No. 05-09-00918-CR
Opinion Filed July 7, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 397th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 057745.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice LANG-MIERS.
A jury found appellant Broderick Bernard Orr guilty of possession of a controlled substance, namely less than one gram of cocaine, and assessed punishment at 18 months in jail and a $2,000 fine. In a single issue on appeal, appellant argues that the trial court erred when it denied his motion for mistrial. We affirm.
Background
Appellant does not challenge the sufficiency of the evidence supporting his conviction, so we only briefly recount the facts. On the date of the offense, police were patrolling apartment complexes in Sherman, Texas after receiving several complaints about loud noise and drug activity. At approximately 1:30 a.m., Officer Tony Walden pulled his patrol vehicle into one of the apartment complexes and saw appellant standing in the parking lot. Appellant turned around and looked at Walden, then turned back around and tossed a small bag containing two rocks of crack cocaine on the ground. Walden got out of his vehicle, shined his flashlight on the ground, and asked appellant what he had tossed on the ground. Appellant ran away, and Walden and other officers chased appellant around the complex and arrested him. Issue on Appeal
Appellant's complaint on appeal arises from the following exchange during trial, which occurred immediately after Walden testified about the sequence of events that led to appellant being taken into custody: Q. Did you take [the] opportunity to interview [appellant] regarding the offense?
A. I read [appellant] his Miranda warning and then he elected not to provide me a statement.
[Appellant's Counsel]: Your Honor, I'm going to object to the previous comment as a statement on my defendant's exercising of his right to remain silent.
THE COURT: Sustained.
[Appellant's Counsel]: Request the jury disregard it.
THE COURT: Okay, ladies and gentlemen of the jury, please disregard-well, disregard the answer Officer Walden gave to the last portion of the previous answer.
[Appellant's Counsel]: Your Honor, and as required by law to preserve error I would request a mistrial.
THE COURT: Denied.
Q. I guess this is the easiest way, did he provide you any kind of statement, yes or no?
A. No, sir.
[Appellant's Counsel]: Your Honor, objection. Same objection.
THE COURT: Well, overruled.
On appeal, appellant does not argue that the trial court erred when it overruled his second objection. Appellant argues only that the trial court erred when it denied his request for a mistrial. Applicable Law
We review a trial court's denial of a request for mistrial under an abuse-of-discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Whether a trial court should have granted a mistrial involves most, if not all, of the same considerations that attend a harm analysis. Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). As a result, to determine whether a trial court abused its discretion by denying a mistrial, we apply a tailored version of the Mosley test. Id. (citing Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). The tailored Mosley test requires a balancing of three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Id. A comment on a defendant's post-arrest silence by the prosecution or a witness violates the defendant's rights under the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. Doyle v. Ohio, 426 U.S. 610, 618 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). Nevertheless, a mistrial is required only in extreme circumstances, when the prejudice is incurable. Archie, 221 S.W.3d at 699. To determine whether a mistrial was required despite a trial court's instruction to disregard a comment about a defendant's post-arrest silence, we look at the particular facts and circumstances in light of the Mosley factors to determine whether the trial court's instruction sufficiently diffused any harm. See, e.g., Estrada v. State, No. 05-08-00559-CR, 2009 WL 144327, at *12-13 (Tex. App.-Dallas Jan. 22, 2009, pet. ref'd) (not designated for publication). Analysis
Applying the Mosley factors, we first analyze the severity of the claimed misconduct. See Archie, 221 S.W.3d at 700. We note that the exchange in this case is somewhat analogous to an exchange during trial between the prosecutor and the arresting officer in Perez v. State, 187 S.W.3d 110 (Tex. App. Waco-2006, no pet.). In Perez, the prosecutor asked the arresting officer what happened after police administered field-sobriety tests to the defendant and read him his rights, and the arresting officer responded, "He refused to answer questions." Id. at 111. In that case our sister court concluded that "the prosecutor's and officer's conduct appear to be the result of inadvertence and inattention" and "the question and answer were not calculated to inflame the minds of the jury." Id. at 112. Like the exchange in Perez, it appears that the State's general question in this case was not necessarily intended to elicit Walden's specific answer about appellant's post-arrest silence, and neither the State's question nor Walden's answer were calculated to inflame the minds of the jury. See id.; accord Estrada, 2009 WL 144327, at *13. Appellant suggests that the claimed misconduct in this case was severe because, after the trial court denied appellant's request for a mistrial, the State immediately asked the question, "[D]id he provide you any kind of statement, yes or no?" But appellant does not argue that the trial court erred when it overruled his objection to that question. And we cannot conclude that a general yes-or-no question asking whether appellant provided any statement rendered the claimed misconduct in this case severe. See, e.g., Lewis v. State, 933 S.W.2d 172, 181-82 (Tex. App.-Corpus Christi 1996, pet. ref'd) (declining to hold that prosecutor's single question to arresting officer about whether defendant agreed to answer questions after he was arrested "rises to the level of prosecutorial misconduct"); cf. Veteto v. State, 8 S.W.3d 805, 811 (Tex. App.-Waco 2000, pet. ref'd) (concluding prosecutor "persistently and flagrantly pursued an improper line of questioning" about defendant's post-arrest silence). Under the first Mosley factor, we conclude that the claimed misconduct in this case was not severe. Second, we analyze the measures adopted to cure the claimed misconduct. See Archie, 221 S.W.3d at 700. In this case the trial court immediately instructed the jury to disregard Walden's statement about appellant's post-arrest silence. An instruction to disregard will usually cure any harm arising from a witness's reference to a defendant's post-arrest silence; and we are required to presume that it did unless the facts of a particular case demonstrate otherwise. See Waldo v. State, 746 S.W.2d 750, 755-54 (Tex. Crim. App. 1988). Under the second Mosley factor, and particularly in light of the fact that the claimed misconduct in this case was not severe, we conclude that the trial court's prompt instruction to disregard was sufficient to diffuse any harm. Compare Estrada, 2009 WL 144327, at *13 (concluding instruction to disregard lessened any prejudicial effect stemming from witness's single unsolicited comment about defendant's post-arrest silence), with Veteto, 8 S.W.3d at 809-12 (concluding instructions to disregard did not effectively cure prosecutor's repeated and flagrant references to defendant's post-arrest silence). Finally, we analyze whether appellant's conviction was certain absent the claimed misconduct. See Archie, 221 S.W.3d at 700. In this case, absent the exchange quoted above, the State's evidence presented at trial was undisputed and overwhelming. As a result, we conclude that the exchange quoted above had minimal, if any, effect on the outcome of the trial. After analyzing the record in light of the Mosley factors, we conclude that the trial court did not abuse its discretion in denying appellant's request for a mistrial. Conclusion
We resolve appellant's sole issue against him and affirm the trial court's judgment.