Opinion issued February 28, 2023

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 22
- 00112
- CR

——————————— WILLIAM DENON SMITH , Appella nt

V. THE STATE OF TEXAS , Appell e e

On Appeal f

r o m the 174th District Court Harris County, T e xa s Trial Court Ca se No. 1706143

MEMORANDU M OPINION A jur y found Appellant W i lliam De n on Smith guilty of evading arrest or detention in a mo tor veh icle and the trial court assessed his punishment at forty

years ’ c o n f

i n e ment in the Texas Department of C riminal Ju sti ce. In a si ngle issue,
A p pellant arg ues the trial court erred in denying his motion for mistrial after a2

witness for the State referred to a “ robber y , ” an ex traneous offense in volving Appellant that was no t d i rectly related to the charge d o ff ense at is sue
. We affirm.
B ackground
This case stems from a high

- speed motor v ehi cle ch ase on January 11, 2021

. Appellant William De n on S mith ( “ Appellant ” ) entered a Chase Bank ( “Chase ”) in Spring, Texas . He had bee n t h ere at least twice before , once o n January 5, 2021,
and again on January 8, 2021 , according to Chase employee Amelia Thom pson ( “ Thompson ” )

. During the guilt

- innocence phase of trial, Thompson testified that on January 5, 2021, there was “ an incident ” a t C hase involvin g a man who approach ed her and go t v e ry close to her on the other side of the counter. He was wearing a hat, sun glasses, and a mask

. Thompson spent less than two minutes with
him and was “ s cared ” afte r the incident. T h ree days later, on January 8, 2021, the same man, dres s ed in the s am e clothes , approached Thompson and got close to her,

“ right across from the counter. ” Th is second “ incide nt ” lasted about three minute s and left Thompson “ terrified. ” 1 Thomps o n f

urther t estified that on January 11, 2021, she saw a man she
belie ved to be the same man involved in the two previous i n cidents approaching

1 Duri n g t he pu ni shment phase of trial , Thompson testified in greater det ail about the two “incidents , ” each in volving a robbery. But b ecau se Appellant was not on t rial for the robberies durin g t hese proceedings, the trial court ruled that the jur y w a s not allowed to hear about the robberies during the guilt

- innocen ce ph a se
.3

the b ank

. She alerted the bank ’ s security officer and when he approached the m an, the man fle d. The officer told Thompson the man left in an orange truck. During trial, Thomp son i dentified App ellant as the man who twice a pproache d her in the
bank and who fled from the bank on January 11, 2021

. A ppellant was appr ehended on January 11, 2021 after a h i g h

- speed chase that lasted twenty to thirty minutes. He was charged with e va ding a rrest or
d etention in a m o t or v e hic l e
. 2 Dur ing the guilt

- innocence phase of trial , s everal
law en forcement personnel testified for the State regarding the high

- speed chase

a n d Appellant ’ s apprehension

. A. Trial Testimony
1. Mark H olmes Harris County Sher riff ’ s Deputy Mark Holmes ( “ Deputy Holmes ” ) testifi ed
he was working as a unifo rmed officer o n Januar y 11, 2021 in a Chase Bank in
Harris C ounty, Texas

. He said he wa s talking to a b a nk employee on January 11,
2021 about an incident that had occurred seve ral days earlier when the employee
saw the same ma n ap proaching the building

. A f ter the man made eye co ntact with Deputy Holmes, the man left. Deputy Holmes followed th e m a n , who was wearing
a mask

. The man ran t o an orange pickup truck with paper li cen se plates , and

2 Appellant also was charged with felon in possession of a firearm but the j ury acquitted hi m of tha t ch arge.4

ignored or ders from Deputy Holmes , who id e nt ified himself as a police officer, t o stop . The man got into the driver ’ s side of the truck and l e f t

. 3
2. Steven Drake Deputy Steve n Drake ( “ Deputy Drake ” ) works in the Harris County
C onstable ’ s O ffice, Precinct 4. On Ja nuary 11, 2021, Deputy Drake was patrolli ng in Spring , Texas, when he heard a description of an orange truck with pape r l i cense plates on his radio

. He saw a n orange truck with pape r license plates in the area

an d followed the tru c k , wh ich was speeding. He intended to stop the truck fo r speedin g, so he activated his lights and turned on his si r e n , bu t the truck continued driving

. Other law enforcement joined th e pursuit , all of them running their lights

a n d sir ens. D eputy Drake testified the driver of t he orange truck used his turn signal to c han ge lanes and for freeway e x i t s but never made any attempt to stop.
He testified the driver appeared to be “ going som ewhere. ” De put y Drake was involved i n the pursuit for about twenty mi nutes, after which he wa s forced to exit , and other law enforcement co ntinued the pu r s u i t. He estimated that at one point they were travel ing at n inety miles per hour and testified the truck was “ swerving through traffic ” to avoid the law enforcement p er s onnel chasing him

. He es timated
he was involved in the cha s e f or t wen ty or thirty miles. A fter the pursuit ended, Deputy Dra ke saw Appellant in custody, standing near the ora nge truck

. After h e

3 Deputy Holmes estimated t h e t ruck was parked 500 yar ds f ro m the ban k.5

was apprehended, Appellant did not struggl e or attempt to g et away but was, rather, c a l m and p o l ite.
3. Demon C allier Deputy De mon Callier ( “ Deputy Callier ” ) of the Harris County Constable ’ s Office, Precinct 4 , testified he took a call on Janua ry 11, 2021 about an orange Dodge pickup with a paper license plate and radioed it to other de p u t i es in the area.
He testified that a

pprox ima tely two minutes later , Deputy Drake spotted the truck
and tried to init iate a traffic st o p for speedin g , but the truck d id not stop. Depu ty Callier joined the chase, activati n g h is eme rgency lights and sirens, and stayed with the pursuit until the end

. The chase ended when the orange truck parked in the driveway of a residen c e. The chase laste d twenty to tw enty

- five minutes , involved ten or more officers , and inc l u d e d s ome “ erratic dr iving ” by Appellant.
Whe n they approached the orange truck parked on the dri veway, Appellant was sitting in the driver ’ s s e at. A woman w as sitting in the passenger ’ s seat. 4 In searching the car, the officers f o u nd a semiautomatic Glock handgun in th e
pa ssenger ’ s purse. Appella nt first said he did not own the gun but subsequently
adm itt ed i t w as his. 5

4 The fema le passenger was detained but released without arrest

. 5 Deputy Callier initially testified he heard Ap pe llant say the gun was his but later testified he may have heard f r o m someone else that Appellant acknowledged owning the gun

.6

Deput y Callier wore a body

- worn camera when he was in pursuit of Appellant and h i s patrol car was equipped with a dash camera. The jury saw the
dash ca mera video. It depicted Deputy C allier ’ s lights and sirens ac tiv ated as he
drove to ca tch up with the ot her deputies pursu ing Appellant

. By the time h e

c a ught up to them, Deputy Drake ’ s vehicle w as to the right of the orange truck and
other vehicles wer e involved in the pursuit. By that time, Depu t y Callier testified , Appellant “ s hou ld have pulled over to the rightmo st lane and stopped. ” D e p u t y Callier s tated Appellant was t raveling at an “ excess speed. ” As the pursuit continued, law enforcement from o ther jurisdictions joined the pursuit. Deputy
Callier testified that a t one point , he was driving i n ex cess of ninety miles per hour to keep up with the orange truck

. When Deput y Callier exited the freeway and
drove into a residential area, the orange t ruck was travelin g a t thi rty

- five to forty
mil es per hour. Deputy Callier ’ s dash cam vid e o i n dicated the chase lasted about
twenty

- five mi nutes and cove red approximately twenty miles before Appellant stopped in a residential driveway

. Deputy C a llier arri v ed at the drivewa y second s after Appellant stopped there. A f t e r parking, A p pe lla nt did not try to flee , did not struggle, and obeyed the instructions given by law enforcement personnel.
4. Ryan Hilz Deputy Investigator Ryan Hilz , a robbery and vio lent cri me investig ator with
th e Harris County Sherrif f ’ s Office ( “ Deputy Hilz ” ), testifi ed that on January 11,7

2021, h e recovered a handgun at the end of a vehicle pur suit involving Appellant
and the Precinct 4 Constable ’ s Off i ce. The gun was discovered du ring t he inventory sear c h of Ap pellan t ’ s vehicle , but Deputy Hilz was not involved in t he

purs uit. Deputy Hilz re covered and took possession of a black G lock 21 found in the purse of the vehicle ’ s passenger and submitted it a s evid ence
. H e d id not know
whether Appellant own ed the wea p on
. 5. David Helms Sergeant David Helms ( “ S ergeant Helms ” ), a Houston Pol ice Officer, responded to the scene of a n investigation on January 11, 2021 involving a suspect fleeing i n a vehicle

. A p pellant , who was driving an orange t ruck, was u l t i m ately

arre sted. S erg eant Helms found a black Glock semiautomatic pistol in the f ron t
when he search ed the truck after the chase

. After App ellant was ar r ested and rea d
his Miranda war nings, Sergeant Helms and Det e ctive Hilz i n t erviewed A p pe llant
in the FBI ’ s Housto n office

. 6 During the interview, parts of which were pla yed for the jury, Appellant told them he fled b e cause the re w a s a gun in th e truck and he
wanted to drive the truck to where he was staying

. A p pellant confirmed during the
i nterview that he w a s the driver of the orange truck , that he knew there was a gun
in the truck , that he knew t he police w a nted to s top him, that he i s a felon , and that he passed the pistol to his passe nger to put in h e r purse
. He stated during the

6 See Mir

anda v. Arizona , 384 U.S. 436, 467 (1966)

.8

interv i ew that he wanted to tak e his truck home and that he used his turn signals during th e c hase. S e rgeant He lms testified that Appellant consented to g ive a
DNA swab and to a search of his cel l p h one.
B. T he Motion i n L imine , the R ule 404(b ) H earing , and Depu ty Gheen ’ s T estimony
A ppe llant ’ s m otion in l imine included a request that the State b e or dered

“ n ot to mentio n, refer to, or at tempt to elicit in any manner ” Appellant ’ s

extraneo u s o ffenses until the trial court conducted a hearing outside the presence o f the jury to determine the admissibility of the offenses

. The trial court granted th e

m o tion in limine before trial began

. The State filed a Notice of I n t e n tion to U s e Evidence of Prior C onvictions
and Extraneo us Off

enses ( “ 404(b) Notice ” ) pursu ant to Tex as R u le of Evidence 404(b )

. 7 The 404(b) Notice included two incidents involving ro b ber ies a t Chase ,

corr esponding to the two prio r inciden t s o n January 5 and January 8 , 2021, where

7 Texas Rule o f Evidenc e 404 pertains to “ Character Evide nc e; Crimes or Other Acts. ” R ule 404(b) states in part : (b) Cr i m e s , W rongs, or Acts
. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is n ot admissible to prove a person’s character in order to show t hat on a partic ular occasion the p er son acted in accordance with the character. (2) Permitted Uses. Thi s e v idenc e may be adm issible for another purpose, such as proving motive, opportunity, inte nt, preparation, plan, knowledge, identity, absence o f mistake , or lack of ac cident. T EX

. R. E V ID . 40 4(b)

.9

according to Thom pson , a man had approached her at the bank

. The trial co urt
conducted a R u le 404 ( b) hearing prior to the beginning of testimony

. Durin g t he hearing, Appellant objected as f o l l ows :
I ’ m going to object to the facts of those two prior robberies as not rel eva n t, which is the first prong for context ual evide nce; as v iolating Rule 402; and being too prejudicial under Rule 403 and the Montgomer

y c ase; and in violation of Rule 404 a s i mproper background contextual evidence

. So those are my objections to both o f t h ose robberies being proved up at the gu ilt and innocenc e state o f this trial.
T he trial court judge remarked that he was l ooking at “ the [Texas Rule of
Evidenc e ] 4 03 issue : ”
It ’ s d efinitely

– if you ’ re talking about all the specifics to the two bank robber ies, I t h ink it ’ s going to be highly prejudicial . Whe ther it ’ s un fair, I haven ’ t gotten that far, but it definitely appea rs to be hi ghl y prejudicial. But I w i l l allow it in a mea ns where you can establish what you need to establish without it being un f airly p rej u dicial

. 8
A f ter the parties conferred with th e trial court, they came to an agreement , as articulated b y the S t ate : [ J ]ust to mak e s u re that I comply w ith your r ulings and don ’ t, you know, cause any u nn eces sary movement of the jury f or efficiency , it ’ s Your Honor ’ s ruling t hat we can talk ab out incid ents, the facts of how

8 Texas Rule of Evidence 403 states:

The Court may excl u d e releva nt evidence if its pro bative v alue is substanti ally outweighed by a danger of one or more of the following: unfair prejudice, c on fusi ng the iss ues, misleadin g the jury, undue d el ay, or needlessly presenting cumulative evidence. T EX

. R. E VID . 403

.10

sh e came close to th is de fendant in the past, but certainly n o t t he word

“ robbery ” and nothing about a specific criminal act

. . . . Appella nt ’ s counse l stated , “ If tha t ’ s al l they offer, then I ’ ll hold my ob je ction in abeyanc e. ” To which the trial court r u led , “ All right. So I th ink we ’ ll do it tha t

w a y t o prevent any 403 issues. ” Later that day, t he S t ate called Jeremy Gh e e n ( “ Deputy Ghe e n ” ), a Har ris
C o unty C onstable ’ s Office Precinc t 4 co rpora l, who re sponded to a call on Jan uary 11, 2021 regarding a n ora nge truck that was evading the p o l i c e. He testified about his exchange with Appellant when the truck he was driving came to a s top: Q (b y the State): We re you present when the truck came to a stop? A (by Deputy Ghent): T hat ’ s correc t. Q: Whe n the t ruck came to a stop, did y o u participate in a f

elony stop?
A: That ’ s correct, I did. Q: W hat is a felony stop?
A: It is guns drawn and givi ng out verbal co mmands to the suspects to retreat bac k to us in as safe a manner as po ssi ble and to get the m detai ned. Q: Why was this a f e l o n y stop?
A: We wer e informed about the robbery at a bank and

–11

Counsel for A p pellant : Objection, Your Honor. Th is gets into wha t we

– The Court: Al l right. S t at e, approach the bench

— Counsel for A p pellant: Instru ction t o disregard.
The Court: T h e jury will b e in str ucted to disregard the last statement of the witness.
Counsel fo r A p pellant: Move for a mi stri al, Your Honor.
The Court: That will be denie d. ( At the Bench, on the record)
Counse l for the State: Y es, You r Honor?
The Court: Di d y ’ all talk to him ab out this?
Counsel for the S t ate: He ’ s very tired and sleepy and we

– The Court: You did not talk to him

– Counsel for the State: W e ’ ll tak e him out, Ju d ge, with the Court ’ s permiss ion. Can we take h im out?
The Court: Do you wa n t t o take

– Coun sel for Appellant: I cannot hear what you ’ re saying. I ’ m sorry.
Couns e l for the S t ate: Can we tak e him out of th e room and adm onish him a gain?
C o unsel for Appellant reurged his motion fo r a mistrial and the Cour t denied i t again, stating he would instruc t t he jury to disregard the statement

. 9

9 The jury instru ctions contained the following language:12

Deputy Gheen continued his testimony, sta t ing that he saw A ppellant driving
the or ang e truck and par k it in a driveway. De puty Gheen testified tha t after
A p p e l lant emerged from the truck, he did not attempt to fl ee on foot , did not struggle, and followed law enforcement p erso nnel ’ s commands.
C. Conviction and P u nis hment
T he jury con victed Appella nt of evading arres t or dete ntion with a motor
vehicle

. Appellant elected for the trial court to assess punishment. The cha rge was enhanc ed with two prior conviction s for felony ass a ult a nd harassment of a public

serv ant. Appellant pleaded true to the enhancements. T h e trial court assessed Appellant ’ s pun ishment at fo rty years ’ c onfine ment in the Texas Department of
Cri mi nal Justice

. This ap peal ensued

. Discussion
I n one issue, Appellant argues the trial court erred i n denying his request for

a m i s trial after Deputy Ghe e n informed the jury that Appella nt was involve d in a
robb ery in vio l ation of the trial court ’ s ruling on Appellant ’ s m oti on in limine

. Appellant argues the S t ate ’s fai l ure to properly instruct Deputy G heen about the

cou r t ’ s prior ruling “resulted in the jury being presented with that hi ghly

You are instructed that certai n e vidence may hav e been prese nted to you i n r e gard to the def

endant ’ s having been charged and convicted of an offense or offenses other than the one for which he i s n o w on t rial. Such evidence cannot be considered by you against the defendant as any evid enc e of guilt in this case.13

prejudicial and infl ammatory ” information

. App ellant a rgues the court ’ s
in struction to the jury to disregard Deputy Gheen ’ s statement was n ot adequate to
address the r e s u l ting harm and th at a mistrial should have been gr anted , because
the error was i ncurable

. The St ate resp onds that the trial co urt did no t err because
the ju ry is presumed t o ha ve followed the court ’ s instruction to disregard the
statement. The S t ate a r g u e s that “one slip of the w ord ‘robbery ’ without refe rence

to [A] ppellant or when it occurred ” wa s not c al culated to inflame the minds of the jury or “ s o dam n ing as to suggest it would be impossible to rem ove any harmful impr es sion from the mind of the j u r y
. ” Thus, it argues, the trial court did not abuse
its di s cretion in denying App ellan t ’ s motion for mistr ial.
A. Standard of Revie w and Applicable Law
We revi ew a trial court ’s den i al of a motion fo r mistrial for an abuse of
discretion. O c on v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 200 9) ; Gonzalez

v. State , 455 S.W.3d 198, 205

– 0 6 (Tex. App.

— Ho uston [1st Dist.] 2014, pet. ref’d)

. “ A mistrial is an approp ria te remedy in ‘ extreme circumstances ’ for a narrow class of highly prejudicial a n d incurable errors

. ” Ocon , 284 S.W.3d at 884 (citing H awki ns v. State , 135 S .W.3d 72, 77 (Tex. Crim. App. 2004 ) ). A mi s trial i s warranted to sto p trial proceedings “ when e rro r i s so prejudicial that expenditure of further time and expen se would be wast e f u l and futile

. ” Id. Mistrial is “ an14

extreme remedy ” that “ should be gr anted ‘ only when res id ua l prej udice remains ’
afte r less drastic alternatives are explored. ” Id. at 88 4

– 8 5.
We determine whether an error requ ires a mistrial ba s ed on the particular
f a c t s of eac h case. Id

. at 884. In re viewing a ruli ng on a motion for mistrial, we
view the evi dence “ i n the light most favorable to th e trial c ourt ’s ruling, considering on ly those argum ents before the court at the time of t he r uling. ” Id. (cit ing We ad v. Sta t e , 129 S.W.3d 126, 129 (Tex . Crim. Ap p
. 2004) )

. The reviewing court will not substitute its judgment for that of the trial court but wil l decide, rather, whether the tr ia l court ’s ruling was “arbit rary or unreasonabl e
. ”
Webb v. State , 232 S.W.3 d 109, 11 2 ( T ex. Crim. App

. 2007). T he trial court ’ s ruling on a motion for mistrial must b e uphe ld if it was “within the zone of reasonable disag reeme nt. ” W ead , 129 S.W.3d a t 1 29 ; Ocon , 2 84 S.W

. 3d at 884.
In structions to disregard “ are generally considered suf f i c i e nt to cure improprieti es that occur during trial. ” Gamboa v. State , 296 S.W.3d 574 , 580 (Tex. Crim. App. 200 9)

. T estimony that refe rs to or implies information reg arding

extr aneous offenses allegedly committed by the defendant “ can be rendered
har mles s by a n i n s t ructi on from the trial judge. ” Dav i s v. State , 642 S.W.2d 510, 512 (Tex. C rim. App. 1982)

. It is “ well

- settled ” that testimony that refers to or implie s t he commission of ext r aneous off enses is rendered harmless if the trial judge instructs the jury t o d isregard the testimony, “ unless it appears the evidenc e15

was so clearly calc ulated to infla me the min ds of the jury or is of su ch damning
character as to sug gest it would be impo ssible to r emove the h armful impression
from t he jury ’ s mind. ” Kemp v. Sta t e , 846 S.W.2d 289, 30 8 (Tex. Crim . App. 1992) (citing Gardner v. State , 730 S. W.2d 675, 696

– 97 (Tex. Cr

. App. 1987) )

. When constitutional rights are not imp lic ated , we evaluate whether a trial court abused its discretion in denying a motion for mistri a l by weighing the factors

enumerat ed in Mosle y v. Stat e , 983 S.W.2d 249, 2 5 9 ( Tex. Crim. App. 1998). We

co nsider “(1) the severity of the misconduct (the magnit ude of the prejudic ial effect of the prosecutor ’ s remarks), (2) the measures adopted to cure th e misconduct (the efficacy of any cautionary instruction by th e judge), and ( 3 ) th e certainty of conviction absent the misconduct (the strength of the evidence

s upp orting the convi ction)

. ” Id. ; Archie v. State , 221 S.W.3d 695, 700 (Tex. Crim. App. 2007)

. In c onducting this review, we e xamine the factors in light of the
entire r e c o r d

. Schutz v. State , 63 S.W .3d 442, 44 4

- 4 5 (Tex. Crim. App. 2001)

. B. T he Parties ’ Con tentions
A ppell ant a rgues t hat the State ’s failure to instr uct D eputy Gheen to refrain
from ref e rring to robber ies involving Appellant was “highly prejudicial and
inflamm a t o r y
. ” Appellant concedes “ there was sufficien t evidence to support guil t, ” but a sse rts t h e evidence “was not overwhelming. ” While he does not disp ute he w a s the d river o f the ora nge truck in question , and he testified he was16

a ware he w as b e i ng pursued by l aw enforcement personnel , A ppellant explains he
did not make any effort to hid e f ro m law enfo rc ement during the chase , he us ed h i s turn signal s during the chase , and he “fully c oop erated with law enforcement ” when he stopped in a place “ h e determined was s afe. ” Appella nt argues that Deputy Gheen ’ s statement regarding a robbery “ga rne re d the jury ’s attention and may have resulted in Appellant being improperly
tried for collatera l offenses or for being a criminal general l y
. ” He explai ns the jury
had alread y heard testimo ny from Thompson that she was “ fe arful ” dur ing the
J anuary 5, 2021 incident and “ terrified ” after the Januar y 8, 2021 incident. 10 H e

a rgues that Thomp son ’ s testi m o n y , c o uple d w ith Dep uty Ghee n ’s reference to a robbery involvi ng Appellant , wo uld hav e made it “very difficult ” for th e jury to do anything other than convict Appellant. Appella nt arg ues that it is likely the

ev idence of the extran e ous of f e n s e s played a “ signif

ican t role ” in Ap p ellant ’s
convict ion. Appellant argues the jury “ cer tai nly had some qu esti on about hi s guilt a s they spen t a considerable peri od of time on t he first day of del iberation and had to

return t he following day to complet e t h eir task. ” 11 A ppellant argues that one of the

10 Thompson t estified that she was “ scared ” after the firs t incident.
11 Given that the jury was del iber ating on two c h a rges , i t is not p o ssible to determine how much of the jury ’s deliberation pertained t o the evading arrest c har ge. See supra , note 2

.17

jury ’s notes sent to the Court asked if th er e was a “ specific di stance whe n you must stop when bei ng foll owed by a police car with lights a nd siren active. ” 12 Thus, Appellan t asserts, “ t h e evidence was not so overwhelming as t o assure that the
extraneous offense evidence had no influence or only a slig ht influe nc e on th e

v erdict. ”
The State con tends that the court ’ s instr uction to the jury to disregard Deputy Gheen ’ s stat e m e n t cured his reference to a robbe r y . The State further argues that Appellant did not present evidence showing the j ury faile d to follow the
trial court ’ s instruction an d t hus, Deputy Gheen ’ s r efe renc e to “ the robb ery at the
bank ” was not “ so calculat e d t o inflame the minds of a jury or of such a nature as to suggest the impossibility of withdrawing the impression produ ced. ”
C. The Mosley Factors
Evaluati n g whether a t ria l court erre d in denying a mistrial is similar t o perf o r m i ng a harm analysis. Ar chie , 221 S.W.3d at 700 ; Gomez v . St ate , 552
S.W

. 3d 4 22 , 42 8 (Tex. App.

— Fort W orth 2018 , no pet. )

. “ [ W] hether a mistri al
should have been gra nted involves most, if not al l, of the same considerations that
attend a h arm analysis

. ” H awkins , 1 35 S. W.3d at 77

. W e use a harm analysis

12 The jury ’s actual question w a s, “Is there any lang ua g e that specifi es a dist ance of when you must s top when y ou a re b e i ng followed by a p olice c ar with lights and siren active? ”18

when there is error, and “ ordin ar i ly, erro r occurs only w hen the trial court makes a
mistake

. ” Id. a t 76.
Her e, t he trial court sustained Appellant ’ s objection to Deputy Ghe e n ’ s testimony , instructed the jury to disregard his reference to a robbery, and included a jury instruction in the charg e admo nishing the jury that it c ould not consider
evidenc e of extrane ous offenses in determining guilt

. As in Hawkins v. State , 135
S.W.3d 72 (Tex . Crim. App. 2004) , “ [t] he only a d v e r se ruling

— and thus the only
occasion for making a mistake

— was the trial court ’ s denial of the motion for
mistrial

. ” I

d. a t 7 7

– 78.
A ppellant con tends the reviewing court shoul d consider i n i ts analysis “ the nature of the evidence supporti ng the verdic t , t he character of the all eged error, and how the error might be considered in conn ection with other evidence in the case

. ” Appellant c ites Morales v. State , 32 S.W.3d 862 (Tex. Crim. App. 2 000 ) in support of its analysis. Bu t Morales is a b o u t the exclusion of a relevant piece of evidence.
Id. at 86 4

. We believe t he p roper analys is is that s et forth in M osley v
. State , 983
S .W.2d 249, 259 (Tex. Crim. App. 1998)

. The Mos le y factors are ba sed on f ederal
caselaw and ar e inten ded to constr u e t he impact of Texas Rule of Appellate
P rocedure 44.2(b), which states, “Any other error, defect, irregularity, or variance
th a t does not af

fect substa ntial rights must be disregarded.” Se e Mosley , 983
S

. W.2 d at 259

. A l t h o ugh Mos ley involved an improper jury a rgument, the Mos ley19

factors have been applied in other situations where mistrials were deni ed , such as in cases involving testimony referr ing to e xtraneous off en ses
. See, e.g., Gomez , 552 S.W

. 3d at 42 7, 4 2 9 ( af fir ming trial court ’ s d e nial of mistrial after testi fying
offi cer referred to “ previous family vi olence calls involving App ellant ” )

. 13 As

n oted, u nde r Mos le y , we consider : “(1) the severity o f the misconduct (the magnitude of the prejudicial effect of the prosecutor ’ s remarks), (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misc onduct (t h e strength of the evidence supporting the conviction).” Mos ley , 983 S.W.2d at 259 ; s e e a lso
Hernandez v
. S t a t e , 454 S.W .3d 643, 650 (Tex. App.

— Hous ton [1st Dist.] 2014, pet. ref’d) ( citing Archie , 221 S.W.3d at 7 00 ) 14 ; Griffin v. State , 571 S.W.3d 404,

13 Although Gomez v. State , 552 S.W.3d 422, 42 8 ( Tex. App.

— Fort Worth 2018, no pet.) does not expressly refe r t o the factors as Mosley factors, it identif ies the factors and relies o n R a mon v. State , 159 S.W

. 3d 92 7, 929 (Tex. Crim

. App. 2004), which cites the Mosley factors in its opinion concerning a n a ppeal of the denial o f a motion for mistrial

. 14 H ernandez v . State , 454 S.W.3d 643, 6 49 (T ex. App.

— Houston [1st Dist.] 2014 , p e t. ref’d) identif

ies t he Mosley fact ors but it does not address each factor. Rather, it bases its holding solely on the pres ump tion that the trial court ’ s instruction to the jury t o disregard testi mony about a n extraneous offense w as sufficient to cure a n y h arm
. Id. at 65 0. In that case, we held the trial court ’ s denial of a motion for mistrial was not a n abuse of discretion. Id

.20

41 7 (Te x
. A pp.

— Houston [1st Dist.] 2019, pet. ref ’d) (c iti ng Archie , 340 S.W.3d

at 739 ) (ci ting Mosley , 983 S.W.2d at 259 )

. 15 , 16
1. T he S everity of the M isconduct Appell ant argues the Stat e did not instruct Deputy Gheen to refrain f r o m referring to any prior r o bberie s. Th e State counters that the record does no t r efl ect
it failed to instruct its witnesse s to a void referring to robberies ; rather, the r ecord
indi cates only that t here was “one tired witness who acci d e n t ally said the word

‘ robber y
. ’ ” 17 The tran scr ipt of the trial does not establish whether the wi tne ss wa s told prior to his testimony not to refer to robberies , but the State did reques t permission to admonish the witness “ a g ain. ” As the State notes in its brief , “ eve ry other witness complied with th e court ’ s instruction, presumably because the Sta t e info rmed them of such. ” Th us , Appellant did not establish the State e nga ged in

s e v e r e misconduct. Further, A ppellant did not establish that he was prejudiced by Deputy
Gheen ’s statement. “ Prejudi ce is c learly the touchston e of the first factor in

t he Mosle y test. ” Hawkins , 1 35 S.W.3d at 77

. “ To be sure, particularly offensive

15 In Griffin v. State , 571 S.W

. 3d 404 , 417 (Tex. A p p.

— Houston [1 st Dist.] 2019, pet . ref ’ d ), this Court applied the Mos ley f a c t o rs to determine whether the tria l court abused its dis cretion in denying a m otion for m istrial

. 16 The parties did not add res s the Mosley fac tors in their brief s
. 17 D eputy Gheen stated at the beginning of his testimony that he had not had any sleep be c a u s e h e was on duty “very, very lat e ” the night before

.21

or o u t r ageous conduct generally gives rise to a natural in ference of prejudice and can be considered as such, even when p rejudic e is not otherwise apparent from the
record. ” I

d. at 77

– 78. App ellant argued that “ the evidence of extraneous criminal
offen ses was inheren t l y prejudicial and tended to confuse the issues in the c ase beca use of the jury ’ s n atural inclination to in fer gui l t of the charg ed offen s es from
the extraneous off

enses. ” But Deputy Gheen ’s single reference to a robbery was

not acco mpanie d b y any information about the robbery. T o the ex tent Appellant

asserts the “ mention of an extraneous robbery garnered the jury ’ s attention, and

ma y have resulted in A p pellant bein g i mproperly tried for collateral offens e s for being a criminal generally, ” he s e e m s to argue that any accidental reference to a n

extr aneous offense will be prejudicial and should automatically resu lt in m istrial.
Th a t i s n o t t h e l a w
. S ee, e.g., Bendy v. St ate , No. 08

- 15

- 00369

- CR, 2016 WL 6473054, at *5 (Tex. App.

— El Paso Nov. 2, 2 0 1 6 , no pet.) (mem. op., not designated for public ation ) (holding “ the magnitude of any prejudicial effect was
low ” whe n jury heard “single, i s olated stateme nt ” t hat Appellant ’s name appeared
in unspecified criminal inves tigation) ; Gomez , 552 S.W

. 3d a t 4 2 6 ( discussing first
Mos ley factor , noting that offi cer who mentioned extraneous offenses after bei ng instructed not to d id not refer to them again or provi de d etails regardi ng offenses , and finding that “ limited nature ” of his statement weighed aga i n s t mistrial). As
A p pellant notes, by the time D e puty Gheen t estified, T hompson already ha d22

testified that she wa s “ terrified ” by the two pri or i ncidents at Chase invo lv ing Appellant

. The j ury was free to believe or disbelieve a fter her testimony that
somethi n g n efarious had transpired during those prior inc idents

. Either way,
A ppellant did not es tablish he was prejudiced by D eputy Gh een ’ s is olated

stateme nt about a robbery devoid of any ot her factual context o r information

. Because it a ppea rs Deputy Gheen w as admo n i s h ed not to refer to robberies
but inadvertently disregarde d the admonishment, and in the absence of a showing that Ap pel lant was prejudice d by the statement, t his factor wei ghs against a finding
that the tr ial court abuse d it s discretion in d enying A p p e llant ’ s motion for mistrial

. 2. M easures A dopted to C ure the M isconduct Immediately after Deputy Gheen ’ s testimony regarding a ro bbery, Appella nt objected to th e testimony ab o ut the extraneous offense and a sked for an instruction to disregard. The trans c r i p t indi cate s the trial court immediately instructed t he jury “to disregard the last statement of the witness. ” In addition, the jury charge
i nstructed the jurors to disregar d a ny evidence “ in regard to the defendant ’ s having
been c harged an d c o nvicted of an offense or offenses other than the one ” for which
he was on trial.
I n structions to disreg ard “ are generally considered su ffic ie nt to cure
i mproprieti es that occur during t ria l. ” Gamboa , 296 S.W.3d at 580 ; see also
Dav i s , 642 S. W

. 2 d at 512 ( testimony “ referring to or implying extraneous offenses23

allegedly committed by the defendant ” is rendere d harm less if ju dge gives
instru ctio n to di sregard ) ; Sanders v. State , 25 S .W. 3d 85 4, 858 (Tex. App.

— Houston [14th Dist .] 2000, pet. d i s m ’d ) ( “ Because curative instructions are presumed efficacious to withdraw from jury consideration almost any evid ence or
arg umen t which is object ionable , tr ial con ditions must be extreme before a mi stria l
is warrante d

. ”) ; Rojas v. State , 986 S.W.2d 241 , 2 5 0 (Tex. Crim. App. 1998) ( “[T] he trial j udge ’ s prompt sustain ing of counsel ’ s objection conveyed the appropria te message that the witness ’ s comment was not supp orted by the evidence
and was not t o b e considered. ” ). The gene ral presumption is that a j u r y will follow the judge ’ s instructions

. Gamboa , 296 S.W.3d at 580 (citing Colburn v. State , 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) )

. 18 The presumption is rebuttable if t h e compla ining party “ po int [s] to evidence that the jury fa iled to follow the trial

18 See Gardner v. State , 730 S.W.2d 675, 696

– 97 (Tex. Cr. App. 19 8 7) ( holding witness statement tha t “[appellant] to ld me that even when he was in the penite ntiar y, that he had stoma c h p rob lems” was cured by tri al court ’ s instructio n to dis regard ) ; Kemp v. State , 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) ( holding refe r enc e to appellant ’ s having “ recen tly been released from the penitentiary ” did not wa rrant mistri al when jury was ins t r u c ted to disregard testimony) ; Bal lard v. State , 537 S.W. 3d 517 , 521 , 525

– 26 (Tex. A p p.

— Houston [ 1s t Dist. 2017, pet ref ’ d ) ( aff irming den ial of m ist rial when limiting instruction was given becaus e of w itness ’ testimony regarding finding o f “ cr y stal meth ” a nd gu n i n ap pellant ’ s home despite limine order preclu di ng evidence of extraneous offenses) ; Francis v. State , 445 S.W.3d 307, 320

– 21 (Te x. App.

— Housto n [1st Dist.] 2013) ( holding m istrial properly denied because instruction to disregard cured reference to defenda n t ’ s “c riminal history ”) , aff ’ d , 428 S.W .3d 850 (Tex. Crim. App. 2014) ; Williams v. State , 417 S.W.3d 162, 172

– 73 (Tex. App.

— Hou sto n [1st Dist.] 2013, pet. ref’d) (holding ins truction to disre gard c ured prosecutor ’s voir dire comm ent a bou t his opinion of def e n d a nt ’ s guilt )

.24

court ’ s instruc tions

. ” Thrift v. State , 176 S.W.3d 221, 224 (Te x
. C rim. App. 2005) (citing Coburn , 966 S.W.2d at 520)

. T he presumption also is reb ut tab le “ in the most egregious cases ” where the st a tement at issue i s “extremely inflammatory. ” Griffin , 57 1 S.W.3d a t 419 ( quoting Williams v. State , 417 S. W.3d 162, 176 (Tex. App.

— Houston [1st Dist.] 2013 , p e t. ref’d) )

. A ppellant does not cite anything in th e ap pellate record that indicates the jury fai led to follow the court ’ s i nstruction to dis regard. 19 As s u ch , he d id not
rebut the presu mption th at the jury follo wed the trial court ’ s instruction

. S ee
H e r n a ndez , 454 S.W.3d at 650 ( affirming denial of mistr ial, noting lack of

e vidence suggesting jur ors failed to follow trial c our t ’s instructions to disregard

statement regarding ext raneous offenses) ; Thrift , 176 S.W

. 3d at 224 ( affirming
denial of mistrial a f

t e r proper instruction to disregard was given by tri al c ourt , and noting appellant failed to rebut presumption t hat jury f o llowed instructio n ) ; Lazarine v. State , No. 01

- 19

- 00982

- CR, 2021 WL 5702182, at *11 (Tex. App.

— Houston [1s t Dist.] Dec. 2, 2021, pet. ref’d) (mem. o p
. , not designated for publication ) ( conc luding trial court did not a buse its discretion in denyi ng motion for mistrial, stat ing, “ Lazarine does not explain, and we ca nnot discern, why the
trial court ’ s instruction to disregard was not effective to cure th e a l leged error. ”).
In the absence o f an y ev idence to the contrary, we conclude the trial judge ’ s

19 Appellant says in his brie f, without elaboration, that “ [a]n instruction to disrega rd would not have been ade quate to addre ss the harm and a mistrial was warranted. ”25

instructi on to disregard cure d any error

. T his factor indicates th e trial court did not
abuse its discretion in overruli ng appellant ’ s motion for mistrial.
3. T h e C ertainty of the C onvict ion A bse nt t he M isconduct After a review of the record, we c onclude th ere w er e sufficient grou nds to

co nvict Appellant regardless of the obj ected

- to tes timony

. Sergeant H olmes
testified that Appellant ran from him at the bank , e v en after Sergeant H ol mes identifie d hi mself as a pol ice officer and ordered him to stop. Dep uty Drake

te stified that when he s aw the orange truck , he attem pted to make a traffic stop because Appellant was speeding, b ut Appellant con tinued driving , dis regardin g
D e puty Drake ’ s lights and s i ren. He testifi ed that Appellant ’ s truck was “ swerving throug h tra ffi c ” to avo id the several law enf or cement vehi cles t hat were followin g him with lights and sirens activated. The dash cam f ootage verifies the orange
truck Appellant was driving le d s e vera l la w enforcement vehicles in pursu it on a busy freeway. 20 Both Deputy Drake and Dep uty C all ier testi fied that during the

p ur suit, Appellan t d rove as fast as n inety miles per hour

. D eputy Callier testified
that A ppellant was “ erratic ” in his drivi n g d urin g th e twenty

- to twenty

- five

- min ute
chase. Appellant concedes “ there was sufficient evide nce to suppo rt guilt

. ” He
further ack nowledges he was the driver of t he orange truck and “ he was aware that

20 The da shcam vi deo was muted, bu t it is clear when vi e w i n g i t that the law enforcement vehicles ’ flashing lights we re on.26

he was being pursued by law enforce m e n t

. ” A ppellant point s to only two reasons

t he jury should have ques tion ed Appellant ’ s guilt : his use of turn s ig nals during t he chase, and his cooperation with law enforcement aut horities after the ch ase
. I t is not clear , as Appellan t a r gues, that his use of turn signals an d hi s failure

to struggle or attempt to run aft er exiti ng the tr uck is “ inconsistent with a person fleein g. ” While the use of turn signals during a chase may be un e xpected, it is not enough to negate t h e overwhelming evidence of Appella nt ’ s having evaded arre st
or dete ntion

. And we dec line to hold that Appellant ’ s cooperation w it h law
enforc e me nt personnel after leading them on a high

- speed chase tempers the f act
th at he evad ed them for twenty to thi r t y m iles as they followed him in their
vehicles at a ra te u p to ninety miles per hou r with light s and sirens acti vated for at
leas t twenty min u tes

. T h at Appellant l e d multiple law enforcement units with lights and sirens on a high

- s peed cha se for at least tw e nty minutes is c o m pelling evidence of Appellant ’s gu ilt of the evading

- arrest charge

. Notw ithstanding Appel lant ’ s use of his turn sig na ls during t he chase a nd his cooperation after the chas e , t his factor weighs again st a fi nding that the trial court abused i t s discretion in denying Appel lant ’ s moti on for m istrial

. U nder these circumstances, it was with in the trial cour t ’ s discretion to deny App el lan t ’ s motion for mistrial.27 Conclusion
We affirm the t rial court’s judgme nt.

V eronica Rivas

- Moll oy J u stice

Panel co nsists of Chief Justic e Adams and Justices Countiss and Riv as
- Molloy

. Do not p ublish. T EX

. R. A P P

. P. 47.2(b).