                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-010-CR


CASEY DEAN TERRY                                                      APPELLANT

                                              V.

THE STATE OF TEXAS                                                         STATE

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      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Casey Dean Terry appeals from his conviction for driving while

intoxicated. In three points, he argues that the trial court erred by failing to

grant his motions for mistrial (1) after the arresting officer testified concerning

the percentage of people whose blood-alcohol level is over .10 percent when

they fail the horizontal gaze nystagmus test and (2) after the State elicited



      1
          … See T EX. R. A PP. P. 47.4.
testimony from one of Appellant’s witnesses about the witness’s prior DW I

conviction and (3) that repeated prosecutorial misconduct throughout trial

mandates reversal of his conviction. We affirm.

                                  Background 2

      Appellant and his passenger were involved in a motor vehicle collision in

the early morning hours of January 10, 2006. Police officer James Russell was

dispatched to the accident scene.       Officer Russell testified that Appellant

“seemed a little disoriented and confused” and that his speech was slurred.

Officer Russell said that he smelled a very strong odor of alcoholic beverages

on Appellant’s breath and saw that Appellant had difficulty maintaining his

balance, staggered when he walked, and had to grab the concrete median

barrier for support several times during their conversation. Appellant’s eyes,

testified Officer Russell, were “real dilated,” very watery, and bloodshot.

      Officer Russell suspected that Appellant was “extremely intoxicated” and

decided to administer the usual battery of field sobriety tests. He testified that

Appellant showed six “clues” of intoxication during the horizontal gaze

nystagmus test; had difficulty following the instructions and maintaining his




      2
       … Appellant does not challenge the sufficiency of the evidence to
support his conviction. Thus, a cursory review of the facts will suffice to put
his points into context.

                                        2
balance on the walk-and-turn test; and hopped, lost his balance, raised one arm,

and fell into a concrete barrier on the one-leg-stand test.        Officer Russell

arrested Appellant for driving while intoxicated and transported him to the jail.

At the jail, Appellant refused to take a breath test.

      The State charged Appellant by complaint with driving while intoxicated.

A jury found Appellant guilty, and the trial court sentenced him to ninety days’

confinement suspended for twenty four months and a $500 fine.

                                    Discussion

      In his first point, Appellant argues that the trial court erred by failing to

grant his motion for mistrial after Officer Russell testified that “[a]t four clues,

in 1998 the revalidation of the [horizontal gaze nystagmus] test by NHTSA

indicates that a person is 88 percent -- .” Appellant objected to the testimony,

the trial court sustained the objection and instructed the jury to disregard

Officer Russell’s statement, and Appellant moved for a mistrial, which the trial

court denied.

      An appellate court reviews a trial court’s ruling on a motion for mistrial

using an abuse of discretion standard. Webb v. State, 232 S.W.3d 109, 112

(Tex. Crim. App. 2007). The appellate court views the evidence in the light

most favorable to the trial court’s ruling and upholds the trial court’s ruling if

it was within the zone of reasonable disagreement. Id.; Wead v. State, 129

                                         3
S.W.3d 126, 129 (Tex. Crim. App. 2004).           The appellate court does not

substitute its judgment for that of the trial court but rather decides whether the

trial court’s decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112.

      Mistrial is appropriate only for highly prejudicial and incurable errors.

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied,

542 U.S. 905 (2004). A trial court may grant a mistrial when it is faced with

an error so prejudicial that the expenditure of further time and expense would

be wasteful and futile. Id. The general rule, however, is that any error in the

admission of improper evidence may be corrected by withdrawing the evidence

and instructing the jury to disregard it. See Rojas v. State, 986 S.W.2d 241,

250–51 (Tex. Crim. App. 1998).

      When a trial court strikes evidence and instructs the jury to disregard it,

in the absence of evidence indicating that the members of the jury failed to do

so, the jury is presumed to have followed the trial court’s instruction. See Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.), cert. denied, 529 U.S. 1070

(1999); State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.—Dallas 2006, pet.

ref’d).

      Appellant points to no evidence that the jury failed to follow the trial

court’s instruction to disregard Officer Russell’s statement, and our own review

of the record finds none. Moreover, Officer Russell did not complete his

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sentence before Appellant objected, and his incomplete sentence was not of

such a highly prejudicial character that it was wasteful and futile to continue

the trial. See Simpson, 119 S.W.3d at 272. We therefore hold that the trial

court did not abuse its discretion by refusing to grant Appellant’s motion for

mistrial, and we overrule his first point.

      In his second point, Appellant argues that the trial court abused its

discretion by failing to grant a mistrial after the prosecutor asked one of

Appellant’s witnesses whether he had been convicted for driving while

intoxicated. Morgan Roberts testified that he had been drinking with Appellant

on the night in question and that Appellant appeared to be “okay” when he left,

driving his passenger’s car because the passenger was drunk. Appellant later

telephoned Roberts and told him he had been in an accident. Roberts drove to

the scene of the accident, saw Appellant talking to a police officer, and decided

to drive on by.      The following colloquy occurred on Roberts’s cross-

examination:

      Q.     Why didn’t you stop and get off and say, “Officers, that man
      is not intoxicated?”

      A.    I didn’t know that was really a -- in my opinion, if you see a
      bunch of police officers, I -- I haven’t been put in that situation
      many times, but I don’t usually pull over when officers are at the
      location.




                                        5
      Q.   Well, you say that you haven’t been put in that situation
      many times with police officers . . . .

             ....

             Now, Isn’t it true that you, yourself, have been convicted for
      DWI?

Appellant objected to the question as irrelevant and more prejudicial than

probative, and the trial court sustained the objection and instructed the jury to

disregard the question. Appellant then moved for a mistrial, which the trial

court denied.

      “Generally, any error in asking an improper question is cured and rendered

harmless by an instruction to disregard,” and a defendant complaining of an

improper question or answer must show obvious harm that could not be cured

by an instruction to disregard. McIntosh v. State, 855 S.W.2d 753, 770 (Tex.

App.—Dallas 1993, pet. ref’d) (citing Ransom v. State, 789 S.W.2d 572, 585

(Tex. Crim. App. 1989)). Assuming that the question about a prior conviction

was improper, Appellant has not shown obvious harm that could not be cured

by an instruction to disregard. Nothing in the record suggests that the jury

failed to obey the trial court’s instruction to disregard the question. See Ladd,

3 S.W.3d at 567.      W e therefore hold that the trial court did not abuse its

discretion by denying Appellant’s motion for mistrial, and we overrule his

second point.

                                        6
      In his third point, Appellant argues that his “conviction should be

overturned because of repeated prosecutorial misconduct throughout the trial.”

The alleged misconduct is (1) Officer Russell’s testimony discussed in

Appellant’s first point; (2) the prosecutor’s question discussed in his second

point; (3) the State’s failure to disclose before trial the fact that one of the

State’s witnesses—his passenger at the time of the accident—had a prior

conviction for theft;3 and (4) argument allegedly outside the record when the

prosecutor said during closing argument, “Now, that’s three standardized field

sobriety tests and the opinion of four sober people. Okay?” The trial court

sustained Appellant’s objection to this statement as outside the record and

instructed the jury to disregard it but denied his motion for mistrial. Appellant

argues that these four instances, considered together, show a “pattern of

government misconduct” that requires a new trial.

      We have already determined that the trial court did not abuse its

discretion by refusing to grant a mistrial on the basis of Officer Russell’s

testimony or the prosecutor’s question about Roberts’s DWI conviction.

Appellant admits that he was not harmed by the State’s failure to disclose his

passenger’s theft conviction because he discovered the conviction on his own




      3
          … Appellant raised this complaint in a motion for new trial.

                                         7
before trial. With regard to the argument outside the record, Appellant does not

explain how the argument was outside the record nor—more significantly—why

the trial court’s instruction to disregard was an inadequate remedy; therefore,

we presume that the instruction to disregard was sufficient.          See Ladd, 3

S.W.3d at 567.

      Thus,    considered   separately,   none   of   the   alleged   instances   of

prosecutorial misconduct justifies a new trial. Considered together, the isolated

and unrelated alleged instances of misconduct do not show a pattern of

conduct that deprived Appellant of a fair and impartial trial.        We therefore

overrule Appellant’s third point.

                                    Conclusion

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.

                                              PER CURIAM

PANEL A:      GARDNER, J.; CAYCE, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 17, 2008




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