COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-010-CR
CASEY DEAN TERRY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Casey Dean Terry appeals from his conviction for driving while
intoxicated. In three points, he argues that the trial court erred by failing to
grant his motions for mistrial (1) after the arresting officer testified concerning
the percentage of people whose blood-alcohol level is over .10 percent when
they fail the horizontal gaze nystagmus test and (2) after the State elicited
1
… See T EX. R. A PP. P. 47.4.
testimony from one of Appellant’s witnesses about the witness’s prior DW I
conviction and (3) that repeated prosecutorial misconduct throughout trial
mandates reversal of his conviction. We affirm.
Background 2
Appellant and his passenger were involved in a motor vehicle collision in
the early morning hours of January 10, 2006. Police officer James Russell was
dispatched to the accident scene. Officer Russell testified that Appellant
“seemed a little disoriented and confused” and that his speech was slurred.
Officer Russell said that he smelled a very strong odor of alcoholic beverages
on Appellant’s breath and saw that Appellant had difficulty maintaining his
balance, staggered when he walked, and had to grab the concrete median
barrier for support several times during their conversation. Appellant’s eyes,
testified Officer Russell, were “real dilated,” very watery, and bloodshot.
Officer Russell suspected that Appellant was “extremely intoxicated” and
decided to administer the usual battery of field sobriety tests. He testified that
Appellant showed six “clues” of intoxication during the horizontal gaze
nystagmus test; had difficulty following the instructions and maintaining his
2
… Appellant does not challenge the sufficiency of the evidence to
support his conviction. Thus, a cursory review of the facts will suffice to put
his points into context.
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balance on the walk-and-turn test; and hopped, lost his balance, raised one arm,
and fell into a concrete barrier on the one-leg-stand test. Officer Russell
arrested Appellant for driving while intoxicated and transported him to the jail.
At the jail, Appellant refused to take a breath test.
The State charged Appellant by complaint with driving while intoxicated.
A jury found Appellant guilty, and the trial court sentenced him to ninety days’
confinement suspended for twenty four months and a $500 fine.
Discussion
In his first point, Appellant argues that the trial court erred by failing to
grant his motion for mistrial after Officer Russell testified that “[a]t four clues,
in 1998 the revalidation of the [horizontal gaze nystagmus] test by NHTSA
indicates that a person is 88 percent -- .” Appellant objected to the testimony,
the trial court sustained the objection and instructed the jury to disregard
Officer Russell’s statement, and Appellant moved for a mistrial, which the trial
court denied.
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
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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,
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.), cert. denied, 529 U.S. 1070
(1999); 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 Officer Russell’s statement, and our own review
of the record finds none. Moreover, Officer Russell did not complete his
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sentence before Appellant objected, and his incomplete sentence 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 the trial
court did not abuse its discretion by refusing to grant Appellant’s motion for
mistrial, and we overrule his first point.
In his second point, Appellant argues that the trial court abused its
discretion by failing to grant a mistrial after the prosecutor asked one of
Appellant’s witnesses whether he had been convicted for driving while
intoxicated. Morgan Roberts testified that he had been drinking with Appellant
on the night in question and that Appellant appeared to be “okay” when he left,
driving his passenger’s car because the passenger was drunk. Appellant later
telephoned Roberts and told him he had been in an accident. Roberts drove to
the scene of the accident, saw Appellant talking to a police officer, and decided
to drive on by. The following colloquy occurred on Roberts’s cross-
examination:
Q. Why didn’t you stop and get off and say, “Officers, that man
is not intoxicated?”
A. I didn’t know that was really a -- in my opinion, if you see a
bunch of police officers, I -- I haven’t been put in that situation
many times, but I don’t usually pull over when officers are at the
location.
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Q. Well, you say that you haven’t been put in that situation
many times with police officers . . . .
....
Now, Isn’t it true that you, yourself, have been convicted for
DWI?
Appellant objected to the question as irrelevant and more prejudicial than
probative, and the trial court sustained the objection and instructed the jury to
disregard the question. Appellant then moved for a mistrial, which the trial
court denied.
“Generally, any error in asking an improper question is cured and rendered
harmless by an instruction to disregard,” and a defendant complaining of an
improper question or answer must show obvious harm that could not be cured
by an instruction to disregard. McIntosh v. State, 855 S.W.2d 753, 770 (Tex.
App.—Dallas 1993, pet. ref’d) (citing Ransom v. State, 789 S.W.2d 572, 585
(Tex. Crim. App. 1989)). Assuming that the question about a prior conviction
was improper, Appellant has not shown obvious harm that could not be cured
by an instruction to disregard. Nothing in the record suggests that the jury
failed to obey the trial court’s instruction to disregard the question. See Ladd,
3 S.W.3d at 567. W e therefore hold that the trial court did not abuse its
discretion by denying Appellant’s motion for mistrial, and we overrule his
second point.
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In his third point, Appellant argues that his “conviction should be
overturned because of repeated prosecutorial misconduct throughout the trial.”
The alleged misconduct is (1) Officer Russell’s testimony discussed in
Appellant’s first point; (2) the prosecutor’s question discussed in his second
point; (3) the State’s failure to disclose before trial the fact that one of the
State’s witnesses—his passenger at the time of the accident—had a prior
conviction for theft;3 and (4) argument allegedly outside the record when the
prosecutor said during closing argument, “Now, that’s three standardized field
sobriety tests and the opinion of four sober people. Okay?” The trial court
sustained Appellant’s objection to this statement as outside the record and
instructed the jury to disregard it but denied his motion for mistrial. Appellant
argues that these four instances, considered together, show a “pattern of
government misconduct” that requires a new trial.
We have already determined that the trial court did not abuse its
discretion by refusing to grant a mistrial on the basis of Officer Russell’s
testimony or the prosecutor’s question about Roberts’s DWI conviction.
Appellant admits that he was not harmed by the State’s failure to disclose his
passenger’s theft conviction because he discovered the conviction on his own
3
… Appellant raised this complaint in a motion for new trial.
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before trial. With regard to the argument outside the record, Appellant does not
explain how the argument was outside the record nor—more significantly—why
the trial court’s instruction to disregard was an inadequate remedy; therefore,
we presume that the instruction to disregard was sufficient. See Ladd, 3
S.W.3d at 567.
Thus, considered separately, none of the alleged instances of
prosecutorial misconduct justifies a new trial. Considered together, the isolated
and unrelated alleged instances of misconduct do not show a pattern of
conduct that deprived Appellant of a fair and impartial trial. We therefore
overrule Appellant’s third point.
Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL A: GARDNER, J.; CAYCE, C.J.; and DAUPHINOT, J.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: April 17, 2008
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Casey Dean Terry v. State
Combined Opinion