TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00488-CR
Herman McMillin, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 9-03-4140, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Following trial, a jury found appellant, Herman McMillin, guilty of committing
aggravated sexual assault against a child, indecency with a child by contact, and indecency with a
child by exposure. The trial court assessed punishment on the respective counts at forty, twenty, and
ten years' imprisonment. In three points of error, appellant asserts that his conviction should be
reversed because the trial court abused its discretion by denying his challenge for cause to a
prospective juror, denying the admission of videotaped testimony to impeach the complainant,
allowing the State's expert to testify in the form of hypothetical questions that were closely tied to
the facts of the case, and by denying his motion for mistrial. For the reasons below, we affirm the
conviction.
BACKGROUND
The victim and complainant in this case, R.L., was the appellant's granddaughter, and
was eleven years old at the time of trial. She claimed that appellant sexually abused her when she
was in second or third grade, on a day that her grandmother and older sister left her home alone with
her grandfather. R.L. first revealed this to her mother, who notified the proper authorities. Appellant
voluntarily went to the police station for questioning and then signed a statement admitting that the
accusations were true. He later denied the accuracy of that statement and pled not guilty. A trial
ensued and he was convicted on all three counts. The facts relevant to each of the errors claimed by
appellant are set forth below.
ANALYSIS
Challenge for Cause
During voir dire, defense counsel asked the entire panel whether any of them felt like
they could not be fair to appellant, based on general feelings about or experiences with child
molesters. Potential juror Foley raised her hand and agreed that she could not be fair and impartial,
because she "work[ed] with physically and mentally challenged high school kids," so she "tend[ed]
to want to overprotect." Foley was one of sixteen potential jurors who indicated that they would
have difficulty being fair and impartial to appellant. After the parties agreed to dismiss four of these
potential jurors, the other twelve, including Foley, were individually called to the bench for further
questioning. During Foley's individual voir dire, the following colloquy took place:
Court: I think in response to a general question you said, for some reason,
you didn't think you could be fair to Mr. McMillin?
Foley: Uh-huh.
Court: Do you know something about him or about--
Foley: I work with special needs kids.
Court: . . .[I]f there's some special reason why it would make you not a fair
juror, I'm here listening. But, I mean, we are all concerned you
know. We've got to put twelve people in that box. My guess is every
one of them is concerned about a crime in Travis County. Every one
of them is concerned about children. . . . All we are asking is, could
you give this man a fair trial? Some people can't from their
experiences--
Foley: I just don't know until I hear the facts.
Court: . . . [W]hat we need is somebody willing to render a true verdict and
let the chips fall where they may. If the State doesn't prove every
element beyond a reasonable doubt, then our law . . . [is] that person
is not guilty for purposes of this offense. And if you find beyond a
reasonable doubt that the State has proved it, then you return a verdict
of guilty. . . . What you're up here for is for me to determine whether
you have some of those special difficulties that would render you not
a good juror in this case. . . . [Sexual abuse of a child] is nothing we
want to talk about in open court, but the fact that it's uncomfortable
or difficult doesn't keep you from being a fair and impartial juror.
Only you know whether you can be and that's what we're trying to
find out.
Foley: I have to hear the facts.
Court: . . . In order to know whether or not you could be fair?
Foley: Well, that's what I want to be.
Court: You can't render a decision until you hear all the evidence, but what
I am asking . . . [is] if you took that oath [to render a true verdict after
you hear all the evidence], could you follow it? And that's what this
defendant needs to know. That's why--
Foley: I'd do the best of my ability. . . . I believe I can be fair.
Court: . . . I don't want to tell you what to do. . . .
Foley: Yes, I could be fair.
Appellant's
Counsel: So Ms. Foley, if you are on this jury, can you set aside whatever
emotions or feelings you had and listen to the evidence and you can
be an objective [juror] . . . without having prejudice towards the
defendant when hearing that evidence; is that correct?
Foley: Yes.
Counsel: Okay. So you've changed your mind. . . . ?
Counsel: Okay, you believe you can be a fair and impartial juror?
Foley: Yes.
Based on this, the trial court denied appellant's challenge for cause to Foley. (1) Appellant then used
one of his ten peremptory strikes to eliminate Foley from the panel. Appellant now urges that it was
reversible error for the court to deny his challenge for cause to potential juror Foley. Specifically,
appellant claims that the court abused its discretion by questioning Foley further, after she initially
stated that it would be difficult for her to be fair and impartial towards an alleged child molester.
"We review a trial court's ruling on a challenge for cause with considerable
deference" and will reverse the ruling "only if a clear abuse of discretion is evident." Blue v. State,
125 S.W.3d 491, 497 (Tex. Crim. App. 2003). This is especially true when the record reflects that
a potential juror was vacillating or equivocating, because the trial judge was in the best position to
observe the person's demeanor and tone of voice--important factors which "do not come through
when reviewing a cold record." Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App. 1994); see also
Brown v. State, 913 S.W.2d 577, 580-81 (Tex. Crim. App. 1996) (holding that, if potential juror was
vacillating, "the reviewing court is bound by the trial court's judgment in the matter").
Article 35.16(a) of the Texas Code of Criminal Procedure sets forth the grounds upon
which a potential juror may be challenged for cause. Tex. Code Crim. Proc. Ann. art. 35.16(a) (West
1989). Article 35.16(a)(10) states that a juror who has formed a conclusion of guilt or innocence,
prior to hearing the evidence, should be dismissed under certain conditions. Id. The trial court has
sole discretion to grant or deny the challenge, and the provision encourages further questioning of
potential jurors who initially express biased attitudes. Id.
In three recent decisions, the Texas Court of Criminal Appeals directly addressed the
issue of whether it is appropriate to further question a potential juror who has been challenged for
cause pursuant to article 35.16(a)(10). Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App.
2004); Newbury v. State, 135 S.W.3d 22, 30 (Tex. Crim. App. 2004); Cannady v. State, 11 S.W.3d
205, 209 (Tex. Crim. App. 2004). All of these cases involved potential jurors who, in response to
general questions about their attitudes, initially stated biased opinions against the defendants, but
who, upon further questioning and explanation of the proper legal standards, affirmed that they could
serve as fair and impartial jurors. In each of these cases, the court found that it was not an abuse of
discretion to deny the challenge for cause.
The court has consistently held that it does not violate the procedures set out in article
35.16(a)(10) for a trial judge or for counsel to "accurately explain[] the law" to a vacillating
venireman during an "individual voir dire." See, e.g., Newbury, 135 S.W.3d at 30. Most recently,
the court stated that a prospective juror cannot be excused for cause until the law is explained to him
and he is asked whether he can follow that law regardless of his personal views. Threadgill, 146
S.W.3d at 667. In Newbury, the court clarified the meaning of the language in article 35.16(a)(10)
that states if the potential juror "answers in the affirmative" that he has a conclusion so established
in his mind that it will influence his verdict, then "he shall be discharged without further
interrogation by either party or the court." 135 S.W.3d at 30. The court held that this language did
not prevent the trial court or counsel from accurately explaining the law to potential jurors, but that
it was only "meant to prevent rehabilitation of a potential jury member who has clearly shown
himself to be impartial, given an accurate understanding of the law and his obligations under it." Id.
The trial court here followed the directives of the court of criminal appeals. At trial,
appellant objected that it was not appropriate to conduct further questioning of those potential jurors
who initially expressed bias, and that they should be automatically dismissed for cause based on their
initial statements. In response, the judge explained that potential jurors who simply made "general
responses to general questions" should not be automatically dismissed without first "clearly
establishing what the law requires" of them. The judge went on to explain that:
[A] lot of people are looking at it general . . . without necessarily thinking about
whether or not they can be fair to an individual, they just think 'I couldn't be fair to
any [child abuser].' And I think in that situation, then I think we need to go over that
with them to make sure they are answering the right question. In reference to the
law, [for a juror to be discharged, he needs to state] that he has established in his
mind, such a conclusion as to the guilt or innocence of the defendant, . . . and that
. . . this conclusion, so established, would influence his verdict. . . . Without that
being set up exactly and specifically in that order and those specific questions asked,
I don't think there is any automatic exclusion based on one question you asked them
out there. So to that extent, I am going to question them, some of them, up here at
the bench.
When the trial judge denied appellant's request for additional peremptory strikes, he stated that,
according to his understanding of the applicable law, the challenges for cause were properly denied
because "we carefully interviewed each and every person that indicated any kind of problem here
at the bench and got what the Court believed were unequivocal responses from them at the bench
as to whether or not they could or could not be fair and each side was able to question them, even
after the Court questioned them."
Although Foley's initial response to a general question indicated a general bias--that
she "tend[ed] to want to overprotect" children--once she was questioned further and had the law
more fully explained to her, she affirmed at least five times that she could be a fair and impartial
juror. Because Foley initially equivocated, the trial court determined that it was proper to engage
her in an individual voir dire. Ultimately, the court determined that Foley's answers were sufficient
to deny the challenge for cause against her. Given that we are to give great deference to a trial
court's decision to grant or deny a challenge for cause, and that the court's decisions here directly
followed the law set forth by the court of criminal appeals, it was not an abuse of discretion to deny
appellant's challenge for cause to potential juror Foley. Appellant's first issue is overruled.
Exclusion of Complainant's Videotaped Statement
Prior to making the instant claims against her grandfather, R.L. accused two uncles
of sexually abusing her. When those accusations were made, investigators conducted two
videotaped interviews with R.L. in which she repeated the claims against her uncles. One afternoon,
R.L.'s mother began a discussion with her about the accusations she had made. During that
conversation, R.L. revealed for the first time that her uncles had not abused her, but that her
grandfather had. R.L. claimed that she made the false accusations because of pressure from her
mother's boyfriend, and because she did not want to hurt her mother's feelings by accusing her
maternal grandfather of sexually abusing her.
Prior to opening statements, appellant sought admission of the videotapes as
impeachment evidence against R.L. The judge responded that "[i]f she admits to making the
statement, I don't see under what theory under the Rules that the extrinsic evidence of the statement
itself is admissible. . . . I think you can cross examine her to the full extent because [Rule 613] says,
if she unequivocally admits having made such a statement, . . . extrinsic evidence [of] the same shall
not be admitted. It doesn't say may not. . . . The Rule says shall not be admitted." (Emphasis
added.)
At trial, the jury was repeatedly informed of R.L.'s previous, false accusations against
her uncles. The prosecutor explained in the State's opening statement that "[y]ou will hear that
[R.L.] made an allegation against her uncles. . . . And you will hear that this was a lie, this was a
false allegation. . . ." During R.L.'s direct examination, the State asked her a series of specific
questions about the false accusations. Throughout the series, the prosecutor referred to the
accusations as "the lies." When R.L. was asked, "Was everything you said about [your two uncles]
a lie?" she responded "Yes." And she repeatedly admitted throughout her direct examination that
her previous accusations were false. On cross-examination, R.L. was asked another series of specific
questions regarding these accusations, and she continuously answered that the accusations were lies.
Following R.L.'s direct and cross-examinations, appellant again sought to admit the
videotapes into evidence. The trial court denied this request on the grounds that, because R.L.
unequivocally admitted to the falsity of the prior inconsistent statements, (2) it was not proper to admit
extrinsic evidence of them and, because the tapes were unedited, they would cause undue delay and
confusion of the issues if admitted. See Tex. R. Evid. 403, 613. Appellant asserts that the exclusion
of this evidence violated his constitutional right to confront the witness testifying against him.
Because trial courts have "the best vantage point" from which to view the evidence,
and are therefore "in the best position to make the call on these substantive admissibility questions,"
we review a trial court's decision to admit or exclude evidence for an abuse of discretion. Powell
v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Under this standard, we are to affirm the trial
court's decision so long as it is "within the zone of reasonable disagreement." Id. In other words,
we "must uphold the trial court's ruling if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Finally, an appellate court must review the trial
court's ruling in light of what was before the trial court at the time the ruling was made." Willover
v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (citations omitted).
According to the Constitutions of the United States and Texas, as well as the Texas
Code of Criminal Procedure, "in all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him." U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex.
Code Crim. Proc. Ann. art. 1.05 (West 1977). If a person accused of child molestation is not
permitted to fully cross-examine the complainant on the relevant matters and facts of the case, then
it can amount to a violation of the accused's constitutional and statutory rights. See Lively v. State,
968 S.W.2d 363, 366 (Tex. Crim. App. 1998).
Appellant relies on Thomas v. State to support his claim that the trial court violated
his constitutional rights by excluding the videotapes of R.L.'s prior inconsistent statements. 669
S.W.2d 420 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd). However, the facts of Thomas are
clearly distinguishable from those of the instant case because the complainant there had not
otherwise admitted to the impeaching evidence in front of the jury. Id. at 423. The Thomas court
held that the defendant's rights were violated because the jury had not been given an opportunity to
hear the impeaching evidence and then make its own decision about the complainant's credibility.
Id. Here, the jury was fully informed of the fact that R.L. had falsely accused her uncles of sexual
abuse on a prior occasion. The jurors were free to weigh all of the evidence to determine whether
or not they believed R.L.'s accusations against her grandfather. Thus, the concerns of the Thomas
court were satisfied here, and it did not violate appellant's constitutional or statutory rights for the
trial court to refuse to admit the videotaped statements, especially in light of the fact that appellant
was permitted to fully cross-examine R.L. about those false accusations.
Further, the trial court's decision to exclude the tapes was proper under Texas Rule
of Evidence 613, which states in no uncertain terms that "[i]n examining a witness concerning a prior
inconsistent statement made by the witness, . . . [i]f the witness unequivocally admits having made
such statement, extrinsic evidence of same shall not be admitted." Under this rule, therefore,
"whether one can use extrinsic evidence is contingent upon the witness's response when confronted
with the alleged inconsistent statement." Clark v. State, 881 S.W.2d 682, 696 (Tex. Crim. App.
1994). Appellant does not challenge that R.L.'s videotaped statements were "prior inconsistent
statements" falling under the purview of Rule 613, nor that R.L. unequivocally admitted that the
prior accusations were false. In ruling that the videotapes should not be admitted, the trial court
specifically stated that its decision was based on the language of Rule 613.
The court's ruling was also proper under Rules 403 and 611. Rule 403 states that,
"[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, or needless presentation of the evidence." Tex. R. Evid. 403. Rule 611 provides
trial courts with the authority to "exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to . . . (2) avoid needless consumption of
time." Tex. R. Evid. 611. Pursuant to these rules of evidence, the court of criminal appeals recently
held that it was not an abuse of discretion for a trial court to refuse to admit two videotapes
portraying a child sexual-abuse complainant making inconsistent statements about her accusations.
Willover, 70 S.W.3d at 847. The court's reasoning was based on the fact that the tapes were unedited
and it was not the trial court's responsibility to "sort through" and determine what might be relevant
where the appellant failed to "specify and extract the statements he wanted to use for impeachment
purposes." Id.
Here, as additional reasons for excluding the unedited videotapes, the judge said that
admitting the tapes in their entirety "would be an incredibly bad use of the court's time, would be
unduly time consuming for the value it would add to what has already been stated by the witness,
would confuse the jury, would . . . divert the jury's attention from the real issues in the case and
divert them over to this collateral issue, in addition to being time consuming and would be unfair."
Because the trial court had sole discretion regarding the admissibility of evidence, and because its
decisions complied with the rules of evidence and applicable holdings from the court of criminal
appeals, it was not an abuse of discretion to exclude R.L.'s videotaped statements. Appellant's
second issue is overruled.
Admission of Expert Testimony
The State called Dr. William Carter, a psychologist who frequently works with
sexually abused children, as an expert witness. During his direct examination, the prosecutor asked
Dr. Carter about a series of hypothetical situations that tracked the facts of the case and, after each
hypothetical, asked him whether, given such facts, it was likely that the child had suffered sexual
abuse. The facts supplied to Dr. Carter in the hypotheticals followed the specific details of the abuse
alleged in R.L.'s previous testimony. Although appellant made several objections to this line of
questioning, four of which the trial court overruled, the State urges that appellant waived error on
this issue because his complaint on appeal is not stated in precisely the same terms as his objections
at trial.
In order to preserve error to the admission of expert testimony, an appellant must have
made a timely objection "with sufficient specificity to make the trial court aware of the complaint,"
and obtained an adverse ruling, or a refusal to rule, from the trial court on that objection. See Tex.
R. App. P. 33.1(a); Gueder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The objection will
be considered sufficiently specific as long as the appellant's legal basis is "clear from the context"
so "that both the judge and the prosecutor understood" the nature of his objection. Heidelberg v.
State, 144 S.W.3d 535, 538 (Tex. Crim. App. 2004); see also Zillender v. State, 557 S.W.2d 515,
517 (Tex. Crim. App. 1977) ("where correct ground of exclusion was obvious to judge and opposing
counsel, no waiver results from a general or imprecise objection"). Finally, the legal basis asserted
for the objection must be the same on appeal as it was at trial. Heidelberg, 144 S.W.3d at 537.
At trial, appellant objected that the expert's testimony was "inappropriate and
improper" because the State's hypothetical questions used facts "ti[ed] in . . . specifically to the case
in chief" and because the questions did not even have a "facade of not being the exact facts of this
case." Further, he objected to the hypotheticals because "what the prosecutor is really trying to do
is get this witness to make a statement about the guilt or innocence of my client and basically is
invading the province of the jury," and because "that is outside the relevance of an expert testifying."
On appeal, appellant asserts that the expert's testimony was improper because the facts of the
hypothetical "matched the complainant's statements in many exact details" and because it "advis[ed]
the jurors who is more credible."
Not only were appellant's trial objections specific enough to put the court and the
prosecutor on notice of the nature of his complaint, but also the legal basis asserted in those
objections is consistent with that of his complaints on appeal. Appellant therefore preserved error
regarding the admission of Dr. Carter's testimony. The State urges alternatively that, if error was
preserved, the conviction should be affirmed because it was not improper for the trial court to allow
the expert to testify through the use of hypothetical questions tracking the facts of the case.
In order to admit expert testimony, the trial court must find that the evidence satisfies
both Rule 702, that the testimony will be helpful to the trier of fact, and Rule 403, that the
testimony's probative value is not outweighed by any prejudicial effect. Tex. R. Evid. 403, 702;
Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim. App. 1996); Kelly v. State, 824 S.W.2d 568, 572
(Tex. Crim. App. 1992). The decision to admit or exclude the testimony will only be reversed if the
court abused its discretion regarding either of these two inquiries. Osbourn v. State, 92 S.W.3d 531,
537 (Tex. Crim. App. 2002); Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). It will
be considered an abuse of discretion if the "ruling is arbitrary, unreasonable or without reference to
any guiding rules or legal principles." K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).
When there is evidence in the record to support the trial court's decision to admit evidence, then it
is not an abuse of discretion and we must defer to that decision. Osbourn, 92 S.W.3d at 538. "Even
when the trial judge gives the wrong reason for his decision, if the decision is correct on any theory
of law applicable to the case it will be sustained. This is especially true with regard to the admission
of evidence." Id. (citations omitted).
Rule 702 states that if the expert's "specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue," then the expert "may testify thereto in
the form of an opinion or otherwise." Tex. R. Evid. 702. Expert testimony is typically not permitted
where the expert is in no better position than the jurors to reach that conclusion. K-Mart Corp., 24
S.W.3d at 360. "When the jury is equally competent to form an opinion about the ultimate fact
issues or the expert's testimony is within the common knowledge of the jury, the trial court should
exclude the expert's testimony." Id. However, the expert's testimony is "not objectionable because
it embraces an ultimate issue to be decided by the trier of fact." Tex. R. Evid. 704. Consequently,
it "is no longer a valid objection" to assert that an expert's testimony "invades the province of the
jury." Oritz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992).
An expert's testimony can be helpful to the trier of fact even when the expert does
not have personal knowledge of the relevant facts. Matson v. State, 819 S.W.2d 839, 853 (Tex.
Crim. App. 1991). An expert may give an opinion on facts made known to him at trial through the
use of hypothetical questions, so long as the facts utilized by the hypothetical are admitted into
evidence, or are facts assumed by counsel "in accordance with the theory of his case." Id. at 852;
see also Jordan, 928 S.W.2d at 556 n.8; Gonzales v. State, 4 S.W.3d 406, 417 (Tex. App.--Waco
1999, no pet.). "The use of hypothetical questions in the examination of expert witnesses is a
well-established practice." Matson, 819 S.W.2d at 853.
Several courts have applied these rules specifically to the admission of expert
testimony in child-abuse cases and held that, in response to hypothetical questions, an expert may
testify about whether the characteristics manifested by the victim at issue are consistent with those
characteristics manifested by other, similarly situated victims. See, e.g., Yount v. State, 872 S.W.2d
706, 708 (Tex. Crim. App. 1993); Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993);
Gonzales, 4 S.W.3d at 417; Kirkpatrick v. State, 747 S.W.2d 833, 835 (Tex. App.--Dallas 1987, pet.
ref'd). Such testimony is permissible even when the complainant's credibility has not been
challenged. Cohn, 849 S.W.2d at 818. As our sister court stated in Kirkpatrick,
The rationale is that while the common experience of jurors enables them to assess
the credibility of alleged assault victims generally, the unique pressures surrounding
a child victim, and their concomitant effects on the child's behavior, are such that an
expert's testimony is deemed useful in assisting the jurors' assessment of the child's
credibility. The expert's testimony about the general behavioral traits of child
victims--e.g., delay in reporting the incident, recantation, truancy, embarrassment,
running away from home, and inconsistent versions of abuse--explains to the jurors
that such behavior, which might otherwise be attributed to inaccuracy or falsification,
is typical of the class of victims and does not necessarily indicate a lack of credibility.
Thus, such testimony, which allows the jury to assess the credibility of a particular
complainant more fairly by explaining the emotional antecedents underlying the
typical victim's behavior, meets the requirements of Rule 702.
747 S.W.2d at 856-36. However, Rule 702 does not permit an expert to give a direct opinion about
the truthfulness of a particular child complainant's allegations, because "experts on child abuse are
not human lie detectors" and, ultimately, the determination of the complainant's credibility is left
to the jurors. Yount, 872 S.W.2d at 710. Once the witness has shared his relevant expertise with the
jurors, then they are fully capable of drawing a final conclusion as to the truthfulness of the
complainant. Id.
Here, appellant objected to the State asking Dr. Carter whether he would consider it
typical for a victim of child abuse to include certain, sensory details in her description of the
occurrence. Specifically, Dr. Carter was asked whether a child victim would likely describe that she
stared at a clock on the wall while the abuse was happening, that the perpetrator moved in a certain
way during the abuse, and that she found "gooey stuff" when she used the restroom following the
abuse. (3) Dr. Carter's opinion on these issues satisfied the Rule 702 "helpfulness" standard because
he imparted specialized knowledge that is beyond an average juror's common understanding.
Further, his testimony satisfied the Rule 403 balancing test because he responded only about general
characteristics of child-abuse victims, based on facts that were admitted into evidence through the
complainant's testimony, and because Dr. Carter did not state a direct opinion about this particular
complainant's credibility. It was therefore not an abuse of discretion for the trial court to overrule
appellant's objections and permit Dr. Carter to testify through the use of hypothetical questions.
Appellant's third issue is overruled.
Denial of Motion for Mistrial
At one point during Dr. Carter's testimony, the State asked him whether, "in a
situation where the prosecutor's questions are very closely tied to the facts, and it seems to be I am
getting close to the facts of a particular case, I guess it is possible the defense attorney might object
to that?" Dr. Carter responded, "Yes." Appellant objected to this testimony, and the trial court
sustained his objection. Appellant then sought an instruction for the jury to disregard the question
and answer, and the court delivered the instruction to the jurors. Finally, appellant moved for a
mistrial, but the court denied it. Appellant claims that the court committed reversible error by
denying his motion for mistrial. (4)
"Where the prejudice is curable, an instruction eliminates the need for a mistrial,
thereby conserving the resources associated with beginning the trial process anew." Young v. State,
137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Thus, an objection coupled with an instruction to
disregard should be the first remedy, and is usually sufficient, whereas the "declaration of a mistrial
ought to be an exceedingly uncommon remedy for residual prejudice remaining after objections are
sustained and curative instructions given." West v. State, 121 S.W.3d 95, 106 (Tex. App.--Fort
Worth 2003, pet. ref'd). We review a trial court's decision to grant or deny a mistrial for an abuse
of discretion. Id. at 107. In so doing, we look to see whether the prejudicial effect of the
objectionable testimony was cured by the instruction to disregard. Id. The denial of a motion for
mistrial only constitutes an abuse of discretion if the testimony was "so emotionally inflammatory
that curative instructions are not likely to prevent the jury from being unfairly prejudiced." Id.
Dr. Carter was not qualified to render an opinion as to whether the defense counsel
was likely to object to the State's question. But any prejudice resulting from this testimony was
cured by the court's instruction to disregard. This single question, on a matter outside of the relevant
facts, did not justify the "exceedingly uncommon remedy" of granting a mistrial. The trial court did
not abuse its discretion in denying appellant's motion.
CONCLUSION
Appellant asserted three points of error challenging his conviction for sexually
abusing his granddaughter. Because we find that the trial court did not abuse its discretion in
denying appellant's challenge for cause to a potential juror, in excluding videotaped statements of
the complainant, in allowing the State's expert to testify through hypothetical questions, or in
denying appellant's motion for mistrial, we affirm the conviction.
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: January 21, 2005
Do Not Publish
1. Appellant also challenged the eleven other potential jurors who were individually
questioned at the bench. The trial court granted nine of these challenges and denied the other two.
2. The trial judge clarified that he believed the statements to be only "legally inconsistent"
and "not factually inconsistent on their face," because "both statements could be true," given that
the videotaped statements related to prior accusations against R.L.'s uncles, rather than the instant
accusations against appellant.
3. The State asked Dr. Carter about several other sensory details, but these are the only three
questions to which the trial court overruled appellant's objections, thereby preserving error.
4. In his brief, appellant makes this challenge in connection with his third point of error.
Because this challenge focuses on a denied motion for mistrial, rather than the propriety of an expert
testifying through hypotheticals, for the purposes of this opinion, we consider separately appellant's
challenge to the denial of his motion for mistrial.