Description: In this case, the State’s indictment alleged that Pennington caused Marcy, a child younger
than seventeen, to engage in sexual contact by causing her to touch his genitals, with the intent to
arouse or gratify his sexual desire. In companion cause number 06-17-00041-CR, the State alleged
that Pennington, when Marcy was younger than fourteen, had intentionally and knowingly caused
the penetration of Marcy’s sexual organ by his finger.2 The two cases were consolidated for trial.
1We use a pseudonym for the child victim in this opinion in order to protect her privacy. See TEX. R. APP. P. 9.10(a)(3).
2In the companion case, the jury ultimately determined that Pennington was guilty only of the lesser-included offense of indecency with a child by sexual contact.
Marcy was eleven at the time of trial and had considerable difficulty recalling some of the
events surrounding the allegations. Marcy testified that Pennington touched her privates with his
hand under her clothing, but could not recall further details. The child then testified that the
touching had only occurred once. In an effort to establish the allegations in both this case and the
companion case, the State asked Marcy if she remembered speaking with Kassi Lightfoot, the
director of the Children’s Advocacy Center (CAC) in Fannin County, Texas. Marcy responded,
“A little bit. Not a whole lot.” Marcy further stated that she did not remember telling Lightfoot
that Pennington touched her more than once. However, she recalled telling Lightfoot that
Pennington made her touch his private “[a] little bit.” When asked what she remembered from the
incidents, Marcy responded, “I don’t know.”
The State established that Marcy’s memory could be refreshed if she were allowed to watch
the interview outside of the jury’s presence. At that point, the defendant “object[ed] to allowing
the child to see the video as an improper attempt to bolster the testimony of the witness, attempt
to impeach [its] own . . . witness.” Because the child was simply watching the audio/video to
refresh her memory, outside of the jury’s presence, the trial court overruled the objection. When
questioned after watching the recording, the child testified that she remembered that Pennington
had touched her two or three times and that she had touched the defendant’s privates twice, but
that she still could not remember specific details. Marcy testified that she remembered speaking
with Lightfoot about the details of the incidents, but could not remember what she had said.
At that point, outside of the jury’s presence, the State informed the trial court that it sought
to admit the video-recorded interview after calling Lightfoot to authenticate it. Pennington
objected on the grounds that the recording was hearsay and that the State was trying to bolster the
witnesses testimony. In response, the State explained that it was offering the recording to refresh
the child’s memory under Rule 803(5) of the Texas Rules of Evidence. After the trial court
indicated that the predicate had not yet been laid to admit the recording under Rule 803(5), the
State argued that the defense’s cross-examination of Marcy had yielded inconsistent statements
and offered the recording under Rule 613(a)(4) of the Texas Rules of Evidence.3 The following
[BY THE STATE]: Your Honor, I’d like to revisit Rule 613. Under 613(a), the foundation requirement, we have laid the foundation for that. We have -- and, again, we can impeach our own witness with a prior inconsistent statement under the foundation requirement. We have allowed the child to review her statement, to see the contents of the statement, the time and place the statement was made and to whom the -- to whom the witness made the statement. Now, under 613(a)(4), “Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness first” -- “is first examined about the statement and fails to unequivocally admit to making the statement.” [Marcy] came in after seeing the statement and she stated, even after reviewing the statement, that she -- she did not remember and that’s a -- that’s a statement that she did not unequivocally make that statement. So under 613(a)(4), I believe it comes in. We’ve laid the foundation for that, and it would allow us to impeach her with that video.
[BY THE DEFENDANT]: Judge, I disagree. I think she said, yes, she remembered making the statement. She remembered parts of it. She didn’t -- she’s not saying she never talked --
THE COURT: Okay. The Court is going to allow the State to proceed with the exhibit.
3Rule 613(a)(4) of the Texas Rules of Evidence states, “Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.” TEX. R. EVID. 613(a)(4).
After the trial court’s ruling, Lightfoot informed the jury that she conducted Marcy’s forensic
interview. Although she was not the custodian of records for the CAC, Lightfoot testified that she
operated the recording equipment, that she produced the recording, and that it was not altered or
changed. When the State offered the recording, counsel “objecte[d] to predicate.” When the trial
court asked for clarification of the objection, Pennington, through counsel, responded:
[H]ow can you pick it up and look at it and tell the jury what’s on it, I don’t know. I think if that’s -- if it’s a business record being offered as a business record of the Child Advocacy Center, then if she’s not the custodian of those records, that predicate has not been laid.
The State questioned Lightfoot further and established that she had seen the recording to confirm
that it had not been altered or changed. When the State reoffered the recorded interview,
Pennington “renew[ed]” his objection, adding, “I’m not sure how Ms. Lightfoot could know
what’s on the DVD. And we have no idea when she reviewed it or how she reviewed it, who else
was present.”4 The trial court overruled the objection and admitted the recording into evidence.
After the exhibit was admitted, but before it was published, Pennington objected to its
publication on the grounds that it contained hearsay. The trial court overruled the objection, and
the recorded interview of Marcy was played for the jury.
B. Error Is Not Preserved
On appeal, Pennington argues that the trial court erred in admitting the recorded interview
on the grounds that (1) the State impermissibly offered the video for purposes of impeachment.
4It appears that Pennington was objecting to the authentication of the recording under Rule 901 of the Texas Rules of Evidence.
and (2) the State failed to establish the predicate for admission of extrinsic statements under Rule
613. The State argues that Pennington failed to preserve this point of error for appeal. We agree.
At trial, Pennington lodged a global hearsay objection, complained that the State was
attempting to bolster Marcy’s testimony, and disagreed with the State’s explanation that it was
offering the recording under Rule 613(a)(4) because Marcy had “remembered parts” of the
recorded interview. On appeal, he simply argues that “the video as a whole” was inadmissible
under Rule 613. When an exhibit contains both admissible and inadmissible evidence, the burden
is on the objecting party to specifically point out which portion of the recording is inadmissible.
Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (citing Hernandez v. State, 599
S.W.2d 614, 617 (Tex. Crim. App. 1980) (op. on reh’g)). A trial court is not obligated to search
through an exhibit, such as a recorded statement, and segregate the admissible evidence from the
inadmissible. Id. Instead, “the trial court may safely admit it or exclude it all, and the losing party,
no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific
offer or objection.” Richter v. State, 482 S.W.3d 288, 298 (Tex. App.—Texarkana 2015, no pet.)
(quoting Whitaker, 286 S.W.3d at 369); see Fears v. State, 479 S.W.3d 315, 334 (Tex. App.—
Corpus Christi 2015, pet. ref’d) (citing Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App.
Pennington’s statement to the trial court that Marcy remembered some of the prior
statements she made during the interview suggested only that a portion of the recording was
inadmissible under Rule 613. Although he has identified statements on appeal that were not prior
inconsistent statements, Pennington failed to do so in the court below. Consequently, Pennington
failed to preserve error, if any, in the court’s admission of the entire recorded interview.
II. A Mistrial Was Not Warranted
Pennington testified in his own defense during the guilt/innocence phase of trial. During
cross-examination, the State elicited testimony from Pennington, without objection, that he was
using marihuana approximately once a month during the time of the alleged incidents. Then, the
Q. [BY THE STATE]: . . . . And you said you used marijuana occasionally.
Q. Okay. Now, since these charges have been filed, you’ve been ordered by
the Court not to smoke marijuana. Correct?
A. Yes, sir.
Q. You violated that order, didn’t you?
A. Yes, I did.
[BY THE DEFENSE]: Your Honor, I think we’ve got a motion in
limine and --
THE COURT: Sustained.
[BY THE DEFENSE]: -- I think he just violated it.
THE COURT: You may ask your next question.
Q. [BY THE STATE]: . . . . You’ve also --
[BY THE DEFENSE]: We’d like the Court to instruct the
jury to disregard the last line of questioning.
THE COURT: The jury is instructed to disregard the last
question and answer by the defendant.
Q. [BY THE STATE]: . . . . Did --
[BY THE DEFENSE]: Your Honor, and now we’d ask the
Court for a mistrial. This is so prejudicial, we’d ask the Court for a mistrial.
THE COURT: . . . .The request is denied.
In his last point of error, Pennington argues that the trial court erred in failing to grant a
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 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 requires a mistrial must be determined by the particular facts of the case.” Id.
“A trial judge’s denial of a motion for mistrial is reviewed under an abuse of discretion
standard, and h[er] ruling must be upheld if it was within the zone of reasonable disagreement.”
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). “An appellate court views 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)). “Because it is an extreme remedy, a mistrial should be
granted ‘only when residual prejudice remains’ after less drastic alternatives are explored.” Id. at
884–85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).
In this case, we determine that the trial court’s instruction to disregard was sufficient to
cure the error. “Asking an improper question, alone, will rarely require a mistrial because, in most
cases, any harm can be cured by an instruction to disregard.” Hollaway v. State, 446 S.W.3d 847,
856 (Tex. App. —Texarkana 2014, no pet.) (citing Ladd, 3 S.W.3d at 567). “Here, the trial court
instructed the jury to disregard the State’s question, and we ordinarily presume that a jury follows
cautionary instructions from the trial court.” Id. The jury charge further stated, “Do not consider
for any purpose any offer of evidence that was stricken by the court. You must treat it as though
you had never heard it.” Critically, Pennington failed to object when the State elicited testimony
of his prior marihuana use. Accordingly, because evidence of Pennington’s prior marihuana usage
was before the jury, the trial court could have concluded that evidence of current marihuana usage
was not so highly prejudicial that an instruction to disregard would be insufficient to cure prejudice
resulting from the State’s second question about continued marihuana use. Accordingly, a mistrial
was not warranted.
We overrule Pennington’s last point of error.