Opinion
No. 05-02-01674-CR.
Opinion Filed November 4, 2003. Do Not Publish. Tex.R.App.P. 47.
Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-85507-01. AFFIRM.
Before Justices MOSELEY, RICHTER and FRANCIS.
MEMORANDUM OPINION
Appellant Brice was convicted by a jury of the misdemeanor offense of driving while intoxicated. The trial court assessed punishment at 120 days' confinement, suspended for 18 months, and an $800 fine. In one issue, appellant complains the trial court erred in denying his motion for mistrial after the prosecutor allegedly elicited testimony concerning his invocation of his right to counsel. We affirm. It is improper to penalize an individual for exercising his Fifth Amendment privilege when he is under police interrogation. Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991); Dumas v. State, 812 S.W.2d 611, 614 (Tex.App.-Dallas 1991, pet. ref'd). The prosecution may not, therefore, use at trial the fact that he stood silent or claimed his privilege in the face of an accusation. Dumas at 614. In this case, the prosecution elicited testimony from a police officer that appellant had requested counsel. After the offending question was asked and answered, appellant immediately objected, sought a curative instruction, and requested a mistrial. The trial court sustained the objection and instructed the jury to disregard the question and answer, but failed to declare a mistrial. As grounds for his objection, appellant asserted that his prior motion in limine, as well as his lengthy argument on the matter at a pre-trial hearing, supported his position. The motion in limine addressed the admissibility of the audio portion of a videotape where appellant requested an attorney. The offending question and answer were elicited while the State was laying a foundation for admissibility of the videotape. We note that during the pre-trial hearing, there was confusion as to whether or not the audio portion of the videotape should be stopped before or after appellant requested counsel. Appellant initially requested that the audio be stopped prior to the point where he requested an attorney. Later in the record, however, appellant agreed that the audio could be stopped after he made his request. For purposes of our analysis, we will assume without deciding, that the trial objection was properly preserved. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, No. 74029, 2003 Tex. App. LEXIS 510, *25 (Tex.Crim.App. Oct. 1, 2003); Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). Mistrial is appropriate for only "highly prejudicial and incurable errors." Simpson, 2003 Tex. App. LEXIS at *25; Wood, 18 S.W.3d at 648. It may be used to end trial proceedings when faced with error so prejudicial that "expenditure of further time and expense would be wasteful and futile." Simpson, 2003 Tex. App. LEXIS at *25; Wood, 18 S.W.3d at 648. "Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer." Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). The trial court is required to grant a motion for a mistrial only when the improper question is "clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Simpson, 2003 Tex. App. LEXIS at *25; Wood, 18 S.W.3d at 648. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App. 1983). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Ladd, 3 S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990). The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Ladd, 3 S.W.3d at 567; Hernandez, 805 S.W.2d at 413-14. We see nothing in the record before us to suggest that the question and answer provided here were of such a nature that they could not be cured by an instruction to disregard. Because the trial court gave an instruction for the jury to disregard the question and answer, any error was rendered harmless, and the trial court did not abuse its discretion in denying appellant's motion for a mistrial. We overrule appellant's sole issue, and affirm the judgment of the trial court.