Opinion
No. 05-08-01217-CR
Opinion issued April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 26271CC.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
OPINION
Pitney Arlington Bramhall was convicted of third degree felony driving while intoxicated and sentenced to nine years in prison. In a single issue, he argues that the trial court abused its discretion when it denied his motion for mistrial. We affirm the trial court's judgment.
Discussion
In his only issue, appellant argues that the trial court abused its discretion by denying defense counsel's motion for mistrial after previously excluded portions of a videotape were erroneously played for the jury. Prior to trial, appellant made an oral motion in limine to prohibit the jury from hearing portions of the videotape of the stop where the police officer said, on three separate occasions, that appellant was "pulling my leg." Addressing the officer's statements according to the order in which they were made, the videotape shows, first, that Texas Department of Public Safety Officer Brad Brewer, after listening to appellant explain how the accident had occurred, said that appellant was "pulling my leg about this wreck." Later, in response to appellant's complaints that he could not perform the field sobriety tests because of problems with his eyes, hands, and legs, Brewer asked,"What do you not have a problem doing, because you're pulling my leg on this stuff?" Finally, after listening to appellant continue to complain about his inability to perform any of the field sobriety tests, Brewer said, as he was walking to his patrol car, "This guy is pulling my leg."The State agreed to mute the challenged portions of the videotape, and the trial court granted the motion. At trial, the applicable portions of the videotape were muted. During deliberations, however, as the videotape was played for the jury, the jury inadvertently heard part of the excluded statements. When appellant moved for mistrial, the prosecutor responded as follows:
Your Honor, there are three times on the video that the statement is mentioned. The first time, the jury did not hear it. The second time, I believe they heard part of it, and the third time, I believe they also heard part of it. It was not intentional if they were to hear all of it, it's just that I was trying to get it off, but if they heard part of it's [sic], you know, I appologize [sic] to the Court, it's not my intention for them to hear it. I don't believe that there is any error in them hearing it, however.The trial court overruled appellant's motion for mistrial. Appellant did not request, nor was the jury given, an instruction to disregard. We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007). We must uphold the trial court's ruling if it lies within the zone of reasonable disagreement. Id. A mistrial is required "[o]nly in extreme circumstances, where the prejudice is incurable[.]" Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004)). A prompt instruction to disregard ordinarily will cure any error associated with an improper question and answer. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). And we presume that the jury followed the trial court's instruction to disregard testimony in the absence of evidence that it did not. See State v. Boyd, 202 S.W.3d 393, 402 (Tex.App.-Dallas 2006, pet. ref'd). Factors we consider in determining whether the trial court erred by denying a motion for mistrial are (1) the severity of the misconduct, (2) curative measures that were taken, and (3) the certainty of conviction without the misconduct. See Hawkins, 135 S.W.3d at 77. Looking first to the severity of the misconduct, we observe that, assuming the comments were in fact improper, the record shows they were brief. See Archie, 221 S.W.3d at 700. The prosecutor did not elicit the comments during guilt-innocence, nor were they mentioned during opening and closing arguments. Instead, the record suggests that the prosecutor unintentionally published the comments while operating the video player for the jury. There is no suggestion of a willful or calculated effort on the State's behalf to deprive appellant of a fair and impartial trial. See Biagas v. State, 177 S.W.3d 161, 176 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (although prosecutor improperly commented on defendant's failure to testify, trial court did not abuse discretion in denying motion for mistrial). With respect to curative measures, appellant moved for a mistrial but did not request an instruction for the jury to disregard the comments at issue. However, "[t]he denial of a mistrial is not improper if a lesser remedy would have cured any harm and was not requested." Id.; see also Young v. State, 137 S.W.3d 65, 70-72 (Tex.Crim.App. 2004). Except in the most blatant instances, for example, harm from comment on a defendant's failure to testify is cured by an instruction to disregard. Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999). In light of the brevity of the comments at issue and the context in which they were made, nothing in the record suggests the comments were so blatant that they would have rendered an instruction to disregard ineffective. See id. Finally, considering all of the evidence, the certainty of appellant's conviction absent the improper comments was great. The evidence showed that appellant was involved in a one car crash, smelled of alcohol, was unsteady on his feet, exhibited bloodshot eyes and slurred speech, and had blood alcohol levels of 0.343 and 0.326. We therefore conclude that the trial court did not abuse its discretion by denying appellant's motion for mistrial. We resolve appellant's issue against him. We affirm the trial court's judgment.