Opinion
No. 06-04-00125-CR
Submitted: February 28, 2005.
Decided: April 12, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 31733-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Wesley Dewayne Williams appeals his conviction for aggravated assault, with a deadly weapon finding. Williams was accused of shooting John Mumphrey in the back and in the head. Mumphrey and two other witnesses testified Williams was the gunman. In addition, Williams' cousin testified Williams admitted he was the gunman. A jury convicted Williams of aggravated assault and assessed his punishment at eighteen years' imprisonment. The trial court sentenced Williams consistent with the jury's verdict. On appeal, Williams contends the trial court erred in denying a mistrial after the prosecutor made comments indicating Williams was in custody at the time of trial. During the trial, the prosecutor asked a question that could be interpreted as a reference to the fact that Williams was being held in custody at the time of trial. The prosecutor asked during cross-examination: "You've had a long time to sit up there and think about what you're going to say to these folks today, haven't you?" Williams' attorney promptly objected that the statement was an obvious reference to Williams being in jail, and the trial court properly sustained the objection. The question was not answered, and the trial court instructed the jury to disregard the question. The trial court, though, denied the motion for a mistrial. Williams contends, in his sole point of error, that the trial court erred in denying the motion for mistrial. According to Williams, the question violated his right to a fair trial and the presumption of innocence. See Randle v. State, 826 S.W.2d 943, 944-46 (Tex.Crim.App. 1992). Williams argues that the curative instruction was not sufficient to cure the error. While the State concedes that the law requires the fact that a defendant is being held in jail to be hidden from the jury, the State contends a mistrial was not required. We agree. The granting of a mistrial is an extreme remedy. Brossette v. State, 99 S.W.3d 277, 282-83 (Tex.App.-Texarkana 2003, pet. dism'd). The asking of an improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is required only when the improper question 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. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Id.; State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). This Court has held in a similar case that a curative instruction was sufficient to cure the harm of an allegedly improper question which referenced the fact that the defendant was in custody. See Sharper v. State, 22 S.W.3d 557, 558 (Tex.App.-Texarkana 2000, no pet.). In Sharper, the prosecutor asked a codefendant if he had been in the "hold-over" with the defendant for the past two or three days. Id. This Court held that the instruction to disregard was sufficient to cure any harm. Id. Williams attempts to distinguish our holding in Sharper on the basis that the reference in Sharper did not concern long-term detention, unlike the current case. We disagree that the period of detention makes this case distinguishable from Sharper. The question at issue is not of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. The question did not imply that another offense had been committed by Williams. See Swallow v. State, 829 S.W.2d 223, 227 (Tex.Crim.App. 1992) (a question which implies commission of another offense can seldom be cured); see also Ladd, 3 S.W.3d at 567 (question asked to solicit specific extraneous bad act). While the question was improper, it was possible for the jurors to withdraw the impression from their minds. Further, the evidence of guilt was substantial. Because the curative instruction was sufficient to cure any harm resulting from the improper question, the trial court did not err in refusing to grant a mistrial. We overrule Williams' sole point of error. For the reasons stated, we affirm the judgment.