             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00109-CR
     ___________________________

   WILLIAM PAUL WEST, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 415th District Court
          Parker County, Texas
       Trial Court No. CR16-0789


     Before Kerr, Birdwell, Bassel, JJ.
   Memorandum Opinion by Justice Kerr
                          MEMORANDUM OPINION

      A jury convicted appellant William Paul West for driving while intoxicated, his

third such offense and thus a felony. See Tex. Penal Code Ann. § 49.09(b)(2).

      West’s appeal stems from a trial exchange between the prosecutor and a

witness, during which the prosecutor described an exhibit as having been edited for

“inadmissible” material. Specifically, West complains about this sequence:

      [PROSECUTOR]: Trooper, I’m handing you what’s marked as State’s
      Exhibit 3. It’s a CD.

      [THE WITNESS]: Yes, sir.

      [PROSECUTOR]: Have you observed the contents of that CD?

      [WITNESS]: Yes, sir.

      [PROSECUTOR]: Do you believe that fairly and accurately represents
      your observations that evening?

      [THE WITNESS]: Yes, sir.

      [PROSECUTOR]: Other than the agreed-upon edits by defense counsel
      and counsel for the State of inadmissible1 material, has that been edited in
      any way to your knowledge? [Emphasis added.]

      [THE WITNESS]: No, sir.

      [PROSECUTOR]: Your Honor, I move to submit State’s Exhibit No.
      3 into evidence.

      1
       It is uncertain what the prosecutor meant by “inadmissible” material in this
instance. The CD video in question contains arrest footage from the witness’s patrol-
car dashcam. Audio was redacted from some video sequences to exclude references to
West’s prior DWI convictions. Even so, West grounds his appeal on the prosecutor’s
using the word “inadmissible” and not on the prosecutor’s revealing actual
inadmissible material to the jury.


                                           2
       [DEFENSE COUNSEL]: Judge, can we approach?

       (Conference at the bench.)

       [DEFENSE COUNSEL]: I don’t know why he just said that there’s
       been redactions to this video of evidence that’s not admissible. I mean,
       that’s very prejudicial.

       The judge then excused the jury, and the parties conferenced further. Defense

counsel then formally objected to the prosecutor’s question, specifically his using the

word “inadmissible.” Defense counsel requested the trial court to instruct the jury to

disregard and moved for a mistrial on the ground that the question, as worded, was

prejudicial because it suggested to the jury that the parties had manipulated the

evidence. The trial court denied the motion but instructed the jury to disregard any

statement made by the prosecutor concerning “admissibility” because that would be a

legal issue for the court. West now appeals the denial of his motion for a mistrial.

                                  Standard of Review

       When a trial court denies a mistrial motion, our review is for an abuse of

discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). “A mistrial is an

appropriate remedy in ‘extreme circumstances’ for a narrow class of highly prejudicial

and incurable errors.” Id. (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004)). We consider the arguments before the trial court when it denied the motion,

and we view all evidence in the light most favorable to that ruling. See id. A trial court

abuses its discretion if its ruling falls ouside the zone of reasonable disagreement. Id.




                                             3
                                      Discussion

      Assuming that the prosecutor’s question was improper, we examine whether it

was harmful. See Hawkins, 135 S.W.3d at 77 (stating that whether a trial court abuses

its discretion in denying a mistrial involves most, if not all, of the same considerations

that attend a harm analysis). Both the Texas Court of Criminal Appeals and our court

apply the three-factor harmless-error test to determine whether a trial court abused its

discretion in denying a motion for mistrial due to prosecutorial misconduct,

examining (1) the severity of misconduct, (2) any curative measures, and (3) the

certainty of the conviction. See, e.g., Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim.

App. 2007) (addressing improper argument); Ramon v. State, 159 S.W.3d 927, 929–

32 (Tex. Crim. App. 2004) (involving prosecutorial testimony); Harper v. State,

508 S.W.3d 461, 470 (Tex. App.—Fort Worth 2015, pet. ref’d) (stating the test applies

to improper question). After applying these factors, we hold that the trial court did

not abuse its discretion in denying West’s motion.

                               1. Severity of Misconduct

      Prejudicial effect is the first factor’s touchstone. Hawkins, 135 S.W.3d at 77. We

consider whether the prosecutor’s question was clearly calculated to inflame the

jurors’ minds and was of such a character as to suggest that withdrawing the

impression was impossible. Harper, 508 S.W.3d at 470 (citing Gonzalez v. State,

685 S.W.2d 47, 49 (Tex. Crim. App. 1985)). A mistrial is warranted if the question was

obviously harmful to the defendant. Id.

                                            4
      West contends that the purported misconduct—the prosecutor’s uttering the

word “inadmissible” within his question—was prejudicial because the jury was led to

believe that counsel manipulated the evidence and that they were not getting the full

story. West likens his case to Vu Hoang Nguyen v. State, in which the defendant moved

for mistrial during witness examination after a prosecutor accused defense counsel of

attempting to “mislead the jury.” No. 14-07-00322-CR, 2008 WL 2262054, at *6 (Tex.

App.—Houston [14th Dist.] May 29, 2008, pet. ref’d) (mem. op., not designated for

publication). There, the trial court denied the defendant’s motion and the appellate

court affirmed, holding that the statement’s effect was “minimal under the

circumstances.” Id. at *7.

      To the extent, if any, that Nguyen supports West’s argument, it is

distinguishable. The prosecutor’s objection in that case directly accused defense

counsel of attempting to mislead the jury. Id. at *6. Here, the prosecutor’s question

informed the jury, in substance, only that both parties had mutually agreed to redact

some of the audio—the jury was not told what had been said—because it was

inadmissible. This question was far less egregious than the State’s accusational

objection in Nguyen, which, again, the appellate court labeled as “minimal under the

circumstances.” Id. at *7.

      West’s case is more analogous to Hawkins, where the defendant moved for

mistrial after objecting to a prosecutor’s “misstatement of law.” 135 S.W.3d at 74.

There, the prosecutor erroneously said that, under parole law, the defendant would be

                                         5
released back into the community after serving only one-fourth of his sentence. Id.

The statement was false because the defendant would only become eligible for parole

after that time period. Id. The trial court denied the mistrial motion, and the court of

criminal appeals concluded, after applying a version of the three-factor harmless-error

test, that the trial court had not abused its discretion because the misstatement was

isolated, not egregious, and curable by instruction. Id. at 74, 77, 83–85. For the

reasons discussed below, we reach the same conclusion.

      Here, the prosecutor’s question was technically a legal misstatement because it

suggested that counsel themselves could determine matters of admissibility.2 See

Sherman v. State, 428 S.W.2d 338, 342 (Tex. Crim. App. 1968) (stating that questions of

admissibility are at the trial judge’s exclusive discretion). While the prosecutor

described the edited material as “inadmissible,” he neutralized any possible prejudice

when he simultaneously stated that both parties, including West, 3 had agreed to the

edits: “Other than the agreed-upon edits by defense counsel and counsel for the State of


      2
       West’s attorney acknowledged as much during the conference when she said,
of the curing instruction, “Well, I want it to be what the law is and . . . the Judge
determines admissibility or inadmissibility, not [the prosecutor] and I or the Trooper
or what we’ve all agreed to is the hand cherry-picked evidence that we’re going to
show . . . .”
      3
        During the conference, both parties acknowledged the mutuality of the edits.
Defense counsel asserted, “[W]e’ve admitted we have actually manipulated evidence
and taken out something,” and the prosecutor later stated, “My comment was the State
and defense counsel agreed to these manipulations. And that is the truth.” [Emphasis
added.]


                                           6
inadmissible material, has that been edited in any way to your knowledge?” [Emphasis

added.] The impression created for the jury, if any, was simply that the parties had

mutually agreed to the edits, whatever they might have been. West fails to show, and

we struggle to see, how this impression prejudiced him.4

      The question’s nature also matters. See Rideaux v. State, 498 S.W.3d 634,

640 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (reasoning that an improper

question’s prejudicial effect was minimal when it was brief and not emphasized);

Hawkins, 135 S.W.3d at 83–84 (reasoning that an isolated and perceivably accidental

legal misstatement lessened the misconduct’s severity). The alleged misconduct at

issue here is just one word, an adjective, within an otherwise proper question asked

during witness examination. West does not argue that the State emphasized the word

“inadmissible,” and the record indicates that this was the only time the jury heard the

prosecution say it. In fact, the defense did not object to the prosecutor’s rephrasing

the question in a substantially similar way: “To your knowledge, other than approved

edits by State and defense counsel, has this been altered in any way?”

      Finally, the prosecutor’s question was necessary to authenticate the video. See

generally Tex. R. Evid. 901(b) (listing satisfactory ways to authenticate evidence). The

prosecution explained that the question, as phrased, provided context for why certain


      4
        West’s attorney suggested during the conference that the question could
actually advantage him: “[W]e’ve admitted we have actually manipulated evidence . . .,
be it to Mr. West’s advantage or disadvantage.”


                                           7
video sequences lacked audio. The prosecutor needed to give this context so that the

state trooper could testify truthfully about the extent of the video’s authenticity.5 See

Crivello v. State, 4 S.W.3d 792, 802 (Tex. App.—Texarkana 1999, no pet.) (stating that a

police officer’s testimony helped authenticate a DWI arrest videotape when he said it

was what it claimed to be.)

       In sum, we cannot say that the prosecutor’s initial phrasing was clearly

calculated to inflame jurors’ minds or was otherwise obviously harmful to West. The

first factor weighs favorably to the State.

                                  2. Curative Measures

       Whether a jury instruction suffices to cure error depends on the case’s facts.

Ocon, 284 S.W.3d at 884. Generally, a prompt instruction to disregard cures error

caused by an improper question and answer. Simpson v. State, 119 S.W.3d 262, 272,

       5
        On appeal, West does not contest the trooper’s authenticating testimony, and
so we need not discuss it. See State v. Bailey, 201 S.W.3d 739, 744 (Tex. Crim. App.
2006) (holding that a reviewing court cannot reach out on an issue that was not
raised); Cobb v. State, No. 03-05-00159-CR, 2006 WL 1865586, at *2 n.2 (Tex. App.—
Austin July 7, 2006, pet. ref’d) (mem. op., not designated for publication) (declining to
address an issue that the appellant had not raised). Yet counsel for both parties
discussed this dynamic during the bench conference:

       [DEFENSE COUNSEL]: I don’t know how to, you know, explain to
       the jury we’ve left out a part of evidence that this man’s going to swear
       this an accurate representation of what went on that night.

       [PROSECUTOR’S CO-COUNSEL]: And, Judge, I think that’s been
       done. That was why the question was asked. I mean, I think the jury
       deserves an explanation, but it doesn’t need to be belabored on it.
       There’s been some edits and okay.


                                              8
274 (Tex. Crim. App. 2003) (quoting Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.

App. 2000)) (holding that the instruction to disregard cured error from a question

eliciting the victim’s son’s opinion about proper punishment for the defendant); see

also Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994) (holding that the

instruction cured the harm from a racially suggestive question); Swallow v. State,

829 S.W.2d 223, 227 (Tex. Crim. App. 1992) (holding that the instruction cured error

from prosecutor’s question suggesting that defendant had prior DWI arrest), overruled

on other grounds by Randolph v. State, 353 S.W.3d 887, 895 (Tex. Crim. App. 2011). As

with improper questions and answers, misstatements of law are also curable by

instruction. See Hawkins, 135 S.W.3d at 84–85 (reasoning that such an instruction

accompanied by clarification cured a misstatement about parole law).

       The question in dispute here did not actually expose the jury to or otherwise

identify inadmissible evidence. West takes issue solely with the prosecutor’s using the

word “inadmissible.” Like Hawkins, this one-off was curable by an instruction to

disregard and clarification about what constituted the misstatement. See id. at 85. The

trial court here stated: “The Court instructs the jury to disregard and not consider for

any purpose any statement made by counsel for the State regarding editing or

admissibility of evidence in this case as admissibility is a matter of law for the determination

by the Court.” [Emphasis added.]

       When a judge instructs a jury to disregard, we presume that the jurors followed

the instruction unless the particular case’s facts suggest otherwise. See Waldo v. State,

                                               9
746 S.W.2d 750, 753–54 (Tex. Crim. App. 1988); see also Thompson v. State, Nos. 02-18-

00230-CR, 02-18-00231-CR, 02-18-00232-CR, 2019 WL 1065925, at *8 (Tex. App.—

Fort Worth March 7, 2019, pet. ref’d) (mem. op., not designated for publication)

(noting the rebuttable presumption that jurors follow the trial court’s instructions in

the manner presented). The record does not indicate, and West does not argue, any

contrary facts. Thus, the second factor also weighs favorably to the State.

                               3. Certainty of Conviction

      The third factor assesses the likelihood that the appellant would have been

convicted without the misconduct. Ramon, 159 S.W.3d at 931. Strong evidence against

an appellant undermines an argument for abuse of discretion. See id. at 931–

32 (weighing eyewitness testimony and DNA evidence in affirming denied mistrial).

      In the present case, eyewitness testimony reports seeing a stationary offroad

vehicle in contact with a utlility pole and fence, hearing the engine rev up, and

observing one person, West, later get out of that vehicle. State troopers testified that

West admitted to losing control of his vehicle and sliding off the road and that he

admitted to having consumed five or six beers. They further stated that West slurred

his speech, struggled with balancing and walking, and was uncooperative during the

standard field-sobriety test. The State submitted into evidence patrol-car-dashcam

footage of the arrest, which corroborated the troopers’ testimony. The troopers also

testified that West’s eyes were glassy and bloodshot and that he had an alcohol odor



                                           10
on his breath. Finally, West’s blood-alcohol concentration was 0.361 grams of alcohol

per 100 milliliters of blood, well over the legal limit of .08 grams.

       The evidence’s cumulative weight supports the jury’s still convicting West even

without the prosecutor’s having used the word “inadmissible” in his question. Thus,

this final factor also weighs favorably to the State.

                                 Weighing the Factors

       In weighing these three factors, we are reminded that “[i]nappropriate

prosecutorial comments, standing alone, would not justify a reviewing court to reverse

a criminal conviction obtained in an otherwise fair proceeding.” U.S. v. Young,

470 U.S. 1, 11, 105 S. Ct. 1038, 1044 (1985).

       Given the question’s neutral, brief, and non-emphasized nature, the judge’s

instruction to disregard, and the cumulative evidence against West, we hold that

(assuming the question’s impropriety) the trial court’s ruling was within the zone of

reasonable disagreement, and thus the court did not abuse its discretion in denying the

motion for mistrial.

                                          Conclusion

       We overrule West’s only issue and affirm the trial court’s judgment.




                                            11
                                 /s/ Elizabeth Kerr
                                 Elizabeth Kerr
                                 Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 1, 2019




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