377 (Tex.App.-Texarkana 2003) . . . . . . . . . . . . 15
Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984) . . . . . . . . . . . . . . . . . 13
Hernandez v. State, 805 S.W.2d 409 (Tex.Crim.App.1990) . . . . . . . . . . . . . . . .14
Hill v. State, 817 S.W.2d 816 (Tex.App.-Eastland 1991) . . . . . . . . . . . . . . . . . . 13
Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . .14
Grayson v. State, 786 S.W.2d 504 (Tex.App.-Dallas 1990) . . . . . . . . . . . . . . . .14
Griffin v. State, 850 S.W.2d 246 (Tex.App.-Houston [1st Dist.] 1993) . . . . . . . . 14
Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . . . . . . . . .15
Oberg v. State, 890 S.W.2d 539 (Tex.App.-El Paso 1994) . . . . . . . . . . . . . . . . .14
Scruggs v. State, 782 S.W.2d 499 (Tex.App.-Houston [1st Dist.] 1989) . . . . . . .13
Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983) . . . . . . . . . . . . . . . 14
State v. Gonzalez, 855 S.W.2d 692 (Tex.Crim.App.1993) . . . . . . . . . . . . . . . . 13
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STATEMENT OF ORAL ARGUMENT
Appellee does not request an oral argument in this case. The facts, trial
transcripts, and arguments presented by the parties in each of their respective
briefs are sufficient for the Court to decide the issues presented.
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ISSUES PRESENTED
Issue 1: The trial court did not abuse its discretion in denying a motion for
mistrial after Appellee violated Appellant’s motion in limine when the
trial court instructed the jury to disregard the testimony and there
was overwhelming evidence admitted at trial that proved Appellant’s
guilt.
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STATEMENT OF THE FACTS
Appellant, Jessie Dee Spence, was charged by indictment in Cause No.
2017F00103 with the third degree felony offense of Possession of a Controlled
Substance – Methamphetamine. A jury found him guilty, and he was sentenced
to six (6) years in the Texas Department of Criminal Justice Institutional Division.
On the night of November 6, 2016, Jessie Dee Spence was driving a
borrowed 1998 Chevy Impala near the intersection of 3rd and Harrison Street in
Hughes Springs, Texas. (R.R. Vol. IV, 101). Office Jimmy Simpler of the Hughes
Springs Police Department observed the vehicle had expired registration and
initiated a traffic stop. (R.R. Vol. IV, 102) Upon making contract with the driver,
Officer Simpler saw that it was Appellant, who Officer Simpler knew from
previous interactions. (R.R. Vol. IV, 102). Officer Simpler proceeded to check him
for warrants and he found that he had an active misdemeanor warrant for
resisting arrest. (R.R. Vol. IV, 108). Officer Simpler ordered Appellant out of the
vehicle and asked if he had anything illegal on him and he admitted that he had a
knife and a small bag of marijuana in his pocket. (R.R. Vol. IV, 105). Asked if
there were any other illegal substances in the car, Appellant said there were not.
Officer simpler then proceeded to search the vehicle for any illegal drugs or other
contraband and he found a bag of methamphetamine and a hypodermic needle.
(R.R. Vol. IV, 111, 127). A passenger, Jerry Richardson, was in the vehicle as
well. (R.R. Vol. IV, 103) Richardson was the brother of Amanda Forshee, the
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girlfriend of Appellant. Appellant picked Richardson up from a friend’s house
shortly before they were pulled over. Upon finding the methamphetamine, Officer
Simpler asked the passenger if the drugs were his. He denied they were his
(R.R. Vol. IV, 114). Officer Simpler asked Appellant if the drugs were his. He
admitted they were his. (R.R. Vol. IV, 119) In addition to his verbal admission he
also wrote a statement admitted that the drugs belonged to him and not the
passenger. (See State’s Exhibit 1).
Before trial, Appellant filed a motion in limine seeking to prevent any
mention of Appellant’s outstanding warrant for resisting arrest or the found
marijuana. At the trial, as discussed in Appellant’s Brief, the Hon. Judge Donald
Dowd ruled that before any mention of the warrant or marijuana, counsel for the
State would need to approach the bench and obtain a ruling as to the
admissibility of the evidence. State’s counsel then asked for a brief recess to
confer with State’s witnesses and relay the Court’s ruling regarding the motion in
limine. (R.R. Vol. IV, 93) After the recess the jury was brought back into the
courtroom and both sides delivered their opening statements which lasted
approximately 10 to 15 minutes. The State then called their first witness,
arresting Officer Jimmy Simpler to the stand. Approximately 10-15 minutes into
the testimony, State’s counsel began to ask the Officer about the moments and
circumstances leading up to the finding of the marijuana and the discovery of the
outstanding warrant. (R.R. Vol. IV, 104) State’s counsel asked the Officer if any
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illegal items were found on the Appellant. The Officer answered as State’s
counsel anticipated that a Bowie knife was found and then proceeded to testify
that the bag of marijuana was also found. Appellant’s counsel did not object.
(R.R. Vol. IV, 105). Hearing no objection, State’s counsel then asked several
follow up questions about the marijuana, and then asked about the warrant. At
this, Appellant’s counsel did raise an objection and the Court ordered counsel to
approach the bench. (R.R. Vol. IV, 108)
(The following occurred at the bench,
outside hearing of the jury.)
THE COURT: You're supposed to approach
the bench.
MR. ROSS: Well I was waiting for an
objection, Your Honor.
THE COURT: Okay. Well, I'd already ruled
on that.
MR. ROSS: Okay. I mean, I did lay the
proper foundation. But then the circumstances of the
case it was leading up to and involved directly in this
incident that we're here on today. I mean, it's not a
remote or . . . .
THE COURT: I'm not saying it's not
admissible. I'm just saying you're supposed to approach
the bench before you bring it out.
MR. ROSS: Yes, sir.
State’s counsel mistakenly believed that since an objection was not raised, the
questions leading up to the Officer’s testimony mentioning the marijuana had laid
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the proper contextual foundation to get the evidence in, and, therefore, the
requirement to approach the bench no longer applied. The Court admonished
Appellee’s counsel who then realized the were mistaken in their line of
questioning. (R.R. Vol. IV, 108). Appellee’s counsel does not – cannot – deny
that the motion in limine was violated, however the violation was not done
maliciously, but rather due to inexperience and confusion in the heat of trial as
can be seen by Counsel’s response at the bench conference. (R.R. Vol. IV, 108).
The Court ruled that the testimony should be stricken, the jury was ordered to
disregard the testimony, and State’s counsel moved on to a different line of
questioning and never mentioned the marijuana or the warrant. (R.R. Vol. IV,
109).
Officer Simpler went on to testify that he found the meth in the front seat
area and that Appellant admitted it was his. (R.R. Vol. IV, 111). He admitted this
orally and also in a written statement. The passenger stated that the drugs were
not his. (R.R. Vol. IV, 114).
During the Defendant’s case in chief, Appellant called his girlfriend to
testify. She stated that the car was not actually her car it was her husband’s car
and that they didn’t drive it very often. (R.R. Vol. IV, 158) Her testimony was
disputed by her own brother, the passenger Jerry Richardson who stated that her
husband had been out of state for 10 years. (R.R. Vol. IV, 180).
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In closing argument Appellee did not discuss or mention the marijuana or
the warrant, but focused on Appellant’s own admission that the
methamphetamine was his and the lies told by Appellant’s girlfriend on the stand.
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SUMMARY OF THE ARGUMENT
Issue 1: The trial court did not abuse its discretion in denying a motion
for mistrial after Appellee violated Appellant’s motion in limine
when the trial court instructed the jury to disregard the
testimony and there was overwhelming evidence admitted at
trial that proved Appellant’s guilt.
A trial court's denial of a mistrial is reviewed under an abuse of discretion
standard. Generally, a jury's exposure to improper testimony is cured by an
instruction from the trial court to disregard the improper evidence. In the instant
case, the trial court properly instructed the jury to disregard the statements
objected to by Appellant, and in light of all the other overwhelming evidence
presented by the State, the trial court did not abuse its discretion in denying
Appellant’s Motion for a Mistrial.
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ARGUMENTS AND AUTHORITIES
Issue 1: The trial court did not abuse its discretion in denying a motion
for mistrial after Appellee violated Appellant’s motion in limine
when the trial court instructed the jury to disregard the
testimony and to not consider it during deliberations.
A trial court's denial of a mistrial is reviewed under an abuse of discretion
standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993).
Generally, a jury's exposure to improper testimony is cured by an instruction from
the trial court to disregard the improper evidence. Coe v. State, 683 S.W.2d 431,
436 (Tex.Crim.App.1984). Such an instruction is not sufficient, however, in an
extreme case, where it appears that the evidence is clearly calculated to inflame
the minds of the jury. Hill v. State, 817 S.W.2d 816, 817 (Tex.App.-Eastland
1991, pet. ref'd). When the attempted introduction of the improper evidence is
carried out deliberately and blatantly in violation of the ruling of the trial court, and
the improper evidence is repeated and emphasized by the State, the instruction
to disregard is not sufficient, and the failure to grant a mistrial becomes reversible
error. Hill, 817 S.W.2d at 817; Scruggs v. State, 782 S.W.2d 499, 501 (Tex.App.-
ouston [1st Dist.] 1989,pet. ref'd). However, when the jury is exposed to otherwise
inadmissible evidence through an inadvertent comment or nonresponsive answer
of a witness, with no further attempt by the State to pursue the matter, the
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instruction to disregard is sufficient and there is no reversible error in the failure
to grant a mistrial. Oberg v. State, 890 S.W.2d 539, 545 (Tex.App.-El Paso 1994,
pet. ref'd); Griffin v. State, 850 S.W.2d 246, 249 (Tex.App.-Houston [1st Dist.]
1993, pet. ref'd); Grayson v. State, 786 S.W.2d 504, 505-06 (Tex.App.-Dallas
1990, no pet.).
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. Thus, a trial court may properly exercise its discretion to declare a mistrial
if an impartial verdict cannot be reached, or if a verdict of conviction could be
reached but would have to be reversed on appeal due to an obvious procedural
error. Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983). The
determination of whether a given error necessitates a mistrial must be made by
examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409,
413–414 (Tex.Crim.App.1990), cert. denied. The asking of an improper question
will seldom call for a mistrial, because, in most cases, any harm can be cured by
an instruction to disregard. Ibid. A mistrial is required only when the improper
question is clearly prejudicial to the defendant and is of such character as to
suggest the impossibility of withdrawing the impression produced on the minds of
the jurors. Ibid. A court presumes that a jury followed the trial court’s admonition
to disregard the testimony Hinojosa v. State, 4 S.W.3d 240, 253
(Tex.Crim.App.1999).
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In Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App.1999), the court found that
the denial of a motion for a mistrial was not error. In that case appellant argued
that the trial court erred in denying his motion for mistrial. In that case the State
asked a prosecution witness, “Mr. [Troy] Guthrie, were you aware of whether or
not Mr. Ladd and Mr. [Johnny] Roberson were together smoking crack cocaine ...
on the night ... and the morning that [the victim] was missing and was found?”
Before the witness could answer, appellant objected, asked for an instruction to
disregard, and moved for a mistrial. The trial court sustained the objection on the
ground that the State's question violated a motion in limine. The trial court then
instructed the jury to disregard the question, but the court denied a mistrial.
In Brossette v. State, 99 S.W.3d 377 [Tex.App.–Texarkana] 2003, citing
Ladd, the Court held that one of the factors that is considered when determining
whether a motion to disregard testimony is curative is whether the question was
asked to elicit a specific extraneous bad act. In Brossette, after laying the
foundation that a law enforcement officer was responsible for investigating all
abuse and neglect allegations concerning children for Wood County, the State
asked the witness, “[h]ave you had any prior occasion to have contact with
[Brossette]?” In Brossette the State asked a question of the witness, intending to
elicit an answer that concerned a subject covered in a motion in limine. The trial
court recognized that the State should have approached the bench before
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attempting to ask that type of question. The trial court sustained Brossette's
objection and instructed the jury to disregard, but denied the mistrial.
In the instant case, the denial of the motion for a mistrial was not an abuse
of discretion and thus not reversible error because the trial court could, and did,
properly cure any violation of the motion in limine with a prompt instruction to the
jury to disregard the evidence. While the violation of the motion in limine in this
case is not in dispute, the effect of the violation was minimal, and far outweighed
by the overwhelming evidence against Appellant.
The marijuana and the warrant were not central to the state’s theory of the
case. Rather they were only brought up in the first place as a prologue to the
search that was conducted on Appellant’s vehicle. And after being admonished
by the Court, Appellee’s counsel did not attempt to bring up the off limit subjects
again during any subsequent questioning and did not refer to them in closing
argument.
The mentioning of a warrant and the existence of marijuana was not so
egregious that it would so inflame the jury against Appellant that the instruction
given by the trial court wasn’t enough to cure the violation. Indeed, if anything the
mentioning of the marijuana was minimized, since Officer Simpler testified that
he was simply going to write Appellant a Class C drug paraphernalia ticket after
finding the marijuana. Regarding the warrant, the testimony elicited was merely
that a warrant existed and not that it was a warrant for a felony or a particularly
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bad act. In light of all the other evidence that was presented at trial, the Court’s
instruction to disregard these relatively inconsequential facts was more than
sufficient to prevent the jury from considering them during deliberations.
Simply put, Appellee’s case was as open and shut as any juror could ask
for. Appellant was driving the vehicle and had been before the passenger got in
the vehicle. The drugs were found inside the vehicle within inches from where
Appellant sat. The passenger denied the drugs were his and his testimony was
not contradicted by any other evidence. Appellant gave not only a verbal
confession but also a written confession that the methamphetamine belonged to
him. Not only did he admit that it was his, but he explicitly stated that the
methamphetamine did not belong to the passenger.
Appellant’s argument that the marijuana being brought to the jury’s
attention discredited the testimony of Amanda Forshee, Appellant’s girlfriend, is
unpersuasive. This argument ignores the fact that it wasn’t only marijuana found
that night, but the actual drugs at issue in this case – the 3.24 grams of
methamphetamine – was found as well (RR pg. 125). The jury didn’t need the
marijuana to discredit Forshee’s testimony, because the methamphetamine also
allowed them to draw the conclusion that she was not credible.
Given the overwhelming evidence in this case, and the instruction provided
to the jury to disregard the excluded testimony, the Court’s denial of the motion
for a mistrial was not an abuse of discretion and was not reversible error.
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PRAYER
WHEREFORE, premises considered, Appellee respectfully requests that
the adjudication of Appellant and corresponding sentence imposed by the trial
court be in all things AFFIRMED.
Respectfully submitted,
_____________________________
Nicholas J. Ross
Cass Co. Asst. District Attorney
Texas Bar No. 24085565
Post Office Box 839
Linden, Texas 75563
Telephone: 903.756.7541
Facsimile: 903.756.3210
nross@casscountytx.org
Attorney for Appellee,
The State of Texas
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
Brief of Appellee was forwarded via First Class mail on January 9, 2018, to the
following attorneys of record and interested parties:
Appellant Appellant’s Trial and
Jessie Dee Spence Appellate Attorney
TDCJ-ID # 02153451 Cyndia Hammond
Joe F. Gurney Unit P.O. Box 91
1385 FM 3328 Texarkana, Texas 75504-0091
Palestine, Texas 75803
Appellant’s Trial Attorney Trial Court Judge
Virginia Ann Prazak Hon. Judge Donald Dowd
1903 Mall Dr. Sitting for the 5th Judicial District
Texarkana, Texas 7550 Court
P.O. Box 510
Linden, Texas 75563
_____________________________
Nicholas J. Ross
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CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used
to produce this document, I certify that the number of words in this reply
(excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix) is 2,425.
________________________________
Nicholas J. Ross
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