
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00820-CR


Michael David George, Appellant


v.


The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0992614, HONORABLE JON N. WISSER, JUDGE PRESIDING


A jury found appellant Michael David George guilty of possessing cocaine and
assessed punishment at imprisonment for ten years' probated.  Tex. Health & Safety Code Ann.
§ 481.115(a), (d) (West Supp. 2000).  Appellant's sole point of error is that the district court
should have granted his motion for mistrial.  We will overrule this contention and affirm.

The cocaine for which appellant was convicted was discovered during a search
following his arrest on outstanding warrants by Deputy Sheriff John Stefan.  Stefan testified that
he stopped appellant's pickup after receiving a "be on the lookout" call for the vehicle.  The officer
added that the call indicated that the driver of the pickup "was wanted on four felony warrants." 
Appellant objected that this testimony violated an order in limine prohibiting the State from
offering any evidence of appellant's criminal record without first notifying appellant.  The
objection was sustained and the jury was instructed to disregard "the last answer."  Appellant's
motion for mistrial was overruled.

A mistrial is called for when there is error so prejudicial that continuation of the
trial would be futile.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  As a general
rule, testimony erroneously referring to or implying extraneous offenses can be rendered harmless
by an instruction to disregard.  Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). 
An instruction will be insufficient only if the evidence was so clearly calculated to inflame the
minds of the jury or is of such damning character as to suggest the impossibility of removing the
harmful impression from the jurors' minds.  Id.  The denial of a mistrial motion is reviewed for
an abuse of discretion.  Ladd, 3 S.W.3d at 567.

Appellant concedes that the witness could properly tell the jury that he arrested
appellant on the basis of an outstanding warrant.  We believe that the witness's reference to "four
felony warrants" was not so extraordinarily improper or prejudicial as to be incapable of being
cured by the court's instruction to disregard.  See id. (statement that defendant was "smoking crack
cocaine" on day of charged offense cured by instruction to disregard); Kemp, 846 S.W.2d at 308
(statement that defendant "had recently been released from the penitentiary" cured by instruction
to disregard). 

Appellant argues that exceptional harm is shown because he was forced to change
his trial strategy.  Appellant testified at the guilt/innocence stage.  During voir dire outside the
jury's presence, appellant stated that he would not have testified at that stage had the deputy not
mentioned the four felony warrants.  During his testimony, appellant admitted possessing the
cocaine.  He also described his cocaine addiction and the deleterious effect it had on his marriage
and his business.  He admitted that he had jumped bail following a previous cocaine arrest, and
was also charged with retaliation and violation of a protective order.  Appellant contends this
testimony would not have been offered at the guilt/innocence stage but for the court overruling his
motion for mistrial.

We have concluded that the district court's instruction to disregard was adequate
to cure the erroneous reference to other felony accusations.  Appellant was not forced to testify
by any error on the part of the court.  His decision to take the stand was, as the record reflects,
the product of considered trial strategy.

The court did not abuse its discretion by overruling the mistrial motion.  The point
of error is overruled and the judgment of conviction is affirmed.



  
				Jan Patterson, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Affirmed

Filed:   November 9, 2000

Do Not Publish



USTIN





NO. 03-99-00820-CR


Michael David George, Appellant


v.


The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0992614, HONORABLE JON N. WISSER, JUDGE PRESIDING


A jury found appellant Michael David George guilty of possessing cocaine and
assessed punishment at imprisonment for ten years' probated.  Tex. Health & Safety Code Ann.
§ 481.115(a), (d) (West Supp. 2000).  Appellant's sole point of error is that the district court
should have granted his motion for mistrial.  We will overrule this contention and affirm.

The cocaine for which appellant was convicted was discovered during a search
following his arrest on outstanding warrants by Deputy Sheriff John Stefan.  Stefan testified that
he stopped appellant's pickup after receiving a "be on the lookout" call for the vehicle.  The officer
added that the call indicated that the driver of the pickup "was wanted on four felony warrants." 
Appellant objected that this testimony violated an order in limine prohibiting the State from
offering any evidence of appellant's criminal record without first notifying appellant.  The
objection was sustained and the jury was instructed to disregard "the last answer."  Appellant's
motion for mistrial was overruled.

A mistrial is called for when there is error so prejudicial that continuation of the
trial would be futile.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  As a general
rule, testimony erroneously referring to or implying extraneous offenses can be rendered harmless
by an instruction to disregard.  Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). 
An instruction will be insufficient only if the evidence was so clearly calculated to inflame the
minds of the jury or is of such damning character as to suggest the impossibility of removing the
harmful impression from the jurors' minds.  Id.  The denial of a mistrial motion is reviewed for
an abuse of discretion.  Ladd, 3 S.W.3d at 567.

Appellant concedes that the witness could properly tell the jury that he arrested
appellant on the basis of an outstanding warrant.  We believe that the witness's reference to "four
felony warrants" was not so extraordinarily improper or prejudicial as to be incapable of being
cured by the court's instruction to disregard.  See id. (statement that defendant was "smoking crack
cocaine" on day of charged offense cured by instruction to disregard); Kemp, 846 S.W.2d at 308
(statement that defendant "had recently been released from the penitentiary" cured by instruction
to disregard). 

Appellant argues that exceptional harm is shown because he was forced to change
his trial strategy.  Appellant testified at the guilt/innocence stage.  During voir dire outside the
jury's presence, appellant stated that he would not have testified at that stage had the deputy not
mentioned the four felony warrants.  During his testimony, appellant admitted possessing the
cocaine.  He also described his cocaine addiction and the deleterious effect it had on his marriage
and his business.  He admitted that he had jumped bail following a previous cocaine arrest, and
was also charged with retaliation and violation of a protective order.  Appellant contends this
testimony would not have been offered at the guilt/innocence stage but for the court overruling his
motion for mistrial.

We have concluded that the district court's instruction to disregard was adequate
to cure the erroneous reference to other felony accusations.  Appellant was not forced to testify
by any error on the part of the court.  His decision to take the stand was, as the record reflects,
the product of considered trial strategy.

The court did not abuse its discretion by overruling the mistrial motion.  The point
of error is overruled and the judgment of conviction is affirmed.



  