Opinion
No. 05-05-00515-CR
Opinion issued February 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-35305-MU. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Arthur Joyal Barker appeals his conviction for aggravated robbery. After appellant pleaded guilty to the charged offense and to using or exhibiting a deadly weapon during commission of the offense, the jury assessed punishment, enhanced by two prior felony convictions, at eighty years' confinement. In two issues, appellant contends the trial judge erred in failing to grant a mistrial and in overruling his objection to improper jury argument. We affirm the trial court's judgment. In his first issue, appellant contends the trial judge erred in denying his motion for mistrial. Under this issue, appellant claims the prosecutor's improper jury argument constituted reversible error and that the trial judge abused her discretion in failing to grant a mistrial. After reviewing the record, we cannot agree with appellant's contentions. We review a trial judge's denial of a mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 524 U.S. 905 (2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 841 (Tex.App.-Dallas 2002, pet. ref'd). A mistrial is appropriate for "highly prejudicial and incurable errors" only. Simpson, 119 S.W.3d at 272 (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). Granting a mistrial is appropriate when the error is so prejudicial that the expenditure of further time and expense would be wasteful and futile. See Ladd, 3 S.W.3d at 567. To determine whether an error necessitates a mistrial, we examine the particular facts of the case. See Dooley, 65 S.W.3d at 842. When a trial judge instructs the jury to disregard an improper comment or question, we presume the jury will follow the judge's instruction unless the remark or comment was so prejudicial or extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). At trial, appellant objected to a portion of the prosecutor's argument, claiming it improperly asked the jurors to place themselves in the position of the victim in this case. The trial judge sustained appellant's objection and instructed the jury to disregard the statement, but denied appellant's request for a mistrial. Appellant now assigns this ruling as error. We need not determine whether the prosecutor's comment was improper because, even assuming it was improper, the statement was not so inflammatory, prejudicial, or extreme as to prejudice the jury beyond repair. Although the prosecutor asked each juror to put himself in a familiar situation-being at work, at home, visiting a friend — and imagine having a gun stuck in his face, the statement did not urge the jurors to abandon their objectivity, to go beyond the record, or to render a verdict based on their personal passion. The trial judge's prompt instruction to disregard the prosecutor's comment cured any prejudicial effect the comment otherwise would have had. Therefore, we conclude the trial judge did not abuse her discretion in denying appellant's motion for mistrial. See Brandley v. State, 691 S.W.2d 699, 713 (Tex.Crim.App. 1985) (holding prosecutor's argument that placed "the jury in the shoes of the victim and the victim's family" was not "of the tenor to require reversal" given entire record and timely instruction to disregard). We overrule appellant's first issue. In his second issue, appellant contends the prosecutor commented on appellant's failure to testify and that the trial judge erred in overruling appellant's objection. Again, we disagree. A prosecutorial comment referring to a defendant's failure to testify violates his Fifth Amendment right against compelled self-incrimination. Canales v. State, 98 S.W.3d 690, 695 (Tex.Crim.App. 2003) (citing Griffin v. California, 380 U.S. 609, 615 (1965) and Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001)). To constitute a Fifth Amendment violation, however, the comment must clearly reference the defendant's failure to testify. Canales, 98 S.W.3d at 695. It is not sufficient if the statement "might be construed as an implied or indirect allusion" to the failure to testify. Canales, 98 S.W.3d at 695. "The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Bustamante, 48 S.W.3d at 765; see Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004) ("It is well settled that a prosecutor's comment amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify."). The evidence at punishment established that appellant and a companion, dressed in dark clothing and carrying guns and walkie-talkies, forced the night shift manager, one employee, and two other individuals to re-enter, at gunpoint, a Taco Bueno restaurant after the store had been closed for the night. The two men instructed everyone to lie on the floor; appellant and his companion used duct tape to bind the victims' hands and feet. After the manager successfully opened the safe, the two men took the money and left. Several police officers were nearby and, once the victims alerted them to the crime, quickly arrested the two men. During closing argument, the prosecutor stated:
Let's talk about responsibility. Do you think for one second, one millisecond, had those officers not been next door at the IHOP that [appellant and his companion] were going to drive to the Irving Police Department and turn themselves in because they felt guilty about what they did?
Do you think for one second-why would they have gloves and masks and walkie-talkies and all of those items if they were planning on turning themselves in?When appellant objected to this as a comment on his failure to testify, the trial judge overruled his objection. After reviewing the evidence and the closing argument, we cannot conclude the statement was a comment on appellant's failure to testify during punishment. The prosecutor's argument did not call attention to some absence of evidence that only appellant could explain. Rather, it was a rhetorical question asking the jurors to consider that, after appellant and his companion had sufficiently planned the robbery, it did not appear reasonable that they would turn themselves in to authorities. In other words, the prosecutor's comment was to the effect that appellant's actions were inconsistent with the actions of a man intending to flag down the police. Given the facts of the case and the context in which the prosecutor's comment was made, we cannot conclude that the jury "would naturally and necessarily" have taken the statement as a comment on appellant's failure to testify. See Wead, 129 S.W.3d at 130; Bustamante, 48 S.W.3d at 765. Because we conclude the trial judge did not err in overruling appellant's objection, we overrule appellant's second issue. We affirm the trial court's judgment.