James Ward, Jr. v. The State of Texas

On September 11, 2013, Reshunda “Nikki” Edwards was living with Verne

“One-Armed Jack” Whaley in a house at the intersection of Rogers Street and

Barkley Street in north Houston. Rogers Street runs parallel to Airline Drive, which

is approximately one or two blocks to the east. Barkley Street runs parallel to

Crosstimbers Street, which is approximately two blocks to the north. The

intersection of Airline and Crosstimbers is thus within walking distance of the house

where Edwards lived.

Edwards had known the complainant, Roderick “CP” Culpepper, for

approximately two years. Culpepper frequently visited Whaley’s house, and he

came over to the house several times on September 10, 2013, including just after

night had fallen, which was the last time Culpepper visited the house before his

3



murder on September 11.2 On that occasion, Culpepper came to the house because

he had been having an argument with a woman Edwards knew named Pinkie.

Appellant, whom Edwards identified as “Red,” was also staying at Whaley’s

house at the behest of Charles “CC” Nickerson. Both Edwards and Whaley were

aware that Nickerson and appellant were involved with drugs and prostitution, and

Edwards testified that Whaley occasionally let the men use his house for these

purposes. Appellant sold drugs for Nickerson, and Pinkie worked as a prostitute for

Nickerson. Appellant’s duties included selling drugs and notifying Nickerson when

he needed a fresh supply of drugs.

At some point in the evening, Culpepper, Pinkie, and appellant were all

present at the house, and Edwards heard Culpepper and Pinkie have an argument.

In response to this argument, appellant called Nickerson, and Edwards heard

appellant inform Nickerson that Pinkie was at the house and that Culpepper “was

messing with her again” and had robbed her. Edwards left the area to talk to Whaley

because she was tired of Pinkie coming to the house and starting drama, and she did

not hear any more of appellant’s conversation with Nickerson. After the argument,

Culpepper left the house on foot, walking east down Barkley Street toward Airline.

2 On cross-examination, Edwards estimated that Culpepper came to the house around 6:00 or 7:00 p.m., stating, “It had just gotten dark.” She testified that Culpepper and Whaley got into an argument, during which Whaley threatened Culpepper with a knife, and Culpepper left and did not come back. Edwards testified that appellant was present when Culpepper left the house that evening.

4



Around thirty or forty-five minutes later, Nickerson arrived at the house

driving a white or silver car. Edwards could not remember the exact color or the

make of the car, and she stated that Nickerson frequently changed cars. Nickerson

then spoke to appellant and left alone in his car, driving east on Barkley. After five

to ten minutes, Nickerson came back to the house and told appellant to get in the car

with him. Nickerson and appellant drove around the block and then started slowly

driving east down Barkley towards Airline. Edwards started following them,

walking east down Barkley, when she heard a “boom, boom, boom” coming from

the intersection of Barkley and Airline, and she saw Nickerson’s car stopped at the

intersection. Edwards screamed for Whaley to come with her, but when he would

not leave the house, she returned to the house. Edwards estimated that Nickerson

and appellant left the house in Nickerson’s car less than an hour after Culpepper left

the house on foot.

Right after Edwards heard gunshots, another woman who worked for

Nickerson as a prostitute arrived at the house and picked up Pinkie. Nickerson then

came back to the house and spoke to Edwards, telling her, “Everything is going to

be okay.”

Edwards testified that she did not see anyone with a gun on the night of the

shooting, but, the day before, she had seen appellant with a gun that had been given

to him by Nickerson. Edwards complained to Whaley that she did not want anyone

5



to have guns at the house, and she did not see any guns at the house after that point.

The only time Edwards ever saw Nickerson with a gun was when he gave the gun to

appellant.

B. The Police Investigation

Houston Police Department (HPD) Officer M. Rodriguez received a dispatch

for a shooting in progress around 4:00 a.m. on September 11. Officer Rodriguez

saw Culpepper lying on Airline just south of the intersection with Barkley.

Culpepper was not breathing, and Officer Rodriguez called for medical assistance,

but Culpepper was pronounced dead at the scene.

Investigator B. Evans, with the HPD Homicide Division, arrived at the scene

and observed four spent .40 caliber shell casings lying in the street near Culpepper’s

body. Dr. Darshan Phatak, with the Harris County Institute of Forensic Sciences,

conducted Culpepper’s autopsy. Culpepper sustained three gunshot wounds,

including one on the left side of his abdomen that perforated his intestines and exited

through his back. A second bullet entered Culpepper’s right hip, perforated the

intestines, and penetrated the pelvis. This bullet was recovered inside his body.

Culpepper sustained a third gunshot wound on his right buttock, which perforated

the left femoral artery and lodged in his left thigh. Culpepper did not have any

defensive wounds on his hands and there was no gunshot residue or stippling on his

6



clothing. The toxicology report revealed that Culpepper had alcohol, cocaine, and

cocaine metabolites in his system at the time of his death.

Appellant’s father, James Ward, Sr. (“Ward”), testified that appellant got in

touch with him through appellant’s grandfather in September 2013. Ward did not

want appellant to have his phone number or know where he and his family lived, so

he set up an email account to communicate with appellant. Ward and appellant

exchanged multiple emails on September 17 and 18, 2013. In the emails, appellant

confessed to Ward that he had committed murder on the north side of Houston on

September 11, and that the male victim had been found dead in the street. Appellant

explained that the motive for the shooting was that the man owed $50 to a prostitute

who had been working for appellant. Appellant also sent Ward a photograph of

himself holding a firearm.3 Ward then shared the information that he received from

these emails with HPD and encouraged appellant to turn himself in. Ward testified

that appellant did not express any remorse or regret during their email conversations,

but instead acted as though he thought Ward would be proud of him. Ward stated

appellant told him that he committed the murder “so he could get his rep up.”

The trial court admitted copies of the emails exchanged between appellant and

Ward. On September 17, appellant sent Ward an email that stated, “Ive been selling

3 When appellant was taken into custody, this same picture was discovered on the cell phone that appellant had in his possession at the time.

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crack an running hoes but i commited murder[.]” Shortly thereafter, appellant sent

Ward another message that read, “this aint funn look it up northine man found dead

in street[.]” Ward advised appellant to turn himself in, but appellant responded,

“Turning myself in aint keeping it real dad ur scaring me i thought u was way more

hood then that[.]” Later that day, appellant stated, “I messed up money was too good

i couldnt resist it it was heat of the moment[.]” Ward replied, stating, “I tried to look

up your issue but couldnt find anything on it.” Appellant responded, in three

messages, “Northside houston shooting sept 11 man found dead in road,” “Airline,”

and “They been questioning people in the hood bout me.” Over the course of three

messages, appellant stated, “I dont even have a heart i dont feel bad for what i did

and if i can keep getting away with it ill probably continue it made me happy on the

inside really[.]”

Appellant sent Ward two messages stating, “U know for as bad as u think i

[am] ive only been to jail for fighting an dope cases an i just got my first felony

delivery of a controlled substance but its adjudicated . . . im scared to report.”

Appellant followed this message by sending a picture of himself pointing a gun at

the camera. On September 18, appellant sent Ward a series of messages stating that

he committed the murder because the victim “kept fucking with my hoe an he took

50 [dollars] frum her the day before an when he a crack head then i tried to confront

him an he got fly so i told him wait right here an then i came back a gave him the

8



biz[.]” Appellant stated that he committed the murder so people in the neighborhood

would fear and respect him.

HPD Lieutenant W. Meeler was the homicide detective who investigated the

shooting of Culpepper. Lieutenant Meeler listened to the original 9-1-1 calls, which

reported that a white Dodge Charger had driven away from the scene, and spoke

with the callers. One of the callers did not witness the shooting itself, and the other

caller was not cooperative with Lieutenant Meeler and did not provide any further

information. Lieutenant Meeler visited several businesses near the intersection

where the shooting occurred in an attempt to view surveillance footage, including a

Valero station at Airline and Crosstimbers. The Valero footage did not show the

shooting itself.

Lieutenant Meeler testified that, in the days after the shooting, he began

receiving anonymous tips concerning who might be involved. He received the

nicknames “CC” and “Red” and a phone number, which he was able to connect to

Nickerson. Lieutenant Meeler also learned that Edwards was a potential witness,

and he interviewed both Whaley and her. Edwards provided Meeler with the

nicknames “CC” and “Red,” and she identified Nickerson in a photo-array. Once

Lieutenant Meeler had an identification of Nickerson from Edwards, he studied the

surveillance footage from the Valero once again and located Nickerson in that

footage. Nickerson appeared at the Valero shortly after midnight on September 11,

9



2013, driving a white Dodge Charger.4 Lieutenant Meeler observed Pinkie on the

Valero surveillance footage at 3:00 a.m., and he identified one of the 9-1-1 callers

on the surveillance footage at 3:36 a.m.

Lieutenant Meeler developed Nickerson as a suspect, but because “Red” was

an “extremely common nickname,” he was unable to identify appellant as a potential

suspect until Ward contacted HPD and informed Meeler of the email messages Ward

and appellant had exchanged. Ward gave Lieutenant Meeler permission to view his

email correspondence with appellant. Based on these messages, Lieutenant Meeler

created a photo-array containing appellant’s picture and showed the array to

Edwards, who positively identified appellant as “Red.” Appellant was subsequently

arrested and charged with the offense of murder.

C. Trial Proceedings

Edwards appeared in handcuffs during her testimony because she had failed

to appear for the first day of trial. At the beginning of her testimony, she had the

following exchange with the prosecutor:

The State: So, you have previously been arrested and convicted of criminal cases, though; right?

Edwards: Yes.

The State: Prostitution, correct?



4 Nickerson’s wife rented a white Dodge Charger and listed Nickerson as an authorized driver on the rental agreement. The car was returned to the rental car company around 5:00 p.m. on September 11, 2013. Appellant testified that Nickerson always used rental cars so no one would know what car he was driving.

10



Edwards: Okay. Well, you just came back there and told me that his [appellant’s] criminal record would not be brought up, so why is mine?

Defense counsel: May it please the Court, I would object. And I would instruct the jury to disregard the nonresponsive answer. And I would ask for a mistrial, Your Honor.

The Court: The jury will disregard that nonresponsive answer. And that’s denied. You [Edwards] just answer questions. Do we understand each other?

Edwards: Yes, we do.

The Court: Good.

The State: All right. And you have previously been convicted of prostitution, correct?

Edwards: Yes, I have.

The State: And that’s—you’ve been convicted of that multiple times? More than once, right?

Edwards: More than once, yes.



Edwards then testified about where she had been living at the time of the shooting,

as well as how she knew Culpepper, Nickerson, and appellant.

The State then asked Edwards, “What was the relationship between

[Nickerson] and [appellant] as far as you knew?” The following then occurred:

Edwards: From my understanding, that [appellant] had just gotten out of jail or had just came from out of town somewhere and needed a place.

Defense counsel: If it please the Court, I would object and renew my objection that an extraneous offense has now been introduced for the second time in this case. And I would request that the jury be instructed to

11



disregard the non-responsive answer and we ask for a mistrial, Judge.

The Court: Jury will disregard. It’s denied. Come talk to your client. Overruled.



Edwards did not reference appellant’s criminal history again during her testimony.

Whaley testified on appellant’s behalf. Whaley testified that Pinkie,

Nickerson, and appellant did not come to his house on the evening of September 10,

2013. Whaley agreed that he heard gunshots that evening, but he stated that this did

not concern him because hearing gunshots was commonplace in his neighborhood.

He stated that he did not walk down Barkley Street toward Airline and that it was

the next morning when he learned that someone had been murdered at that

intersection.

Darius Johnson testified that he was at the Valero station around 3:00 a.m. on

September 11, 2013. A man approached Johnson and asked if he had a cigarette,

and when Johnson responded that he did not, the man started walking south down

Airline. Johnson started walking behind the man, but when he saw four other men

approach the man around the intersection of Airline and Barkley and start shooting,

Johnson ran back to the Valero. Johnson did not see a vehicle in the area. When the

police arrived at the Valero, Johnson reported that he had heard the gunshots, and he

spoke with an officer. Johnson denied being able to identify anyone involved with

the shooting, and he stated that he had never seen appellant before. On cross

12



examination, Johnson agreed with the State that, on the night of the shooting, he had

originally told officers that he saw two men, instead of four, approach the man who

was shot.

Appellant testified on his own behalf. Appellant acknowledged that he knew

Edwards, Pinkie, and Whaley, but he denied ever knowing Culpepper, stating, “I’ve

never met this guy.” Appellant admitted selling drugs for Nickerson, and he testified

that Nickerson picked the locations where appellant would be “stationed,” including

various motels in the area and Whaley’s house. Appellant testified that, on the night

of the shooting, he was at Whaley’s house. He called Nickerson to tell him that he

had run out of drugs, and Nickerson told him that “one of his girls got into it with

somebody.” Nickerson reportedly told appellant to stay at Whaley’s house because

Nickerson was already on his way over there and he would pick appellant up.

Appellant stated that Nickerson arrived at Whaley’s house in a white Dodge

Charger approximately five minutes after appellant called him. According to

appellant, only Whaley and he were at the house when Nickerson arrived; neither

Edwards nor Pinkie was there. Appellant testified that Culpepper had not been at

Whaley’s house that evening, again stating that he did not know Culpepper.

Appellant stated that Nickerson told him, “Things get real in the streets,” and that

appellant needed to get out of the area because it was known that he was associated

with Nickerson. Appellant estimated that Nickerson drove him away from Whaley’s

13



house around 3:30 in the morning, and he stated that Nickerson took him to a motel

off of Highway 290, where he met up with Pinkie and a few other women.5

Appellant stated that he was at the motel for the rest of the night selling drugs for

Nickerson, and he did not go back to Whaley’s house on September 11.

Appellant testified that he learned of the shooting several days later and that

Nickerson was responsible, although he denied being with Nickerson when the

shooting occurred. He testified that he knew that Nickerson carried a handgun,

which appellant used “to take pictures with to look cool.” Appellant acknowledged

having email conversations with Ward about the murder. He testified:

I knew [the police were] going to eventually question me about [the shooting] because I’m somebody that’s with [Nickerson] on a regular [basis]. And in order to tell my dad what happened, I ended up stating that I was the one who did it; but I didn’t. I was trying to look cool at the time and always tried to get my dad’s approval on things. And I don’t know, I was messed up and I was on drugs for several days.



Appellant testified that he did not have anything to do with the murder of Culpepper

and that he was not present when Culpepper was shot.

The jury charge authorized the jury to convict appellant either as the primary

actor or under the law of parties if the jury found that appellant, “with the intent to

promote or assist the commission of the offense, if any, solicited, encouraged,

5 Appellant stated that the surveillance footage of Pinkie at the Valero at Airline and Crosstimbers had to have been taken before appellant arrived at the motel because Pinkie was already at the motel when he arrived.

14



directed, aided or attempted to aid Charles Nickerson to commit the offense, if he

did.” The jury found appellant guilty of the offense of murder and assessed his

punishment at sixty years’ confinement. This appeal followed.

Sufficiency of Evidence

In his first issue, appellant contends that the State failed to present sufficient

evidence that he committed the murder of Culpepper as a primary actor. In his

second issue, he contends that the State failed to present sufficient evidence that he

committed the murder under the law of parties.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Griffin v.

State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016). The jurors are the exclusive

judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility,

may accept one version of the facts and reject another, and it may reject any part of

a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.

1986); Rivera v. State, 507 S.W.3d 844, 853–54 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d).

15



We may not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston

[1st Dist.] 2016, no pet.). We give great deference to the jury’s credibility

determinations. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009).

We resolve any inconsistencies in the evidence in favor of the verdict. Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457

S.W.3d 446, 448–49 (Tex. Crim. App. 2015) (“When the record supports conflicting

inferences, we presume that the factfinder resolved the conflicts in favor of the

verdict, and we defer to that determination.”). Circumstantial evidence is as

probative as direct evidence in establishing guilt, and circumstantial evidence alone

can be sufficient to establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim.

App. 2013) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

“Each fact need not point directly and independently to the guilt of the appellant, as

long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Hooper, 214 S.W.3d at 13.

B. Murder as a Primary Actor

To establish that appellant committed the offense of murder as a primary

actor, the State was required to prove that appellant intentionally or knowingly

caused the death of Roderick Culpepper by shooting him with a firearm or that

16



appellant intended to cause serious bodily injury to Culpepper and committed an act

clearly dangerous to human life—shooting Culpepper with a firearm—that caused

Culpepper’s death. See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (West 2011).

Appellant argues that the evidence is insufficient to support his conviction for

murder as a primary actor because the only evidence showing that appellant caused

Culpepper’s death was Ward’s testimony that appellant admitted in an email that he

killed Culpepper because Culpepper stole fifty dollars from a prostitute that worked

for appellant.

An extrajudicial confession is sufficient to establish the identity of the

perpetrator of a crime. Emery v. State, 881 S.W.2d 702, 706 (Tex. Crim. App. 1994);

Dansby v. State, 530 S.W.3d 213, 227 (Tex. App.—Tyler 2017, pet. ref’d); Herrero

v. State, 124 S.W.3d 827, 833 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Under the corpus delicti rule, a defendant’s extrajudicial confession does not

constitute legally sufficient evidence of guilt absent independent evidence of the

corpus delicti. Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (quoting

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)). To satisfy the corpus

delicti rule, “there must be ‘evidence independent of a defendant’s extrajudicial

confession show[ing] that the “essential nature” of the charged crime was committed

by someone.’” Id. (quoting Hacker, 389 S.W.3d at 866); Fisher v. State, 851 S.W.2d

298, 303 (Tex. Crim. App. 1993) (“The corpus delicti of a crime—any crime—

17



simply consists of the fact that the crime in question has been committed by

someone.”) (emphasis in original); Fiedler v. State, 991 S.W.2d 70, 73 (Tex. App.—

San Antonio 1998, no pet.) (stating that although person may not be convicted upon

confession alone, evidence of corpus delicti of crime plus confession is sufficient).

In this case, it is undisputed that the crime in question—the murder of

Culpepper—was committed by someone, and appellant does not argue that the

corpus delicti rule was not satisfied. Instead, he argues that the statements he made

in the email messages to his father are not sufficient to establish that he was the

perpetrator of Culpepper’s murder.

Edwards testified that she, Pinkie, Culpepper, and appellant were all present

at Whaley’s house on the night of the shooting. She knew that Pinkie and Culpepper

had a disagreement, and she heard appellant—who worked for Nickerson selling

drugs—call Nickerson and inform him that Pinkie—who worked for Nickerson as a

prostitute—was at the house and that Culpepper “was messing with her again” and

had robbed her. At some point, Culpepper left the house on foot, walking east down

Barkley Street toward Airline.

Edwards further testified that, around an hour later, Nickerson arrived at the

house and briefly spoke with appellant before driving away. After five or ten

minutes, Nickerson arrived back at the house and told appellant to get in the car, and

they slowly drove east down Barkley Street toward Airline. Edwards started

18



following them on foot, and, as she walked down Barkley Street, she heard a “boom,

boom, boom” and saw Nickerson’s car stopped at the intersection of Barkley and

Airline. She did not see who fired the shots. Edwards did not see anyone with a

weapon on the night of the murder, but, on the day before the murder, she had seen

appellant with a handgun which had been given to him by Nickerson.

HPD officers later found Culpepper’s body lying on Airline, just south of the

intersection with Barkley Street. Culpepper had sustained three gunshot wounds,

and officers discovered four spent shell casings near Culpepper’s body.

Ward, appellant’s father, testified that appellant contacted him several days

after the murder, and Ward set up an email account so he could communicate with

appellant. During the course of their email correspondence over the next two days,

appellant confessed to Ward that he had committed murder in Houston. Specifically,

he stated to Ward, “Ive been selling crack an running hoes but i commited murder[.]”

Appellant also told Ward, “look it up northine man found dead in street” and

“Northside houston shooting sept 11 man found dead in road[.]” Appellant then

clarified that the “road” was “Airline.” Appellant sent a series of messages stating

that he committed the murder because Culpepper “kept fucking with my hoe an he

took 50 [dollars] frum her the day before an when he a crack head then i tried to

confront him an he got fly so i told him wait right here an then i came back a gave

him the biz[.]” Appellant also sent messages to Ward stating that he committed the

19



murder so that people in the neighborhood would fear and respect him and denying

that he experienced remorse for his actions. Appellant sent Ward a photograph of

himself pointing a handgun at the camera. In addition to Ward’s testimony, the trial

court admitted copies of the email correspondence between Ward and appellant.

Appellant’s extrajudicial confession to the murder is sufficient evidence to

establish his identity as the perpetrator of the murder. See Emery, 881 S.W.2d at

706; Dansby, 530 S.W.3d at 227; Herrero, 124 S.W.3d at 833. In addition, Edwards’

testimony places appellant at the scene of the murder at the time Culpepper was shot.

Appellant contends that the evidence of his statements in the emails to Ward

is outweighed by the fact that Edwards did not witness the shooting itself and the

fact that appellant testified that he did not kill Culpepper, that he was not even

present at the time of the shooting because Nickerson had driven him to a motel, and

that he lied to Ward about killing Culpepper. Appellant argues that he “negated [the]

emailed statement by explaining that he emailed this statement to his father to bolster

his reputation in the community.”

It is within the province of the jury to resolve conflicts in the evidence, and

we defer to that resolution. See Murray, 457 S.W.3d at 448–49; Curry, 30 S.W.3d

at 406. Here, the jury was presented with Ward’s testimony concerning the email

conversation he had with appellant; the emails themselves, in which appellant

admitted, in several messages, that he committed the murder and provided details

20



concerning the murder, such as when it occurred, how it occurred, and the particular

street where it occurred; and appellant’s self-serving testimony that he was lying

when he told his father that he committed murder because he was “trying to look

cool” and get Ward’s approval. The jury could choose to disbelieve appellant’s

testimony, and we may not re-evaluate the weight and credibility that the jury

assigned to the evidence. See Williams, 235 S.W.3d at 750; Leroy, 512 S.W.3d at

543; Rivera, 507 S.W.3d at 853–54.

Viewing the evidence in the light most favorable to the verdict, as we must,

we conclude that a reasonable fact finder could have found the essential elements of

the offense beyond a reasonable doubt. See TEX. PENAL CODE ANN. § 19.02(b)(1)–

(2); Griffin, 491 S.W.3d at 774. We therefore hold that the State presented sufficient

evidence that appellant committed the murder of Culpepper as the primary actor.6

We overrule appellant’s first issue.

6 Because we conclude that the State presented sufficient evidence to establish that appellant committed murder as the primary actor, we need not address appellant’s second issue—whether the evidence was sufficient to support appellant’s conviction for murder under the law of parties. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (“[W]hen the trial court’s charge authorizes the jury to convict on more than one theory, as it did in this case, the verdict of guilty will be upheld if the evidence is sufficient on any one of the theories.”).

21



Denial of Motion for Mistrial

In his third issue, appellant contends that the trial court erred by denying his

motions for mistrial made after Edwards, on two occasions, referenced appellant’s

criminal history.

“A mistrial is a device used to halt trial proceedings when error is so

prejudicial that expenditure of further time and expense would be wasteful and

futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We review a trial

court’s refusal to grant a motion for mistrial for an abuse of discretion. Archie v.

State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011). A trial court properly

exercises its discretion to grant a mistrial if an impartial verdict cannot be reached,

or if a verdict could be reached but would have to be reversed on appeal due to an

obvious procedural error. Ladd, 3 S.W.3d at 567. Granting a motion for mistrial is

the appropriate remedy when “the objectionable events ‘are so emotionally

inflammatory that curative instructions are not likely to prevent the jury from being

unfairly prejudiced against the defendant.’” Archie, 340 S.W.3d at 739 (quoting

Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)). “Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required.”

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

“Unless clearly calculated to inflame the minds of the jury or of such damning

character as to make it impossible to remove the harmful impression from the jurors’

22



minds, a witness’s reference to a defendant’s criminal history or previous

incarceration, standing alone, generally is cured by a prompt instruction to

disregard.” Smith v. State, 491 S.W.3d 864, 873 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d); see also Ladd, 3 S.W.3d at 571 (holding that trial court did not

abuse its discretion in refusing to grant mistrial after witness referred to defendant’s

juvenile criminal history when trial court sustained objection to testimony and gave

prompt instruction to disregard). Granting a motion for mistrial should be reserved

for the cases in which an instruction to disregard could not cure the prejudice

stemming from an event at trial. Jackson v. State, 287 S.W.3d 346, 354 (Tex. App.—

Houston [14th Dist.] 2009, no pet.) (quoting Young, 137 S.W.3d at 69). “Because

curative instructions are presumed effective to withdraw from jury consideration

almost any evidence or argument that is objectionable, trial conditions must be

extreme before a mistrial is warranted.” Herrero, 124 S.W.3d at 836 (citing Bauder

v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996)).

In this case, the State began questioning Edwards regarding why she appeared

before the jury in handcuffs, and Edwards responded that she had been arrested for

failure to appear in court the day before. The following exchange then occurred:

The State: Okay. So, you have previously been arrested and convicted of criminal cases, though; right?

Edwards: Yes.

The State: Prostitution, correct?



23



Edwards: Okay. Well, you just came back there and told me that his [appellant’s] criminal record would not be brought up, so why is mine?

Defense counsel: May it please the Court, I would object. And I would instruct the jury to disregard the nonresponsive answer. And I would ask for a mistrial, Your Honor.

The Court: The jury will disregard that nonresponsive answer. And that’s denied. You [Edwards] just answer questions. Do we understand each other?

Edwards: Yes, we do.

The Court: Good.



Edwards then testified concerning living with Whaley, how she knew

Culpepper, Culpepper’s visits to Whaley’s house on September 10, appellant’s

presence at that house that evening, and his connection to Nickerson. The State

asked Edwards, “What was the relationship between CC [Nickerson] and Red

[appellant] as far as you knew?” The following occurred:

Edwards: From my understanding, that [appellant] had just gotten out of jail or had just come from out of town somewhere and needed a place.

Defense counsel: If it please the Court, I would object and renew my objection that an extraneous offense has now been introduced for the second time in this case. And I would request that the jury be instructed to disregard the non-responsive answer and we ask for a mistrial, Judge.

The Court: Jury will disregard. It’s denied. Come talk to your client. Overruled.



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Edwards then testified concerning Nickerson’s and appellant’s drug enterprise, and

she did not again testify concerning appellant’s criminal history.

Although prejudicial, Edwards’ testimony was not “clearly calculated to

inflame the minds of the jury or of such damning character as to make it impossible

to remove the harmful impression from the jurors’ minds.” See Jackson, 287 S.W.3d

at 354. Edwards’ comments referencing that appellant had a criminal history—

without providing specific details about his criminal history—and stating her belief

that appellant had recently been released from jail “or had just come from out of

town somewhere and needed a place” to stay, which led to his connection with

Nickerson and Whaley, were not so extreme that an instruction to disregard could

not “withdraw[] the impression produced on the minds of the jury.” See Herrero,

124 S.W.3d at 836. Instead, her testimony was “uninvited and unembellished and

mirrored those references typically cured by an instruction to disregard.” See Smith,

491 S.W.3d at 873 (complainant testified that defendant lived with her and with his

grandmother “when he got out of jail that last time”); see also Ladd, 3 S.W.3d at 571

(instruction to disregard cured any harm caused by reference to defendant’s “three

or four juvenile arrests”); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992) (instruction to disregard cured any harm from witness’s statement that

defendant “had recently been released from the penitentiary”); Nobles v. State, 843

S.W.2d 503, 514 (Tex. Crim. App. 1992) (noting that “inadvertent references to prior

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incarceration can be cured of prejudicial effect” and holding that instruction to

disregard cured harm from witness’s testimony that defendant “didn’t want to go

back to prison”).

Moreover, we note that the trial court admitted copies of appellant’s emails to

his father, in which he told Ward that he had recently been put on deferred

adjudication for delivery of a controlled substance and referenced getting out of jail

in Madisonville, Texas. Appellant also, during his own testimony, freely admitted

that he was involved in criminal activity by assisting Nickerson with his drug and

prostitution enterprise.

Because this case is not one in which the prejudice from Edwards’ testimony

was incurable, such that the trial court’s prompt instructions to disregard were

ineffective, we conclude that a mistrial was not warranted in this case. See Hawkins,

135 S.W.3d at 77 (“Only in extreme circumstances, where the prejudice is incurable,

will a mistrial be required.”). We therefore hold that the trial court did not abuse its

discretion by denying appellant’s requests for a mistrial. See Archie, 340 S.W.3d at

738–39; Smith, 491 S.W.3d at 873; Jackson, 287 S.W.3d at 354.

We overrule appellant’s third issue.

We affirm the judgment of the trial court.