Frederick Lynn Fleming v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-073-CR FREDERICK LYNN FLEMING, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 42,080, HONORABLE JOE CARROLL, JUDGE PRESIDING After the jury found appellant guilty of aggravated assault, Tex. Penal Code Ann. § 22.02 (West 1989), punishment, enhanced by a prior felony conviction, was assessed by the court at confinement for six years. In a single point of error, appellant asserts that the trial court erred in denying his motion for mistrial after the State improperly established that he had fathered two children out of wedlock. We will overrule appellant's point of error and affirm the judgment of the trial court. Appellant and Monique Stonum were never married. It appears to be undisputed that appellant is the father of Stonum's two children as well as the father of a child Stonum was carrying at the time of trial. Stonum, accompanied by her one-year old daughter, a cousin Tiffany Howard, and friends Nicole Johnson and Yolanda Rutledge, went to Motel 6 in Temple on June 4, 1992, to locate appellant. Stonum testified that she went to the motel to ask appellant for money to buy "Pampers" for the baby and to "see if he was really out there with that girl." An argument between Stonum and appellant began when Stonum approached appellant near the car of one of his friends in the parking lot of the motel. While it is undisputed that appellant had a gun, the testimony is conflicting as to whether appellant merely exhibited the gun or threatened Stonum with the weapon. Stonum left with her friends and took her daughter to an aunt's house. After a visit to the Big Time Club, Stonum and her friends returned to Motel 6. Stonum, a reluctant witness for the State, testified appellant was "showing it [the gun] to me and telling me to leave and go home." Appellant told Stonum's friends to leave because he was going to shoot Stonum. Stonum stated that she thought "he was just playing." During the course of the argument, "I swung and hit him, and the gun went off." Stonum was hospitalized for a week as the result of a bullet passing through her left thigh. Appellant urges that testimony elicited on redirect examination of State's witness Tiffany Howard that Yolanda Rutledge had two children by appellant was not relevant to any issue and was intended to prejudice appellant in the eyes of the jury. The following occurred during redirect examination of Howard and forms the basis of appellant's complaint that the trial court erred in overruling appellant's motion for mistrial: Q [Prosecutor]: All right. Now, you're familiar with Yolanda Rutledge, aren't you? A: Somewhat. I know of her, but I mean, we've never just been friends. Q: She also has two children by this defendant; is that correct? A: Uh-huh. MR. BROWN [Defense counsel]: Your Honor, I'm going to object to that. Again, I don't see that has any relevancy to this case. THE COURT: Sustained. MR. BROWN: I'd ask the jury be instructed to disregard that, your Honor. THE COURT: I'll instruct the jury to disregard the last question and answer. MR. BROWN: Your Honor, I feel like this is a deliberate attempt on the part of the State to prejudice this defendant in front of this jury, and I'd ask for a mistrial. THE COURT: I'll trust that the jury will follow the instructions of the Court, and I will instruct the jury again they should disregard anything that was brought out in the last question and answer. Entrusting the jury to follow the instructions, I will overrule your motion for mistrial. Appellant directs our attention to a finding by the Court of Criminal Appeals in Boyde v. State, 513 S.W.2d 588, 589 (Tex. Crim. App. 1974), that the State's presentation of evidence that defendant's wife filed for divorce after defendant was charged with homicide (for which he was being tried) did not solve any disputed issue and was prejudicial to the defendant. In addition to eliciting information about defendant's wife filing for divorce, the Boyde court pointed to numerous other errors resulting from attempts by the prosecutor to circumvent rulings of the court in both presentation of inadmissible evidence and improper jury arguments in concluding that prosecutorial conduct could not be labeled harmless. Id. at 593. In Withers v. State, 631 S.W.2d 595, 596 (Tex. App.--El Paso), aff'd, 642 S.W.2d 486 (Tex. Crim. App. 1982), the court held that evidence of defendant's two prior divorces and his wife's affair with another man were not related to any issue concerning defendant's reckless conduct and was prejudicial as to issues not before the jury. In Hatke v. State, 455 S.W.2d 310, 312 (Tex. Crim. App. 1970), also cited by appellant, the court found no error in the prosecutor's argument that all the defendant had to show for thirty years of life was four broken marriages when the defendant had testified that the man she was charged with murdering was her fourth husband. Appellant urges us to equate testimony relative to fathering children out of wedlock with evidence about marital history in determining relevancy and harmfulness of the complained-of testimony. We need not make this determination because we do not find appellant's authorities persuasive in the resolution of the issue in the instant cause. The complained-of testimony was cumulative of other evidence that appellant had fathered children of an unmarried woman. The trial court twice instructed the jury to disregard the complained-of question and answer. Harm caused by an improper remark can generally be cured by "an appropriate instruction to disregard, unless the remark is so inflammatory that its prejudicial effect cannot be effectively removed." Caldwell v. State, 818 S.W.2d 790, 801 (Tex. Crim. App. 1991). We hold that the complained-of question and answer were not so objectionable that they could not be cured by the court's instructions to disregard. Appellant's point of error is overruled. The judgment is affirmed. Tom G. Davis, Justice [Before Justices Powers, Kidd and Davis*] Affirmed Filed: August 25, 1993 [Do Not Publish] * Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).