Jeffrey Wayne Wofford v. State

Affirmed and Memorandum Opinion filed December 29, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00920-CR
JEFFREY WAYNE WOFFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1592815
MEMORANDUM OPINION
Appellant raises four issues in this case, all of which arise out of a single ruling
denying a motion for mistrial. Because we conclude that the trial court did not abuse
its discretion by denying the motion for mistrial, we overrule each issue and affirm
the trial court’s judgment.
BACKGROUND
Appellant was charged with sexually assaulting the complainant, a sixteen-
year-old girl. He pleaded not guilty and his case proceeded to a trial by jury, where
two competing versions of events were presented.
The Prosecution’s Version of Events. The complainant testified that she was
at appellant’s house in part to visit with appellant’s daughter, with whom she was
friends. When the daughter left temporarily to see her boyfriend, the complainant
went to appellant’s bedroom, where he and his wife were watching a comedy special
on television.
At one point, the wife dropped peanut butter on her chest, and appellant licked
it off. The wife then suggested that the complainant put peanut butter on her own
chest for appellant to do the same thing. The complainant complied. The sexual
activities then gradually escalated to the point of appellant having intercourse with
the complainant, and with his wife encouraging the complainant in the same room.
The complainant told appellant’s daughter what happened later that night, and
the daughter said never to mention it to anyone. The complainant did not speak of
the incident for more than five months until she was confronted by her mother, who
apparently heard of the incident through a network of friends. As soon as the
complainant confirmed that the incident had happened, she and her mother filed a
police report, which led to appellant’s arrest.
The Defense’s Version of Events. Appellant testified in his own defense, and
he denied ever having any form of sexual contact with the complainant. He said that
the complainant had been drinking alcohol on the night in question and that she came
into his bedroom to speak to his wife, who was a longtime friend of the
complainant’s mother. While they talked about boys, he played video games.
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During their discussion about boys, appellant’s wife made a comment to the
complainant that appellant only married her because she had large breasts. Upon
hearing that comment, the complainant lifted her shirt and said, “Well, what about
these?” Appellant immediately demanded that the complainant leave the room,
which she did.
Appellant’s wife, who does not appear to have been charged with committing
an offense, gave very similar testimony.
MOTION FOR MISTRIAL
During her cross-examination, appellant’s wife testified that she had
previously told a sheriff’s deputy that appellant had “questionable morals.” The wife
clarified on redirect that this characterization did not mean that appellant had a
problem with having sex with underage girls. Rather, the wife explained that
appellant had questionable morals because he has struggled in the past with drug
abuse.
On further cross-examination, the prosecutor asked appellant’s wife, “Did you
tell the deputy that you and your husband had discussed possibly someday doing like
a swing?” Before the wife could answer, defense counsel lodged a series of
objections.
Counsel asserted that the prosecutor had engaged in misconduct by violating
an order on a motion in limine, which required the parties to first approach the trial
court before mentioning appellant’s “alleged sexual proclivities, except allegations
involving the named complainant.” Counsel also argued that the elicited testimony
had no probative value, and that the prosecutor’s question violated appellant’s due
process rights under both the federal and state constitutions.
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The prosecutor responded that the defense had opened the door. The trial court
resolved the entire dispute by instructing the jury to disregard the prosecutor’s
question. Believing that the question was uncurable and had already tainted the jury,
the defense moved for a mistrial. That motion was denied.
Following the trial court’s ruling, both sides rested and closed. The jury never
heard the wife’s answer to the prosecutor’s question.
Appellant now argues in four interrelated issues that the trial court committed
reversible error when it denied the motion for mistrial.
We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Because
a mistrial is a serious remedy, it should be reserved for only extreme situations of
highly prejudicial and incurable misconduct. Id. If the trial court could have
reasonably determined that the challenged conduct did not rise to that level, then the
trial court’s denial of a motion for mistrial must be upheld. Id.
In the first of his issues, appellant argues that a mistrial was warranted because
the prosecutor violated the order on the motion in limine. For the sake of argument,
we will assume without deciding that the prosecutor engaged in misconduct. The
question then becomes whether the trial court abused its discretion by denying the
motion for mistrial. And to answer that question, we must balance three factors:
(1) the severity of the misconduct; (2) any measures taken to cure the prejudicial
effect of the misconduct; and (3) the certainty of conviction absent the misconduct.
See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
Beginning with the first factor, defense counsel suggested in the trial court
that the prosecutor’s question was severe because the question imparted to the jury
that appellant and his wife were swingers and that they might have an interest in
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exchanging sexual partners. But the prosecutor’s question only mentioned a possible
contemplation of swinging in the future, not a past history of doing so. And there
was no reference at all to having any form of sexual contact with children. This factor
does not weigh greatly in favor of finding that the trial court abused its discretion.
As for the second factor, the record shows that the trial court instructed the
jury to disregard the prosecutor’s question. We ordinarily presume that a prompt
instruction to disregard will cure any error associated with an improper question. See
Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam). There is
an exception for when the question alone 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.” See Cooks v. State, 844 S.W.2d 697, 735
(Tex. Crim. App. 1992), superseded on other grounds as stated in Bell v. State, 415
S.W.3d 278 (Tex. Crim. App. 2013). We do not believe that this exception applies
here because the prosecutor’s question alluded to swinging in the future, which is
not illegal, and as mentioned above, there was no inflammatory reference to having
sexual contact with children. Cf. Vidal v. State, 418 S.W.3d 907, 913 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) (holding that a witness’s improper testimony
that the defendant had threatened to “finish you and the kids off” could be cured by
a prompt instruction to disregard, even though the statement closely related to the
charged offense, which was recklessly causing injury to a child). This factor does
not support a finding that the trial court abused its discretion.
As for the final factor, we as an appellate court are not in an ideal position to
determine whether the conviction was certain. There was no physical or forensic
evidence. This was essentially a “he said, she said” case, where the credibility of the
complainant and the defendant was the central, dispositive issue. See Hammer v.
State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009). We did not have the benefit
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of observing the witnesses’ credibility and demeanor, but the trial court did. We also
note that the jury sent out several notes during its six-hour deliberations, and not one
of them pertained to the testimony of appellant’s wife, which is some indication that
the prosecutor’s question did not move the jury from a state of non-persuasion to a
state of persuasion.
Having considered all three factors together, we cannot say that the trial court
clearly abused its discretion by denying a motion for mistrial based on the argument
that the prosecutor had violated the order on the motion in limine.
In his second issue, appellant argues that the trial court should have granted
the motion for mistrial because the prosecutor elicited inadmissible evidence. This
argument fails for the simple reason that no evidence actually resulted from the
question. Appellant’s wife did not answer the question, and the question itself is not
evidence. See Madden v. State, 242 S.W.3d 504, 515 n.30 (Tex. Crim. App. 2007).
In his third issue, appellant argues that a mistrial was warranted because the
prosecutor’s question violated his rights to due process under the federal
constitution. Appellant makes the same argument in his fourth issue, except that he
bases it instead on his state constitutional right to due process. Both arguments fail
because appellant has provided no substantive discussion or authority showing that
the prosecutor’s question amounted to a deprivation of due process. See Tex. R. App.
P. 33.1(i) (requiring adequate briefing); Lilly v. State, 365 S.W.3d 321, 326 (Tex.
Crim. App. 2012) (refusing to consider constitutional arguments because the briefing
contained no substantive analysis or authorities). Also, for the same reasons given
above, there is no indication that the trial court’s instruction to disregard was
ineffective at curing any prejudice resulting from the prosecutor’s question.
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CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Wise, and Hassan.
Do Not Publish – Tex. R. App. P. 47.2(b).
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