Opinion
Nos. 05-09-00459-CR, 05-09-00460-CR
Opinion Filed August 10, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from County Court at Law No. 1, Hunt County, Texas, Trial Court Cause Nos. CR07-02682, CR07-02683.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
A jury convicted Charles Winton Land, Jr. of resisting arrest (appeal 05-09-00459-CR) and interference with public duties (appeal 05-09-00460-CR). The jury assessed punishment for the resisting arrest offense at 365 days in the county jail and a $2000 fine; for the interference offense, the jury assessed punishment at 180 days in the county jail and a $1000 fine. Land challenges the legal and factual sufficiency of the evidence to support the convictions and contends the trial court erred in failing to grant a mistrial due to improper jury arguments. We affirm both convictions.
Background
On the evening of December 1, 2007, Texas State Trooper Gina Stone was patrolling Interstate 30 in Hunt County when she clocked Land's 18-wheeler traveling westbound on I-30 at 75 miles-per-hour, which was 10 miles-per-hour over the limit. Stone activated the overhead lights of her patrol car and initiated a stop on the right shoulder of the highway. She observed that the trailer was slanting and, after collecting Land's paperwork, instructed Land to follow her to an Exxon station so she could perform an inspection. Land was coming from Arkansas and was headed to Dallas, carrying a load of flour that had shifted to one side. Land's wife was traveling with him. Once at the station, Stone began a federal Level II inspection, described generally as checking the paperwork and walking around the equipment to check the load. While reviewing Land's paperwork and questioning him, Stone called trooper George Greenway for backup. Greenway arrived with Jose Rodriguez, a trainee, and they began assisting with the inspection. At one point, after Greenway went around the tractor to question Land's wife, Land started running in the direction of Greenway and his wife. A scuffle followed, and Land eventually was handcuffed and arrested. Land pleaded not guilty to both charges. The convictions followed a three-day trial, during which the jury heard testimony from the three troopers, Land, and Land's wife. The jury also viewed the in-car video that ran from the time of the initial stop beyond the arrest of Land.Legal and Factual Sufficiency of the Evidence
Land's sufficiency complaints require that we review the entire record. We therefore begin our analysis with the testimony. The State called Stone as its sole witness. Land and his wife Amie testified for the defense, and the State called Rodriguez and Greenway in rebuttal.Trooper Gina Stone
Stone is a certified peace officer whose training and certification include enforcing federal standards for commercial motor vehicles traveling the highway and use of appropriate levels of force during arrests. She has trained other troopers and, at the time of the incident, had been commissioned for five-and-a-half years. Once at the Exxon station, Stone reviewed Land's paperwork and questioned him while he sat in her patrol car. As Stone talked to Land, he appeared nervous; his hands were shaking and he was "twitching some." He also became agitated with her during the questions. He denied having illegal drugs in the vehicle. When asked if he had any large sums of money, he wanted to know if that was illegal. She described him as giving vague responses and not looking at her. She explained that, based on her experience, when she gets a driver who is not talking it is because of criminal activity. When she called Greenway for backup, she may have asked if he wanted to "come play," which she described as a common term they use when they think they may have "something." Stone was in her vehicle in the middle of her inspection when Greenway and Rodriguez arrived. She had asked Land to step out of her car, and she asked Greenway to talk to him while she completed the inspection. Land's wife was still in the tractor cab. Greenway needed to question Land's wife, and he had Land go to the front of Stone's car with Rodriguez, where they would be in view of the in-car video. It is standard procedure to separate individuals in a traffic stop so they can talk to each and determine if they have the same story. If there is criminal activity, the separate questioning will give indicators about the truth of their answers. Stone observed through her front window that Land was arguing with Rodriguez, but she could not hear the conversation. Land seemed like he was trying to walk away, and it appeared from Rodriguez's hand motions he was telling Land to stay. Stone testified that most people will stay when told. Land took steps toward the tractor where his wife was, and Rodriguez yelled for him to come back. Land then took off in a full run towards where his wife and Greenway were. Before Land started running, Stone hit her air horn to try to let Greenway know Land was giving Rodriguez a "hard time." When Land started to run, she jumped out of her car and yelled for Land to stop. She was concerned with safety because Rodriguez was just talking to Land when Land started giving him trouble. Rodriguez was also a new trooper. Running in the direction of a trooper is also an aggressive move. Land did not comply with her instructions to stop running. When Greenway came around the truck, it appeared he "had no clue that [they] were having any problems whatsoever with [Land]." Land was still running towards Greenway. She thinks Greenway shoved or pushed him and Land "went up against [Stone's] car." Land was fighting and was combative. Rodriguez followed Land and tried to hold him, and Land punched Rodriguez in the eye. Stone described the force used by Greenway as minimum force to control the situation. He did not hit Land, use the spray, or use the ASP baton. She believed Land got away from Greenway, and Land and Greenway ended up behind Stone's car on the ground. At that point, she believed Land had committed the "arrestable" offenses of assault on a peace officer and interruption of the Level II inspection. When Greenway and Land ended up on the ground, Land was trying to crawl away. Greenway finally "got a hold of him, kind of wrapped him up by his body," and then Stone and Rodriguez tried to get Land's arms to handcuff him. After Stone and Rodriguez handcuffed Land in front and tried to roll him off Greenway, he was combative and continued to resist. They got Land on his stomach, and Rodriguez was trying to gain control of Land's arms to cuff them behind Land's back. Land continued to resist. When they finally got Land's hands cuffed behind his back, he lay still. Yet he continued to yell and scream and tried to talk to his wife. At one point during the scuffle, Rodriguez had taken out his spray and baton but, at Stone's instruction, did not use them. At no time did she draw her baton or weapon. After handcuffing Land, they placed him in Stone's car and delivered him to the Hunt County jail. They booked Land and took pictures of Land, Rodriguez, and Greenway. Land had said on the scene he was not injured, and Stone testified Land would not have been booked into the jail if he were injured. He probably did have some scrapes, but Stone did not believe Land was "injured." Prior to transporting Land to jail, Land's wife spoke to Stone. She said she did not know what caused Land to act the way he did, but explained to Stone that Land is "paranoid protective" and gets upset when someone talks to her without him present. Nine photographs Stone took of Land and Rodriguez were admitted into evidence. The in-car video was also admitted into evidence. It was stationary and did not follow the scuffle after Land ran out of the camera's focus. The audio continued to record. On cross-examination, counsel questioned Stone regarding language she used when she called Greenway: "Hey, where are you? Come over here to Exxon and ask some questions. Come play. Okay. We will be here. Bye." She said that Land was irritable at the time and she did not want to press it until she had another trooper there. She denied ever hearing the phrase "come out and play" as a euphemism for beating up someone. She denied that Texas highway patrol officers are known for beating up people. When cross-examined about the offenses charged, Stone responded that none of Land's behavior related to resisting arrest or interfering with the duties of a police officer began until Greenway and Rodriguez arrived. She described a Level II inspection as similar to a traffic stop, but it takes longer. At the time she became suspicious of criminal activity, Land could not have left.Charles Winton Land, Jr.
Land testified he received a professional trucking license in about 1996. He also admitted to having a misdemeanor criminal record for false imprisonment and deferred adjudication for an assault. He testified he thought he was being cooperative. He also said he did not know what a Level II inspection entailed. At the time he was talking to Rodriguez, he felt like the trooper, for no reason, was trying to take him as far away from where his wife was with Greenway on the other side of the truck. He could not see his wife at the time. He testified that he started to walk towards the truck and then took off running. He stopped at the door of the truck when he saw his wife was not in the truck. He said he walked back to see if he could see his wife and Greenway on the other side of the truck and he did not see them. Then he heard his wife say, "What are you doing? Stop that. What are you doing? Quit it." He "hollered" for his wife as loud as he could. When Land got no answer, he headed to the front of the truck and stopped right at the front corner. He "hollered" for his wife then. He turned and looked at Rodriguez and took two or three steps back. Stone was getting out of her car. Rodriguez was walking towards the front side of the car. Land "hollered" two statements and threw his paperwork on the ground and took off to the front of the truck again. He stopped about midway in front of the truck, again, and Greenway came running from the other side and positioned himself about fifteen feet away. He and Greenway "hollered back and forth twice," and then Land turned and started walking towards the side of his truck to see where his wife was. He had not been told he was not free to leave. As soon as he turned and took about half a step, Greenway "barreled" at him. Land turned around and someone grabbed him. He wound up on his back. He was pulled and pushed and his feet went up in the air. He had not struck or had any contact with any of the officers at the point when he was "put on the ground." He testified he never charged or made any threatening gestures at Greenway. He wanted to make sure his wife was okay. Land recalled being on the ground and three people grabbing at him. After Rodriguez had both of his arms, Stone struck him in the forehead with an ASP baton, possibly ten times. At first he waited for the striking to stop; when it did not stop, he "just kind of went into make it stop." He received two "little" scratches on his forehead. He did not recall any blood. He believed too much force was used and ultimately, he did try to defend himself. He had been stopped a lot of times and he "just didn't feel right about" the situation. He did not resist Rodriguez's attempt to arrest him. He admitted hearing "stop" on the video, but he did not hear it that night. At the time Land was talking to Rodriguez, Stone was sitting in the car. Land testified at one point that he thought he had all of his paperwork in his hand and, as far as he knew, Stone was through with what she was doing. Yet he also said "he didn't know . . . exactly what she was doing." He also claimed he did not know there was still a question with his load being secured when Greenway went to talk with his wife. He admitted Greenway was continuing to ask questions. He also knew from prior inspections that he had received paperwork from the trooper when the investigation was completed, and he had not received any final paperwork. He conceded as well on cross-examination that had he been commanded to stand in front of Stone's vehicle, his running would have interrupted the investigation. Land also admitted that he was aware from prior stops that peace officers had separated individuals to conduct an investigation. He was concerned because Greenway looked up at his wife, rubbed his chin, grinned, and said, "I want to go see what she has for me." He denied yelling to his wife, "What did you tell them?" He admitted he said, "What the hell is going on," but it was not directed to his wife. Land insisted he did not know what he did that would be resisting arrest. He was in a choke-hold and was being hit on the head with the baton. He took his arms away from Rodriguez to defend himself from the baton. He admitted there is no indication in the video that he asked if his wife was hurt. He does not recall if he struck Rodriguez in the face but acknowledged that was possible.Amie Land
Amie had a permit the night of the arrest, but could not drive the tractor-trailer. The inspection that night was longer and involved more officers than she had previously experienced. She denied there were drugs or huge amounts of money in the cab. She stayed in the cab for about thirty minutes after they pulled into the truck stop. Greenway opened the passenger door. When she turned to face him, he asked her four or five questions. Greenway also asked her to step out of the vehicle for further questioning. When she got down, Greenway was not visible. She went around to the front of the truck as instructed. She saw all three officers on top of her husband on the ground. She could not hear anything; the truck was running the entire time. From what she could see, Greenway was sitting on Land. Rodriguez was on one side and Stone was on the other side. She testified they were "beating" him, but admitted she did not see anyone strike her husband. She turned away. She said that at the point Land was lying on the ground, face down, he was trying to talk to her. She also testified that one of the officers walked over and put his foot on Land's face and told him to "shut up." The State did not ask any questions on cross-examination.Trooper Jose Rodriguez
Rodriguez demonstrated the ASP baton to the jury and testified he has never struck anyone with it. From his training, he believed the baton would probably cause serious bodily injury or death if used to strike a person in the forehead. He had pulled it out during the altercation with Land and threw it on the ground to assist Greenway take control of Land. Rodriguez described that he was in front of Stone's vehicle when Land started acting nervous. Land asked about Greenway, wanting to know why Greenway was going around to talk to his wife. Rodriguez told Land they were separating both parties to make sure "there's nothing else going on." Land starting getting angry because "he seemed like he wanted control of the situation." Rodriguez heard Land say, "Amie, Amie, what did you tell him?" He saw Land run "right at" Greenway. Land never stopped. Greenway pushed him back, and Land came back again at Greenway. Rodriguez did not recall Land saying, "Where's my wife? Where's my wife? What have you done to her?" He never heard Land ask about the safety of his wife. When Greenway pushed Land, he landed on the patrol car. Rodriguez remembered Greenway having Land behind the neck and they were both leaning sideways on their left sides. Rodriguez and Stone were commanding Land to stop. He never saw Greenway or Stone punch Land or put a boot on his face. Rodriguez considered using his spray at one point but was instructed otherwise to avoid contaminating other troopers involved. Stone was still inside her patrol car when Rodriguez and Land were in front of the vehicle. Rodriguez became concerned about safety when Land "took off running after Trooper Greenway." He believed Greenway tackled Land about the time Rodriguez was asking about using the spray. Land punched Rodriguez, and that was when he determined Land was not trying to get away anymore; Land was actively fighting. Rodriguez attempted to gain control of Land's arms after he struck him in the face. Land pulled his arms away in an effort to avoid being handcuffed. Rodriguez testified that Land was actively resisting arrest at that point. Rodriguez recalled Stone saying "Get him. Get him down. Get him down. Get him down. Get him, Georgie. Get him, Georgie." He also recalls saying to Stone, "You saw something before I did, because — he stopped." The "he" referenced in the statement was Land. If he recalls correctly, he was referencing that Land had come back from somewhere when Stone hit the air horn. He explained that Stone had hit the horn before Land started running towards the front of the cab. Rodriguez denied ever using the term "let's play." He had never heard a rock song to that effect or heard the term used for "gang banging," meaning "getting in a fight." He admitted his ASP baton was extended and did not know if anyone used it when he turned his back. He also could not say with certainty if anyone began hitting Land on the head. He remembered that something on Land's face was bleeding, but he did not remember what exactly. The whole altercation took probably thirty seconds. Rodriguez would not agree Land calmed down quickly. He probably told Land to "shut up." Rodriguez had performed interdiction and traffic stop searches and testified the questions are the same. He did not know if this was an investigative stop. At the time Land started running, there were no less restrictive actions they could have taken other than "knocking him to the ground and putting him in handcuffs." Land had not sworn or verbally threatened Rodriguez at that point. They never told Land what would happen if he did not stop, but he did not believe it would have done any good to ask Land nicely "to cooperate or he was going to be arrested." Land never stopped running until Greenway had him on the car. Land's movements were not to protect himself, but instead were "assaultive." Rodriguez never saw Land attempt to strike Greenway.Trooper George Walter Greenway, IV
Greenway had been in law enforcement for ten years and had been a state trooper for almost five years at the time of trial. The troopers in Hunt County use the phrase "come play" pretty often. Usually it means, "hey, I think I've got some drugs or something to look at." He would never take the words to mean, "hey, I've got a guy over here I want you to come rough up." When he went to question Land's wife, she was still in the truck tractor on the passenger side. She opened the door, and they had a conversation. Just prior to asking her to step out of the cab, he heard the air horn. He asked her to step out because he thought trooper Rhodes had arrived and wanted to smoke a cigarette. He asked her if she smoked; she said she did. Greenway told her to come over and have a cigarette and they could talk over there. When he got to the edge of the cab, Land was running at him. He was yelling something like, "What's going on here?" They were about fifteen feet apart. Greenway started running towards Land to stop him. It was his impression Land was going to attack him, and he did not want to stand and take a hit. Greenway pushed him on the patrol car and Land spun away. At that time Rodriguez grabbed Land's arm and pulled his arms behind him. Then Land struck Rodriguez in the eye. Land went behind Stone's vehicle, where he held a fighting position with both hands up. Rodriguez tried to spin Land around and Greenway grabbed Land from the back. They "put him to the ground." That is when Greenway was kicked in the face and was trying to get Land to roll over. Stone was yelling at everyone and Greenway "kind of" tuned her out. Greenway testified he believed they were on the ground approximately three to four minutes. Land never stopped trying to fight. Greenway put a rear-neck choke hold on Land, blocked his legs in, and had his neck. He kept Land in the neck hold until Land finally calmed down. He could not really understand what Stone was saying and "honestly, thought she was saying let him up." He also saw Rodriguez "go to spray," and he was trying to stop Rodriguez from spraying. Rodriguez then pulled out the ASP baton and they told him, "no." Finally, Stone and Rodriguez were able to restrain Land's hands. He never saw Stone strike Land in the forehead with the baton, and he never saw either trooper put a foot or boot on Land's face. He made the instantaneous decision to use only "hands on" force. No one used any weapon. Land had blood in his mouth and Greenway asked if he had broken teeth. That probably happened on the ground. On cross-examination, Greenway testified again that Land appeared to be charging him and yelling at him. Land yelled "What's going on," and yelled something at his wife. Land did not verbally threaten Greenway, and he was not raising his fist or trying to kick Greenway. Land was not under arrest at the time he started to run. The Level II inspection, which is a detention, was in progress. A truck driver cannot leave until a Level II inspection is completed. Greenway testified he did not have time to command Land to stop. He did not think he could have handled Land in a less aggressive manner. Greenway explained that "[i]f you try to talk a man down that's charging you, you're going to get struck." He testified he has never been cited for excessive use of force and this case was never referred to internal affairs for routine investigation. He did not know if he made the comment, "Well, [Land] should know about the highway patrol then, huh." Regardless of who may have commented, he explained that means the highway patrol has a reputation in the county for strong law enforcement. He added that "[a]s a matter of fact, most of the truckers actually know Trooper Stone. When they drive by, if you have a CB on your radio, you can hear them talking about it." He denied the highway patrol officers have a reputation for excessive use of force.Standard of Review
The standards for reviewing sufficiency challenges are well settled. In reviewing a legal sufficiency challenge, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence in the light most favorable to the verdict and defer to the jury's credibility and weight determinations. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (quoting Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)). In a factual sufficiency review, we consider all the evidence in a neutral light. Laster, 275 S.W.3d at 518. Although we defer to the jury's findings concerning credibility, we may override the verdict to "prevent manifest injustice." Id. at 518, 525. We will conclude the evidence is factually insufficient if (1) the supporting evidence is "too weak" to support the fact finder's verdict or (2) considering conflicting evidence, the fact finder's verdict is against the great weight and preponderance of the evidence. Id. at 518. If we conclude the evidence is factually insufficient, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly outweighs the verdict. Id.Resisting Arrest
Land was charged pursuant to section 38.03 of the Texas Penal Code with a Class A misdemeanor for resisting arrest, search, or transportation. See Tex. Penal Code Ann. § 38.03(a) (2003). Based on the information filed by the State, it had to prove beyond a reasonable doubt that Land acted intentionally, by using force against Trooper Rodriguez, a person he knew to be a peace officer, to prevent or obstruct Trooper Rodriguez from effecting an arrest, search, or transportation of Land. Land's only sufficiency challenge to this offense is the use of force against Rodriguez. The penal code contains no definition of what constitutes force. Land claims that the State's charge rested solely on the allegation that Land "pulled" his arms away from Rodriguez. He claims he pulled his hands away to avoid being hit on the head. Both Land and the State cite cases from other jurisdictions with seemingly inconsistent conclusions as to whether pulling away from an officer's grasp is force as used in section 38.03(a). We need not decide whether a conflict exists in those cases, however, in light of the evidence here. Viewing the evidence in the light most favorable to the verdict, we conclude the jury could have believed Land's conduct was far more aggressive than simply pulling his arm away from Rodriguez as he suggested. Testimony from the three officers showed that Land was aggressive, argumentative, and combative. He became angry while speaking with Rodriguez, did not follow Rodriguez's or Stone's commands, ran "right at" Greenway, punched Rodriguez in the eye, and had to be placed in a choke hold by Greenway before Rodriguez and Stone were able to handcuff him. Stone testified that Land continued to be combative and continued to resist until they handcuffed him the second time. The jury also viewed the video. Although Land ran out of the camera's focus, the jury heard the audio of the lengthy struggle to get Land handcuffed and someone stating repeatedly, "don't resist." Land's wife is also heard on the audio responding repeatedly that she "did not know" why Land "freak[ed] out," but he had always been "paranoid" about her talking to people outside his presence. From this evidence, the jury could have inferred and found beyond a reasonable doubt that land used force when he repeatedly "pulled his arms away" from Rodriguez and never stopped fighting. We reject Land's legal sufficiency challenge. We also reject Land's factual sufficiency challenge. Land's assertions that we must believe his version of the incident and disregard the remainder of the evidence are challenges only to the witnesses' credibility and the weight to give their testimony, both matters for the jury. See Laster, 275 S.W.3d at 525. By returning a guilty verdict, the jury necessarily believed the evidence and testimony from the State's witnesses and rejected Land's, a finding we will not disturb in conducting our sufficiency reviews. Id. Although we may nevertheless override a verdict to prevent manifest injustice, we conclude the standard for rejecting a jury's verdict is not met here. As described above, and viewing the evidence in a neutral light, the evidence is not "too weak" to support the jury's verdict, which included a finding Land used force. See Laster, 275 S.W.3d at 518. Nor does Land's testimony that he never resisted the arrest and was using his hands only to shield himself from being beaten repeatedly in the head by Stone greatly outweigh the State's evidence. Id. No person, not even Land's wife, testified the troopers hit Land, and there were no visible injuries to Land's face from the photographs admitted. We overrule Land's first and second points of error.Interference with the Duties of a Public Servant
Land was charged pursuant to section 38.15 of the Texas Penal Code with a Class B misdemeanor for interfering with the duties of a public servant. See Tex. Penal Code Ann. § 38.15(a)(1) (Vernon Supp. 2009). Based on the information filed by the State, it had to prove beyond a reasonable doubt that Land acted with criminal negligence, to interrupt, disrupt, impede, and interfere with Stone, a peace officer, while Stone was performing a duty and exercising authority imposed and granted by law, to wit: Land walked away from Rodriguez while Rodriguez commanded him to stop, then began running towards Greenway and the tractor, which interfered with Stone's duty to finish the Level II inspection. The culpable mental state of criminal negligence is defined in the penal code:A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.Tex. Penal Code Ann. § 6.03(d) (2003). A person's failure to perceive the risk is the key to criminal negligence. Nash v. State, 664 S.W.2d 343, 345 (Tex. Crim. App. 1984). A defendant's culpable mental state can be proven by circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). Ordinarily, it must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances. Stadt v. State, 120 S.W.3d 428, 438 (Tex. App.-Houston [14th Dist.] 2003), aff'd, 182 S.W.3d 360 (Tex. Crim. App. 2005). The issue of whether Land was aware of the risk or simply failed to perceive it was a conclusion to be drawn by the jury through inference from all the circumstances. See id. Land contends there is no evidence he knew Stone was still conducting any type of investigation. He also claims there is no evidence Stone completed the inspection she alleged she was attempting to perform and no evidence of direct action on the part of Land against Stone. Whether Stone completed the inspection or Land directed any action against Stone is of no consequence, however, to this offense. See Tex. Penal Code Ann. § 38.15(a)(1). And, although Land asserts no evidence exists that he knew Stone was still conducting the inspection, he admitted he had not received any final papers as he had on all prior inspections. He further admitted that Greenway, who along with Rodriguez was assisting Stone with the inspection, was in the middle of questioning Land's wife when Land started running. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found beyond a reasonable doubt that Land acted with criminal negligence to interrupt Stone's performance of her duty to complete the Level II inspection. Evidence from which the jury could have reached its verdict on this offense included testimony that Stone, the lead officer the night of the arrest, was in her car in the middle of the inspection when Land walked away from Rodriguez and ran towards Greenway; testimony that Stone jumped out of her car when Land started to run; testimony that Land ignored Rodriguez's and Stone's commands to stop running; the audio recording of the stop, which plainly demonstrated Land continued to run after being told to stop; and Land's testimony that the video proved he had been commanded to stop and his running would have interrupted the inspection. On this record, the evidence is legally sufficient to support the conviction. We reach the same conclusion as to the factual sufficiency of the evidence. Viewing the evidence in a neutral light, the supporting evidence is not "too weak" to support the verdict. Similarly, considering the conflicting evidence, the jury's verdict is not against the great weight and preponderance of the evidence. We overrule Land's third and fourth points.
Improper Jury Arguments
In his fifth point of error, Land complains of two jury arguments he claims should have resulted in a mistrial. First, in closing arguments in the guilt-innocence phase, the State told the jurors that if officers "don't have the authority and the ability to grab someone, twist them around, and put them against the car, you're going to have a whole lot of dead officers on the side of the road." The second incident was in closing argument during the punishment phase, when the State argued that Land "has wasted your time in this whole entire matter — ." The trial court sustained the defense objections to both arguments and instructed the jury to disregard the statements. Trial court instructions to the jury to disregard an argument generally cure any improper argument. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). Nonetheless, Land asserts the arguments were extremely prejudicial and incurable and, because the evidence supporting the convictions was weak, the trial court committed reversible error. To constitute reversible error, jury arguments must be manifestly improper or inject new harmful facts into the case. Jackson v. State, 17 S.W.3d 664, 673-74 (Tex. Crim. App. 2000) (citing Gaddis v. State, 753 S.W.2d 396 (Tex. Crim. App. 1988); Everett v. State, 707 S.W.2d 638, 640 (Tex. Crim. App. 1986)). When the trial court sustains an objection to improper jury argument and instructs the jury to disregard, but denies a defendant's motion for mistrial, the issue is whether the trial court abused its discretion in failing to grant the mistrial. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). In reviewing a trial court's ruling on a motion for mistrial, we must uphold the ruling if it is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). A mistrial is required only in extreme circumstances, where the prejudice is incurable. Hawkins, 135 S.W.3d at 77. Where, as here, constitutional rights are not implicated, we use the Mosley factors to evaluate whether the trial court abused its discretion. Id. Applying the Mosley factors to determine whether a mistrial should have been granted, we must balance the (1) severity of the misconduct (the magnitude of the prejudicial effect from the argument), (2) measures adopted to cure the argument (the efficacy of the judge's instruction), and (3) the certainty of conviction absent the argument (the strength of the evidence supporting the convictions). See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). The modified test for punishment proceedings requires looking, for the third factor, to the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Hawkins, 135 S.W.3d at 77 (citing Martinez v. State, 17 S.W.3d 677, 693-94 (Tex. Crim. App. 2000)). As to the guilt-innocence phase argument, the complete statement tied the potential for "dead officers" to the evidence as presented by the State.If they do not have the ability and authority to catch someone running in their direction, who's looking right at them, and is angry because of the situation going on, if they don't have the authority and the ability to grab someone, twist them around, and put them against the car, you're going to have a whole lot of dead officers on the side of the road.For both the resisting arrest and interference offenses, the prejudicial impact would have been low given the substantial evidence supporting both offenses. Additionally, the prosecutor made the single comment, it was not repeated, and the trial court instructed the jury to disregard the statement. Applying the Mosley factors, the balance supports the conclusion the instruction was effective and Land suffered no prejudice as a result. As to the second argument during the punishment phase, we also consider the context in which the comment was made.
Now, Defendant wants you to believe through his wife that he has expressed remorse. That's not what happened. What he did was, from her testimony, was he said he was sorry he put her through that. Well, that's sort of like I'm sorry you got so upset. He's not apologized for one thing. He's not apologized for lying to you, and said, look, I'm sorry, I'm just trying to do my thing. I accept your verdict. I understand why you did it. His lawyer — but has not done that. He has not shown any remorse to the officers involved. And he has wasted your time in this whole entire matter —In considering the severity and prejudicial impact of the interrupted statement, we again weigh the amount of evidence supporting the convictions. Given the substantial evidence supporting the verdict, and the apparent credibility issues with Land's testimony that the jury weighed and found in favor of the State, and the isolated occurrence of the truncated argument, we do not conclude the argument had a prejudicial effect on the jury. Given these circumstances, and considering Land's prior criminal record of assault and false imprisonment that were placed before the jury, we conclude the instruction was effective and Land suffered no prejudice as a result of the argument. We conclude the trial court did not abuse its discretion in denying the motions for mistrial. Land's fifth point of error is overruled.