Archie, Julius

• Court: Court of Criminal Appeals of Texas
• Decided: May 2, 2007
• Docket: PD-0051-06
• Status: Published

Opinion

      IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                               NO. PD-0051-06

                                                    JULIUS ARCHIE, Appellant

                                                                             v.

                                                        THE STATE OF TEXAS

                         ON STATE=S PETITION FOR DISCRETIONARY REVIEW

                                      FROM THE TENTH COURT OF APPEALS

                                                         McLENNAN  COUNTY

Keller, P.J., filed a concurring opinion.

The court of appeals made two major mistakes in its analysis. 

The first mistake was compound in nature: the court of appeals misidentified the error being considered in this case, and as a result, erred in applying the Abeyond a reasonable doubt@ harm standard of Rule 44.2(a).^[1]  As Chief Justice Gray noted in his separate opinion, the question of whether the trial court abused its discretion in denying the motion for mistrial is not properly posed as whether the trial court committed an error that was harmful, but instead as whether the trial court erred at all.^[2]   In addressing the denial of a motion for mistrial in Hawkins, we said:

Although the parties and the Court of Appeals have approached the issue as one of harm, that is not a correct characterization of the issue before us.  A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake.  Here, the trial court sustained the defense objection and granted the requested instruction to disregard.  The only adverse ruling B and thus the only occasion for making a mistake B was the trial court's denial of the motion for mistrial.  Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.^[3]

The question of whether a court abused its discretion in denying a motion for mistrial based on improper argument involves most, if not all, of the same considerations that attend a harm analysis for overruling an objection to argument.^[4]  But that does not mean that the same standards are employed in determining whether reversal is required.^[5]  The Abeyond a reasonable doubt harmless@ standard imposed when a trial court overrules an objection is one that heavily favors reversal.  Common sense would dictate that the same analysis would not apply when the trial court sustains the objection.   Indeed, in Greer v. Miller, addressing a very similar situation, the Supreme Court concluded that Chapman=s^[6] Abeyond a reasonable doubt@ standard was inapplicable.^[7] Instead, when the only alleged error was the trial court=s refusal to grant a mistrial, the standard for determining whether a trial court abused its discretion in that regard was one that heavily favors affirmance: whether the Aprosecutorial misconduct . . . so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.@^[8]

The second mistake the court of appeals made was that it did not consider appellant=s failure to seek a curative instruction.  In Young v. State, we explained that, while a defendant does not completely forfeit review when he moves for a mistrial without first requesting an instruction to disregard, relief on the mistrial claim is appropriate only when the error could not have been cured by an instruction to disregard.^[9]  In Greer, the Supreme Court came to the same conclusion, observing that defense counsel Abore primary responsibility for ensuring that the error was cured in the manner most advantageous to his client.@^[10]  Because appellant failed to request an instruction to disregard, the court of appeals erred in considering in its analysis the alleged weakness of the trial court=s curative instruction.  If the defendant was entitled to a better instruction, he should have requested it.  Under the circumstances, the appellate court should have analyzed the issue not in light of the instruction actually given but in light of the most protective instruction the defendant was entitled to receive.  

And for this reason, I disagree with the court=s decision to Aoverrule@ the State=s first ground for review.  The point of that ground was that appellant forfeited the higher level of scrutiny (a Chapman Abeyond a reasonable doubt@ harm analysis) that he might have obtained if he had requested, and was denied, an instruction to disregard.  The Court says that the instruction that was given was Afunctionally@ an instruction to disregard,^[11] but I disagree.  The instruction was a curative instruction of sorts, but it was not an explicit instruction to disregard, and a party with a valid objection is entitled to an explicit instruction, upon request.  Here, there was no request, a fact the court of appeals failed to take into account.

The Court Aoverrules@ the State=s second ground, regarding Adirect@ versus Aindirect@ comments on a defendant=s failure to testify,   I would simply refrain from addressing the question because, under any characterization of the comment, an analysis under the correct standards clearly shows that the trial court did not err in denying the motion for mistrial.  With regard to the first prong of the Hawkins analysis (severity/prejudicial effect), the prosecutor=s comment did not impart any information to the jurors that they did not already have B they already knew appellant had not testified at the punishment phase of the trial.  And as the court of appeals observed, the prosecutor did not pursue this line of argument.  With regard to the second prong (curative measures), we must assume the trial court would have issued a specific instruction to disregard if appellant had requested one.  Nothing in the record suggests that a timely, specific instruction to disregard would have been insufficient to cure any prejudice associated with the remark.  Finally, with respect to the third prong (certainty of punishment), the punishment-related evidence against appellant was strong.  Appellant had a prior felony conviction and seven misdemeanor convictions, including convictions for violating a protective order and for family violence assault.  A prior girlfriend had testified to a pattern of abuse and to a harrowing incident similar to the one described by the complainant in this case.  Even appellant=s current girlfriend admitted to being on the receiving end of at least one act of abusive behavior.  In light of this evidence, the court of appeals itself conceded that the same punishment would likely have been assessed regardless of the comment.  Under the circumstances, I believe that the court of appeals was incorrect in concluding that the trial court erred in denying the motion for mistrial.

With these comments, I concur in the Court=s judgment.          

Date filed: May 2, 2007

Publish

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^[1]  Justice Reyna issued a lead opinion, which was not joined in its entirety by either of the other members of the court.  Justice Vance, in a concurring and dissenting opinion, joined Justice Reyna in concluding that the trial court erred in denying a mistrial and that the error was harmful.  Chief Justice Gray issued his own concurring and dissenting opinion, which disputed this manner of analyzing the issue.

^[2]  Archie v. State, 181 S.W.3d 428, 434 (Tex. App.BWaco 2005)(Gray, C.J., dissenting); Hawkins, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).

^[3]  Hawkins, 135 S.W.3d at 76-77.

^[4]  Id. at 77.

^[5]  Id.

^[6]  Chapman v. California, 386 U.S. 18 (1967).

^[7]  483 U.S. 756, 763-767.  In Greer, the prosecutor asked a question that commented on the defendant=s post-arrest, post-Miranda silence: AWhy didn=t you tell this story to anybody when you got arrested?@  Id. at 759.  Defense counsel objected and requested a mistrial.  Id.  The trial court declined to grant a mistrial but sustained the objection and instructed the jury to Aignore [the] question, for the time being.@  Id. (brackets in original).

^[8]  Id. at 765.

^[9]  137 S.W.2d 65, 69-71 (Tex. Crim. App. 2004).

^[10]  483 U.S. at 767 n. 8.

^[11]  Court=s op. at 5.