COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-352-CR
MICHAEL RAY LONG APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Michael Ray Long appeals from his convictions for possession
of a gambling device, keeping a gambling place, and gambling promotion. In
two points, he argues that the trial court erred by failing to grant a mistrial after
an improper question and improper argument by the State. We affirm.
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… See T EX. R. A PP. P. 47.4.
Background
Appellant does not challenge the legal or factual sufficiency of the
evidence to support his convictions; thus, a cursory review of the evidence will
suffice to provide context for his points.
Appellant’s convictions arise from his ownership of “Pot of Gold,” an
“eight-liner” gaming room where Appellant operated about a hundred eight-liner
machines. James McNeal, an undercover deputy sheriff, investigated Pot of
Gold for possible violations of state gambling laws. After playing some of the
eight-liner games on two occasions and winning cash prizes, Deputy McNeal
determined that Pot of Gold was operating in violation of the law, and the
sheriff’s department raided the gaming room soon thereafter.
The grand jury indicted Appellant for possession of a gambling device,
keeping a gambling place, and gambling promotion. The gist of Appellant’s
defense was that he reasonably believed he was acting in compliance with the
law. A jury convicted him on all three counts, and the trial court assessed
punishment at a year’s confinement, probated for two years, and a $2,000 fine
for each count.
Failure to grant mistrial after improper question.
In his first point, Appellant agues that the trial court erred by failing to
grant a mistrial after the prosecutor asked Deputy McNeal, “Are you aware of
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another raid that took place a year later?,” i.e., a year after the raid connected
with Appellant’s convictions. Appellant objected to the question as irrelevant.
After voir dire examination and argument outside the presence of the jury, the
trial court sustained the objection. Appellant then moved for a mistrial, which
the trial court denied. When the jury returned to the courtroom, the trial court
instructed them to disregard the last question and not consider it for any
purpose. Appellant argues that the question went to the heart of his defense
because the jurors could have supposed that Appellant had been given an
opportunity to bring his business into conformity with the law but had failed to
do so.
An appellate court reviews a trial court’s ruling on a motion for mistrial
using an abuse of discretion standard. Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007). The appellate court views the evidence in the light
most favorable to the trial court’s ruling and upholds the trial court’s ruling if
it was within the zone of reasonable disagreement. Id.; Wead v. State, 129
S.W.3d 126, 129 (Tex. Crim. App. 2004). The appellate court does not
substitute its judgment for that of the trial court but rather decides whether the
trial court’s decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112.
Mistrial is appropriate only for highly prejudicial and incurable errors.
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied,
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542 U.S. 905 (2004). A trial court may grant a mistrial when it is faced with
an error so prejudicial that the expenditure of further time and expense would
be wasteful and futile. Id. The general rule, however, is that any error in the
admission of improper evidence may be corrected by withdrawing the evidence
and instructing the jury to disregard it. See Rojas v. State, 986 S.W.2d 241,
250–51 (Tex. Crim. App. 1998).
When a trial court strikes evidence and instructs the jury to disregard it,
in the absence of evidence indicating that the members of the jury failed to do
so, the jury is presumed to have followed the trial court’s instruction. See Ladd
v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S.
1070 (2000); State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.—Dallas 2006,
pet. ref’d).
Appellant points to no evidence that the jury failed to follow the trial
court’s instruction to disregard the prosecutor’s question, and our own review
of the record finds none. Moreover, Deputy McNeal did not answer the
question before Appellant objected, and while the question itself suggested that
Appellant continued to operate Pot of Gold in violation of the law, the question
was not of such a highly prejudicial character that it was wasteful and futile to
continue the trial. See Simpson, 119 S.W.3d at 272. We therefore hold that
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the trial court did not abuse its discretion by denying Appellant’s motion for
mistrial, and we overrule his first point.
Failure to grant mistrial after improper argument.
In his second point, Appellant argues that the trial court erred by failing
to grant a mistrial after the prosecutor began his closing argument with these
words:
Ladies and gentlemen, I want to start out by talking a little bit
about this. If you have any problems with the Sheriff not calling
the Defendant back or the DA’s office not calling the Defendant
back, there was a Cease and Desist Order on June 13th of 2003.
And it’s the policy of the Sheriff’s office and Mr. Curry, they don’t
normally make contact with defendants. [Emphasis added.]
Appellant objected to the last sentence as outside the record, and the trial court
sustained the objection and instructed the jury to disregard the statement, but
it denied Appellant’s motion for mistrial.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973).
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W hen the trial court sustains an objection to improper argument and
instructs the jury to disregard but denies a defendant’s motion for a mistrial, the
issue is whether the trial court abused its discretion by denying the mistrial.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Faulkner v.
State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. ref’d) (en banc
op. on reh’g). Only in extreme circumstances, where the prejudice is incurable,
will a mistrial be required. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.
App. 2007); Hawkins, 135 S.W.3d at 77. We presume the jury complied with
an instruction to disregard improper jury argument. Wesbrook v. State, 29
S.W.3d 103, 116 (Tex. Crim. App. 2000). When assessing the curative effect
of the court’s instruction to disregard, the correct inquiry is whether the
argument was extreme or manifestly improper, injected new and harmful facts
into the case, or violated a mandatory statutory provision and was thus so
inflammatory that an instruction to disregard could not cure its prejudicial
effect. Faulkner, 940 S.W.2d at 312. Only offensive or flagrant error warrants
reversal when there has been an instruction to disregard. Wesbrook, 29
S.W.3d at 116. If the instruction cured any harm caused by the improper
argument, a reviewing court should find that the trial court did not err. Dinkins
v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied, 516 U.S. 832
(1995); Faulkner, 940 S.W.2d at 312.
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A significant theme in Appellant’s defense—including closing arguments
delivered immediately before the prosecutor’s complained-of remark—was that
he and his attorney attempted on several occasions to contact the sheriff’s
office and the district attorney’s office in a effort to determine whether Pot of
Gold was operating in compliance with the law. Under the circumstances, we
cannot say that the prosecutor’s statement that the sheriff and the district
attorney do not normally contact defendants was so extreme, offensive, or
inflammatory that it caused incurable prejudice and rendered the instruction to
disregard ineffective. See Archie, 221 S.W.3d at 699; Wesbrook, 29 S.W.3d
at 116; Faulkner, 940 S.W.2d at 312. Nothing in the record overrides the
presumption that the jury complied with the instruction to disregard the
comment. See Wesbrook, 29 S.W.3d at 116. We therefore hold that the trial
court did not abuse its discretion by denying Appellant’s motion for mistrial, and
we overrule his second point.
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL B: GARDNER, LIVINGSTON, and HOLMAN, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
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DELIVERED: July 3, 2008
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