Opinion
No. 05-10-00351-CR
Opinion issued August 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-33482-NV.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
A jury found Stanley Vernell Ledbetter guilty of aggravated sexual assault. In a single issue, appellant complains the trial court erred in denying his motion for mistrial following the prosecutor's closing argument. We affirm.
Factual Background
In the middle of the night on June 6, 2005, the complainant and her boyfriend were in their apartment asleep in their bed when a man entered their bedroom with a gun. The man demanded money, but ultimately only retrieved eleven dollars from the complainant's purse. He then forced the complainant to perform oral sex on him at gunpoint. Neither the complainant nor her boyfriend could identify the man who attacked them. The complainant underwent a sexual assault examination at Parkland Hospital. During the examination, the doctor clipped out a piece of the complainant's hair that complainant thought might contain semen. Forensic testing of the hair clipping revealed it contained sperm that matched appellant's DNA profile.Discussion
In his sole issue, appellant contends the trial court erred in denying his request for a mistrial after the prosecutor's closing argument interjected facts not in evidence about DNA evidence and impermissibly linked the reliability of the DNA evidence to the credibility of the District Attorney's office. We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Bryant v. State, 340 S.W.3d 1, 12 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). During closing argument, the defense argued that a fraction of DNA evidence is not conclusive when there is nothing else done to back it up, noting the swab that linked appellant to the crime contained "a sperm and a couple of epithelial cells, a very small fraction of a very minute trace in a piece of hair that they swab." The prosecutor responded,But then [defense counsel] asks you to focus on the one minutia of evidence that we rely on. You better believe we rely on it. We have to rely on forensic evidence to corroborate crimes, to protect the integrity of convictions. One tiny single microscopic cell that contains the chemical blueprint that makes him exactly who he is and no one else, that's exactly what we have to rely on, because it's that same minutia, that same single tiny cell that makes him, him, and no one else him, and him no one else. That's the same science that we rely on to protect the conviction integrity of all those cases that have been reversed and folks have been exonerated for what? A single sperm cell. Yes, of course, we rely on that.Appellant objected on the grounds that the prosecutor's argument was outside the evidence in the case. The trial court sustained appellant's objection and instructed the jury to disregard the last argument of the prosecutor. Appellant then moved for a mistrial, which the trial court denied. Assuming for the purposes of discussion that the prosecutor's argument was improper, appellant still must show that the trial court's instruction to disregard did not cure any resulting harm before we may disturb the trial court's ruling on the motion for mistrial. See id. at 12-13. When assessing the impact of harm arising from improper jury argument, we consider the following factors: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the certainty of the conviction absent the misconduct. Id. Here the prosecutor's conduct did not amount to severe misconduct. She was clearly responding to the defense's argument that the amount of DNA evidence was insufficient to support a conviction without any corroborating evidence. The prosecutor's reference to the use of DNA evidence to reverse convictions was brief and not repeated. Second, the trial court instructed the jury to disregard the argument. We presume the jury heeded the trial court's instruction to disregard in absence of evidence to the contrary. Id. Finally, considering all of the evidence, the certainty of appellant's conviction absent the allegedly improper argument was great. The defense did not dispute that the scientific evidence established the DNA from the sperm taken from complainant's hair clipping matched appellant's DNA profile. Instead, defense counsel suggested the actual perpetrator may have picked up appellant's DNA on his hands "from one of his unclean acts." After considering the objected to jury argument in light of all three factors, we conclude that the trial court did not abuse its discretion by denying appellant's motion for mistrial. We resolve appellant's sole issue against him. We affirm the judgment of the trial court.