Opinion
No. 06-20-00054-CR
11-12-2020
SHAE LYNN PRESCOTT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court Fannin County, Texas
Trial Court No. CR-19-27045 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Shae Lynn Prescott was stopped in Fannin County, Texas, for a traffic violation. Prescott and her passenger were placed under arrest due to outstanding warrants. A subsequent search of her vehicle found what was later shown to be methamphetamine. A Fannin County jury found her guilty of possession of less than one gram of a controlled substance within a drug-free zone and tampering with physical evidence with intent to impair. The trial court sentenced her to twenty-five years in prison for each charge with the sentences to run consecutively. On appeal, Prescott argues that the trial court erred by (1) denying her motion for mistrial, (2) admitting evidence that she had other outstanding warrants for her arrest, and (3) admitting inadmissible character evidence. We affirm the trial court's judgment because Prescott failed to preserve her arguments for appeal.
I. Factual and Procedural Background
On March 25, 2019, Corporal Jeremy Hollar, a patrol officer with the Bonham Police Department (BPD), stopped a vehicle driven by Prescott because one of the taillights was out. While Hollar checked the driver licenses of both Prescott and her passenger, Jeff Norena, backup officer, Sergeant Benjamin Ray, noticed that Prescott was very nervous and that she "kept . . . reaching behind her seat." It appeared that "she was taking pieces of paper and putting it behind her, and she also had a . . . lighter that she was continually going back and forth with." A few minutes later, Ray learned that both Prescott and Norena had outstanding warrants for their arrest. He also saw smoke coming from the backseat area of Prescott's car.
Ray testified that, due to the warrants, Prescott and Norena were put in handcuffs and placed into separate squad cars, while he and Christopher West, also a patrol officer with the BPD, searched the car and the immediate area around the car. During the stop, West observed Prescott throw something out of her car window, and upon searching the area immediately around the car, he found a cup containing both a syringe and what was later determined to be methamphetamine. The cup and the food wrapper the methamphetamine was wrapped up in were both smoldering and partially burnt.
Prescott was subsequently charged with tampering with physical evidence with intent to impair and possession of less than one gram of a controlled substance within a drug-free zone. At trial, the jury heard testimony from Ray, Hollar, and West, as well as testimony from Carline Allen, a forensic scientist who confirmed that the substance discovered in Prescott's car was methamphetamine. The body camera recordings from Ray, Hollar, and West were redacted, admitted into evidence, and played for the jury. Prescott rested without calling any witnesses. The jury found Prescott guilty as charged and, after a trial on punishment, the court sentenced Prescott to twenty-five years in prison for each charge, with the sentences to run consecutively. Prescott appealed.
II. Motion for a Mistrial
In her first point of error, Prescott contends that the trial court erred by denying her motion for a mistrial. During voir dire, the State asked the panel if anyone knew Prescott or any member of her family. A venire person answered, "Yes, I was a correctional officer in . . . the Fannin County Detention Center." The State interjected and said, "I'm going to stop you. Without going into how you know . . . would your knowledge of her affect your ability to sit . . . and remain . . . be fair and impartial?" After the venire person indicated her knowledge of Prescott would not affect her ability to be fair and impartial, the court called the venire person to the bench. After further questioning at the bench, the trial court excused the venire person. At that time, Prescott moved for a mistrial arguing that the venire person's statements that she worked at the Fannin County Detention Center and that she knew Prescott indicated to the jury that Prescott was or had been incarcerated. The trial court denied the motion.
In order to preserve error regarding improper evidence or remarks placed before the jury, three things are required: (1) a specific and timely objection, (2) a request for an instruction to disregard if the objection is sustained, and (3) if the requested instruction is given, a motion for a mistrial. See Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992); see also Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995), abrogated on other grounds by Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006). Preservation requires that counsel obtain an adverse ruling at one of those steps. Fuller, 827 S.W.2d at 926. The sequence of the steps is not so critical as is the fact that all the steps are taken and that the movant persisted in seeking all available relief from the trial court, until the trial court effectively denies relief to which the movant is entitled. Id.; see Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984) (counsel preserved error for not granting mistrial when overruled motion for mistrial was followed by request for instruction to disregard). The failure to seek an instruction to disregard waives error, unless a complained-of event is so highly inflammatory that an instruction to disregard could plainly not cure its prejudicial effect. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (requesting an instruction to disregard required for preservation unless error is incurable); see Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986), overruled on other grounds by Watson v. State, 762 S.W.2d 591 (Tex. Crim. App. 1988).
The State argues that Prescott failed to preserve this point of error by failing to make a specific objection and by failing to request an instruction to disregard the venire person's statements. TEX. R. APP. P. 33.1; Fuller, 827 S.W.2d at 926. After the venire person was excused, but prior to the end of the bench conference, Prescott said,
Your Honor, I will indicate, if I may, that I believe that Ms. Miller's statements sua sponte that she was a correctional officer in response to "Do you know Ms. Prescott?" imputes to the jury panel that my client has been or perhaps is incarcerated. And I would move for a mistrial at this time.
It is true that Prescott did not use any form of the word "object" or specify a rule of evidence or procedure as the basis of her request for a mistrial. However, "[a] party's failure to employ 'magic words' will not preclude error preservation if the party's complaint is sufficient to make the trial court aware of the grounds of the complaint." Duke v. State, 365 S.W.3d 722, 725 (Tex. App.—Texarkana 2012, pet. ref'd). We find that Prescott's objection was sufficient to make the trial court aware of Prescott's complaint—essentially that she objected to the venire person's statements and sought a mistrial because the statement prejudiced Prescott by giving the jury pool the impression that she was or had been incarcerated. See id.
Nevertheless, while Prescott lodged a sufficient objection and sought a mistrial, she failed to request that the jury be instructed to disregard the venire person's statements. See Fuller, 827 S.W.2d at 926. An instruction to disregard is presumed to cure improper comments made before the jury and withdraw from jury consideration almost any objectionable evidence or argument. See Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 337 (Tex. 2007); Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994). Because we find that the venire person's statements were not so inflammatory or egregious that they were incurable by an instruction to disregard, we find that Prescott failed to preserve this issue for our review. See McGinn, 961 S.W.2d at 165.
III. Outstanding Warrants
In her second point of error, Prescott argues that the trial court erred in admitting evidence that she had outstanding warrants at the time of her arrest. On direct examination, the State asked Sergeant Ray, "[A]t some point you learned that there were warrants for both [Prescott and Norena]; is that correct?" Ray confirmed that that was correct. Prescott objected, arguing that the testimony regarding outstanding warrants was "outside a previously granted motion." The trial court overruled the motion and admitted the evidence "for the purpose of establishing reason for probable cause for any arrest." On appeal, Prescott contends that the trial court erred in admitting live testimony and video-recorded evidence from the officers' body cameras of the outstanding warrants because it amounts to inadmissible character evidence under Rule 404 of the Texas Rules of Evidence. See TEX. R. EVID. 404.
Rule 404(b) states,
Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. . . . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.TEX. R. EVID. 404(b)(1), (2).
To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2). Here, unlike her motion for a mistrial, Prescott merely argued that the testimony was "outside a previously granted motion." She did not state on the record any details regarding the basis for her previously granted motion. Thus, the record fails to establish that her complaint was "sufficient to make the trial court aware of the grounds of the complaint." Duke, 365 S.W.3d at 725.
Moreover, although her objection apparently references her pretrial motion in limine, the motion itself does not cite Rule 404. And, even if the motion in limine did reference Rule 404, a motion in limine does not preserve error for our review; there must be a contemporaneous, specific, and timely objection to the proffered evidence. See Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988). Because Prescott failed to make a proper Rule 404 objection to the State's proffered testimony at trial, she has waived this argument on appeal. See TEX. R. APP. P. 33.1.
IV. Character Evidence
During the search of Prescott's vehicle, officers discovered several pills in a prescription bottle labeled citolapram. In her final point of error, Prescott contends that the trial court erred in allowing mention of the pills in the body camera recordings admitted for viewing before the jury because it was inadmissible character evidence under Rule 404.
Citolapram is a prescription medication for the treatment of anxiety and depression.
To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2). As best we can discern from the record, Prescott objected to any mention of the pills during an informal, off-the-record conference. After the conference and back on the record, the trial court ruled on various evidentiary issues, stating, "[W]e also had the subject of the other pills that were located and subsequently charged against Ms. Prescott, and the Court has also overruled the Defendant's objection on that, and those pills would be allowed to be discussed on the video." Once again, as with her Rule 404 complaint on appeal, neither Prescott's objection nor the grounds for her objection appear in the record, and her grounds are not apparent from the context. Therefore, Prescott failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a)(1). Accordingly, we affirm the trial court's judgment.
V. Conclusion
For all the foregoing reasons, we overrule Prescott's points of error and affirm the trial court's judgment and sentence.
Ralph K. Burgess
Justice Date Submitted: October 8, 2020
Date Decided: November 12, 2020 Do Not Publish