In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-17-00162-CR

JESSIE DEE SPENCE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th District Court

Cass County, Texas

Trial Court No. 2017F00103

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss
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MEMORANDUM OPINION

During a traffic stop in late 2016, Jesse Dee Spence had admitted ownership of the small 

quantity of methamphetamine that was found on his person by Hughes Springs Police Officer 

James Wayne Simpler. Subsequently, a Cass County jury found him guilty of possessing such 

controlled substance and assessed Spence six years’ confinement. On appeal, Spence contends 

simply that the trial court erred by not granting him a mistrial when the State violated an order in 

limine by airing information on other bad acts without first getting specific approval from the 

bench. Because denying Spence a mistrial was within the trial court’s discretion, we affirm the 

judgment.

Simpler had stopped Spence after noticing that the vehicle Spence was driving had an 

expired registration. When he approached the vehicle, Simpler recognized Spence. He also 

recognized Spence’s passenger, Jerry Richardson. Because, in this relatively small community, 

Simpler was acquainted with Spence, he was aware that his driver’s license had been suspended. 

Simpler asked Spence to exit the vehicle, at which point Spence informed Simpler that his driver’s 

license was, in fact, suspended and that he was also driving without insurance. After contacting 

dispatch, Simpler learned that there was an outstanding warrant for Spence’s arrest. Simpler then 

asked Spence if he had “anything illegal,” and Spence responded that he had a “homemade Bowie 

knife” in the belt loop of his pants and a small bag of marihuana in his left pocket. Spence then 

began a search of the vehicle, finding a bag of methamphetamine and a hypodermic needle.1 

 

1At trial, Spence stipulated to the legality of the search of the vehicle, conceding that he had given Simpler consent. 
3

Simpler asked Spence’s passenger, Richardson, if the drugs belonged to him. Richardson denied 

ownership. When Simpler asked Spence if the drugs were his, Spence admitted owning them.2 

Before trial, Spence filed two motions in limine, asking the trial court to prohibit, among 

other things, any reference to Spence’s outstanding warrant or to the marihuana that had been 

found on his person the night of the arrest. Following a brief hearing, the trial court stated, “[M]y 

ruling on extraneous offenses and prior wrongs or acts is simply that counsel for the State be 

required to approach the bench outside the presence and hearing of the jury. . . .” “Insofar as to 

that extent, the motion is granted. But only to the extent that the State has to approach and obtain 

a ruling before introducing it before the jury.” 

At trial, the following relevant exchange took place between the State and Simpler:

Q. And you asked him if he had anything illegal. And did he say that 

he did have anything illegal or show you anything illegal that he had?

A. Yes, sir.

Q. And what was it that he showed?

A. He had a homemade Bowie knife. It was in his belt loop. And then 

he had a small bag of marijuana in his left pocket.

Q. Okay. Now were you -- with the marijuana that could have been an 

arrestable offense. Were you going to arrest him for that or were you going to write 

him a ticket?

A. I was going to write him a ticket?

Q. And what -- what ticket would that have been?

 

2Spence also made a written statement, which was admitted at trial. In it, Spence stated that he “drove to Hughes 

Springs in a car[,] got stopped and the officer found meth in a bag and it was mine because it didn’t belong to Jerry 

Richardson, because I had borrowed the car[.] He was just a passenger.” 
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A. I would have just wrote him a ticket for drug paraphernalia.

Q. Okay. So sometimes that’s up to officer’s discretion, you can just 

write them a ticket --

A. Yes, sir.

Q. -- for a small amount?

A. Yes. Sir.

Q. Okay. And then did dispatch come back with any information about 

any outstanding warrants?

A. Yes, it came back --

At this juncture, Spence objected, and the trial court sustained his objection. After reminding the 

State that it was required to approach the bench before pursuing that line of questioning, the trial 

court dismissed the jury and proceeded to hear arguments on the admissibility of the proffered 

evidence. On conclusion of the parties’ arguments, the trial court stated that it would instruct the 

jury to disregard the testimony at issue.3 Spence then asked for, but was denied, a mistrial. 

On appeal, Spence maintains that the trial court erred by denying his motion for mistrial. 

“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class of highly 

prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)

(quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). “A mistrial halts trial 

 

3The trial court’s instruction was as follows:

Ladies and gentleman of the jury, I have a specific instruction to give you at this time. You have 

heard -- first of all you’ve heard testimony that the defendant had a small bag of marijuana in his 

pocket. You are instructed to disregard that testimony for any and all purposes. Also you’ve heard 

testimony that the defendant had a warrant out for his arrest. You are instructed to disregard that 

testimony as well for any and all purposes. 
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proceedings when error is so prejudicial that expenditure of further time and expense would be 

wasteful and futile.” Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). 

Whether an error necessitates a mistrial must be determined by the particular facts of the case. Id.

We review a trial court’s denial of a mistrial under an abuse-of-discretion standard. 

Sanders v. State, 387 S.W.3d 680, 687 (Tex. App.—Texarkana 2012, pet. ref’d). We consider 

“the evidence in the light most favorable to the trial court’s ruling, considering only those 

arguments before the court at the time of the ruling.” Ocon, 284 S.W.3d at 884 (citing Wead v. 

State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).

Spence complains specifically of the questioning and testimony relating to the marihuana 

found on his person and the outstanding arrest warrant. Testimony referring to or implying an 

extraneous offense or bad act may be rendered harmless by an instruction to disregard it, unless it 

was clearly calculated to inflame the minds of the jurors or was “of such damning character as to 

suggest it would be impossible to remove the harmful impression from the jury’s mind.” Kemp v. 

State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). “The asking of an improper question will 

seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to 

disregard.” Ladd, 3 S.W.3d at 567. 

Spence contends that the trial court’s instruction to disregard did not cure the admission of 

Simpler’s testimony because it affected his own witness’ credibility. Specifically, Spence points 

to the testimony of his girlfriend, Amanda Forshee,4 wherein she asserted that Spence did not use 

 

4Forshee is also Richardson’s sister.
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illegal drugs and that the automobile Spence was driving that evening did not belong to him. 

Instead, the vehicle had belonged to Forshee’s father-in-law, and he had given it to her for her use. 

Forshee stated that the drugs inside the automobile could have belonged to her estranged husband, 

but that they were not Spence’s “[b]ecause he doesn’t do that type of stuff.” Forshee testified that 

her estranged husband drove the car before “he ran off” to Arkansas approximately eight years 

earlier.5 In sum, Spence contends that, because Simpler’s testimony that Spence was found with 

marihuana on his person contradicted Forshee’s testimony that Spence did not use drugs, the trial 

court’s instruction to disregard was essentially ineffective. We disagree.

In reviewing the efficacy of the trial court’s curing instruction, we may look at, among 

other things, the nature of the error, the persistence of the prosecution in committing the error, the 

flagrancy of the violation, the particular instruction given by the trial court, and the weight of the 

incriminating evidence. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). In this 

case, the complained-of evidence had little, if any, material relevance to the charged offense. To 

the extent it may have, the trial court instructed the jury that it was to disregard the evidence “for 

any and all purposes.” We presume the jury followed the trial court’s admonition to disregard the 

improper evidence. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). In addition, 

after the trial court’s admonishment, the State did not refer to the evidence any further, nor did it 

allude to it in any manner during its closing argument. Moreover, the State presented 

overwhelming evidence of Spence’s guilt; that is, Spence’s own oral and written statements that 

 

5Richardson testified that Forshee’s husband had been out of state for approximately ten years. 
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the drugs found in the car belonged to him. Taking into consideration the totality of the 

circumstances, the trial court could have reasonably concluded that the complained-of testimony 

was not so inflammatory as to be incurable by an instruction to disregard. We discern no abuse of 

discretion in the trial court’s denial of Spence’s motion for mistrial.

We overrule Spence’s single point of error and affirm the trial court’s judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 31, 2018

Date Decided: February 7, 2018

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