




 




IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0051-06


JULIUS ARCHIE, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS

McLENNAN  COUNTY



 Johnson, J., delivered the opinion of the Court in which Price, Womack,
Hervey, Holcomb and Cochran, JJ., joined.  Keasler, J., concurred in the result.
Keller, P.J., filed a concurring opinion.  Meyers, J., filed a concurring opinion.

O P I N I O N


	After an extended attack on the complainant, his then girlfriend, appellant was charged by
indictment with three offenses: aggravated assault with a deadly weapon, "to-wit: his hands"; felony
family violence; and unlawful restraint.  Evidence at trial showed an assault on the complainant in
her car when she picked appellant up at his work, and a second assault over a number of hours in her
home.  The jury convicted appellant of felony family violence and the lesser-included offense of
misdemeanor assault.  It then assessed punishment at incarceration for ten years and a fine of
$10,000 for family violence and one year in jail and a fine of $4,000 for misdemeanor assault.
	During the punishment phase, the state called as witnesses Bria Alexander, one of appellant's
former girlfriends, and Desiree Briscoe, his current girlfriend.  Alexander testified about assaults on
her by appellant that were similar to the assault described by the complainant.  Briscoe testified that
she and appellant had argued, but that the only violence was one occasion on which he held her
against a wall.  Appellant called a former girlfriend, Brandy Dunlap, who testified that she had dated
him for five years and had never been assaulted by him.  Although he had testified during the guilt
phase, appellant did not testify at punishment.
	During final punishment arguments, the prosecutor stated,
I think you have also learned that he has no respect for women.  You have heard from
three women now.  And two of them tell you, frighteningly, the same story; that
things are okay in the beginning of a relationship and then things start to go downhill,
and that he strangles them and he ties them up.  That is his MO.  That's what he does. 
You've heard that now from two people.  You heard no evidence to the contrary as
to Bria Alexander, the second victim.  You heard no denial.  That was just accepted. 

	Defense counsel objected, "Excuse me, Your Honor.  I object to counsel's comment on the
defendant's failure to testify by that comment, that you have heard no denial about that."  The trial
court responded, "Instruct the jury that they will-I sustain the objection and instruct the jury they will
follow the Court's instructions."  The charge, already read to the jury, included an instruction that
the jury should not consider "for any purpose whatsoever" that appellant did not testify.  Appellant
then moved for mistrial, which the trial court denied.  The jury assessed the maximum available
sentences.
	On appeal, appellant argued that the prosecutor's remark that there had been no denial
constituted an impermissible comment on his failure to testify and that, therefore, his motion for
mistrial should have been granted.  The court of appeals, finding that the state "does not seriously
challenge Archie's assertion that the statement at issue was an erroneous comment on this failure to
testify," limited its inquiry to whether the trial court's instruction was sufficient to cure any harm that
resulted from the improper comment.  Archie v. State, 181 S.W.3d 428, 431 (Tex. App.-Waco
2005).  Citing Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004), the court of appeals
considered three factors: "(1) the severity of the misconduct (prejudicial effect), (2) curative
measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the
same punishment being assessed)."  Id.  The court concluded that, as to severity of the misconduct,
the comment was a direct reference to failure to testify and may be more difficult to cure than an
indirect comment, but that the state did not emphasize the comment.  As to curative measures, the
court of appeals noted that, while the paragraph in the jury charge that prohibited consideration of
appellant's decision not to testify had been read to the jury a short time before final arguments, it was
one of nineteen paragraphs and was not specifically mentioned in response to the improper
argument; the court of appeals concluded that the trial court's direction to the jury that they were to
follow the court's instructions "was very generic and did not direct the jury to disregard the improper
argument."  Id. at 432.  The court of appeals found that, given the state's strong evidence at
punishment, the improper argument did not result in a more severe penalty than would have been
assessed in its absence.  After balancing the three factors, the court of appeals found error in that "the
instruction did not cure the prejudicial effect of the comment."  Id.
	The court of appeals then considered whether the error required reversal.  It found that a
comment on failure to testify constitutes constitutional error and is analyzed under Tex. R. App.
44.2(a).  Id.  The court examined the source and nature of the error, the extent to which it was
emphasized, the probable collateral implications of the error, the weight a juror would probably place
on it, and whether declaring the error harmless would encourage the state to repeat it.  The court
found that the state was the source of the error and that the probable implication was that Alexander
was truthful about the pattern of violence, which was critical to the resolution of conflicting
testimony on whether appellant's relationships with women usually ended in violence.  Using the
standard set out in Rule 44.2(a), the court of appeals stated that it could not find, beyond a reasonable
doubt, that the error did not contribute to the punishment. Id. at 433.  The court affirmed the
judgment of conviction, but remanded to the trial court for reassessment of punishment.  Id.
	The state appealed, raising three grounds.
	1.  Appellant did not preserve error because he failed to request that the trial
court instruct the jury to disregard the prosecutor's argument, which would have
cured its prejudicial effect.  Because  preservation of error is systemic, the court of
appeals should have addressed this issue, even though it was not raised by the state
on appeal.
	2.  The argument in this case was not a "direct" comment on the failure to
testify.
	3.  The court of appeals erred in its harm analysis by holding that, even
though the jury was not affected by the argument, a comment on the failure to testify
was not harmless beyond a reasonable doubt because its source was the prosecutor
and it violated the fifth amendment.  Taken  to its logical conclusion, this rationale
dictates that no prosecutorial comment on the defendant's failure to testify can ever
be harmless.

Ground 1: Preservation of Error
	While preservation of error is systemic and a first-level appellate court should ordinarily
review the issue on its own motion, (1) we will not be hyper-technical in our examination of whether
error was preserved.  In this case, appellant objected to the state's argument and gave an adequate
ground for that objection.  The trial court sustained the objection and, sua sponte, gave the jury what
was functionally an instruction to disregard. (2)  Although not explicitly in response to the ground of
the objection, the court's instruction was given immediately after the objection and the trial court's
sustaining of it.  The instruction was followed immediately by appellant's motion for mistrial, which
was promptly overruled.
	To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling
his objections to jury argument.  In Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004),
we said that usual sequence is objection, instruction to disregard, and motion for mistrial, but that
this sequence is not essential to preserve complaints for appellate review.  The
essential requirement is a timely, specific request that the trial court refuses.   . . .  
Similarly, the request for an instruction that the jury disregard an objectionable
occurrence is essential only when the such an [sic] instruction could have had the
desired effect, which is to enable the continuation of the trial by a [sic] impartial jury. 
The party who fails to request an instruction to disregard will have forfeited appellate
review of that class of events that could have been "cured" by such an instruction. 
But if an instruction could not have had such an effect, the only suitable remedy is
a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting
the complaint on appeal.

(Footnotes omitted.).  See also, Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002);
Holberg v. State, 38 S.W.3d 137, 141 n.18 (Tex. Crim. App. 2000).  In these circumstances, a
defense request for an instruction to disregard before requesting a mistrial was unnecessary, as
appellant pursued his objection "to an adverse ruling," i.e. the denial of his motion for mistrial, and
the trial court did, in effect, instruct the jury to disregard the argument.  The error was preserved;
only what was to be reviewed is at issue.  We overrule the state's first ground.
Ground 2: Direct Comment on Failure to Testify
	The state challenges the conclusion of the court of appeals that the comment complained of 
was a "direct" comment.  It does not challenge the finding that "[t]he State does not seriously
challenge [appellant's] assertion that the statement at issue was an erroneous comment on his failure
to testify," nor does it inform this Court how a finding that the argument was an indirect comment
would change the analysis.  We overrule the state's second ground.
Ground 3: Improper Harm Analysis
	The error alleged by appellant is not the trial court's response to the defense objection to the
comment on the failure to testify, but the trial court's failure to grant appellant's motion for a
mistrial.  In reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold
the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129
S.W.3d 126, 129 (Tex. Crim. App. 2004).  "Only in extreme circumstances, where the prejudice is
incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77.  The standard of review is abuse
of discretion.
Although the Court of Appeals and the parties have approached the issue as one of
harm, that is not a correct characterization of the issue before us.  A harm analysis
is employed only when there is error, and ordinarily, error occurs only when the trial
court makes a mistake. [citation omitted]  Here, the trial court sustained the defense
objection and granted the requested instruction to disregard.  The only adverse
ruling-and thus the only occasion for making a mistake-was the trial court's denial
of the motion for mistrial.  Under those circumstances, the proper issue is whether
the refusal to grant the mistrial was an abuse of discretion. [citation omitted]

Hawkins, 135 S.W.3d at 76-77.

Thus, the court of appeals erred in analyzing the error under Tex. R. App. 44.2(a).
	Nevertheless, "whether a mistrial should have been granted involves most, if not all, of the
same considerations that attend a harm analysis." Hawkins at 77.  As in Hawkins, we shall apply the
test articulated in Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), which likewise involved
prosecutorial misconduct in the form of improper jury argument, albeit at the guilt phase.  In
determining whether improper jury argument warrants a mistrial, the Mosley Court balanced three
factors:
	1) severity of the misconduct (the magnitude of the prejudicial effect of the
prosecutor's remarks);

	2) measures adopted to cure the misconduct (the efficacy of any cautionary
instruction by the judge); and

	3) the certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction).

Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004), citing Mosley, 983 S.W.2d at 259.
	In conducting such analysis, we observe that, assuming that the prosecutor's statement was
in fact a comment on appellant's failure to testify, it was brief and related only to Bria Alexander,
"the second victim." As we have noted, the trial court sustained appellant's objection and sua sponte
instructed the jury, in essence, to disregard the comment when it told the jury to follow the court's
instructions, which included a paragraph that said that the jurors were not to refer to, allude to, or
take into consideration the fact that appellant had elected not to testify.  Under the facts of this case,
we conclude that, in sustaining appellant's objection and instructing the jury as it did, the trial court
sufficiently ameliorated any potential harm. See, e.g. Long v. State, 823 S.W.2d 259, 269-70 (Tex.
Crim. App. 1991).
	Since this argument occurred at punishment, we analyze the third factor with regard to the
certainty of the punishment assessed.  See Martinez v. State, 17 S.W.3d 677, 693 (Tex. Crim. App.
2000).  We observe that appellant was sentenced to the maximum term of incarceration and
assessment of a fine for each offense of which he was convicted.  After reviewing the record, which
includes evidence of the facts of the instant offenses and appellant's dealings with other girlfriends,
as well as evidence of appellant's convictions for unauthorized use of a motor vehicle, multiple
criminal-trespass offenses, criminal mischief, misdemeanor thefts, violation of a protective order,
a previous family-violence assault conviction, and evidence that he had helped a girlfriend attempt
to perpetrate insurance fraud by burning her van, the court of appeals reasonably concluded that "due
to the strength of the State's punishment case, it is likely that the same punishment would have been
assessed regardless of the improper comment." Archie v. State, 181 S.W.3d at 432.
	We conclude that the trial court did not err in overruling appellant's motion for mistrial.
Accordingly, we sustain the state's third ground for review, reverse the judgment of the court of
appeals, and affirm the judgment of the trial court.

Delivered: May 2, 2007
Publish
1. Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997).
2.   In his opinion concurring and dissenting, Chief Justice Gray noted that "the trial court gave an instruction
that the jury would follow the court's instructions.  In the charge to the jury, the jury was instructed not to refer to or
allude to [appellant's] decision not to testify and not to take his decision into consideration for any purpose as a
circumstance against him."  Archie, at 435 (Gray, C.J., concurring and dissenting).
