Opinion issued August 30, 2007
In The
For The feooa&
NO. 01-05-00516-CR
FRABON CROCKER, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1012896
DISSENTING OPINION
This appeal presents an interesting question that appears to be of first
impression inTexas regarding the preservation oferror in criminal cases. The usual method for preserving error is to press for an adverse ruling from the trial court by
first objecting, then requesting an instruction for the jury to disregard, and finally
asking fora mistrial. But whatis the effect of defense counsel's requesting a motion
for mistrial before obtaining a ruling on his request for an instruction to disregard?
In other words, when the trial court denies the motion for mistrial, does that also
constitute a denial ofthe request for an instruction to disregard? The majority holds
thatthe single denial serves to deny bothrequests, butI disagree. Thedifference that
it makes is whether our review is focused on the trial court's error in denying an
instruction to disregard and a motion for mistrial, rather than on whether an
instruction to disregard couldhavecuredthe error. Importantly, themajority doesnot
hold that the argument here constituted incurable error; it holds that the trial court
erred in denying appellant's requests for an instruction to disregard and a mistrial.
In a case in which defense counsel proceeded directly to a request for a mistrial, the
Court of Criminal Appeals held that, although the adverse ruling on the request for
mistrial was sufficient to preserve error, even though no objection or request for an
instruction to disregard had been made, the focus of the analysis was on whether an
instruction to disregard could have cured the error. See Young v. State, 137 S.W.3d
65, 71 (Tex. Crim. App. 2004). The Court of Criminal Appeals held that an
instruction to disregard would have cured any harm. Id. at 72. Here is the state of the record that we are called upon to review. In closing
arguments, the following exchange occurred:
[Prosecutor]: And I will tell you this: The State and the defense have the same ability to bring in witnesses in this case. The State can subpoena witnesses. The defense can subpoena witnesses. Okay. You heard from the State's witnesses as to who was there January 26,2004. And the State's witnesses only. And I ask that you find him guilty.
[Defense Counsel]: Objection improper jury argument.
[Trial Court]: Sustained.
[Defense Counsel]: I'd ask the jury be instructed to disregard the last statement of the prosecutor. We ask for mistrial.
[Trial Court]: Denied.
Notice that defense counsel asked for an instruction to disregard, but proceeded to ask
for a mistrial before the trial court had ruled on the request for an instruction to
disregard.
Because the burden is on an appellant to produce a record that demonstrates
error and preservation of that error, I would place the burden on defense counsel to
have waited to receive a ruling on his request for an instruction to disregard before
going on to ask for a mistrial. I submit that it would be a rare case in which a trial
court, having sustained an objection, would deny a request for an instruction to
disregard. Having received only one ruling, defense counsel should have either
clarifiedon the recordthat it was a ruling on both requests, or asked the trial court to
go back and separately to rule on the request for an instruction to disregard. Admittedly, I have found no casethat so holds. The closest case that I could find is
Young v. State, supra, in which the court held that a denial of a mistrial, in the
absence of an objection anda requestforan instruction to disregard, requires a review
of whether an instruction to disregard would have cured any harm.
If we are not going to place the burden on an appellant in this situation, we are
placing the burden on trial courts to sort out multiple requests to be sure that each is
separately ruled on. I heartily disagree with such a practice,
I do agree with the majority that appellant was entitled to an instruction to
disregard. My disagreement is thatI believe that an instruction to disregard would
have cured any harm for five reasons:
1. The comment on appellant's failure to testify appears to be an errant
attempt to comment on appellant's failure to call witnesses, which is ordinarily a
proper argument. As themajority states, there is nothing intherecord indicating that
the prosecutor had evil intent in making his argument. The problem is that the only
obvious witness wasappellant. Thus,the comment became a comment onappellant's
failure to testify. The comment was not direct, however, such as, "Manyof you may
have expected appellant to testify, and I cannot tell you why he did not." The
majority agrees thatthecomment here is anindirect comment. Anindirect comment
is obviously less prejudicial than a direct comment, and there was no mention in
appellant's general objection that the prosecutor was commenting on appellant's failure to testify, as there is in some cases. At the out-start, therefore, we are faced
with a lesser degree of harm than many comments on the failure of the accused to
testify.
2. As the majority points out, the jury had been instructed during jury
selection by both the trial court and defense counsel that jurors could not hold
appellant's failure to testify against him. In the process, it was made very clear that
the burden was on the State, and the defense had no burden at all, not even to ask
questions, much less to present witnesses, including appellant. Although a few
venirepersons had some difficulty with the concept, all jurors agreed to place the
burden on the State and not to hold it against appellant for failingto testify or to bring
witnesses. Thus, no venireperson had to be struck for cause for being unable to
follow the trial court's instructions in this area. As the majority also points out, the
jury was again instructed in the trial court's charge notto hold appellant's failure to
testify against him. Thelawis as set out inthemajority opinion: thejuryis presumed
to follow the instructions of the trial court. Therefore, to the extent that the jurors
may have identified the impropriety in the State's argument as a comment on
appellant's failure to testify, they would have considered the prosecutor's action as
improper, particularly in light of the trial court's having sustained appellant's
objection. Therefore, the likelihood is that jurors would have held this argument
against the State, rather than against appellant. 3. Defense counsel made many objections during trial, the majority of
which were sustained. Accordingly, the jury was used to seeing the prosecutor's
actions objected to by the defense and the trial court's sustaining the defense's
objections. Once again, this reinforces theproposition thatiftheerror here produced
any prejudice, it was more likely directed against the prosecutor than against
appellant.
4. Theprosecutor'sargument initially focused onthecomplainant's having
recorded the license plate number of the red van in which his assailant had fled and
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Opinion issued August 30, 2007
In The
For The feooa&
NO. 01-05-00516-CR
FRABON CROCKER, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1012896
DISSENTING OPINION
This appeal presents an interesting question that appears to be of first
impression inTexas regarding the preservation oferror in criminal cases. The usual method for preserving error is to press for an adverse ruling from the trial court by
first objecting, then requesting an instruction for the jury to disregard, and finally
asking fora mistrial. But whatis the effect of defense counsel's requesting a motion
for mistrial before obtaining a ruling on his request for an instruction to disregard?
In other words, when the trial court denies the motion for mistrial, does that also
constitute a denial ofthe request for an instruction to disregard? The majority holds
thatthe single denial serves to deny bothrequests, butI disagree. Thedifference that
it makes is whether our review is focused on the trial court's error in denying an
instruction to disregard and a motion for mistrial, rather than on whether an
instruction to disregard couldhavecuredthe error. Importantly, themajority doesnot
hold that the argument here constituted incurable error; it holds that the trial court
erred in denying appellant's requests for an instruction to disregard and a mistrial.
In a case in which defense counsel proceeded directly to a request for a mistrial, the
Court of Criminal Appeals held that, although the adverse ruling on the request for
mistrial was sufficient to preserve error, even though no objection or request for an
instruction to disregard had been made, the focus of the analysis was on whether an
instruction to disregard could have cured the error. See Young v. State, 137 S.W.3d
65, 71 (Tex. Crim. App. 2004). The Court of Criminal Appeals held that an
instruction to disregard would have cured any harm. Id. at 72. Here is the state of the record that we are called upon to review. In closing
arguments, the following exchange occurred:
[Prosecutor]: And I will tell you this: The State and the defense have the same ability to bring in witnesses in this case. The State can subpoena witnesses. The defense can subpoena witnesses. Okay. You heard from the State's witnesses as to who was there January 26,2004. And the State's witnesses only. And I ask that you find him guilty.
[Defense Counsel]: Objection improper jury argument.
[Trial Court]: Sustained.
[Defense Counsel]: I'd ask the jury be instructed to disregard the last statement of the prosecutor. We ask for mistrial.
[Trial Court]: Denied.
Notice that defense counsel asked for an instruction to disregard, but proceeded to ask
for a mistrial before the trial court had ruled on the request for an instruction to
disregard.
Because the burden is on an appellant to produce a record that demonstrates
error and preservation of that error, I would place the burden on defense counsel to
have waited to receive a ruling on his request for an instruction to disregard before
going on to ask for a mistrial. I submit that it would be a rare case in which a trial
court, having sustained an objection, would deny a request for an instruction to
disregard. Having received only one ruling, defense counsel should have either
clarifiedon the recordthat it was a ruling on both requests, or asked the trial court to
go back and separately to rule on the request for an instruction to disregard. Admittedly, I have found no casethat so holds. The closest case that I could find is
Young v. State, supra, in which the court held that a denial of a mistrial, in the
absence of an objection anda requestforan instruction to disregard, requires a review
of whether an instruction to disregard would have cured any harm.
If we are not going to place the burden on an appellant in this situation, we are
placing the burden on trial courts to sort out multiple requests to be sure that each is
separately ruled on. I heartily disagree with such a practice,
I do agree with the majority that appellant was entitled to an instruction to
disregard. My disagreement is thatI believe that an instruction to disregard would
have cured any harm for five reasons:
1. The comment on appellant's failure to testify appears to be an errant
attempt to comment on appellant's failure to call witnesses, which is ordinarily a
proper argument. As themajority states, there is nothing intherecord indicating that
the prosecutor had evil intent in making his argument. The problem is that the only
obvious witness wasappellant. Thus,the comment became a comment onappellant's
failure to testify. The comment was not direct, however, such as, "Manyof you may
have expected appellant to testify, and I cannot tell you why he did not." The
majority agrees thatthecomment here is anindirect comment. Anindirect comment
is obviously less prejudicial than a direct comment, and there was no mention in
appellant's general objection that the prosecutor was commenting on appellant's failure to testify, as there is in some cases. At the out-start, therefore, we are faced
with a lesser degree of harm than many comments on the failure of the accused to
testify.
2. As the majority points out, the jury had been instructed during jury
selection by both the trial court and defense counsel that jurors could not hold
appellant's failure to testify against him. In the process, it was made very clear that
the burden was on the State, and the defense had no burden at all, not even to ask
questions, much less to present witnesses, including appellant. Although a few
venirepersons had some difficulty with the concept, all jurors agreed to place the
burden on the State and not to hold it against appellant for failingto testify or to bring
witnesses. Thus, no venireperson had to be struck for cause for being unable to
follow the trial court's instructions in this area. As the majority also points out, the
jury was again instructed in the trial court's charge notto hold appellant's failure to
testify against him. Thelawis as set out inthemajority opinion: thejuryis presumed
to follow the instructions of the trial court. Therefore, to the extent that the jurors
may have identified the impropriety in the State's argument as a comment on
appellant's failure to testify, they would have considered the prosecutor's action as
improper, particularly in light of the trial court's having sustained appellant's
objection. Therefore, the likelihood is that jurors would have held this argument
against the State, rather than against appellant. 3. Defense counsel made many objections during trial, the majority of
which were sustained. Accordingly, the jury was used to seeing the prosecutor's
actions objected to by the defense and the trial court's sustaining the defense's
objections. Once again, this reinforces theproposition thatiftheerror here produced
any prejudice, it was more likely directed against the prosecutor than against
appellant.
4. Theprosecutor'sargument initially focused onthecomplainant's having
recorded the license plate number of the red van in which his assailant had fled and
in which appellant was arrested as the soleoccupant and driver a few months later.
This was in rebuttal of defense argument dwelling on the lack of physical evidence,
sloppy police work, and tainted identification procedures. The prosecutor argued that
the van was one big piece of physical evidence. The prosecutor also focused on the
identification by the complainant who had observed appellant as he was surprised
literally with hishand inthe till and fled from thestore and again as the complainant
hung onto the van's mirror in a futile attempt to stop the van. It was during the
prosecutor's argument regarding the identification that he drew the only other
objection during argument; it was one of the few defense objections that was
overruled during trial. Thus, thejury had the benefit ofseeing where the prosecutor
was arguing properly, as opposed to where he was arguing improperly.
6 5. Although defense counsel attempted to portray this case as one of
mistaken identity, the complainant's having written down the license plate number
of appellant's fleeing red van, which was stopped a few months laterwithappellant
driving, constituted objective, corroborating evidence so as to assure that the jury's
verdict was based on the evidence presented, rather than on the prosecutor's errant
comment onappellant's failure to callwitnesses, which, becauseofthe circumstances
of this case, constituted an indirect comment on appellant's failure to testify.
Accordingly, I respectfully dissent from the implicit holding of the majority
that appellant either obtained a ruling on his request for an instruction to disregard
or thatappellant was relieved of the responsibility of obtaining such a ruling under
the unusual preservation posture of this case caused by defense counsel's failure to
obtain a ruling on his request for an instruction to disregard before asking for a
mistrial. A mistrial is an extreme remedy not to be granted until all lesserremedies
have been exhausted to no avail. Moreover, it is very helpful to the appellate court
for it to be able to consider an instruction to disregard in gauging its efficacy in
neutralizing any harm soas to beable to evaluate thepropriety ofa trial court's denial
of a mistrial. When a trial court is presented with a request for a mistrial before
having ruled ona request for an instruction to disregard, I believe that the trial court
isentitled to deem the request foran instruction to disregard to have beenabandoned,
i.e., to consider that counsel's position has quickly shifted to believing that no instruction could cure the harm—so that, should the trial court be ofthe opinion that
an instruction would cure the harm, the trial court could properly overrule the motion
for mistrial. See Young, 137 S.W.3d at 72 (holding that because an instruction to
disregard venireperson'scomments wouldhave curedany resulting harm, trial court
did not err in denying appellant's motion for mistrial).
Tim Taft Justice
Panel consists of Justices Taft, Alcala, and Hanks.
Justice Taft, dissenting.
En banc consideration was requested. See TEX. R. APP. P. 41.2(c).
A majority of the Justices of the Court voted to deny en banc consideration. See id.
Justices Taft,Nuchia, andHigleydissentfrom the denial ofen banc consideration for the reasons stated in the dissenting opinion. See TEX. R. APP. P. 47.5.
Publish. TEX. R. App. P. 47.2(b).