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Mendez v. State4/25/2002
imony from a neighbor that he had seen appellant outside the apartment immediately preceding the stabbing. Indeed, he testified it was about 20 minutes prior to the time appellant brought the baby to his apartment. It would have been possible for appellant to leave the apartment in that 20 minutes, and therefore the evidence is not necessarily cumulative.
Rule 403 provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, or needless presentation of cumulative evidence. Id. 403. We have already determined that the evidence had probative value. Further, precautions were taken so that any prejudicial effect of the testimony was minimal. Thus, it cannot be said that the prejudicial value substantially outweighed the probative value or that the trial court abused its discretion in permitting the admission of the evidence. Appellant's second issue is overruled.
Appellant complains in his third issue that the trial court should have granted a mistrial when testimony was presented by Sandra's mother concerning an extraneous offense he committed. The objectionable testimony is as follows:
Q: Now, prior to her death, where did your daughter live, where was her residence?
A: When she died?
Q: Yes, ma'am.
A: In Friona.
Q: And did she live at those apartments?
A: Yes, sir.
Q: And who was she living with?
A: With Franky, he had just moved back in after he got out of the pen.
At that point, appellant moved for a mistrial because the jury had been informed that he had been in prison. The court denied the motion for mistrial, but offered to give an instruction to disregard. Before the instruction was given, appellant also objected on the basis of Rules 403 and 404 of the Rules of Evidence. The court sustained the objection as to relevancy and instructed the jury not to consider the witness's last answer as evidence for any purpose.
Appellant concedes that error in the admission of improper testimony will usually be cured by an instruction to disregard; however, he argues that, in this instance, the instruction was insufficient to cure the harm created by the testimony. This is so, he posits, because the witness had been warned not to make any such remark and it was therefore calculated to inflame the minds of the jury. He also notes the weak factual basis of the case in asserting that no limiting instruction could cure the impression left on the jury.
Appellant cites Tate v. State, 762 S.W.2d 678 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd) and Govan v. State, 671 S.W.2d 660 (Tex.App.--Houston [1st Dist.] 1984, pet. ref'd), as authority for his argument that these cases involved instances in which the prosecutor violated a court order in making reference to an extraneous offense or brought a witness to the stand for the sole purpose of extracting testimony of an extraneous offense after he had assured the court he would not do so. Tate, 762 S.W.2d at 681; Govan, 671 S.W.2d at 663. In the case at bar, the State did not ask a question that would ordinarily extract information as to an extraneous offense, it merely asked the witness who Sandra lived with. Appellant notes that the remark followed the testimony about electronic monitoring, but that neither that evidence nor the remark by Sandra's mother was calculated by the State to inflame the jury. We believe the instruction to disregard would have cured the error in the admission of the testimony. The third issue presented by appellant is
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