Summary
holding that trial court did not abuse its discretion by denying motion for mistrial after trial court sustained defendant's objection to prosecutor's comments that complainant "was a credible witness" and that "[we're] here because I believe in it" and after trial court instructed jury to disregard comment
Summary of this case from Maxwell v. StateOpinion
No. 11-10-00025-CR
01-05-2012
RAUL VEGA, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-36,347
MEMORANDUM OPINION
On June 8, 2009, Raul Vega broke down the door of the apartment of Anna Marie Flores and physically assaulted Flores and her daughter, Yvette Marie Mooney, before forcibly dragging Mooney from the apartment and eventually leading Odessa police on a high-speed chase with Mooney in his car. Appellant was charged in a three count indictment with burglary of a habitation with intent to commit assault (Count One), aggravated kidnapping (Count Two), and aggravated sexual assault (Count Three). He was convicted of Count One and acquitted of the remaining counts. The jury assessed punishment, enhanced by a prior felony conviction, at sixty years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Appellant asserts that the trial court erred in its denial of his three motions for mistrial. We affirm.
Denial of a Motion for Mistrial
Appellant contends in three points of error that a mistrial should have been granted based on the admission of evidence of extraneous offenses, interjection by the State of facts not in evidence, and improper argument by the State in its closing. In each instance, Appellant was sustained in his objection but denied in his motion for mistrial. When the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue is whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). The factors that we consider in determining whether the trial court abused its discretion in denying a mistrial are (1) the prejudicial effect, (2) curative measures, and (3) the likelihood of the same punishment being assessed. Id. (discussing the "Mosley factors"); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). In the vast majority of cases, the harm flowing from instances of inadvertent or deliberate testimony that caries potential of unfair prejudice can be cured by an instruction to disregard. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). Generally, a mistrial is reserved for those extreme circumstances that are highly prejudicial. Hawkins, 135 S.W.3d at 77. Prejudice is incurable only when "the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors' minds." Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998).
A. Introduction of Extraneous Offenses
Prior to trial, Appellant filed a motion in limine, which was heard and granted by the trial court. The court ordered that, if the prosecution intended to bring up any extraneous offenses during the guilt/innocence phase of trial, the prosecutor must approach the bench for a ruling on the introduction of the evidence in question. At trial, the following exchange took place during the testimony of Mooney:
Q: Then, what did he ask you?Defense counsel promptly objected and moved for a mistrial. The trial court sustained the objection and instructed the jury to disregard Mooney's comment, but denied appellant's motion for mistrial. Appellant contends that the trial court erred in denying his motion for mistrial.
A: How come I don't want to make love to him.
Q: And what did you say?
A: That I did.
Q: Why did you say that?
A: Because if I wouldn't have said that he would have hit me.
Q: How do you know he would have hit you?
A: Because he's done it before.
Considering the Mosley factors, we cannot say that the trial court abused its discretion in denying the motion for mistrial. Any prejudicial effect of Mooney's statement that "he's done it before" was not incurable because it was brief and nonspecific; the testimony was interrupted before Mooney could embellish or elaborate in any manner. The trial court's instruction to disregard was the proper curative measure in this instance. See Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000). And the law generally presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011). Finally, Appellant was acquitted of the charges to which this evidence would have been especially relevant—aggravated sexual assault and aggravated kidnapping. Evidence as to burglary of a habitation included physical evidence of the door being forced open, testimony of multiple witnesses of a struggle and assault inside the apartment, and testimony of the primary lessee that Appellant entered the home without her consent. The likelihood of the same punishment being assessed without Mooney's inadvertent reference to evidence barred by the motion in limine is very high. See Hawkins, 135 S.W.3d at 85. The trial court did not abuse its discretion in denying the motion for mistrial. Appellant's first point of error is overruled.
B. Interjection of Facts Not in Evidence
Defense counsel attempted to show that Appellant had been invited to Flores's home by Mooney. Defense witness Lorene Fletcher testified that she was with Appellant on the night in question and that he received a phone call from Mooney. While cross-examining Fletcher the State began to question the witness: "I showed you in my office proof that there was no phone call Defense counsel immediately objected that the question assumed facts not in evidence, and the trial court sustained the objection and instructed the jury to disregard the statement.
A prompt instruction to disregard will cure error associated with an improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). The prosecutor was interrupted by an objection before he could complete his question. We are not convinced that the question, as completed, would have been improper. Even if the prosecutor's question was improper, we cannot say that the question was so inflammatory that its prejudicial effect was not cured by a judicial instruction to disregard it. Finally, it is highly unlikely that, absent the State's interjection, the jury would have reached a different conclusion. Fletcher testified that Appellant received a phone call and that she could make out the sound of a woman's voice on the other end of the phone call, but she conceded that she did not know the voice and had never heard Mooney speak. Flores and Mooney denied inviting Appellant to the home or giving him permission to enter the home. Jurors saw photographs of the destroyed door frame. They heard testimony from the victims and their neighbor about the forced entry and ensuing physical struggle, as well as an audio recording of a 911 call in which Flores stated that Appellant "literally knocked down my door with two dead bolts," "grabbed me by the hair," and "said if I called the cops, he was going to come back and put me in a body bag. " The police officer who responded to the scene testified that Flores was frantic and dry heaving with worry. Given that the overwhelming weight of the evidence showed that Appellant forced his way into the home, the likelihood of the same punishment being assessed without the State's comment is very high. See Hawkins, 135 S.W.3d at 85. Appellant's second point of error is overruled.
C. Improper Argument
During the State's closing argument, the prosecutor improperly vouched for the credibility of one of his witnesses. Counsel said of Mooney: "She was a credible witness," and of her story: "[W]e're here because I believe in it." Defense counsel objected to this as an improper jury plea. The objection was sustained, and the jury was instructed to disregard the last comments. Defense counsel then moved for a mistrial, which the trial court denied. On appeal, Appellant asserts that the jury argument was an improper plea because it improperly commented on the victim's credibility.
It is improper for a prosecutor to inject his or her personal opinion about the victim's honesty and truthfulness into closing arguments. Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). However, an instruction to disregard will in most cases be considered effective to cure the harm from an improper argument. Hawkins, 135 S.W.3d at 84. The Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument. Id.
Here, the trial court sustained the objection and ordered the jury to disregard the prosecutor's comments. Under the circumstances, the trial court was reasonable in believing that its instruction to disregard was effective and that Appellant suffered no prejudice from the prosecutor's improper remark. The jury acquitted Appellant of the two charges that would have required the jury to rely upon Mooney's testimony about her lack of effective consent. Meanwhile, Appellant's conviction for burglary of a habitation was not only supported by Mooney's testimony, but a wealth of other evidence (discussed in sections supra) as well. The likelihood of the same punishment being assessed without the State's comment is very high. See Hawkins, 135 S.W.3d at 85. Appellant's third point of error is overruled.
Because we conclude that the trial court did not abuse its discretion in denying the requests for a mistrial, we affirm.
ERIC KALENAK
JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.