Affirmed and Memorandum Opinion filed October 28, 2004.
In The
Fourteenth Court of Appeals
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NOS. 14-03-00655-CR
14-03-00656-CR
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RODNEY YBARRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause Nos. 934,304 & 934,305
M E M O R A N D U M O P I N I O N
Appellant Rodney Ybarra challenges his convictions for indecency with a child and aggravated sexual assault. He claims the trial court erred in allowing improper voir dire, denying his motion for mistrial, allowing a witness to testify that appellant invoked his right to counsel, allowing improper expert testimony, and excluding evidence that appellant allegedly had committed his former wife to a drug treatment facility. We affirm the trial court=s judgment.
I. Factual and Procedural Background
Rodney and Melissa Ybarra were married in 1986 and divorced in 2003. In the course of their marriage, appellant and Melissa had three daughtersCfifteen-year-old Jane[1], thirteen-year-old Kane, and ten-year-old Lane. Because of appellant=s shift work and irregular schedule, he was often home alone with the girls.
Appellant was a heavy drinker of alcohol, and over the years his drinking worsened. Appellant moved in and out of his house. After an incident of leaving the house and subsequently returning home, Melissa noticed that Jane was being very disrespectful to appellant. Melissa confronted her daughter and she replied, AYou just don=t know everything.@ Melissa asked Kane what had been happening. Kane told Melissa that appellant had sexually abused Jane. Melissa then confronted Jane with this allegation. Jane admitted it was true but stated that she did not want to talk about it because she did not want anyone to know. Melissa gathered her children and drove them to a friend=s house.
When Melissa confronted appellant about the allegations, he denied them at first but eventually stated, AWell, if something did happen, something may have happened when I was drunk.@ Melissa did not know all of the details at that time, and she was hoping that it was an isolated incident, an accident, or a misunderstanding. Eventually Melissa arranged for Jane to receive counseling. After Jane described occasions of sexual assault to the counselor, the counselor informed Melissa that the situation had to be reported to the police. Melissa reported the abuse to the Deer Park Police Department in October of 2002. All three of appellant=s daughters gave statements to the police.
After the daughters went to the Children=s Assessment Center, Detective Magee of the Deer Park Police Department called appellant and asked him if he wanted to talk about the allegations. When appellant came to the Deer Park investigation division office, Detective Magee read appellant legal warnings. When Detective Magee mentioned Jane=s allegations, appellant put his head down in his hands and appeared upset. According to Detective Magee, appellant indicated that, Ait was possible he might have done the things his daughter said, but he cannot be sure because he drank heavily at the time and didn=t remember and he had blackouts.@ At the end of the interview, appellant declined to give a written statement, saying that he wanted to contact his lawyer first.
Appellant was charged by indictment with the offenses of indecency with a child and aggravated sexual assault of a child as to Jane. See Tex. Pen. Code Ann. '' 21.11, 22.021 (Vernon 2003). A jury found appellant guilty and assessed punishment at imprisonment for ten years for the indecency conviction and twenty years for the sexual assault conviction. Appellant raises eight issues on appeal.
II. Analysis
A. Did the trial court err in allegedly allowing the prosecutor to advise the jury panel of her personal opinion during voir dire?
In his first issue, appellant argues that the trial court erred in allowing the prosecutor to advise the jury panel of her personal opinions concerning the case during her voir dire examination. Appellant contends that the prosecutor=s comment injected her personal opinion regarding his guilt and violated his due process right to a fair trial.
It is improper for a prosecutor to inject personal opinion in statements to the jury. Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985). In this case, appellant complains that the prosecutor injected her personal opinion when she stated, during her opening remarks in voir dire:
[State]: It=s my privilege and my honor to drive into work every day to represent all of you in this courtroom. Along the way when I went to law school, I learned there was a lot more to being a prosecutor than putting bad guys in jail. I took an oath to see that justice is done and I take that oath very seriously. Sometimes it means I dismiss cases. Sometimes it means I plea bargain them and sometimes it means I take them to trial and fight tooth and nail for what I think is right.
[defense]: I=m going to object. The prosecutor is interjecting her personal opinion into the merits of the case.
[court]: Overruled.
[State]: The really cool thing about going to trial and bringing 12 citizens in here is you get a chance to experience that same obligation, to see that justice is done, and I hope that at the end of the experience, you find it as rewarding as I do.
To support his contention, appellant cites Zaiontz v. State in which the prosecutor stated during voir dire that AI wouldn=t be here if I didn=t believe the Defendant to be guilty . . . .@ 700 S.W.2d 303, 307 (Tex. AppCSan Antonio 1985, pet. ref=d). The Zaiontz court found that the appellant had failed to object and the comment was not so prejudicial that it could not have been cured with an instruction to disregard. See id. Appellant also cites Beltran, in which this court indicated that the statement, AIf I believed the man was not guilty I wouldn=t be here@ was improper, although we concluded appellant had failed to preserve error. See Beltran v. State, 99 S.W.3d 807, 811B12 (Tex. App.CHouston [14 Dist.] 2003, pet. ref=d). In the two remaining cases appellant cites, the prosecutor directly expressed an opinion that the defendant was guilty. See Villalobos v. State, 568 S.W.2d 134, 135 (Tex. Crim. App. 1978) (improper for State to argue in closing that AI believe he is just as guilty as he can possibly be@); Baldwin v. State, 499 S.W.2d 7, 9 (Tex. Crim. App. 1973) (appellate court admonished trial court that, in the event of a retrial, prosecution should refrain from stating, AI think that he=s guilty@ because such argument was outside the realm of proper summation).
In contrast, in this case, appellant asserts that while the prosecutor did not directly express that she believed appellant was guilty, she implicitly did so by her comments contrasting appellant=s case to others in which she moved to dismiss the case or negotiated a plea bargain. Appellant has not cited any cases holding that statements such as those challenged in his first issue constitute a statement that appellant is guilty. Nor has appellant cited any cases holding that such statements are impermissible. We conclude that the prosecutor=s statements were general in nature and did not constitute a statement that the prosecutor believed appellant was guilty. See Mendoza v. State, 552 S.W.2d 444, 446B47 (Tex. Crim. App. 1977) (holding general statement in voir direCAour staff, myself being one of its members, has the responsibility of seeing that the individuals who are guilty of criminal offenses are brought to trial, and hopefully brought to justice@Cwas not a statement that appellant was guilty). The prosecutor=s remarks were made before the jury was impaneled and evidence adduced. Furthermore, the record reveals that the prosecutor went on to clarify the presumption of innocence and the State=s burden of proof. See id. We conclude that the trial court did not err in overruling appellant=s objection that the prosecutor injected her personal opinion into the merits of the case. Accordingly, we overrule appellant=s first issue.
B. Did the trial court abuse its discretion in denying appellant=s motion for mistrial after Detective Magee referred to an Aincident@ with Kane?
In his second issue, appellant argues that the trial court erred in denying his motion for mistrial after Detective Magee, on direct examination, injected evidence of an extraneous offense allegedly committed against Kane.
A trial court=s denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A witness=s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). An exception exists where the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors= minds. Id. An instruction to disregard attempts to cure any harm or prejudice resulting from events that already have occurred. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). A mistrial is the trial court=s remedy for improper conduct that is Aso prejudicial that expenditure of further time and expense would be wasteful and futile.@ Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Id.
Appellant=s complaint is based on the following exchange:
[State]: After [Jane] gave her statement, what happened next?
[Detective Magee]: We set C [Jane] had made an allegation that she believes there was an incident with [Kane].
[Defense Counsel]: Objection, Your Honor. May I approach the bench?
(Jury out)
. . .
[Defense Counsel]: At this time, Your Honor, I would ask the Court to instruct the jury to disregard the last C
[Court]: I will be more than happy to.
[Defense Counsel]: And, Your Honor, rather than delay C
[Court]: Why change now?
[Defense Counsel]: C at that point, Your Honor, I want to request a mistrial.
[Court]: You will be allowed to do that in front of the jury, if you wish. You can do it now.
[Defense Counsel]: I would like to do it now. I just didn=t want to waive error, Your Honor.
[Court]: I understand. Denied.
[Defense Counsel]: All right, Judge. Thank you.
[Court]: Bring them in.
(Jury in)
[Court]: Ladies and gentlemen, you will not consider the last comment made by this witness. You are not to use it for any purpose in your deliberations and just erase it from your memory completely. Let=s continue.
[Defense Counsel]: At this time I will respectfully ask for a mistrial.
[Court]: Denied.
Outside the jury=s presence, Detective Magee explained that he thought he was prohibited from discussing any possible allegations of sexual abuse regarding Lane only and that he was under the impression that he was able to discuss any allegations regarding Kane. The State responded that Detective Magee had been told only to discuss allegations regarding Jane. The trial court then admonished Detective Magee that he was only to discuss offenses regarding Jane and that if Detective Magee testified further concerning Kane or Lane, the court would hold him in contempt.
Notably, the complained-of reference did not specify a prior bad act, but rather mentioned an Aincident@ with Kane. In addition, the trial court promptly and emphatically instructed the jury not to consider the comment for any purpose, and we presume the jury followed that instruction. The State never emphasized the comment or even mentioned it again. The comment did not reveal the nature of or any details about the incident. And, to the extent the jury formed the impression that the incident referred to an allegation of sexual abuse regarding Kane, the record does not show that the reference was clearly calculated to inflame the minds of the jury or that it was so inflammatory that it could not be cured with the court=s instruction to disregard. Therefore, the trial court did not abuse its discretion in denying appellant=s motion for a mistrial. See Simpson, 119 S.W.3d at 272B74. Accordingly, we overrule appellant=s second issue.
C. Did appellant preserve error as to his complaint that the trial court erred in allowing Detective Magee to testify that appellant invoked his right to counsel and refused to make a written statement?
In his third issue, appellant argues that the trial court erred by allowing Detective Magee to testify that appellant invoked his right to counsel during a police interview and refused to make a written statement.
Appellant filed a pretrial motion to suppress statements that asserted numerous theories[2] and concluded with a statement that Athe admission of statements by [appellant] is a violation of [appellant]=s rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article 1, Section 9, 10, and 19 of the Texas Constitution, and Articles 1.04, 1.05, 1.06, 14.01B14.04, and 38.23 of the Texas Code of Criminal Procedure, and Texas Family Code '' 51.091, 52.01, 52.015, 52.02, and 52.026.@ Before voir dire, defense counsel stated, AI have filed a pretrial motion to suppress oral and video statements including any and all law enforcement [sic] or related parties like CPS.@ The trial court did not rule on the motion to suppress at that time. Prior to Detective Magee=s testimony, the trial court heard arguments on the motion to suppress. Regarding the interview in question, appellant moved the trial court to suppress all of his oral statements to Detective Magee, stating:
. . . Your Honor it would basically be on Sixth Amendment grounds, that he had a lawyer present and requested his lawyer, Edwards v. United States, and also based on voluntariness in that the officer had in C that would be the officer had him come in, read the complaints or the allegations. My client was emotional and based on the Fifth and Fourteenth Amendments and Article 1, Section 13 and 19, Code of Criminal Procedure 1.04, I would argue that the statements were involuntary.
I would also argue, Your Honor, that statements [sic] violated the 38.22 [sic] Code of Criminal Procedure in that the oral statements were not reduced to writing. In that sense, that statute would prohibit the introduction of that oral statement in this case. And on those grounds, Your Honor, I would object to it.
In sum, appellant sought to exclude all oral statements from this police interview based on the following grounds: (1) appellant invoked his Sixth Amendment right to counsel; (2) appellant=s statements were involuntary; and (3) appellant=s statements are inadmissible under article 38.22 of the Code of Criminal Procedure because they were not reduced to writing.
As a prerequisite to presenting a complaint for appellate review, the complaining party must show that the complaint was made to the trial court, by a timely request, objection, or motion that stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1; Gutierrez v. State, 36 S.W.3d 509, 510B11 (Tex. Crim. App. 2001). There are two main purposes for requiring a timely, specific objection: (1) to inform the trial court of the basis of the objection and give the trial court the opportunity to make a ruling on it, and (2) to give opposing counsel the opportunity to take appropriate action to remove the objection or provide other testimony. Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 2004). By affording the trial court an opportunity to rule on an objection, the trial court is able to decide whether the evidence is admissible. Id. If the trial court decides the evidence is inadmissible, the jury is shielded from hearing it. Id.
In this case, the trial court ruled on appellant=s motion to suppress during trial. However, the motion was based on various theories and in arguing for suppression of the oral statement, defense counsel never objected that it was improper for Detective Magee to testify that appellant invoked his right to counsel and refused to give a written statement. In appellant=s motion to suppress the oral statement and in his arguments regarding it at trial, appellant did not voice the complaint that he now makes in his third issue on appeal, and this complaint was not apparent from the context. Therefore, the trial court did not have an opportunity to rule on this complaint. Because the complaint was not preserved, nothing is presented for our review. See Rezac v. State, 782 S.W.2d 869, 870B71 (Tex. Crim. App. 1990); Cooper v. State, 961 S.W.2d 222, 228 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). Accordingly, we overrule appellant=s third issue.
D. Did the trial court err in allowing Dr. Bailey to give expert opinions regarding Jane=s alleged vindictiveness and whether Melissa was coaching Jane?
In his fourth and fifth issues, appellant argues the trial court abused its discretion in allowing Jan Bailey, a psychotherapist, to testify that, in Dr. Bailey=s opinion: (1) Jane=s allegations were not the result of vindictiveness; and (2) Melissa (Jane=s mother) had not coached Jane. Appellant contends Dr. Bailey=s statements constitute an impermissible comment on the truthfulness of Jane=s allegations of sexual abuse by appellant.
We review the trial court=s decision to admit scientific expert testimony under an abuse-of-discretion standard. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).
In this case, appellant complains of the following exchanges:
[State]: Did you conclude, based on your interviews with [Jane], at any point that these allegations were arising out of some kind of vindictiveness on her part?
[Defense]: Objection. Speculation, Your Honor. Improper expert testimony.
[Court]: She may answer if she has an opinion based on her expertise and observation; otherwise she may not answer.
[Dr. Bailey]: No.
[State]: No, you did not feel it arose out of any vindictiveness on her part?
[Dr. Bailey]: That=s right.
[State]: Based on your interviews with [Jane], did it seem she was out to get her father in any way?
[Dr. Bailey]: Not at all.
. . .
[State]: Did you get the impression that [Melissa] was vindictive?
[Defense]: Objection, your Honor. That=s not relevant. That=s outside the scope of her expertise.
[Court]: Sustained.
[State]: Did you form the opinion that she was coaching [Jane]?
Defense: Objection. Same objection, Your Honor.
Court: Overruled.
[Dr. Bailey]: No.
[State]: You are not here to tell the jury that children never lie?
[Dr. Bailey]: No.
[State]: As far as sex abuse goes, are there certainly things you look for to determine whether or not you think the child might be lying?
[Dr. Bailey]: Typically you are going to see some pretty disturbing disorders in a child who is going to lie about it. You are going to see attachment disorder in a child with a long, long history of abuse and neglect and no attachment to people, no kind of conscience, and I mean C
[State]: Did you see any of those things in [Jane] to indicate she might not be telling the truth?
[Dr. Bailey]: No.
Whether a psychiatrist=s testimony crosses the line from offering permissible statements that would assist the jury in deciding the case to impermissibly telling the jury he thought the complainant was telling the truth is a close question. See Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). However, in this case we are not presented with that issue because appellant=s trial objection does not comport with the issue now raised on appeal. To preserve error as to the allegedly erroneous admission of evidence, one must properly object and present his complaint to the trial court. Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). At trial, appellant=s counsel objected to one question regarding vindictiveness on the basis of Aspeculation@ and Aimproper expert testimony.@ Appellant=s counsel also objected to a question regarding alleged coaching by Melissa on the basis that it was not relevant and that it was outside the scope of Dr. Bailey=s expertise. However, on appeal, appellant argues that Dr. Bailey invaded the jury=s province by improperly commenting on Jane=s truthfulness. See Schutz, 957 S.W.2d at 59B74. Appellant did not voice this objection in the trial court and the objections he made did not inform the trial court of the complaint he now makes on appeal. See Kipp v. State, 876 S.W.2d 330, 336 (Tex. Crim. App. 1994) (plurality op.) (stating appellant=s issue regarding an improper opinion on the credibility of complainant is different from the speculation objection made at trial); Uribe v. State, 2003 WL 1986975, at *2 (Tex. App.CHouston [14th Dist.] May 1, 2003, pet. ref=d) (not designated for publication) (holding appellant failed to preserve error as to his complaint under Shutz that expert improperly commented on complainant=s truthfulness because appellant objected in the trial court based on speculation rather than voicing his appellate complaint in the trial court). Because none of the objections appellant voiced at trial comport with his appellate issue, appellant has not preserved this issue for appellate review. See Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995).
Furthermore, presuming for the sake of argument that appellant had preserved error and that it was an abuse of discretion to allow such testimony, any such error would be harmless because the same evidence was admitted elsewhere in the record without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). As can be seen by the portion of the record quoted above, Dr. Bailey testified, without objection, that Jane was not acting out of vindictiveness and that Dr. Bailey did not see any of the factors that typically would indicate that an accuser might not be telling the truth. Therefore, even if the alleged error had been preserved, it would not be reversible error. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Accordingly, we overrule appellant=s fourth and fifth issues.
E. Did the trial court err in excluding testimony that appellant allegedly had Melissa committed to a drug treatment facility?
In his sixth issue, appellant contends the trial court abused its discretion in excluding evidence that Melissa allegedly had a problem in the past with prescription drugs and that appellant previously had Melissa committed to a drug treatment facility. On appeal, appellant argues that this exclusion of evidence violated his right to confront Melissa regarding a possible motive for her to coach Jane to falsely accuse him.
To preserve error for appellate review under Texas Rule of Appellate Procedure 33.1(a), the record must show that: (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial court either ruled on the request, objection, or motion (expressly or implicitly), or refused to rule and the complaining party objected to that refusal. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). A trial court=s grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review. Id. at 14B15. Error may not be predicated on a ruling excluding evidence unless the substance of the evidence was made known to the trial court by an offer of proof or bill of exceptions or was apparent from the context in which the questions were asked. Tex. R. Evid. 103(b); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is preserved for appellate review. Guidry, 9 S.W.3d at 153.
In this case, the trial court granted the State=s motion in limine that requested appellant approach the bench before introducing anything having to do with Melissa=s alleged prescription drug use, drug-use treatment, alcohol use, or similar matters. After the State rested, the following exchange occurred outside the presence of the jury:
[Defense]: Your Honor, I would ask the Court at this time if I could address the motion in limine by the State . . . . The Court asked me to approach the bench before I brought in things about Melissa, the mother of [Jane=s] [sic] background. I would like to do that with these witnesses.
[Court]: What kind of background?
[Defense]: She=s a drug addict or she has been a drug addict. She=s had problems with theft. The reason for that, Your Honor, is because her drug addictions and her problems with drugs contributes to the child=s state of mind in terms of being able to C well, to be rational. And, therefore, I would like C that child is confused and by the fact that the mother has got problems may have affected the child as well as the father=s drinking and the father=s extramarital affair.
Also, Your Honor, that appellant will provide testimony that one of the reasons, one of the problems he had with the children is that when he found out his wife was on drugs, he took her to rehab, attended rehab, came out of rehab and he assumed the budget, the household and the children, especially [Jane], became very resentful of the fact that he had to cut the purse strings. He was a little more rigid and a little more disciplined about that and that caused a problem.
[Court]: If you want to go into, I=ll allow you to go into that, that for some reason the child was resentful of him, but I have seen nothing C well, really, to me, makes sense as a reason to go into whether or not Melissa Ybarra had a drug problem at some point. You are not saying she was on drugs when she testified?
[Defense]: No, no. She may be treated by now.
[Court]: You are not saying she was on drugs when she when she [sic] observed the things that she testified about?
[Defense]: No, sir.
[Court]: Okay. No. I won=t.
[Defense]: Judge could I just have one more thing for the record? The expert who testified that in her opinion Melissa appeared to be a mother of caring nature, stable mother. It would go to that, impeaching the expert=s analysis and ability to make findings and I would relate that to her inadequacy in terms of C if she can=t properly assess Melissa, she can=t properly assess the victims, and that=s another reason I wanted to introduce that.
. . .
[Court]: No. No, sir. I will not let you C no, I do not agree with your assessment of that. I will not let you go into that. I feel that the prejudicial value far outweighs any probative value that may be stretched to C that we may stretch to reach under that evidence.
[Defense]: Can I just put something just for the record, my specific objections, just for the record?
[Court]: I thought you just did that.
[Defense]: I just wanted to cite the statutes, but just basically the Sixth Amendment and the Texas Constitution relating to the effective cross C effective representation of counsel and offering the defense due process, Your Honor.
[Court]: All right. My ruling is the same. Again, if things change, then that stuff C the evidence that you=re seeking to offer becomes relevant, I will certainly reconsider that. But as it stands right now, for the basis that it is proffered, I find that it is C the prejudicial value highly outweighs the probative value.
It is unclear whether appellant=s theory for the introduction of this evidence was the same in the trial court as it is on appeal. But, in any event, we conclude that appellant did not preserve error by making sure that the record reflected what the excluded testimony would have been. See Guidry, 9 S.W.3d at 153. In this case, appellant merely offered that one or more unnamed witnesses allegedly would testify that appellant, at some unspecified point in the past, had committed Melissa to a drug rehabilitation facility. Consequently, the record before us contains no evidence of what the excluded testimony would have been, much less what it would have shown. For example, in assessing the admissibility of this evidence, it would be important to know whether appellant allegedly had Melissa committed to a drug treatment facility one month before Melissa reported Jane=s allegations to the police or eleven years before this report. Because we have no way of determining when and under what circumstances appellant allegedly had Melissa committed, or anything else regarding the alleged commitment, it is impossible to properly review whether the trial court erred in excluding this evidence. See id. Accordingly, we overrule appellant=s sixth issue.
G. Did the trial court abuse its discretion by denying appellant=s request for a mistrial?
In his seventh issue, appellant complains that the trial court erred in denying his request for a mistrial when, during closing argument in the punishment phase of trial, the prosecutor asked jurors to imagine what appellant would do to their children. Appellant specifically contends that the State=s argument impermissibly asked the jurors to place themselves in the position of the victim.
A trial court=s denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Simpson, 119 S.W.3d at 272. A mistrial is the trial court=s remedy for improper conduct that is Aso prejudicial that expenditure of further time and expense would be wasteful and futile.@ Hawkins, 135 S.W.3d at 77. Only in extreme circumstances, when the prejudice is incurable, will a mistrial be required. Id.
The Mosley[3] factors, as tailored for punishment proceedings, should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated. See Hawkins, 135 S.W.3d at 77. Therefore, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures taken by the trial court, and (3) the certainty of the punishment assessed absent the misconduct, i.e., likelihood of the same punishment being assessed. Id.
In this case, appellant complains of the following exchange occurring during the punishment-phase summation:
[State:] Who knows what [appellant] would do if he didn=t have access to what he had access to living in his own home? Who knows? Who knows? If he can=t control himself around his own blood, what will he do to the cute 15-year-old next door? What will he do to your children or mine? What will he do?
[Defense:] Objection, Your Honor.
[State:] What will he do?
[Defense:] Improper argument in front of the jury.
[Court:] Sustained.
[State:] The defense asked you B
[Defense:] I=m sorry. May I have a ruling?
[Court:] Yes. Sustained.
[Defense:] At this time, Your Honor, we would ask the Court to instruct the jury to disregard.
[Court:] You will disregard the last statement by the prosecutor.
[Defense:] Request a mistrial.
[Court:] Denied.
A. Severity of the Misconduct
In Hawkins, the Court of Criminal Appeals noted that prejudice is clearly the touchstone of the first factor in the Mosley test and that it has equated Aseverity of misconduct@ with its prejudicial effect. See Hawkins, 135 S.W.3d at 77. In the instant case, although the prosecutor mentioned children of the jurors, her comment appears to have been intended as a plea for law enforcement. See Martinez v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000). Immediately before the objected-to comment, the prosecutor argued:
And just as this case is not solely about [appellant], it=s also not solely about [Jane]. It=s also about [Kane]. It=s also about [Lane]. It=s also about Melissa . . . More importantly, it=s also about justice. It=s also about what is right. And it=s also about the next victim who lives next door or down the street, that niece or nephew, that grandchild, that stranger.
As the State maintains on appeal, this argument was most likely a proper plea for law enforcement[4] in that defense counsel had declared appellant fit for probation because he was Anot a threat to anybody.@ See Tejerina v. State, 786 S.W.2d 508, 513 (Tex. App.CCorpus Christi 1990, pet. ref=d) (state=s comments that Athat=s just one packet of cocaine that one of your children didn=t get in this county@ was cured by an instruction to disregard because the State is allowed to argue to the jury that they may protect the community by assessing a lengthy prison sentence).[5] Moreover, contrary to the case appellant cites,[6] the State did not ask the jurors to place themselves in Jane=s shoes and mete out punishment accordingly.
B. Curative Measures
The second factor clearly weighs in favor of the State because the trial court promptly instructed the jury to disregard the prosecutor=s comment and the State did not pursue the argument.
C. Likelihood of the Same Punishment Being Assessed
During the punishment phase, all three of appellant=s daughters and Melissa testified. Jane, Kane, and Lane testified to appellant=s sexual abuse of them. Kane testified concerning appellant=s attempts to have her perform oral sex on him. Lane recounted an incident that she claimed occurred about four years before the trial. According to Lane=s testimony, she was sleeping in between her parents in their bed because she was having nightmares, and that appellant put his hand inside her pajama pants and touched her in her Apersonal spot.@ Lane stated that her mother (Melissa) woke up and appellant apologized and said he thought it was her mother he was touching. Jane testified about the effect appellant=s actions have had on her and how they likely will impact the rest of her life. Melissa testified and affirmed Kane=s and Lane=s testimony and described the effects of appellant=s actions on all of their lives.
Because the jury heard the testimony of all three daughters and the mother and assessed punishment near the low end of the punishment range, it is unlikely that appellant=s punishment was the result of the jury=s abandonment of its objectivity . It is likely that the same punishment would have been assessed with or without the prosecutor=s comment.
After balancing the above three factors, we conclude that the trial court did not abuse its discretion in denying appellant=s request for a mistrial. Accordingly, we overrule appellant=s seventh issue.
H. Does the cumulative effect of the trial court=s errors require reversal?
In his eighth issue, appellant urges that the cumulative effect of the trial court=s errors requires reversal. Presuming that a number of errors may be found harmful in their cumulative effect and looking only at the appellate issues for which appellant has preserved error in the trial court, we conclude that appellant has not shown cumulative error. See Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002) (holding appellant had not shown cumulative error). Accordingly, we overrule appellant=s eighth issue.
Having overruled all of appellant=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed October 28, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] For purposes of this opinion, we have adopted Jane, Kane, and Lane as pseudonyms.
[2] The various theories included (1) at the time of appellant=s conversations he was either under arrest or substantially deprived of freedom by the conduct of law enforcement; (2) any statements were involuntary and were coerced and enticed; (3) appellant was deprived of the right to counsel and did not make a knowing and intelligent waiver of that right; (4) the statements were tainted by the allegedly illegal and unlawful detention and arrest; and (5) the statements allegedly were taken without the safeguards and in violation of Article 38.22 of the Code of Criminal Procedure.
[3] Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
[4] A proper jury argument must fit in one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry, 9 S.W.3d at 154.
[5] See also Fields v. State, 2003 WL 22928466, at *2B3 (Tex. App.CTexarkana Dec. 12, 2003, pet. ref=d) (not designated for publication) (stating that prosecutor=s comment asking jurors to protect their children as well as the rest of the community from the appellant was, in context, a proper plea for law enforcement).
[6] Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.CHouston [1st Dist.] 1985, no pet.).