Affirmed and Opinion Filed February 28, 2013
In The Qrnttrt tif Anahi Fifth 1itrirt uf rxa &tt Ia11ai
No. 05-11-00438-CR
BRANDY LYNN JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F08-30843-R
MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion by Justice Lang-Miers
A jury convicted appellant Brandy Lynn Jackson of recklessly causing serious bodily
injury to a child. In one issue, appellant argues that the trial court erred when it denied
appellant’s motion for mistrial. Because all dispositive issues are settled in law, we issue this
memorandum opinion. TEx. R. App. P. 47.2(a), 47.4. We resolve appellant’s issue against her
and affirm the trial court’s judgment. B AC KGROU N I)
Appellant was charged with intentionally and knowingly causing serious bodily injury to
a child under 14 years of age by striking and dragging the child and lorcing her to the ground
with a motor vehicle. See ‘fex. Penal Code Ann, § 22.04 (West Supp. 2012). Appellant pleaded
not guilty and her ease was tried to a jury. The jury found appellant guilty of recklessly causing
serious bodily injury to a child.
Appellant testified during the punishment phase and sought to be placed on probation.
On cross examination, the prosecutor and appellant had the following exchange:
[Prosecutor:j Okay, Ms. Jackson, let’s start at the beginning here. You testified— your testimony here in court today is that you were in fact driving the car that struck Icomplainanti and caused her severe injuries: is that right’?
[Appellant:1 That is correct.
[Prosecutor:j That’s the first time you’ve ever said that out loud is here today in front of any other people—
Appellant’s counsel objected “that is a comment on Ms. Jackson not testifying during
guilt or innocence” and “a comment on her Fifth Amendment right to remain silent.” The
prosecutor responded that she was “referring to other court proceedings.” The trial court
sustained the objection and asked the prosecutor to limit her questions to specific instances that
the prosecutor “want[edj to talk about so it’s not a comment.” Appellant’s counsel requested an
instruction to the jury to disregard the prosecutor’s statement. The trial court instructed the jury
to “[dlisregard the statement, the question, in so far as it is a comment on the defendant to
exercise her Fifth Amendment right.” And the court again instructed the prosecutor to “[ble
specific in [hen questions.” Appellant’s counsel then moved for a mistrial, and the trial court
denied the motion.
-7- The prosecutor next asked appellant about her “testil monyl under oath before regarding
these incidents” during “prior proceedingsl .1” Appellant admitted that she had variously testited
that she was at home asleep when the incident happened, that she was at the house of her
boylriends mother at the time, that she did not know the location of the house where the offense
took place, that she had never been to the street where the house is located, and that she did not
know the people involved in the offense. Appellant admitted that she “testified today that [shej
did drive the car over there[.1” The jury assessed punishment at twenty years in prison. On
appeal, appellant argues that the trial court erred in not granting a mistrial, and requests that we
reverse the court’s judgment as to punishment and remand for a new punishment hearing.
STANDARD OF REvIEw
Because the trial court sustained appellant’s objection and granted the requested
instruction to the jury to disregard the prosecutor’s statement, the sole issue we must decide is
whether the trial court abused its discretion when it denied appellant’s motion for mistrial.
Archie v. State, 221 S.W.3d 695, 699—700 (Tex. Crim. App. 2007).
Appellant argues that the court erred in denying the motion for mistrial because the
prosecutor’s statement was an impermissible comment on appellant’s failure to testify. But our
focus here is not on whether the prosecutor’s comment was impermissible; we assume, without
deciding, that it was an improper comment on appellant’s failure to testify. Rather our analysis
concerns whether the court abused its discretion in denying the motion for mistrial. See Arclzie,
221 S.W.3d at 699—700; Hawkins v. State, 135 S.W.3d 72, 76—77 (Tex. Crim. App. 2004).
Appellant also argues that this case resembles Snowden v. State, 353 S.W.3d 815, 817 (Tex.
Crim. App. 2011). But in Snowden, the issue was whether the trial court had committed a
constitutional error under rule of appellate procedure 44.2(a) by overruling appellant’s objection
-3- that a prosecutor’s argument was a comment on appellant’s failure to testify, Id. at 817—18: see
Thx. R. App. P. 44.2(a). In this case, the trial court sustained appellant’s objection and granted
appellant’s requested instruction to disregard, but denied appellant’s motion for mistrial, The
harm analysis under rule 44.2(a) does not apply because the issue here is whether the courts
refusal to grant a mistrial was an abuse of discretion. See Archie. 221 S.W.3d at. 699—700.
Whether a trial court should have granted a mistrial involves most, if not all, of the same
considerations that attend a harm analysis. hi. at 700. We apply a tailored version of the Mosley
test to determine whether the trial court abused its discretion by denying a mistrial. Id.;
Hawkins. 135 S.W.3d at 77: see Moslcv ‘.State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Under this tailored Mosley test, we are required to balance three factors: (1) the severity of the
misconduct (the magnitude of the prejudicial effect), (2) the measures adopted to cure the
misconduct, and (3) the certainty of conviction or punishment absent the misconduct. Archie,
221 S.W.3d at 700; Hawkins, 135 S.W.3d at 77. A mistrial is required only in extreme
circumstances when the prejudice is incurable. Arcliie, 221 S.W.3d at 699.
ANALYSIS
Applying the three Mosley factors, and assuming, without deciding, that the prosecutor’s
comment was an improper comment on appellant’s failure to testify, we first analyze the severity
of the misconduct. We conclude that any prejudicial effect was not severe. The prosecutor’s
comment was not a clear reference to appellant’s failure to testify in the guilt-innocence phase of
the trial. And the prosecutor did not repeat her comment. Additionally, the prosecutor explained
that her statement referred to appellant’s testimony in other proceedings. After the instruction to
disregard, the prosecutor asked appellant numerous questions about her testimony in prior
proceedings and the defense did not object to these questions.
-4- Applying the second Mosley factor, the trial court took immediate curative measures: it
sustained appellant’s objection that the prosecutor’s statement was an impermissible comment on
appellant’s failure to testify and instructed the jury to disregard the comment, specifically stating,
“Disregard the statement, the question, in so far as it is a comment on the defendant to exercise
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Affirmed and Opinion Filed February 28, 2013
In The Qrnttrt tif Anahi Fifth 1itrirt uf rxa &tt Ia11ai
No. 05-11-00438-CR
BRANDY LYNN JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F08-30843-R
MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion by Justice Lang-Miers
A jury convicted appellant Brandy Lynn Jackson of recklessly causing serious bodily
injury to a child. In one issue, appellant argues that the trial court erred when it denied
appellant’s motion for mistrial. Because all dispositive issues are settled in law, we issue this
memorandum opinion. TEx. R. App. P. 47.2(a), 47.4. We resolve appellant’s issue against her
and affirm the trial court’s judgment. B AC KGROU N I)
Appellant was charged with intentionally and knowingly causing serious bodily injury to
a child under 14 years of age by striking and dragging the child and lorcing her to the ground
with a motor vehicle. See ‘fex. Penal Code Ann, § 22.04 (West Supp. 2012). Appellant pleaded
not guilty and her ease was tried to a jury. The jury found appellant guilty of recklessly causing
serious bodily injury to a child.
Appellant testified during the punishment phase and sought to be placed on probation.
On cross examination, the prosecutor and appellant had the following exchange:
[Prosecutor:j Okay, Ms. Jackson, let’s start at the beginning here. You testified— your testimony here in court today is that you were in fact driving the car that struck Icomplainanti and caused her severe injuries: is that right’?
[Appellant:1 That is correct.
[Prosecutor:j That’s the first time you’ve ever said that out loud is here today in front of any other people—
Appellant’s counsel objected “that is a comment on Ms. Jackson not testifying during
guilt or innocence” and “a comment on her Fifth Amendment right to remain silent.” The
prosecutor responded that she was “referring to other court proceedings.” The trial court
sustained the objection and asked the prosecutor to limit her questions to specific instances that
the prosecutor “want[edj to talk about so it’s not a comment.” Appellant’s counsel requested an
instruction to the jury to disregard the prosecutor’s statement. The trial court instructed the jury
to “[dlisregard the statement, the question, in so far as it is a comment on the defendant to
exercise her Fifth Amendment right.” And the court again instructed the prosecutor to “[ble
specific in [hen questions.” Appellant’s counsel then moved for a mistrial, and the trial court
denied the motion.
-7- The prosecutor next asked appellant about her “testil monyl under oath before regarding
these incidents” during “prior proceedingsl .1” Appellant admitted that she had variously testited
that she was at home asleep when the incident happened, that she was at the house of her
boylriends mother at the time, that she did not know the location of the house where the offense
took place, that she had never been to the street where the house is located, and that she did not
know the people involved in the offense. Appellant admitted that she “testified today that [shej
did drive the car over there[.1” The jury assessed punishment at twenty years in prison. On
appeal, appellant argues that the trial court erred in not granting a mistrial, and requests that we
reverse the court’s judgment as to punishment and remand for a new punishment hearing.
STANDARD OF REvIEw
Because the trial court sustained appellant’s objection and granted the requested
instruction to the jury to disregard the prosecutor’s statement, the sole issue we must decide is
whether the trial court abused its discretion when it denied appellant’s motion for mistrial.
Archie v. State, 221 S.W.3d 695, 699—700 (Tex. Crim. App. 2007).
Appellant argues that the court erred in denying the motion for mistrial because the
prosecutor’s statement was an impermissible comment on appellant’s failure to testify. But our
focus here is not on whether the prosecutor’s comment was impermissible; we assume, without
deciding, that it was an improper comment on appellant’s failure to testify. Rather our analysis
concerns whether the court abused its discretion in denying the motion for mistrial. See Arclzie,
221 S.W.3d at 699—700; Hawkins v. State, 135 S.W.3d 72, 76—77 (Tex. Crim. App. 2004).
Appellant also argues that this case resembles Snowden v. State, 353 S.W.3d 815, 817 (Tex.
Crim. App. 2011). But in Snowden, the issue was whether the trial court had committed a
constitutional error under rule of appellate procedure 44.2(a) by overruling appellant’s objection
-3- that a prosecutor’s argument was a comment on appellant’s failure to testify, Id. at 817—18: see
Thx. R. App. P. 44.2(a). In this case, the trial court sustained appellant’s objection and granted
appellant’s requested instruction to disregard, but denied appellant’s motion for mistrial, The
harm analysis under rule 44.2(a) does not apply because the issue here is whether the courts
refusal to grant a mistrial was an abuse of discretion. See Archie. 221 S.W.3d at. 699—700.
Whether a trial court should have granted a mistrial involves most, if not all, of the same
considerations that attend a harm analysis. hi. at 700. We apply a tailored version of the Mosley
test to determine whether the trial court abused its discretion by denying a mistrial. Id.;
Hawkins. 135 S.W.3d at 77: see Moslcv ‘.State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Under this tailored Mosley test, we are required to balance three factors: (1) the severity of the
misconduct (the magnitude of the prejudicial effect), (2) the measures adopted to cure the
misconduct, and (3) the certainty of conviction or punishment absent the misconduct. Archie,
221 S.W.3d at 700; Hawkins, 135 S.W.3d at 77. A mistrial is required only in extreme
circumstances when the prejudice is incurable. Arcliie, 221 S.W.3d at 699.
ANALYSIS
Applying the three Mosley factors, and assuming, without deciding, that the prosecutor’s
comment was an improper comment on appellant’s failure to testify, we first analyze the severity
of the misconduct. We conclude that any prejudicial effect was not severe. The prosecutor’s
comment was not a clear reference to appellant’s failure to testify in the guilt-innocence phase of
the trial. And the prosecutor did not repeat her comment. Additionally, the prosecutor explained
that her statement referred to appellant’s testimony in other proceedings. After the instruction to
disregard, the prosecutor asked appellant numerous questions about her testimony in prior
proceedings and the defense did not object to these questions.
-4- Applying the second Mosley factor, the trial court took immediate curative measures: it
sustained appellant’s objection that the prosecutor’s statement was an impermissible comment on
appellant’s failure to testify and instructed the jury to disregard the comment, specifically stating,
“Disregard the statement, the question, in so far as it is a comment on the defendant to exercise
her Fifth Amendment right” The court also twice instructed the prosecutor to ask specific
questions to avoid impermissibly commenting on appellant’s Fifth Amendment rights. See
Hawkins, 135 SW.3d at $4 (discussing curative measures including trial court’s instruction to
disregard, court’s admonition that prosecutor’s statement was improper, prosecutor’s apology
and retraction, and proper instruction in jury charge): Weems v. State, 328 S.W,3d 172, 180 (Tex.
App.—Eastland 2010. no pet.) (“Except in the most blatant instances, an instruction to disregard
a comment on the defendant’s failure to testify will cure any harm caused by the comment.”)
(citing Moore v, State, 999 S.W.2d 385, 405—06 (Tex. Crim. App. 1999)).
Lastly, applying the third Mosle factor, the record supports the punishment the jury
assessed in the absence of the comment. At trial, numerous witnesses, including complainant,
identified appellant as the driver of the car that injured complainant. Although witnesses
differed in their description of events preceding appellant’s actions, numerous witnesses testified
that appellant jumped the curb and accelerated the car as she drove through the front yard of
complainant’s house where people had congregated. Complainant, her mother, and her attending
physician testified to the severity of complainant’s injuries and her ongoing pain. The jury found
appellant guilty of recklessly causing serious bodily injury to a child, and found that appellant
had used or exhibited a deadly weapon—a motor vehicle—in committing the offense.
During the punishment phase, complainant and her mother testified further concerning
the extent of complainant’s injuries and her ongoing pain and disabilities resulting from her
-5- injuries. Appellant testified that she was the driver of the car, She also testified that she had
assaulted an inmate while in Dallas county jail and that she had a previous conviction for
misdemeanor assault with bodily injury to which she had pled no contest and for which she was
placed on community supervision. The jury assessed the maximum term of ewentyyears’
imprisonment.
Balancing all three Mosley factors, if the prosecutor’s comment was impermissible, any
prejudice from the comment was isolated and not egregious and the court took various curative
actions to prevent harm. In addition, based on the evidence presented, we conclude that the jury
would likely have assessed the same punishment absent the prosecutor’s comment, See Archie,
221 S.W.3d at 700. Under these circumstances, the trial court did not abuse its discretion in
denying appellant’s motion for mistrial. We resolve appellant’s sole issue against her.
CONCLUSION
We resolve appellant’s issue against her and affirm the trial court’s judgment.
Do Not Publish Tex. R. App. P. 47
1 10438F.U05
-6- 1rnwt uf T1iiats 2cIftI! Jifrict nf xaa at Oat1a JUDGMENT
BRANDY LYNN JACKSON. Appellant On Appeal from the 265th Judicial District Court. Dallas County. Texas No. O5 I 1-OO438CR V Trial Court Cause No. FO8-3O843-R. Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Myers and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
th 28 Judgment entered this day of February. 2013.
/