                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00048-CR

KENNETH BUTLER,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the County Court at Law
                             Navarro County, Texas
                           Trial Court No. C35834-CR


                          MEMORANDUM OPINION

      A jury convicted Appellant Kenneth Butler of possession of less than one gram of

methamphetamine, and the trial court sentenced him to five years’ community

supervision. The methamphetamine was discovered in Butler’s pocket when he was

being treated for injuries he sustained after wrecking his motorcycle. Butler appeals in

two issues. We will affirm.
                               Denial of Motion for Mistrial

        In his first issue, Butler asserts that the trial court erred in denying his motion for

mistrial. Butler specifically complains that a mistrial should have been granted after the

State was allowed to introduce evidence of an extraneous offense. The DPS Trooper who

investigated Butler’s wreck, LaTonya Sadler, was questioned by the prosecution

regarding the actions she took in her investigation. Sadler replied: “Those actions are is

I went ahead—after I went through the defendant’s criminal history, is I went through

and I seen that the defendant had a lengthy criminal history.” Butler objected and

requested a limiting instruction. The State agreed that a limiting instruction to the jury

would be appropriate, and the judge admonished the jury to disregard Sadler’s

statement. Butler additionally moved for a mistrial, which the judge denied.

        The denial of a motion for mistrial, which is appropriate for “highly prejudicial

and incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson v.

State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642,

648 (Tex. Crim. App. 2000)); see also Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

        [T]he question of whether a mistrial should have been granted involves
        most, if not all, of the same considerations that attend a harm analysis. A
        mistrial is the trial court's remedy for improper conduct that is “so
        prejudicial that expenditure of further time and expense would be wasteful
        and futile.” In effect, the trial court conducts an appellate function:
        determining whether improper conduct is so harmful that the case must be
        redone. Of course, the harm analysis is conducted in light of the trial court's
        curative instruction. Only in extreme circumstances, where the prejudice is
        incurable, will a mistrial be required.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd, 3 S.W.3d at 567);

see also Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007). Thus, the


Butler v. State                                                                           Page 2
appropriate test for evaluating whether the trial court abused its discretion in overruling

a motion for mistrial is a tailored version of the test originally set out in Mosley v. State,

983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. “The

Mosley factors are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of

conviction absent the misconduct.” Id.; see Mosley, 983 S.W.2d at 259; see also Brinegar v.

State, No. 10-14-00195-CR, 2015 WL 6777445, at *4 (Tex. App.--Waco Nov. 5, 2015, pet.

ref’d) (mem. op., not designated for publication).

        The asking of an improper question will seldom call for a mistrial because any

error can usually be cured by an instruction to disregard. Wood, 18 S.W.3d at 648. In fact,

the Texas Court of Criminal Appeals has stated: “Ordinarily, a prompt instruction to

disregard will cure error associated with an improper question and answer, even one

regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

Testimony that refers to or implies the existence of extraneous offenses can be cured by

an instruction to disregard by the trial court, unless the evidence was so clearly calculated

to inflame the minds of the jury or is of such damning character as to suggest it would be

impossible to remove the harmful impression from the jury’s mind. Harris v. State, 164

S.W.3d 775, 783 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Butler makes no

allegation that Sadler’s testimony was made “with calculated intent” to inflame or

mislead the jury or that Sadler’s testimony was embellished in any manner.

        Considering the Mosley factors, we cannot say that the trial court abused its

discretion in denying the motion for mistrial. Any prejudicial effect from Sadler’s

Butler v. State                                                                          Page 3
testimony was curable because the comment was quite brief, it did not identify any

specific criminal activity, and it was not repeated. The trial court's instruction to

disregard, which was the proper curative measure in this instance, was prompt and will

ordinarily cure any error. See Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex. Crim. App.

2000). Finally, the statement was not so inflammatory as to undermine the efficacy of the

trial court’s instruction to disregard. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.

App. 1992); see also Martinez v. State, No. 10-13-00431-CR, 2015 WL 5092672, at *10 (Tex.

App.—Waco Aug. 27, 2015, no pet.) (mem. op., not designated for publication). The trial

court did not abuse its discretion in denying Butler’s motion for mistrial. Butler’s first

issue is overruled.

                                    Remote Conviction

        In his second issue, Butler argues that the trial court erred in allowing the

prosecutor to introduce evidence of Butler’s felony DWI conviction that occurred over

ten years prior to the date of trial. The violation of an evidentiary rule that results in the

erroneous admission of evidence constitutes non-constitutional error. See Martin v. State,

176 S.W.3d 887, 897 (Tex. App.—Fort Worth 2005, no pet.). Under Rule of Appellate

Procedure 44.2(b), an appellate court must disregard non-constitutional error unless the

error affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b); see also Gerron v.

State, 524 S.W.3d 308, 325 (Tex. App.—Waco 2016, pet. ref'd). A substantial right is

affected when the erroneously admitted evidence, viewed in light of the record as a


Butler v. State                                                                         Page 4
whole, had “a substantial and injurious effect or influence on the jury's verdict.” Id. In

assessing the likelihood that the jury's decision was improperly influenced, we must

consider the entire record, including such things as the testimony and physical evidence

admitted, the nature of the evidence supporting the verdict, the character of the error and

how it might be considered in connection with other evidence, the jury instructions, the

State's theories, defensive theories, closing arguments, voir dire, and whether the State

emphasized the error. Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011).

Assuming without deciding that the trial court erred in admitting Butler’s prior DWI

conviction, we find that the error did not affect Butler’s substantial rights in light of the

strong evidence of his guilt.

        The evidence at trial established that Butler crashed his motorcycle after hitting a

deer. A passing motorist called 9-1-1 after noticing the dead deer and Butler’s motorcycle

on the side of the road. The motorist also reported that Butler was lying in the ditch

beside the road and that he was not moving. Responding emergency medical personnel

noted that Butler had a serious head injury and that he was in and out of consciousness.

The medical personnel had to remove six or seven layers of clothing, some needing to be

cut off, in order to ascertain whether Butler had suffered other injuries. A black, plastic

cigarette box, that Butler acknowledged was his, was found in the pocket of a shirt that

was under an outer jacket and coveralls. The box was given to the deputy on the scene,

who opened it to see if it contained Butler’s identification. In the box, the deputy found

cigarettes and a baggy containing a crystalline substance that was later confirmed by the


Butler v. State                                                                        Page 5
lab to be methamphetamine. Also recovered from the scene was Butler’s wallet that

contained approximately one hundred dollars. Butler was taken by helicopter to a

hospital for treatment, and he was subsequently arrested for possession of less than one

gram of methamphetamine. Butler was semi-conscious when transferred to the hospital,

and his medical records reflect that he was combative with medical personnel and had to

be restrained. Blood tests revealed the presence of cannabinoids and opiates in Butler’s

system, although he denied using any substance containing opiates. The blood tests did

not reveal the presence of methamphetamine in his system, and methamphetamine is

neither an opiate nor a byproduct of marijuana. Butler’s father testified that he went to

the scene of the wreck four days later to look for Butler’s cell phone. He walked around

the area calling Butler’s phone from his own cell phone but never heard it ring.

        While Butler testified that he remembered everything that occurred prior to his

collision with the deer, he was unclear about the time the wreck occurred. Butler first

testified that the sun was shining when he arose the morning of the wreck and that he

left his brother’s house at 6:00 a.m. When the prosecutor reminded him that the 9-1-1

recording noted the time that the wreck was reported as 6:04 a.m., Butler then stated that

he left his brother’s house at 5:30 and hit the deer at around 6:00 a.m. Butler testified that

he knew nothing about the methamphetamine that was recovered from the cigarette box,

but he remembered putting the cigarette box in a storage compartment on the motorcycle

and not in his shirt pocket. Butler also testified that he remembered placing his cell phone

in the right front pocket of his jeans and that he never saw it again after the wreck.




Butler v. State                                                                          Page 6
        Butler’s theory about how the methamphetamine found its way into his pocket

was that some unknown person must have placed it there. There was no evidence of the

existence of such a person, merely Butler’s supposition. Butler testified that he had no

memory of anyone putting the box containing the methamphetamine in his pocket or

taking his cell phone—he just assumed that those events occurred based upon “how

everything looked.” Some of the circumstances that Butler and his attorney identified to

support his theory were: (1) Butler’s motorcycle was in an upright position after the

wreck, indicating that some unknown person picked it up; (2) Butler was combative with

medical personnel when he arrived at the hospital, indicating that he was reliving his

struggles with the unknown person; (3) the cuts on Butler’s clothing where they had been

removed by medical personnel at the scene of the accident did not line up properly,

indicating that the unknown person disarranged Butler’s clothing while planting the

methamphetamine; (4) Butler’s cell phone was not found, indicating that the unknown

person stole it; and (5) officers found nothing with which Butler could have used the

methamphetamine, such as a needle or a pipe. All of the circumstances were as likely, if

not more likely, to have occurred without the intervention of an unknown person.

Considering the weight of the evidence against Butler, we possess a fair assurance that

the admission of the DWI conviction did not influence the jury or, at most, had only a

slight effect on their verdict. Butler’s second issue is overruled.




Butler v. State                                                                   Page 7
        Having overruled both issues presented by Butler, we affirm the trial court’s

judgment.




                                              REX D. DAVIS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2018
Do not publish
[CR25]




Butler v. State                                                                Page 8
