Opinion
No. 05-09-00894-CR
Opinion Filed April 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 3 Dallas County, Texas, Trial Court Cause No. MA0855885.
Before Justices O'NEILL, LANG, and MYERS.
MEMORANDUM OPINION
Appellant appeals his conviction for driving while intoxicated. In a single point of error, appellant contends the trial court erred in denying his motion for mistrial after the prosecutor improperly referred to appellant's prior arrest for DWI. For the following reasons, we affirm the trial court's judgment. During trial, the prosecutor was questioning the arresting officer, Christopher Timms, about how he administered the field sobriety tests to appellant. Officer Timms testified that before he performs complete standardized testing, he does some preliminary tests to get an idea if the suspect has been drinking. In this case, Timms testified he did an abbreviated type of HGN on appellant. Appellant's complaint in this appeal concerns Timm's explanation for giving the abbreviated HGN test. Timm testified:
Okay. Like I was saying earlier, on the maximum deviation, that's like the hardest one for someone to hide if they've done this before. So when I go out, some of them, they think they can just move kind of like the first two tests where their eyes just went out. If you do it on that one and I'm looking for it, your eyes are just going to bounce, and there's really nothing you can do about it. That's the one I usually try on people and they say, "Officer, Officer, I've only had one beer." Okay. I'll give you the benefit of the doubt. Once I do that, I know it's either one, two, three beers, something like that.
So then I go on. I won't just go off that, because one beer might show some nystagmus. So I move on to the one-legged stand test. After he did that, it was almost like identical to what he actually did on that second time around. He, obviously, had more than one.
At that point, I start all over again, because it has to be the same way every time.[emphasis added.] After this lengthy and convoluted response, appellant asked to approach. A hearing was held outside the jury's presence. At that time, appellant objected to the first portion of Timm's testimony complaining the testimony was a reference to appellant having previously been arrested for DWI. The trial court sustained the objection. The trial court asked appellant if he would like a limiting instruction and appellant responded that he would. The trial court denied appellant's motion for mistrial. When the jury returned, the trial court reminded the jury of the complained-of testimony and instructed them to disregard it. On appeal, appellant contends the trial court should have granted his motion for mistrial because Timm's testimony was an improper reference to an extraneous DWI arrest and was so prejudicial that it could not be cured with an instruction to disregard. He asserts the trial court's instruction did not cure the error but exacerbated it because the trial court reiterated the objectionable testimony before instructing the jury to disregard. A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). An instruction to disregard attempts to cure any harm or prejudice resulting from events that have already occurred. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Where the prejudice is curable, an instruction eliminates the need for a mistrial, thus conserving the resources associated with starting trial proceedings anew. Id. Whether a given error necessitates a mistrial must be determined by examining the particular facts of the case. Ladd, 3 S.W.3d at 567. We review the trial court's denial of a mistrial under an abuse of discretion standard. Id. In context, it is clear Timms was testifying generally why he administers preliminary HGN tests before giving the full standardized tests. We do not believe the jury would have understood his testimony as suggesting appellant had previously been arrested for DWI. We conclude the complained-of testimony was no so prejudicial that a mistrial was required. We overrule the sole point of error and affirm the trial court's judgment.
The trial court's reference to the objectionable testimony was necessary due to appellant's delay in objecting to the testimony. Thus, arguably, appellant's objection was not even timely. Lagrone v. State, 942 S.W.2d 602, 608 (Tex. Crim. App. 1997) (an objection is timely if it is raised at the earliest opportunity or as soon as the ground for objection becomes apparent).