Opinion filed October 21, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                       Nos. 11-09-00014-CR & 11-09-00015-CR
                                     __________

                             RICKEY DALBERT, Appellant

                                                V.

                                 STATE OF TEXAS, Appellee



                           On Appeal from the 244th District Court

                                      Ector County, Texas

                         Trial Court Cause Nos. C-32,352 & C-32,353


                            MEMORANDUM OPINION

       Rickey Dalbert pled guilty to aggravated kidnapping and aggravated robbery. The jury
assessed his punishment at confinement for life in both cases. We affirm.
                                      I. Background Facts
      Dalbert was indicted for aggravated kidnapping and aggravated robbery.                   On
September 14, 2005, the trial court determined that he was incompetent to stand trial and
committed him to the state hospital. The State contends that the trial court received a report from
Dr. Robert Strayhan, a psychiatrist, on January 26, 2006, indicating that Dalbert was competent.
The State, however, does not offer a record reference in support of this contention, and we have
found nothing in the record indicating that Dr. Strayhan’s report was ever presented to the trial
court in 2006. We assume, therefore, that it was not.
       On February 22, 2006, Dalbert’s counsel filed a motion to suppress any in-court
identification. The trial court conducted an evidentiary hearing and denied the suppression
motion on April 12, 2006. On May 12, 2006, the trial court again determined that Dalbert was
incompetent.    Thereafter, by correspondence dated November 14, 2006, Dr. Gail Johnson
reported to the trial court that Dalbert was now competent to stand trial. Dalbert objected to a
determination of his competency by the trial court, and he requested a jury trial.       A jury
subsequently found that Dalbert was competent to stand trial.
       Dalbert proceeded to trial before a new jury on the two indictments. He pleaded guilty to
both charges and true to the State’s enhancement allegation. The jury assessed his punishment at
confinement for life on both charges.
                                              II. Issues
       Dalbert challenges the trial court’s judgment with two issues. He contends first, that the
trial court erred by holding a hearing on his motion to suppress before a jury found that he was
competent to stand trial and second, that the trial court erred by denying his objection to a
sidebar remark made by the prosecution during jury selection.
                                        III. Motion to Suppress
       Dalbert moved to suppress any in-court identification evidence, contending that this
testimony was tainted by a suggestive photo lineup. The trial court held an evidentiary hearing,
and Dalbert’s counsel announced ready. Counsel did not object to proceeding on his motion, and
there is no discussion in the record of the competency proceedings. Dalbert argues now that the
trial court erred by conducting the hearing because it occurred before he had been found
competent to stand trial by the jury.
       We need not determine if the trial court erred by considering a motion that Dalbert’s
counsel filed prior to a competency finding because a defendant may not create error on appeal
through an action he induced. Vennus v. State, 282 S.W.3d 70, 74 (Tex. Crim. App. 2009).




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                                        IV. Sidebar Remark
       During voir dire, while the State was questioning venire members about the meaning of
the phrase “proof beyond a reasonable doubt,” Dalbert objected, saying:
                Judge, that statement there is -- excuse me, Mr. Bruce, may I make an
       objection? This is an attempt by Mr. Bruce to define the undefinable and I object
       to it, there is no definition lawfully under Texas law for beyond a reasonable
       doubt and all this stuff about what the law says and what it doesn’t say is not part
       of the law. The law is that the charge to the jury is they make a finding of guilty
       beyond a reasonable doubt and that is the law and only the law.

Before the court could rule, the prosecutor responded to defense counsel by saying, “Good for
you.” Dalbert objected to the sidebar remark and asked for a mistrial. The trial court excused
the venire panel, unambiguously instructed the prosecutor that his comment was out of line and
that there would be no more sidebar remarks, and told both counsel that any further bickering
between them in the presence of the jury would result in fines. The trial court then considered
and ruled upon the original objection to the State’s burden of proof question, denied Dalbert’s
motion for mistrial, and brought the venire panel back into the courtroom and resumed jury
selection.
       Dalbert argues that he was harmed by the State’s sidebar remark. We assume that
Dalbert’s contention is that the trial court erred by denying his motion for mistrial. We review
the denial of a motion for mistrial under an abuse of discretion standard. Hawkins v. State, 135
S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Under this standard, an appellate court must uphold
the trial court’s ruling as long as it is within the zone of reasonable disagreement. Wead v. State,
129 S.W.3d 126, 129 (Tex. Crim. App. 2004). In making its determination as to whether to grant
a mistrial, the trial court determines whether the improper conduct is so harmful that the case
must be redone. Hawkins, 135 S.W.3d at 76-77. Only in extreme circumstances, where the
prejudice is incurable, will a mistrial be required. Id.
       The State does not defend the propriety of the prosecutor’s comment, noting that it was
sarcastic and inappropriate. The State contends, instead, that it was not harmful. We agree with
the State on both counts. Dalbert correctly notes that the State may not strike at a defendant over
the shoulders of his counsel or accuse defense counsel of bad faith or insincerity. See Fuentes v.
State, 664 S.W.2d 333 (Tex. Crim. App. 1984). For example, a prosecutor is said to strike at a
defendant over counsel’s shoulders by accusing defense counsel of “manufacturing evidence,”


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being paid to get the defendant “off the hook,” or putting on witnesses who are known to be
lying. Gomez v. State, 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985); Bell v. State, 614
S.W.2d 122, 123 (Tex. Crim. App. 1981).
         The prosecutor’s sarcastic remark did not rise to this level. It did not, for example,
accuse counsel of subversive or fraudulent conduct. The trial court acted appropriately when it
immediately excused the panel, dressed down both counsel for their conduct, and warned each of
the consequence of further misbehavior. When the panel returned, Dalbert did not request a jury
instruction or other curative measure. Given the briefness of the event, Dalbert’s guilty pleas, his
significant prior criminal background,1 and the victim’s injuries,2 the prosecutor’s sidebar remark
was not harmful. Issue two is overruled.
                                                      V. Conclusion
         The judgments of the trial court are affirmed.




                                                                     RICK STRANGE
                                                                     JUSTICE


October 21, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




           1
             Dalbert had previous convictions for aggravated assault with a deadly weapon, assault-family violence, and burglary
of a building.
          2
            The victim was beaten and suffered significant, life-threatening injuries. Because of brain swelling, she was sedated
and was placed on a respirator for several days. The incident occurred in January 2005. Trial was in November 2008. The
victim had not fully recovered from her injuries at the time of trial.

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