Affirmed and Memorandum Opinion filed November 12, 2013.

In the

Fourteenth Court of Appeals

NO. 14-13-00035-CR

FREDDIE JOSEPH, Appellant,

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County

Trial Court Cause No. 1360849

M E M O R A N D U M O P I N I O N

Appellant Freddie Joseph appeals following his conviction for possession of 

a controlled substance and sentence of eight years in prison. In his sole issue, 

Joseph contends that the trial court abused its discretion in denying his motion for 

mistrial. We affirm. 
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I. Background

Houston Police Department officers J.R. Sneed and Kendric Stringfellow 

observed Joseph standing in an intersection smoking a cigarette on September 11, 

2012. The officers testified that when they approached Joseph, they could smell 

the odor of phencyclidine (“PCP”). Joseph crushed the cigarette in his hand and 

dropped it to the ground. The cigarette was later analyzed by a chemist at the 

Houston Police Department Crime Lab and tested positive for PCP.

At trial, Sneed, Stringfellow, and Mariam Kane, a criminalist with the 

Houston Police Department Crime Lab testified on behalf of the State. Joseph did 

not testify. During the prosecutor’s direct examination of Stringfellow, the 

following exchange occurred describing when the officers first approached Joseph: 

Prosecutor: Okay. Did the defendant say anything to y’all at that 

point?

Stringfellow: I can’t recall.

Prosecutor: Okay.

Stringfellow: At one point he told us that he was on parole and he was 

stressing and that’s why—

Defense counsel immediately objected and requested a bench conference. 

After approaching the bench, defense counsel objected to Stringfellow’s response 

as “highly prejudicial” and argued an instruction to the jurors to disregard the 

statement about Joseph’s being on parole would not be effective. Defense counsel

then moved for a mistrial. The trial court denied the motion for mistrial and 

instead instructed the jury to disregard Stringfellow’s answer, adding “[y]ou may 

not consider it for any purpose whatsoever.”
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The jury ultimately convicted Joseph of possession of a controlled 

substance. The indictment in the case alleged two enhancement paragraphs to 

which Joseph pled “True.” Finding both enhancement paragraphs True, the jury 

assessed punishment at eight years confinement in the Institutional Division of the 

Texas Department of Criminal Justice. Joseph now appeals in one issue

challenging the denial of a mistrial.

II. Analysis 

We review a trial court’s denial of a motion for mistrial under an abuse of 

discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). 

A trial court does not abuse its discretion unless its decision falls outside the zone 

of reasonable disagreement. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. 

App. 1997). The determination of whether a mistrial is required depends on the 

facts of a particular case. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 

2000).

Reference by a witness to a defendant’s prior incarceration violates the rule 

of evidence which prohibits the introduction of collateral offenses. See Tex. R. 

Evid. 403, 404(b). However, when a witness inadvertently references an 

extraneous offense, it is generally cured by a prompt instruction to disregard the 

testimony. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). We 

presume a jury will obey the trial court’s instruction. See Ladd v. State, 3 S.W.3d 

547, 567 (Tex. Crim. App. 1999).

For example, in Tennard v. State, the Texas Court of Criminal Appeals held 

error was cured by a prompt instruction to the jury to disregard a State witness’s 

unresponsive comment that referenced a prior offense. 802 S.W.2d 678, 684−85 

(Tex. Crim. App. 1990). In Tennard, the witness stated he saw the appellant after 

the appellant “got out of the penitentiary.” Id. at 685. The case at hand involves a 
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similar vague reference by a witness to prior offenses. See id. Like in Tennard, 

the prompt limiting instruction by the trial judge cured the error. See id.

A mistrial would be the remedy for improper conduct that is so prejudicial 

that expenditure of further time and expense would be futile. Hawkins, 135 

S.W.3d at 77. For example, a mistrial would be appropriate when reference to an 

extraneous offense was “clearly calculated to inflame the minds of the jury or was 

of such damning character as to suggest it would be impossible to remove the 

harmful impression from the jurors’ minds.” Rojas v. State, 986 S.W.2d 241, 250 

(Tex. Crim. App. 1998) (holding a witness’s statement that appellant had 

committed “past violence” was cured by a prompt instruction to disregard because 

the State did not anticipate the comment, the comment was not a “concrete 

reference” to an extraneous offense, and the witness was prevented from 

elaborating on the extraneous offense because of the prompt objection).

Joseph argues the witness’s comment that he was out on parole was highly 

prejudicial in this case because Joseph declined to testify at trial, fearing the 

introduction of his prior convictions. However, like in Rojas, the trial court did not 

commit an abuse of discretion by determining the officer’s comment did not 

warrant a mistrial: the State’s questioning was developing the narrative, rather than 

anticipating a reference to an extraneous offense; the reference was not a concrete 

statement of a prior offense; and the prompt objection and instruction to disregard 

prevented any elaboration on the offense. See Rojas, 986 S.W.2d at 250. The fact 

that Joseph declined to testify does not make this an extreme case. Austin v. State, 

222 S.W.3d 801, 815 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding 

a mistrial is required only in “extreme” circumstances). Therefore, we overrule 

appellant’s sole issue.
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We therefore affirm the trial court’s judgment.

/s/ Marc W. Brown

Justice

Panel consists of Justices Christopher, Donovan, and Brown.

Do Not Publish — TEX. R. APP. P. 47.2(b).