Opinion
No. 05-09-00369-CR
Opinion Filed August 12, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F08-24061-LY.
Before Justices MORRIS, MOSELEY, and LANG.
MEMORANDUM OPINION
A jury convicted appellant of sexual assault of a child and assessed punishment at sixty years' imprisonment. On appeal, appellant claims the trial court erred in denying his motion for mistrial. We affirm. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2007, appellant moved into the Garland home of his older sister, her husband, and their three children. A couple of months later, appellant, who was twenty-eight years old, began having sexual intercourse with his fourteen year old niece. Appellant regularly had sex with complainant until early February 2008. In late February, the family moved to Mesquite, and appellant moved into the home of another sister. During April 2008, complainant told her father about her sexual relationship with appellant. After informing her mother, the three went to the Garland Police Department and reported the matter. Appellant was arrested and confessed to having sex with complainant. He voluntarily gave a buccal swab to the police. Complainant was confirmed to be pregnant and had an abortion the following weekend. At the abortion clinic, an officer took a buccal swab from complainant and a DNA sample from the fetus. A forensic biologist tested the DNA and established with a 99.9 percent probability that appellant was the biological father of the fetus.II. DENIAL OF MOTION FOR MISTRIAL
Appellant contends that the trial court erred by denying his motion for mistrial after a witness called by the State referred to the fact that appellant wore an electronic monitor because of a prior offense.A. Standard of Review
An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Dukes v. State, 239 S.W.3d 444, 450 (Tex. App.-Dallas 2007, pet. ref'd); Patterson v. State, 138 S.W.3d 643, 651 (Tex. App.-Dallas 2004, no pet.). An appellate court must uphold the trial court's ruling if it is within the zone of reasonable disagreement. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).B. Preservation of Error and Applicable Law
The "`traditional and preferred procedure' for a party to preserve error is to (1) object in a timely manner; (2) request an instruction to disregard; and (3) move for mistrial if the instruction to disregard seems insufficient, [but] such a sequence is not essential to preserve complaints for appellate review." Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)). The purpose of an instruction to disregard is to "attempt[ ] to cure any harm or prejudice resulting from events that have already occurred" and the desired effect "is to enable the continuation of the trial by an impartial jury." Young, 137 S.W.3d at 69-70. In most instances, an instruction to disregard the remarks will cure the error. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "A request for an instruction to disregard is essential to the preservation of error only when such an instruction could have had the effect desired by the requesting party." Cruz, 225 S.W.3d at 548. However, if an instruction to disregard "would not be sufficient-that is, if the harm caused by the objectionable statements is incurable-then the defendant is entitled to a mistrial, and the denial of the motion for mistrial is sufficient by itself to preserve error for appellate review." Id. Generally, a witness's reference to a defendant's criminal history, standing alone, is cured by a prompt instruction to disregard. See, e.g., Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) ("Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses."); Ladd v. State, 3 S.W.3d 547, 571 (Tex. Crim. App. 1999) (instruction to disregard cured witness's improper reference to defendant's multiple juvenile arrests); Whitaker v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (instruction to disregard witness statement about extraneous offense was sufficient to cure error); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (en banc) (witness's reference to defendant having "recently been released from the penitentiary" cured by instruction to disregard); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (en banc) (witness's statement that defendant "didn't want to go back to prison" cured by prompt instruction to disregard). However, assuming error is preserved, whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd, 3 S.W.3d at 567. A mistrial is required only when the improper question or evidence 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." Id. Because a mistrial is an extreme remedy, a trial court should declare a mistrial only when the error or misconduct is "highly prejudicial and incurable." Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). In determining whether a trial court abused its discretion in denying a motion for mistrial, we consider three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the trial court); and (3) the certainty of conviction absent the misconduct. Archie, 221 S.W.3d at 700; see Mosley v. State, 983 S.W.2d 249, 259-60 (Tex. Crim. App. 1998).C. Application of Law to the Facts
During the State's examination, the complainant's mother, who was also appellant's sister, testified about appellant's presence in her house during the time period when the offense occurred:Q: [F]rom November 2007 to around February 2008, did the defendant, your brother, ever work? Was he working at all?
A:
No.
Q: So he was normally home during the day?
A: He was normally home because he was on a monitor.Immediately after the above testimony, the trial judge called the attorneys to the bench for an off-the-record discussion. The trial court then called a recess and, outside the jury's presence, admonished the witness not to testify about appellant's prior convictions. Defense counsel's objection to the testimony was sustained, but counsel declined the offer from the court for a curative instruction. Then, defense counsel moved for a mistrial. The trial court denied the motion. Appellant acknowledges he did not request an instruction to disregard, but argues based on the nature of the offense charged, evidence of appellant's electronic monitoring was "particularly prejudicial because it raised in the mind of the listener the specter that Appellant was a known and continuing danger-so much so that the authorities had to continue to monitor him." Appellant contends no instruction could have corrected that impression. We disagree. A witness's reference to a defendant's criminal history, standing alone as in this case, is subject to cure by a prompt instruction to disregard. See Ovalle, 13 S.W.3d at 783; Ladd, 3 S.W.3d at 571; Whitaker, 977 S.W.2d at 600. Because appellant failed to request an instruction to disregard, this point is not preserved. Even if the point had been preserved for appeal, after considering the particular facts of this case, we see nothing in the record that suggests the witness's testimony was so "highly prejudicial and incurable" that the court erred in denying the motion for mistrial. See Simpson, 119 S.W.3d at 272. First, the complained-of testimony came during the middle of the witness's testimony, was unsolicited, and was never addressed again during the guilt-innocence stage of trial. Second, the certainty of the conviction, absent the improper comment, was great. See Dukes, 239 S.W.3d at 451. Complainant testified she had sexual intercourse with appellant "mostly every night" from January 2008 until early February 2008. During that time, complainant was fourteen years old and was not appellant's spouse. Complainant gave detailed testimony respecting her sexual relationship with appellant, and appellant did not contest any of that evidence during trial. Even if the issue was preserved, we cannot conclude the trial court abused its discretion by denying appellant's motion for mistrial. Accordingly, we resolve appellant's sole issue against him.