Affirmed and Majority and Concurring Opinions filed February 24, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-01021-CR
                              NO. 14-13-01022-CR



                       PAUL A. CRAYTON, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 212th District Court
                           Galveston County, Texas
               Trial Court Cause Nos. 11-CR-2593; 11-CR-2594


                   MAJORITY OPINION
      In this appeal of convictions for murder and aggravated assault with a deadly
weapon, we must assess whether the trial court abused its discretion in denying a
defendant’s motions for mistrial.    We also determine whether a trial court’s
limiting instruction on evidence of an extraneous offense constituted an improper
comment on the weight of the evidence. We affirm.
                    I.    FACTUAL AND PROCEDURAL BACKGROUND

       Appellant Paul A. Crayton shot complainant James Martin several times in
the parking lot of the Bourbon Street Bar. Appellant then re-entered the bar.
Complainant Derrick Yell ran to the restroom and barricaded himself against the
door. Appellant tried, but failed to push the door open and so resorted to firing
shots through the door. Appellant then fled. On the way out of the bar, appellant
fired additional shots at Martin, who lay wounded on the ground. Martin died.

       Appellant was indicted for Martin’s murder and for the aggravated assault
with a deadly weapon of Yell. Appellant pleaded “not guilty” to each charge.

       At trial by jury, appellant admitted to the conduct, but claimed he acted in
self-defense. Appellant testified that he had conversations with Martin and Yell on
two occasions before the incident at the Bourbon Street Bar.           According to
appellant, in the first conversation, Martin accused appellant of lying; in the second
conversation, Martin accused appellant of threatening to harm Martin or one of
Martin’s family members and Martin threatened to retaliate. Appellant testified
that when he arrived at Bourbon Street Bar, he saw Martin and Yell whispering to
each other and appellant thought that Martin and Yell looked like they were going
to harm him. Appellant testified that outside the bar, Martin pulled a gun and
appellant shot him. According to appellant, appellant went back into the bar
because he knew that Yell would harm him.           On the way out, according to
appellant, Martin was still fumbling with his gun and so appellant shot him as
appellant left.

       Yell testified that he had encountered appellant before the incident at
Bourbon Street Bar and on that previous occasion appellant had stated that he
thought Martin and Yell had “snitched” on him and informed federal authorities
that appellant had committed crimes related to drug use and distribution. A patron
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of the bar who had known appellant since appellant was a child and who had
purchased appellant a beer that evening, testified that appellant informed him that
some individuals in that bar were going to die that evening. After the shooting,
appellant evaded authorities for months. When appellant was finally arrested, he
immediately stated to the arresting officer, “You finally got me.”

      The jury found appellant guilty of both murder and aggravated assault with a
deadly weapon. The jury assessed punishment at seventy-five years’ confinement
for the murder charge and twenty years’ confinement for aggravated assault with a
deadly weapon. Appellant filed a motion for new trial. It was denied.

                                II.    ISSUES AND ANALYSIS

      A. Prosecutor’s Comments During Closing Argument

      Construing appellant’s brief liberally, we discern that appellant is asserting
in his first issue that the trial court erred in denying his motion for mistrial after the
prosecutor commented on appellant’s right to remain silent and in denying
appellant’s motion to instruct the jury to disregard a second comment made by the
prosecutor relating to appellant’s right to remain silent.

      1. Prosecutor’s Comment on Appellant’s Right to Remain Silent

      Appellant argues that the trial court erred in denying his motion for mistrial
after the prosecutor commented on appellant’s right to remain silent. Appellant
objected to two different comments made by the prosecutor during closing
argument. In the first, the prosecutor asked: “At that point, does [appellant] go to
the police and say, ‘Hey, sorry, I did this in self-defense?’ [Appellant] goes lam
for over three months and when Officer Fowler arrests him, all he says is, ‘You got
me.’” Appellant objected and the trial court sustained the objection and instructed
the jury to disregard the prosecutor’s statement. The trial court denied appellant’s

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motion for mistrial.

      We presume for the sake of argument that the prosecutor’s statement was an
improper comment on appellant’s right to remain silent. The trial court sustained
the objection to the first comment, gave the jury an instruction to disregard, and
denied appellant’s motion for mistrial. We review a trial court’s denial of a motion
for mistrial under the abuse-of-discretion standard. See Ocon v. State, 284 S.W.3d
880, 884 (Tex. Crim. App. 2009). Under this standard, we view the evidence in
the light most favorable to the trial court’s ruling and uphold the ruling if it falls
within the zone of reasonable disagreement. Id. A mistrial is a remedy intended
for extreme circumstances, when prejudice is incurable and less drastic alternatives
have been explored. See id. In determining whether a prejudicial event was so
harmful as to warrant reversal on appeal, we consider the prejudicial effect, any
curative measures taken, and the certainty of conviction absent the prejudicial
event. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
Generally, a prompt instruction to disregard by the trial court will cure error
associated with improper closing argument, unless it appears the argument was so
clearly calculated to inflame the minds of the jury or is of such a damning
character as to suggest it would be impossible to remove the harmful impression
from the juror’s minds. See Logan v. State, 698 S.W.2d 680, 683–84 (Tex. Crim.
App. 1985).
      The prosecutor’s statement refers primarily to appellant’s pre-arrest silence
and his immediate spontaneous statement upon arrest, which was made before any
Miranda warnings. Commentary on appellant’s pre-arrest and post-arrest, pre-
Miranda silence is permissible. Salinas v. State, 369 S.W.3d 176, 178–79 (Tex.
Crim. App. 2012). To the extent the prosecutor argued that appellant made no
further statement after arrest, the prosecutor’s statement was brief and


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insignificant. See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). In
addition, the trial court took a curative measure in instructing the jury to disregard
the prosecutor’s comment. See Coble v. State, 330 S.W.3d 253, 292–93 (Tex.
Crim. App. 2010). Regarding the certainty of conviction absent the prosecutor’s
comment, the State presented overwhelming evidence that appellant did not act in
self-defense. There was evidence that upon entering the bar, appellant informed a
patron that two individuals would die that night. There was no evidence that
Martin fired any shots at appellant. After shooting Martin, appellant entered the bar
and pursued Yell, who had secured himself in the restroom in an attempt to protect
himself from appellant, and after failing to hit Yell with his gunshots, appellant
fired additional shots at Martin, who remained on the ground in the location where
appellant shot him the first time. We conclude that the prosecutor’s comment did
not rise to the level of an “extreme circumstance” that was “incurable.” See Ocon,
284 S.W.3d at 884. Under the circumstances presented, we conclude that any
potential prejudice associated with the prosecutor’s statements was cured by the
trial court’s instructions to disregard. See Logan, 698 S.W.2d at 683–84. The trial
court did not abuse its discretion in denying appellant’s motion for mistrial after
the prosecutor’s first comment. See id.

          2. Prosecutor’s Comment Alleged to Have Offended Appellant’s Right
             Against Self-Incrimination

          During a later portion of closing argument, the prosecutor said: “Just
because [appellant] said it’s self-defense absolutely, positively, does not mean that
it’s even true. That’s just what he is saying now.” The trial court sustained
appellant’s objection, but denied appellant’s request for an instruction for the jury
to disregard the statement. 1

1
    We liberally construe appellant’s argument as a contention that the trial court erred in failing to
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       We presume for the sake of argument that the prosecutor’s comment was an
improper jury argument that offended appellant’s privilege against self-
incrimination and that the trial court erred in denying appellant’s request for an
instruction for the jury to disregard the statement.              Because we presume for
purposes of analysis that the prosecutor’s comment violated appellant’s privilege
against self-incrimination, we presume the error was of a constitutional magnitude
and conduct our assessment of harm using the standard set forth in Texas Rule of
Appellate Procedure 44.2(a). See Wyborny v. State, 209 S.W.3d 285, 292 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d.). Under the latter presumption, we
must reverse appellant’s conviction unless we determine beyond a reasonable
doubt that the presumed error did not contribute to appellant’s conviction. Tex. R.
App. P. 44.2(a). A constitutional error does not contribute to the conviction if the
verdict “‘would have been the same absent the error.’” See Clay v. State, 240
S.W.3d 895, 904 (Tex. Crim. App. 2007) (quoting Neder v. United States, 527 U.S.
1, 17, 119 S.Ct. 1827, 1837, 144 L.Ed.2d 35 (1999)). As a reviewing court, we
must calculate as nearly as possible the probable impact of the error on the jury in
light of the record as a whole. See Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim.
App. 2006); Zakkizadeh v. State, 920 S.W.2d 337, 341 (Tex. App.—Houston [1st
Dist.] 1995, no pet.). We consider such factors as the nature of the error, whether
the State emphasized the error, the probable implications of the error, and the
weight the jury likely would have assigned to the error in the course of its
deliberations. See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
The trial court’s error is not harmless beyond a reasonable doubt if there is a
reasonable likelihood that the error materially affected the jury’s deliberations. See

instruct the jury to disregard the prosecutor’s comments. To the extent appellant argues that the
trial court erred in denying his motion for mistrial, this argument is not preserved for appellate
review because appellant did not move for a mistrial regarding this statement. See Tex. R. App.
P. 33.1(a).

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Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008).

      Based upon our review of the record, we conclude beyond a reasonable
doubt that any error by the trial court did not contribute to appellant’s conviction.
As noted, the State presented overwhelming evidence that appellant did not act in
self-defense. In addition to the evidence of appellant’s actions in the bar on the
night of the shootings, the State properly presented evidence that appellant evaded
law enforcement officials for months. To the extent the State’s additional brief
statement that self-defense was “just what [the appellant was] saying now” is a
comment on appellant’s failure to tell police officers that he acted in self-defense,
the comment was brief and its impact was minimal, particularly when considered
in light of the other evidence before the jury, including evidence that appellant
evaded law enforcement officials. We conclude beyond a reasonable doubt that
the prosecutor’s statement did not contribute to appellant’s conviction and that the
trial court’s failure to instruct the jury to disregard the prosecutor’s comment on
appellant’s post-arrest silence was harmless. See Crocker, 248 S.W.3d at 307.
Accordingly, appellant’s first issue is overruled.

      B. Pre-trial Newspaper Article

      In his second issue, appellant asserts that he was denied his Sixth
Amendment right to an impartial jury because the jurors’ impartiality was
compromised by an article in the local newspaper that described evidence which
had been suppressed.       Appellant asserts that the pre-trial publicity was so
substantial and prejudicial that it raised a presumption the jurors were biased and
“there is no way” appellant could have received a fair trial after the “damaging
facts” were known to the jury.

      Appellant does not assert how he preserved error as to his second issue in
the trial court. Appellant did not move for a transfer of venue, and appellant does
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not assert on appeal that the trial court erred in failing to transfer venue. See Tex.
Code Crim. Proc. Ann. art. 31.01, et seq. (West, Westlaw through 2013 3d C.S.)
(providing procedures for transferring venue of a criminal case under various
circumstances relating to the inability to obtain a fair and impartial trial in the
county in which the prosecution was instituted). Our review of the record reveals
that, shortly after voir dire began, appellant moved for a mistrial and asserted that
the newspaper article was so prejudicial that appellant could not receive a fair trial.
Later during voir dire, appellant moved for a mistrial based on statements made by
a venire member regarding the newspaper article. We find no other place in the
record in which appellant preserved error in the trial court as to complaints
regarding pretrial publicity or the newspaper article.       To the extent appellant
asserts appellate complaints regarding pretrial publicity or the newspaper article
beyond the complaints raised in the two motions for mistrial, appellant failed to
preserve error in the trial court regarding these complaints. See Tex. R. App. P.
33.1(a); Austin v. State, 222 S.W.3d 801, 811 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d) (holding appellant failed to preserve error as to a complaint
regarding an alleged violation of the Confrontation Clause of the Sixth
Amendment of the United States Constitution). We now address whether the trial
court erred in denying these two motions.

      We review a trial court’s denial of a mistrial for an abuse of discretion.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is a device
used to halt trial proceedings when error is so prejudicial that expenditure of
further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d
547, 567 (Tex. Crim. App. 1999). Because a mistrial is an extreme remedy, a
mistrial should be granted only when prejudice is incurable and less drastic
alternatives have been exhausted. See Ocon, 284 S.W.3d at 884. In determining


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whether a prejudicial event was so harmful as to warrant reversal on appeal, we
consider the prejudicial effect, any curative measures taken, and the certainty of
conviction absent the prejudicial event. See Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004). When a party requesting a mistrial does not first seek a
lesser remedy, a reviewing court cannot reverse the trial court's judgment if the
alleged error could have been cured by a less drastic alternative. Ocon v. State, 284
S.W.3d 880, 884–85 (Tex. Crim. App. 2009).

      1. Appellant’s First Motion for Mistrial

      Before the jury trial, appellant filed motions to suppress evidence. During
the suppression hearing, the State incorrectly represented to the trial court that one
of the items of evidence that appellant sought to have suppressed was a “kill list”
with Martin’s name crossed out. The trial court granted appellant’s motion to
suppress the evidence. The next morning, the State informed the trial court that
contrary to the statements the prosecutor had made the day before, there was no
line scratched through Martin’s name.         An article on the front page of the
Galveston Daily News that day contained a description of the previous day’s
hearing, including all of the evidence that was presented and suppressed. The
newspaper reporter noted in the article that the notebook contained a list with
Martin’s name scratched through.

      Before voir dire examination of the venire members had begun, appellant
informed the trial court of the newspaper article. Shortly after voir dire began and
before any reference to the newspaper article had been made before the venire
members, appellant moved for a mistrial, asserting the article was so prejudicial
that appellant could not receive a fair trial. The trial court denied the motion for
mistrial.

      In this first motion for mistrial, appellant focused on the existence of a
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newspaper article rather than anything that occurred during the course of
questioning the venire panel. Appellant moved for a mistrial based his alleged
inability to receive a fair trial before counsel had queried the venire members to
determine whether any of them had even read the newspaper article. If the trial
court had granted a mistrial, it would have dismissed this venire panel and began
another voir dire with a different panel of venire members from Galveston County.
At the time appellant moved for mistrial, there was no evidence that any venire
member had read the article, let alone been influenced by its contents. We cannot
conclude, based on the evidence before the trial court, that the trial court abused its
discretion in denying this motion for mistrial. See Ocon, 284 S.W.3d at 885.

      2. Appellant’s Second Motion for Mistrial

      Before the attorneys began their voir dire examination, the trial court
informed the venire members that an article had appeared in the newspaper
describing a hearing that occurred, but that both attorneys agreed the information
in the article was inaccurate. The trial court explained that the reporter was present
at the hearing only briefly, saw only part of the hearing, left, and then later the
attorneys approached the judge to inform him that they were mistaken about some
of the representations they made at the hearing. The trial court then explained to
the venire members that the attorneys would ask them if they would be able to put
aside the information in the newspaper article. Several venire members stated that
they had read the article and their minds were made up or were leaning in one
direction. A few stated that the article was not compelling. While counsel was
questioning the venire members regarding the newspaper article, the following
exchange occurred:

      [Venire member]: The newspaper generally gets it all wrong. I still
      have a problem. You have to do a really good job, whoever is
      protecting him, before I would change my mind.
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      [Counsel]: Okay. Hang on. Because I was kind of, a little bit of both.
      Newspapers get a lot of stuff wrong?
      [Venire member]: A lot of stuff wrong.
      [Counsel]: My question is: Would you be able to - - 33.
      [Venire member]: There you go.
      [Counsel]: I can read it upside down.
      [Venire member]: Whoever is taking care of that man has to do a
      good job to turn my mind around, from what I read.
After this exchange, appellant’s counsel approached the bench and moved for a
mistrial based upon the statements made by the venire member. The trial court
denied the motion.
      Appellant did not request that the trial court instruct the panel to disregard
the responses given by the venire member. See Unkart v. State, 400 S.W.3d 94,
102 (Tex. Crim. App. 2013) (noting that a timely instruction to disregard statement
during voir dire would have cured any error); Young v. State, 137 S.W.3d 65, 71
(Tex. Crim. App. 2004) (concluding that a timely instruction to disregard statement
by venire member during voir dire would have cured any prejudice). Generally, a
prompt instruction to disregard by the trial court will cure error associated with
improper statements during voir dire, unless it appears the statements were so
clearly calculated to inflame the minds of the venire members or are of such a
damning character as to suggest it would be impossible to remove the harmful
impression from the minds of the venire members. See Logan v. State, 698 S.W.2d
680, 683–84 (Tex. Crim. App. 1985). The statement by the juror did not rise to the
level of an “extreme circumstance” that was “incurable.” See Ocon, 284 S.W.3d at
884. Under the circumstances presented, we conclude that any potential prejudice
associated with these statements could have been cured by a prompt instruction to
disregard. See Logan, 698 S.W.2d at 683–84. The trial court did not abuse its
discretion in denying appellant’s motion for mistrial. See id. Accordingly, we

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overrule appellant's second issue.

       C. Extraneous-Offense Instruction

       In his third issue, appellant argues that the trial court erred in including an
extraneous-offense instruction in the jury charge because the instruction
constituted a comment by the trial court judge on the weight of the evidence. A
trial court may not submit a charge that comments on the weight of the evidence.
Tex. Code Crim. Proc. Ann. art. 36.14 (West, Westlaw through 2013 3d C.S.). A
charge falls into that category if the charge assumes the truth of a controverted
issue or directs undue attention to particular evidence. See Lacaze v. State, 346
S.W.3d 113, 118 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).                 In
determining whether the charge improperly comments on the weight of the
evidence, we consider the court’s charge as a whole and the evidence presented at
trial. See id.

       Evidence was admitted that appellant believed the deceased “snitched” on
him to federal authorities. The trial court included the following jury instruction in
the charge:

       You are instructed that if there is any testimony before you in this
       case regarding the Defendant’s having committed offenses other than
       the offense alleged against him in the indictment in this case, you
       cannot consider said testimony for any purpose unless you find and
       believe beyond a reasonable doubt that the Defendant committed such
       other offenses, if any were committed, and even then you may only
       consider the same in determining the motive, if any, in connection
       with the offense, if any, alleged against him in the indictment in this
       case, and for no other purpose.
       The instruction is not a comment upon the weight of the evidence. On the
contrary, the instruction advises the jury that if there is testimony that the accused
committed an extraneous offense, the jury cannot consider that testimony for any

                                          12
purpose unless the jury finds beyond a reasonable doubt that the defendant
committed the extraneous offense, if any. Even then, the trial court instructs that
the jury may consider the extraneous offense only in determining motive, if any, in
connection with the charged offense, if any. In this instruction, the trial court did
not assume the truth of a controverted issue or direct undue attention to particular
evidence. This instruction did not constitute a comment on the weight of the
evidence. See Fair v. State, 465 S.W.2d 753, 754–55 (Tex. Crim. App. 1971);
Brooks v. State, 580 S.W.2d 825, 833 (Tex. Crim. App. [Panel Op.] 1979); Smith
v. State, 959 S.W.2d 1, 27 (Tex. App.—Waco 1997, pet. ref’d). Accordingly, we
overrule appellant’s third issue.




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                                     III.         CONCLUSION

      The trial court did not abuse its discretion in denying appellant’s motion for
mistrial based on the prosecutor’s comment during closing argument. Any error in
the trial court’s denial of appellant’s request for an instruction to disregard the
second challenged statement during closing argument was harmless beyond a
reasonable doubt. The trial court did not abuse its discretion in denying appellant’s
two motions for mistrial during voir dire regarding the newspaper article. The
extraneous-offense instruction in the jury charge did not constitute a comment on
the weight of the evidence, and the trial court did not err in submitting this
instruction.

      The judgment of the trial court is affirmed.




                                            /s/     Kem Thompson Frost
                                                    Chief Justice


Panel consists of Chief Justice Frost, Justices Christopher and Busby (Christopher,
J., concurring).
Publish — TEX. R. APP. P. 47.2(b).




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