No. 12-06-00251-CR
Opinion delivered July 31, 2007. DO NOT PUBLISH.
Appeal from the 420th Judicial District Court of Nacogdoches County, Texas.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
SAM GRIFFITH, Justice.
Thomas James Carnes appeals from his conviction for sexual assault. In one issue, he argues that the trial court should have granted his motion for a mistrial when a State's witness mentioned that Carnes was listed as a "sexual offender." We affirm.
BACKGROUND
The complaining witness was hitchhiking from New Orleans, Louisiana to Nacogdoches, Texas when she was picked up by Appellant at a gas station in Appleby, Texas. According to her testimony, Appellant drove her to a secluded area and sexually assaulted her. After Appellant dropped her off near her intended destination, the witness called the police and reported the assault. An investigation was conducted, and a nurse examined the witness. An observant employee at the gas station had written down the license plate of the car Appellant was driving. The owner of the car had reported it stolen, and the police were able to identify Appellant as the driver. The complaining witness picked Appellant out of two photo arrays, and DNA material recovered from under her fingernails was matched to Appellant. A Nacogdoches County grand jury indicted Appellant for the felony offense of sexual assault and further alleged in the indictment that he had previously been convicted of aggravated sexual assault in Panola County. Appellant pleaded not guilty, and a jury trial was held. During the trial, one of the investigating officers testified that he was able to obtain a current photograph of Appellant after he "found that the subject was listed as a sexual offender." Appellant objected and moved for a mistrial. The trial court sustained the objection and denied the motion for mistrial. Appellant was found guilty. He admitted the prior conviction and, by law, was sentenced to life imprisonment. This appeal followed. MOTION FOR MISTRIAL
A trial court may declare a mistrial if there is an obvious procedural error that would cause the case to be reversed on appeal. See Ladd v. State , 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). We review an order denying a motion for mistrial for an abuse of discretion. See Simpson v. State , 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. See Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). A witness's inadvertent reference to an extraneous offense is ordinarily cured by a prompt instruction to disregard. See Ovalle v. State , 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). A reviewing court should presume the jury followed the trial court's instructions to disregard evidence or testimony. See Thrift v. State , 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). A mistrial is required only when an improper question or reference 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. See Ladd , 3 S.W.3d at 567; Simpson , 119 S.W.3d at 272. Analysis
The improper information that made its way into this jury trial was powerful. Appellant was on trial for sexual assault and one of the State's witnesses volunteered that he was "listed as a sex offender." Because this is more than a trifling reference to improper information, the inquiry the trial court had to undertake was whether, given the nature and extent of the evidence against Appellant, a prompt instruction to disregard could cure the error. See Simpson , 119 S.W.3d at 274. In this way, the trial court conducted, in effect, "an appellate function: determining whether improper conduct is so harmful that the case must be redone." Hawkins v. State , 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). This analysis is conducted in light of the trial court's curative instruction, and a mistrial is required only in extreme circumstances, where the prejudice is incurable. Id. There was DNA evidence in this case that linked Appellant to the complaining witness. Appellant did not testify. His attorney stated that Appellant did not contest that there was sexual contact although he did contest the allegations that he penetrated the witness's sexual organ and the allegation that he did anything against the witness's consent. In short, Appellant conceded everything suggested by the DNA evidence that did not constitute a crime, and contested everything else. The complaining witness testified that Appellant violently sexually assaulted her. There was no countervailing evidence and the report of the crime was immediate and unequivocal. The witness identified Appellant well before any DNA results were available and was steadfast in her assertions. Whether the mistrial was required is evaluated by way of the Mosley factors. See Hawkins v. State , 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (citing Mosley v. State , 983 S.W.2d 249, 259 (Tex.Crim.App. 1998)). As applied here, the three factors are 1) the prejudicial effect of the evidence, 2) the curative measures taken, and 3) the certainty of the conviction absent the inadmissible evidence. The prejudicial effect is high. Although it was a single brief reference, the jury was told that Appellant was a sex offender, and he was on trial for sexual assault. The curative measures were immediate and direct. The trial court told the jury not to consider the inappropriate answer in any way. We are at a disadvantage when it comes to the third factor. The complaining witness testified directly and unequivocally that Appellant sexually assaulted her. Despite a number of entreaties by Appellant's lawyer, she did not withdraw the accusations she had made from the first minutes following the assault, and there was no contrary evidence presented. But this is a case that involves sex, consent thereto, and the accuser's credibility. From a cold record, we simply cannot determine that a conviction was certain. However, the trial court did make that finding. The trial court explained that it denied the motion for mistrial based on the "quantity of the evidence, the quality of the evidence before the Court and before the jury, the credibility of the witnesses, [and] the fact that the violation was brief in nature." Given that this type of error is not an automatic mistrial, see, e.g., Wead v. State , 129 S.W.3d 126, 129 (Tex.Crim.App. 2004), we must defer to the trial court's determination on this question when its decision is within a zone of reasonable disagreement. Id. ("It appears that the trial court denied appellant's motion for mistrial because the trial court believed that its instruction to disregard was sufficient to remove any prejudice. . . . Given the required standard of review, the court of appeals was obligated to uphold the trial court's ruling if that ruling was within the zone of reasonable disagreement."). We have examined the particular facts of this case. The conviction turned on the credibility of the complaining witness, and the trial court was in the best position to assess the persuasiveness of her testimony. The certainty of the conviction absent the inadmissible evidence is the crucial determination, and we cannot conclude, under the circumstances, that the trial court's balancing of the Mosley factors is outside the zone of reasonable disagreement or that the trial court abused its discretion when it denied the motion for a mistrial. We overrule Appellant's sole issue. DISPOSITION
We affirm the judgment of the trial court.