## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 12

- 00048

- CR

KARLYC TYRONE HARRIS, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 27547

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter2 

### MEMORANDUM OPINION Karlyc Tyrone Harris appeals from his convic tion by a jury for burglary of a habitation (entering a habitation without consent and attempting to commit or committing sexual assault). The jury assessed his punishment at twenty

- five years ’ imprisonment and a $2,500.00 fine.
Harris contends that the trial court committed reversible error by denying his motion for mistrial and also by admitting an exhibit containing evidence of an extrinsic offense.
I. Factual and Procedural History Harris entered a house and confronted a woman as she got out of the shower. The woman told him to get out, locked herself in her bedroom, and called her boyfriend. From the tele phone call , she determined that icy road conditions would prevent her boyfrie nd from arriving quickly. As she called 9

- 1

- 1 for emergency assistance, Harris began kicking the door and yelling. She ran into another room with her young son; Harris broke down the door and demanded sex. Fearful for her son and herself, she complied. Even when the police arrived, Harris continued his sexual assault until police physically removed him. Harris testified that he was given a substance in a drink by his uncle that caused him to act strangely; when he regained self

- awareness, he was in a holding cell. Harris had no convictions before this date; witnesses testified that this behavior was completely out of character for him.
II. Denial of Motion for Mistrial Harris contends that the trial court abused its discretion by denying his motion fo r mistrial. The motion for mistrial was based upon a question asked of Harris by the State while3 cross - examining Harris about statements he made to law enforcement

— after he had invoked his right to counsel. He argues that the statements were made in cont ravention of Miranda , 1 and , thus , the court’s instruction to disregard was inadequate. On direct examination, Harris testified that his “uncle” gave him a drink that made his head spin, “just boom, and it was just like a big, whirl spin hit me or someth ing like that.” He testified that after walking off, he did not remember what was going on until he woke up in the
Hunt County holding cell. On cross

- examination , the State attempted to impeach Harris and asked him if he remembered giving a statement on March 4 to D etective Jamie Fuller about a month after the offense. Harris recalled that he told her that he remembered nothing about the day. Harris testified that Fuller had asked him if he was on drugs or had been drugged that day, and he told her he w as not. On re

- direct , Harris asked him if, when he talked with Fuller, he had told her that he had an attorney. He answered that he had done so and that she left t he room and did not reappear.
On re

- cross , the State asked Harris if at nine minutes an d forty

- two seconds into the interview , he said he did not remember anything at which point Fuller read him his rights, and Harris stated he would rather have his lawyer there. “And at 10:50, she says there’s nothing you want to tell me and then you tell her about how you slipped on the ice?” Defense counsel then objected and argued that all evidence about statements by Harris after he invoked his right of counsel were inadmissible. The State argued that Harris had misled the jury into thinking he had
in itially reported that he did not remember the criminal events, but according to the S tate, he first

1 Miranda v. Arizona , 384 U.S. 436, 494 (1966).4 stated he did not remember anything after he had been warned of his rights. After a lengthy argument ensued , the S tate withdrew the question , and the trial court instructed the jury to disregard the question. Harris argues that any question asked after Harris had invoked his right to counsel was improper and that “the law is so well settled on this issue as to not bear repeating

. . . . ” Even so , it woul d be helpful if counsel provided authority and explained how it applied to the present situation. Here, the State argues that its question was merely to correct the sequence of events Harris had incorrectly suggested. We find it hard to completely follow the logic of the S tate’s argument, but we also do not believe that reversible error is present. The question, asked after Harris invoked his right to counsel, was whether Harris told an officer that he slipped on the ice. There is no explanation in the briefing as to how that statement is in any way incriminating of Harris; it has no particular legal significance. It is generally true that custodial interrogation may not continue after invocation of the right to counsel. Here , the evidence consisted o f a question that was not answered, was not incriminating, and was withdrawn with an instruction to the jury to disregard the question. Further , Harris previously had been asked and answered , without objection, a lengthy question containing this same evidence. 2 Asking an improper question alone will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State , 3 S.W.3d 547, 567 (Tex

.

2 Q. And do you remember telling her that you don’t remember anything about that day, except that you stayed the night at your fiancee’s house; coming out of the house, you slipped on the ice ; that a neighbor picked you up; that you walked to your Uncle Johnny’ s house, and then you said, That’s all I remember? A. Yes.5 Crim. App. 1999). Mistrial is an extreme remedy that is appropriate only when the objectionable event is so emotionally inflammatory that a curative instruction is not likely to prevent the jury from being unfairly prejudiced against the defendant. You ng v. State , 137 S.W.3d 65, 71 (Tex. Crim. App. 2004). A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard. Coble v. State , 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). Under these facts, we do not find that the denial o f a mistrial was an abuse of discretion. 3 Counsel suggests that the mere asking of the question created unquestionable error and insurmountable harm. We have reviewed the cases cited by counsel for this proposition and are not persuaded that they are rel evant in this situation. 4 The contention of error is overruled.
III. Admissibility of the Plea of Guilt Documents Harris next contends that the court erred by admitting State’s E xhibit 21A. That exhibit is a redacted plea of guilty and judicial confession fo r an extraneous offense: giving a false name to a police officer (at the time of the offense herein on trial). Harris testified that he did not understand his rights or what was contained within the plea p apers; the trial court allowed this exhibit to im peach that testimony. We use an abuse of discretion standard when reviewing the trial court’s decision to admit evidence. Shuffield v. State , 189 S.W.3d 782, 79 3 (Tex. Crim.

3 Since we find these facts d o not present a trial error, it is not necessary to consider the State’s argument that it was allowed to impeach Harris’s recollection of the events. The shield prov ided by Miranda , 384 U. S. 436 , does not prevent the S tate from impeaching the defendant with his or her prior conflicting accounts. Harris v. New York , 401 U.S. 222 (1971); s ee Clark v. State , 668 S.W.2d 479, 480 (Tex. App.

— Texarkana 1984 , no pet.) (Artic le 38.22 of Texas Code of Criminal Procedure does not prevent use of defendant’s statements for impeachment).

4 Samuel v. State , 688 S.W.2d 492 (Tex. Crim. App. 1985); Morris v. State , 897 S.W.2d 528 (Tex. App.

— El Paso 1995, no pet.).6 App. 2006). An appellate court will not reverse a trial court’s ruling unless t hat ruling falls outside the zone of reasonable disagreement. Id. at 792. Harris objected that he had not given inconsistent statements and that this evidence was not proper impeachment. Generally , specific instances of conduct may not be introduced to attack the credibility of a witness. T EX
. R. E VID
. 608

. But a witness may be impeached by evidence of a felony offense or a crime of moral turpitude when the trial court determines that the probative value of admitting the evidence outweighs its prejudicial effect to a party. T EX
. R.
E VID
. 609(a)

. Harris wa s convicted for the offense of giving a false and fictitious name to the police officer investigating this offense. T EX
. P ENAL C ODE A NN
. § 38.02(b) (West 2011)

. “ Lying to a police officer or an officer of the court involves moral turpitude, regardless o f whether it is done for personal gain, because it involves dishonesty.” Lape v. State , 893 S.W.2d 94 9 , 958 (Tex. App.

— Houston [14th Dist.] 1994 , pet. r ef’d) (citations omitted). Thus, evidence of the conviction was admissible if the trial court determin ed the probative value of admitting it outweighed the prejudicial effect. Since Harris did not object to the judicial confession, but only the other plea papers, the jury heard, without objection, that Harris had confessed to committing an offense. Unde r these circumstances , we cannot say that the trial court abused its discretion in implicitly concluding7 that the probative value of the evidence outweighed the prejudicial effect. 5 The contention of error is overruled. We affirm the judgment of the tria l court.

Jack Carter Justice Date Submitted: November 29, 2012 Date Decided: December 21 , 2012 Do Not Publish

5 If the trial judg e’s decision is correct on any theory of law applicable to the case, it will be sustained. Romero v. State , 800 S. W. 2d 539, 543 (Tex. Crim. App. 1990).