No. 10-05-00021-CR
Opinion delivered and filed March 29, 2006. DO NOT PUBLISH.
Appeal fromthe 213th District Court, Tarrant County, Texas, Trial Court No. 0900312D. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
BILL VANCE, Justice.
Appellant David Keadle England was convicted of driving while intoxicated and, as a repeat offender, was sentenced to fifteen years in prison. England appeals this conviction. We will affirm the judgment of the trial court.
Background
On May 24, 2003, England planned to camp with friends at Lloyd Park by Joe Pool Lake but was unable to locate his friends at the park. Instead England visited with other campers and drank beer he brought with him to the park. Around 9:00 p.m., England rode with some campers to a liquor store where he purchased an 18-pack of beer and two bottles of tequila. After consuming some of the alcohol purchased at the liquor store, England was asked to move from several campsites because he was too loud. Campers also complained about England to park officials. Michael Lamere, a park ranger, met with England about the complaints. Lamere asked him if he was camping in the park. England stated that he was not and that he had a general entry pass to the park, not a campsite permit. Based on this information, Lamere asked him to leave the park. England testified at trial that he thought Lamere was a police officer because of the "Grand Prairie" logos on his shirt and truck. He further testified that he did not think it was safe to drive because he was intoxicated but believed he had been ordered to leave by law enforcement. Mark Pritchard, a Coast Guard reservist, was present when Lamere asked England to leave the park. Pritchard smelled alcohol on England and told Lamere that England should not drive. He followed England for approximately eight miles on Interstate 20 and contacted police because England's truck was weaving and crossing the right side line. England was stopped by Officer Cliff Elliott of the Arlington Police Department. Elliott noted that England walked unsteadily to the rear of his truck and sat on the bumper, he had a moderate odor of alcohol on his breath, his speech was slow and muttered, and his eyes were glassy and watery. After field sobriety tests, England was arrested. The inventory of his truck produced an open 16 ounce can of beer in the console, a near-empty bottle of tequila on the passenger seat, and an ice chest in the truck bed with more beer and another open tequila bottle. England brings two issues on appeal. First, he argues the trial court erred by denying his Motion for Mistrial following the prosecutor's improper cross-examination about a prior assault conviction. Second, he argues the trial court erred in denying his requested charge on mistake of fact. Motion for Mistrial
England testified at trial. During cross-examination, the prosecutor asked England if he had previously been convicted of assault. The prosecutor asked this question in violation of a motion in limine restricting this line of questioning. England's counsel objected immediately and the court instructed the jury to disregard the question. England then requested a mistrial, which was denied. A mistrial is appropriate for "highly prejudicial and incurable errors." Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). We review the denial of a motion for mistrial under an abuse of discretion standard. See id. (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). [T]he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. A mistrial is the trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile." In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in light of the trial court's curative instruction. 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). Thus, the appropriate test for evaluating whether the trial court abused its discretion in overruling a motion for mistrial is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex.Crim.App. 1998), a harm analysis case. See Hawkins, 135 S.W.3d at 77 ("We therefore agree that the Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated."). The Mosley factors that we consider in determining whether the trial court abused its discretion in denying a mistrial are: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. Mosley, 983 S.W.2d at 259. Applying the Mosley factors, we do not find that the prosecutor's question was calculated to inflame the minds of the jury. See Perez v. State, 2006 WL 133575, at *2 (Tex.App.-Waco January 18, 2006, no pet. h.). Further, England concedes that the prosecutor did not repeat the mistake except for one mention of the State's Notice of Extraneous Offenses in response to England's objection. In most instances, an instruction to disregard will cure the prejudicial effect. See id. The improper question was followed by an instruction to disregard from the trial court, which is generally effective and which we presume was complied with by the jury. An instruction to disregard is presumptively inadequate only in the most blatant cases; only offensive or flagrant improper conduct warrants reversal when there has been an instruction to disregard, and, in the case at bar, the improper question was not so flagrant that the instruction to disregard was ineffective. See id. Finally, considering all the evidence, the certainty of conviction — absent the improper question — was high, considering the testimony of Pritchard and Elliott that they observed England driving erratically on Interstate 20, England failed field sobriety tests, and England's admission that he was intoxicated the night of May 24, 2003 and drove a motor vehicle while intoxicated. See id. We cannot say that the trial court abused its discretion in denying the mistrial motion; thus we overrule England's first issue. Mistake of Fact
England's counsel requested the inclusion of a mistake of fact instruction in the charge based on evidence that England believed Lamere and Pritchard were law enforcement officers who ordered him to leave the park. The trial court denied England's request to include the instruction. England is correct that an accused is entitled to an instruction as to every defensive issue raised by the evidence. Knowles v. State, 672 S.W.2d 478, 480 (Tex.Crim.App. 1984). However, an instruction on mistake of fact was not proper in this case. The Penal Code provides: "it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." TEX. PEN. CODE ANN. § 8.02(a) (Vernon 2003). The offense of driving while intoxicated does not require proof of a mens rea or particular state of mind. Aquirre v. State, 928 S.W.2d 759, 760 (Tex.App.-Houston [14th Dist.] 1996, no pet.). Therefore, the court properly denied England's request to include the instruction. We overrule the second issue. Conclusion
Having overruled England's two issues, we affirm the trial court's judgment.