### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-03-00668- CR

De nise Do ty , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT

NO. 90340 62, H ONO RAB LE JON N. WIS SER, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N A jury found appe llant Denise Doty g uilty of intox ication manslaug hter a nd assessed a fifte en-year

prison term. See Tex. P en. Code Ann. § 4 9
. 0 8 (W es t 2003). She contends that evidenc e of he r alc ohol conce ntration should have be en suppre ssed as the f ruit of an unlaw ful sear ch and seizure. She a lso contends that evid ence reg ardingan ea rlier a rre st for driving while intox ication should not have bee n admitted. We affir m the conviction. Appellant wa s driving home at 3:30 a.m. on Dec ember 28, 2001, when she ran a red lig ht, tur ne d in to a lane of on c omi ngtr a ff

ic , a nd c oll ided wi th a

c ar d ri ve n b y Me re dit h So wa rd s. Sowards wa s killed instantly . Civil ian and police witn es ses testified to appe llant’s appar ent intox ication at the sc ene. A ppellant was taken to B rac kenridg e Hospital whe re a sample of he r blood was dra wn about one hour

afte r the collision. A test showed that her alcohol conc entration was 0.19.Appellant does no t co n t en d that the Texas Constit ution provides her g reater prote ction than 1 the United States Constitut ion. The amendment of sec tion 724.012 effe ctive September 1, 2003, is irreleva

nt to this cause . 2 2 Blo od Te st Gene rally speaking , taking a blood sample i s a sea rch a nd seizure within the scope of the F ourth Am en dment to the United States Constit ution and article I , section 9 of the T exas Constit ution. Sch mer be r v . Ca lif or nia , 3 84 U. S. 7 57 , 7 67 (1 96 6) ; Al iff v . S tat e , 627 S.W .2d 166, 169 (Tex. Crim. App. 1982). I t is undisput ed that whe n appellant’ s blood was dra wn, she wa s not 1
un de r a rr e st a nd no wa rr ant h a d b e e n issu e d. I n he r fi rs t poin t of er ro r, a pp e lla nt ur g e s tha t th e te st result should have be en suppre ssed bec ause the blood sample was take n without her express or imp lie d c on se nt.

A per son who i s arr ested for an off ense a rising out of

acts a lleg ed to have been committed while she wa s operating a motor vehicle in a public plac e while intoxi cate d is deemed to have c onsented to the taking of specimens of her breath or blood f or analy sis. Tex. Tr ansp. Code Ann. § 724.011(a ) (West 1999). A police of fice r may require that a spec imen be take n if the per son is arre sted for a

n offe nse under penal code chapte r 49 and the office r re asonably believes that a fatal
acc ident has occurre d as a r esult of the off ense. Id
. § 724.012(b) ( West S upp. 2004-05). Appellant 2 argues that any reque st for a blood specimen must fall withi n the par ameter s of sec tion 724.012 and, be c a us e sh e ha d n ot b e e n a

rr e ste d, the takin g of

he r b loo d w a s unla

wf ul.

“ Com pli anc e wi th t

he imp lie d c on se nt s ta tut e [is] not ne c e ssa ry to s a tis fy the F ourt h Am e ndme nt, and

the imp lied conse nt s ta tut e do e s n ot o ff e r p ro te c tio n g re a te r t

ha n th e F ourt

h Am endment.” Be e ma n v . S tat e , 8 6 S. W. 3 d

6 1 3 , 6 1 6

- 1 7 ( T e x. Cr im
. A p p . 2 0 0 2 )
. T h e “implied3

consent statutes do n ot preve nt the State from obtaining evidenc e by alternative constitutional means.” Id . at 616. The fa ct that appe llant had not been a rre sted means that the implied conse nt statutes do not apply

here and the State must justify the blood draw

in some other wa

y . Combest v. Sta te , 981 S.W .2d 958, 960 (Tex. App.—Austin 1998, pet. ref ’d). Consent for a se arc h is an exception to the Fourth Ame ndment req u i re m en t of a
war rant a nd probable cause . Sc hn e c k lot h v. Bu sta mo nte , 4 12 U. S. 2 18 , 2 19 (1 97 3) ; Com be st , 981 S.W .2d at 961. The State a rg ues that appe llant expressly consente d to the blood draw . Appellant urg es that her consent, if any , was not voluntar y . We must deter

mine whether the State prove d by clea r and c onvincing evidenc e that appe llan t v o l u n t arily consente d to the taking of her blood. Com be st , 981 S.W .2d at 961. Appellant wa s not seriously injured in the collision. Alth oug h she told emerg ency medical pe rsonnel that she did not wa nt to go to the hospital, they place d her on a stretc her w ith a neck br ace and tra

nsported her

by ambulance to the hospital for a more thoroug h examination. One EMS worker te stified that while t hey wer e try ing to c onvince a ppellant to g o to the hospital, a police of fi c e r t old he r t hat “ sh e wa s g oin g to g o to j ail if sh e did n’ t g o to the ho sp ita l.” No on e e lse
re me mbe re d h e ari ngsu c h a state me nt. De pa rtme nt o f P ub lic Sa fe ty

Tr oo pe r T im G a g e wa s d is patc he d to the ho sp ita l to obtain a sample of appellant’ s blood. Gag e testified that he found appe llant ly ing on a n examining table in the eme rg ency

room. A bac kboard pr evente d h er fr o m m o ving he r hea d. Gag e advise d appellant of

her r ights pursua

nt to Miranda v. Arizona , 38 4 U. S. 43 6 (1 96 6)
. He the n a sk e d h e r i f she wa s willing to g ive a blood spec imen and ex plained to her that a nurse would draw the blood.4

Gag e also told appe llant that the purpose of the blood sample wa s to determine the a mount of alc ohol in her blood. Ga g e testified that a ppellant told him she had “no proble m with it.” Ga g e te sti fi e d tha t he did no t ar re st ap pe lla

nt, bu t tha t he c on sid e re d th e blo od sampl e to b e mand a tor

y a nd he wo uld no t ha ve a llo we d a

pp e lla nt t o le a ve the ho sp ita l w ith ou t g ivi ngit. Gag e said that he did not tell appellant either that the blood draw w as m andator y or that she ha d a rig ht to refuse . He testified that “when you ask someone if they would be wil l i n g t o give a blood specimen, that’s implied that she could say y es or no.” The blood sample wa s taken by a re g istered nur s e, M i ch ael Ri ffle. Riff le testified that he also e x plained the pur pose of the sa

mple to appellant and obta ined her co n s ent before draw ing the blood. Riffle t estified that he would not have taken the sample i f appellant had objec ted
or if sh e ha d in dic a te d that sh e be lie ve d sh e ha d no c ho ic e in the ma tte r. Rif fl e sa id t hat he wo uld not have d ra wn appellant’ s blood if he had he ard a ny police off

icer tell her that the sample was mandatory , but instead would have called his super visor for a dvice. Appellant t es t i fied at the suppression hea ring that she did not want to g o to the hospital beca

use she wa s not injured and bec ause she did not have insuranc e. She said that she wa s tol d b y an E MS te c hn ic ian a

nd a po lic e off

ice r th at sh e “ c an e ith e r s tay he re and wa it f or DPS to
arr ive on the sc e ne , or y ou c an g o in an a mbu lanc e to B ra c ke nr idg e Ho sp ita l. A nd Ipic ke d to g o to t h e ho s p i t al b ec au s e th o s e we re t h e on l y t wo ch o i ce s I h ad
. ” Ap p el l an tt es t i fi edt h at T ro o p er Ga ge tol d h e r at th e ho sp ita l th a t th e nurs e wa s g oin g to d ra w a sampl e of he r b loo d a nd that sh e “ [did

n’ t] have a ny choice beca

use [she had] been in a f

atality acc ident.”5 Appellant argues that she did not voluntarily consent to the taki n g o f h er b lood beca use she wa s transported to the hospital ag ainst her will, beca use she wa s phy sically

restra ined on the bac kboard, be cause Gag e testified that she wa s not free to go w ithout giving a blood sample, and bec ause she was not informed that she had a right to withhold her consent. B ut appellant’s own t es t i m o n y s h ows that her pr imary conce rn about g oing to the hospital wa s financia l, and the trial
c ourt c ou ld d isc ount t

he oth e r te sti mony

su g g e sti ngthat a

pp e lla nt h a d b e e n thre a te ne d w itha dv e rs e conseque nces if she did not g o. Appellant’s phy sical restra int on the ba ckboar d was for medical, not po lic e , p ur

po se s. Al tho ug h k

no wl e dg e of

the ri g ht t o r e fu se c on se nt i s a fa c tor to b e take n in to consideration, such knowledg e is not a prerequisite of an effec tive consent. Sc hn e c k lot h , 4 12 U. S. at 227. B oth Gag e and Riff le testified that no dema

nd for the blood s am p l e wa s made a nd that appellant wa s asked f

or and free ly

g ave he r conse nt after

being told that the blood sample would be te ste d f or a lc oh ol c on te nt. When rev ie w in g a

r u li n g o na

mo ti o nto s u

p p r e s s e v id e n c e , w e d e f

e r to th e tr ial court’s f actua l determinations but revie w de novo the c ourt ’s a pp lic a tio n o f t

he law t o th e fa c ts. Gu zm an v . S tat e , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). Viewing the evidenc e in this recor d in the light most favor able to the c ourt’s ruling , we c onclude that the Stat e proved by clea r and
c on vin c inge vid e nc e tha

t a pp e lla nt v olu nta ri ly c on se nte d to the bl oo d draw . Poin t of e rr or on e is
overr uled.
Pre v iou s In c ide nt Backg ro und Appellant’s three re maining points of e rror relate to an incident that oc curr ed on Aug ust 1, 2001, approxim ately five months be fore the fata l c ollisi on. Be fore trial, the State notifiedThe judg ment states that D o ty w a iv e d tr ia l b y ju r y b ut was found “not g uilty by direc ted 3 verdic t.” Off

icer Wines testified t hat he was never subpoenaed in c ause numbe r 617750. Off icer Dupre testified that he r ece ived seve ral subpoena s in that cause , but never testified. We infer that the “ dir e c te d v e rd ic t” re su lte d f ro m th e State ’s fa ilure to p ro du c e its wi tne sse s.

6 appellant that it i ntended to offe r evidence at the puni shment stag e that, on Aug ust 1, 2001, she had committed the offe nse of dr iving while intoxicated. See Tex. Code C ri m . P ro c. Ann. ar t. 37.07, § 3 (g ) ( Wes t Su

pp . 2 00 4- 05 ). Whil e the jur y wa s d e lib e ratin g a

pp e lla nt’ s g uil t, a

he ari ngwa s h e ld to consider a

ppellant’s objec tions to t his evidence
. Au s t i n police off

icer Ger ald Wines testified at the hea ring that on Aug ust 1, 2001, he was working a tra ffic dive rsion due to construc tion at Highw ay 290 and Airpor

t Bouleva rd. At about 4:00 a. m . , he noticed a vehicle “ proce eding on the turnar ound towards my direc tion in the wrongway

on a one- way .” He testified that the vehicle “kept on coming towards the front of my car and towar ds me, and I

was standingin front of my car . And it did not c ome to a complete stop. I actua lly had to put my

hands on the hood to g et the drive r to stop it
. ” Officer Wines said that the driver of the vehicle , a woman, sme lled of alc oholic bever ag e and told him that she had be en dr ink ing . Win e s d id n ot i de nti fy a pp e lla nt. Offic er William Dupr e testified that he responde d to Wines’s c all for a ssistance. He ide nti fi ed appel lant a s th e dr ive r o f t he ve hic le in q

ue sti on . H e sa id t

hat he a dmi nis te re d f

ie ld
so b ri et y t es t s to appellant af ter noticing the usual manife stations of intox ication. I n his opinion, appellant f

ailed these tests. He then a rre sted her f

or driving while intox icated. Ap pe lla nt i ntr od uc e d at th e he ari nga c ounty c ou rt a t law jud g me nt i n T ra

vis County
cause number 617750. This doc ument shows that at a be nch trial he ld Dece mber 30, 2002, a ppellant was found not guilty

of driving while intox icated on Aug ust 1, 2001. Appellant also introduce d an 37

or de r b y the same c ourt , d a te d Jan

ua ry 24 , 2 00 3, e xpun g inga ll r e c or ds re la tin g to a pp e lla nt’ s A ug us t 1 arrest. See T e x. Co d e Cr im
. Pr o c . A n n . arts
. 5 5
. 0 1

- . 0 2 ( We s t 2 0 0 5 )
. T h e A u stin P olice Depa rtment and the Tr avis County District Attorney

wer e two of the agen ci es named in the expunction order.

The lea d prosec utor in the instant cause testified that a pr evious prosecutor had obtained a c opy

of the August 1 offense repor t before the expunction order wa s entere d and had place d it in the case f

ile. She said that she wa s persona lly unawa re of the expunction order whe n she discovere d the offe nse re port and ini tially contac ted Off icer Wines. After lea

rning of the orde r, she called Wines and told him that the offe nse repor t ha d been e x pung ed and that he was not to re view it. Offic er Wines testified that aft er the prosec utor contac ted him in April 2003 and asked if h e re ca l l ed the August 2001 incide nt, he obtained a copy of the off

ense r eport fr om the police depa

rtment’s computer . Wines testified that the repor t did not refre sh his memory as to the details of the incide nt, which he reme mbere d independe ntly , but that it did “secure [hi s] t houg hts.” Some time there a f

te r , h e w a s c a ll e d

b y th e p r o s e c u to r

an d to ld th a t t h e ar r e s t r e c o r d s h a d

b e en expunged a

nd that he wa s not to look at the offense repor t ag ain. Wines said that his te s t i mony
re g ard ingthe Au g us t 1 i nc ide nt w a s b a se d s ole ly on his me mor

y of the e ve nts
. Of fi c e r D up re te sti fi e d th a t he did no t r e me mbe r w hen he las t sa w t he Au g us t 1 offe nse report. He testified that he had not seen the repor t since being contacte d by the prosec utor “a f ew we eks” b ef

o re the instant trial and that his testimony was ba sed entire ly

on his memory

of the inc ide nt.8 At the conc lusion of the heari n g, t h e t ri al cour t noted that the offic ers’ proff ere d testimony was cl ea rl y

rele vant to sentenc ing. Se e id . art. 37.07, § 3(a )(1) (West Supp. 2004-05). Be cause their testimony

was ba sed on their memor ies of the incident and did not depe nd on the expunged r ecor ds, the court he ld that the office rs would be permitted to te stify to a ppellant’s driving on the wrongside of the hig hway , her ap p ea ranc e and a dmission t hat she ha d been dr inking, the administration of the field sobrie ty tests, and the results of those tests. The cour t ruled that evide nce of appe llant’s arr est for dr iving while intoxicated was ina dmissibl e.
Collat eral Estoppel Under the Fif th A mendment collater al estoppel rule, “whe n an issue of ultimate fac t has once been de termined by a valid and f

inal judgme nt, that issue cannot ag ain be litigated betwe en the s ame parties i n any

future la wsuit.” Ashe v. Swe nson , 397 U.S. 436, 443 (1970). I n her se cond point of err or, appellant asser ts that the S tate was collater ally estopped from relitig ating the i ssue of whether she drove while intox icated on Aug ust 1, 2001. Col la te ra l e sto pp e l ope rate s only if the ve ry fa c t or po int in i ssu e wa s d e te rm ine d in the p ri o r proc eeding
. Ex parte Taylor , 101 S.W .3d 434, 441 (Tex. Crim. App. 2002). I ssue prec lusion is limit ed to c ases wher e the leg al and fac tual situations ar e identical. Id
. I n revie wing
a co l l at er al estoppel cla im, both trial and appellate courts must examine the rec ord of the pr ior pr oc e e din g , ta

kin g int o accoun t th e ple a din g s, e vid e nc e , c ha rg e , a nd oth e r r e le va

nt m a tte rs to deter mine whether

a rational fac tfinder c ould have g rounded its dec ision on a fac t o t h er tha n the specific fac t that the party n o w cl aim s was re solved in her f avor. Gu aja rd

o v . S tat e , 109 S.W .3d 4 5 9 -6 0 (T ex . C ri m . Ap p . 2 0 0 3 ) ( ci t i n g Ashe v. Swe nson ).9 The only rec ord introduce d by

appellant f

rom her tr ial in cause number 617750 wa s the judg ment of ac quittal. Appel lant’s counse l also told the trial court that he ha d repr esente d
a pp e lla nt i n th e e arl ie r t

ri a l and ha d c ha lle ng e d h e r deten ti on and ar re st i n a mot ion to s up pr e ss evidenc e. He added, how ever , that the cour t in the ear lier tria l “h ea rd n o evidenc e whatsoever
c o n c e r n in g th e is s u e o f r e a s o n a b le s u s p ic io n to d e ta in o r p r o b a b le c a u s e to ar r e s t and found the defe ndant not g uilty .”

There is no e vidence befor e us that appellant’ s acquittal in c ause numbe r 617750 wa s based on a

finding that she did not drive on the wr ong side of the hig hway at the interse ct ion of High wa y 2 9 0 an d Ai rport B oulevar d on the nig ht of Aug ust 1, 2001, or that she had not be en drinking at the time and plac e in questi on. Be cause these were the fac ts at i ssue in the instant cause , we hold that the c ourt proper ly overr uled appe llant’s collater al estoppel objec tion.
Article 55.04 Appellant also urg es in her se cond point of er ror tha t t h e evidence re g ardingthe Aug ust 1, 2001, incident should have bee n excluded beca use it was unlawfully

obtained. Te x . Code Crim. Proc. Ann. art. 38.23( a) ( West 2005)
. Ap pellant base s this claim on code of c riminal pr oc e dure art ic le 55 .0 4, wh ic h p ro vid e s:

A per son who ac quires knowledg e of a n arr est while an of

fice r or e mploy ee of t he st ate or of any ag ency or ot her entity of t he st ate or any political subdivisi on of the st ate and

wh o k no ws of an o rd e r e xpun g ingthe re c or ds and fi le s r e la tin g to that arr e st c omm its an of

fe ns e if he kn ow ing ly

re le a se s, dis se min a te s, or oth e rw ise us e s th e re c or ds or

fi le s.10

Tex. Code Crim. P roc. A nn. art. 55.04, § 1 (West Supp. 2004-05). Appe llant argues that the lead prosec utor in this cause unlawfully used the expunged of fense repor

t to learn of a

nd then sec ure the te sti mony of the tw o p oli c e of

fi c e rs . Sh e fu

rt he r a rgue s th a t O ff

ic e rs Wine s and

Du pr e un lawf

ull y
us e d th e e xpun g e d r e po rt to r e fr e shthe ir

me mor ie s o f t

he Au g us t 1 i nc ide nt. Under article 55.04, the use of a n ex p ung ed re cord or

file is unlawful only

if the person using t he file knows of t he expunction order. T he prose cutor testified w ithout contradiction that she did not know about the e x punction order when she discovere d the Aug ust 1 offense repor t in he r case file. Offic er Wines a lso te stified that he did not know about the expunction order whe n he retrie ved the offe nse re port on the police c omputer. Ther e is no evidenc e that Of fice r Dupre ever loo ke d at th e of

fe ns e re po rt

a ft e r t he e x punc tio n o rd e r w a s e nte re d, muc h le ss t hat he did so wi th kn ow le dg e of

the or de r. B oth

of fi c e rs te sti fi ed th at thei r t ri a l te sti mony

wa s b a se d o nly

on the ir
me mor ie s o f t

he e ve nts of

Au g us t 1 a

nd did no t in c lud e any

inf or ma tio n g le ane d f

ro m th e of

fe ns e repor t. See B ustamante v. Be

xar County Sherif

f ’s Civil Serv. Comm’n , 2 7 S. W. 3 d 5 0 , 5 4 ( T e x. App.—San Antoni o 2000, pet. denied) (testimony descr ibing of

fice rs’ pe rsonal obser

vations did not violate expunction order) . Be cause no violation of article 55.04 by the prosec utor or off

icer s was
s h o w n , art i c l e 3 8
. 2 3 d i d

n o tr e qu i r e t h e s u

p p r e s s i o no f

t h e o f f i c e r s ’ t e s t i m o n y. Finding both contentions to be without merit, we over rule point of er

ror two. Evidence of

Acquitt al I n point of err or three , appellant contends the tria l court er red by ref using to a llow her to intro d u c e in e v id e n c e th e ju d g me n t o f a c qu itta l in c a u s e n u mb e r 6 1 7 7 5 0
. T h e c o u rt r u le d that such use of

the judg ment was impermissible under the terms of the expunctio n o rd er . AppellantAp pe lla nt did no t a sse rt the op tio na l c omp le te ne ss ru le at tr ia l, no r do e s sh e ra ise it o n a pp e a l. 4 See Te x. R. A

pp . P. 10 7; an d s e e Su nb e rry v . S tat e , 88 S.W .3d 229, 234-35 (Te x . Crim. App. 2002); Me nd iol a v . S tat e , 21 S.W .3d 282, 285 (Tex. Crim. App. 2000). 11 d o e s n o t d i s p u t e t h i s r

u l i n g , a s t o w h i c h w e e xp r e s s n o o p i n i o n . I n s t e a d , s h e ar g u e s , a s sh e did below, that the judgme nt w as admissible unde r the doc trine of c urative a dmissibi lity . This doctrine
a llo ws a par

ty to i ntr od

uc e e vid e nc e that mi g ht o the rw ise be e xclu de d to c ounte r t he un fa ir prejudicia l use of similar evidenc e by the opposing party
. Le da

yv . S tat e , 9 8 3 S. W. 2 d

7 1 3 , 7 1 6 ( T e x. Crim. App. 1998). The a dmissibi lity of the e vidence is ba sed on the need to ne g ate or explain—or “cur e”—the ear lier er

ror, he nce the term “c urative a dmissibi lity .” Id
. Appellant arg ues t hat t he judgment of a cquittal was a dmissibl e to meet, de stroy , or explain the testim ony

of Off icer s Wi nes and Dupre. But we ha ve over ruled a ppellant’s point of er

ror challengin g the introduction of this testimony . Wit hout an ea rlier e rror

to cure , the cur ative admissibili ty

doctrine w as not applica ble. B eca

use no other g round for

admission was urg ed, no
err or is shown. Point of error thr ee is ove rruled. 4
Mistri al Motion

The two off

icer s’ testimony

befor e the jury

substantially

confor med t o the ea

rlier pr of fe r a nd to t he c ourt ’s ru lin g s. Ho we ve r, wh e n O ff ic e r D up re wa s a sk e d h owhe wa s a ble to identify appellant a s the person he observe d on Aug ust 1, 2001, he answere d, “Well, mainly for two
rea sons, one which I

stated ea rlier. This is the l ast—one of the l ast DWI arr ests Imade be fore Ileft the stree t. I t kind of stands out in my mind. Also—.” De fense counsel interr upted the off

icer and,
ou t of the jur y ’s he ari ng , mo ve d f

or a mis tr ia l ba se d o n th e of

fi c e r’ s r e fe re nc e to t

he DWI a rr e st, which the c ourt had ruled to be inadmissible. The cour t denied the mistrial motion but ins tructed12

the jury to disre g ard “the last answe r.” I n point of err or four, appellant complains of the denial of the re qu e ste d mi str ia l.

A mistrial is required w hen there is e rror so prejudicia l that continuation of the trial would be futile. L ad

d v. Stat e , 3 S.W .3d 547, 567 (Tex. Crim. App. 1999). As a g ener al rule, testimony err oneously

ref err ing to a n extraneous offense can be rende red harmless by an instruction to disreg ard. Ke mp v . S

tat e , 846 S.W .2d 289, 308 (Tex. Crim. App. 1992). An instruction will be insufficient only

if the evide nce w as so clea rly calc u lated to inflame the minds of the jury or is of such damning char acte r as to sugg est the i mpossibil ity of removing the harmful impression fr om the jurors’ minds. Id
. The denial of a mistrial motion is revie wed f or an a buse of discr etion. Ladd , 3 S.W .3d at 567. Contrary

to appellant’s argument in he r brief , there is nothing in the re cord to support a finding that the prosec utor deliberately adduce d the fact of her DWI arr est. The que stion she asked did not obviousl y

call for this information. Only three pag es earlier in the reporte r’s re cord, D upre had mentioned in passingthat “this was one of the last stops Imade be fore I left patrol” and ‘[t] hat’s one of the rea sons why it stands out in my mind.” The prose cutor may well have anticipated that the of fi c e r w ou ld s ay

the same thi ngwh e n a sk e d d ir e c tly wh y he re me mbe re d th e inc ide nt. We do not believe that the officer’ s ref ere nce to appellant’ s arr est was so prejudicial as t o sug g est the i mpossibil ity of removing the harmful impre ssion from the jurors’ minds. We are
no t pe rs ua de d th a t th e ins tr uc tio n to dis re g ard

wa s in su ff

ic ie nt o r t hat th e tr ia l c ourt

a bu se d it s discretion by

overr uling the motion for mistrial. Point of err or four is overrule d.13 The judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: May

26, 2005 Do No t Pu

bli sh