IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE TENTH COURT OF APPEALS
NAVARRO COUNTY
O P I N I O N
Appellant filed a motion in limine, and the court held a pretrial hearing, during which the State agreed to not offer evidence of extraneous offenses without approaching the bench and obtaining a ruling. Instead of honoring that agreement, two of the State's witnesses testified regarding extraneous offenses. When certain prohibited testimony was given by the witnesses, the judge excused the jury and cautioned the State for violating the court's rulings and instructions. The judge asked the parties what he should do, and Appellant requested a mistrial.
In Young, we discussed the purpose of specific objections as affording the trial judge an opportunity to rule on the issue and providing the other party time to remove objectionable evidence and to present proper testimony. We also quoted Saldano, stating that objections promote the prevention of errors. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004), citing Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) and Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002). We went on to say that "an objection serves as a preemptive measure. Because it informs the judge and opposing counsel of the potential for error, an objection conserves judicial resources by prompting the prevention of foreseeable, harmful events." Young, 137 S.W.3d at 69. I agree that an objection can serve these purposes; however, so can a pretrial motion in limine, which Appellant filed in this case. A pretrial motion in limine is a preemptive measure which prevents foreseeable, harmful events even more effectively than a timely objection after a violation. The motion in limine allowed the judge to rule on the issue, provided notice to the State about what evidence and testimony would violate the trial court's instructions, and should have prevented erroneous testimony. Appellant filed the motion to prevent the inadmissable, objectionable testimony from being elicited by the State. The motion for mistrial was the proper corrective measure in this case because the harm that occurred when the witnesses violated the court's instructions was not curable.
When witness testimony repeatedly violates pretrial rulings and the court's instructions, the defendant is entitled to request a mistrial. Under the circumstances in this case, Appellant's motion for mistrial was timely, and preserved error because objecting after the improper testimony could not fulfill the purpose of the objection, which is to prevent the jury from hearing the inadmissible evidence. See Young, 137 S.W.3d at 70.
As for whether the motion should have been granted, the witnesses' testimony was so bad that the trial judge took it upon himself to excuse the jury and inform the parties that "the conduct of the witnesses has jeopardized this case to a large extent." This is all that was required to preserve the right to request a mistrial. The court of appeals properly focused on the prejudice to the defendant resulting from the improper testimony. The court stated:
The testimony was not only heard by the jury but was repeated by two State's witnesses, one of whom was the investigating officer in the case. Furthermore, the testimony was given in violation of the court's earlier ruling. Afterward, the trial judge himself expressed concern that the testimony of the witnesses had jeopardized the trial. The impression produced in the minds of the jurors--that Griggs might be a serial rapist of elderly women--was highly prejudicial and could not be cured by an instruction to disregard. Given the lack of direct identification of the perpetrator of the crime charged, and because the prosecution relied heavily upon Griggs's alleged admissions to his fellow inmates, the danger that the jury may have been swayed by the inadmissible testimony was particularly high. Under these circumstances, the trial court abused its discretion in denying Griggs's motion for mistrial.
Griggs, 167 S.W.3d 74, 79 (Tex. App-Waco 2005). The court of appeals got it right in this case. Therefore, I respectfully dissent.
Meyers, J.
Filed: January 31, 2007
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