Opinion issued July 2, 2013




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                              NO. 01-12-00061-CR
                          ———————————
                 RUBEN ESCOBEDO JUAREZ, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 185th District Court
                          Harris County, Texas
                      Trial Court Case No. 1268678



                                 OPINION

      After being indicted for killing a woman with his hand, appellant Ruben

Escobedo Juarez was convicted of criminally negligent homicide and sentenced to

confinement for 35 years. See TEX. PENAL CODE ANN. § 19.05 (West 2011). On
appeal he argues that (1) the evidence was insufficient to support his conviction,

(2) the trial court abused its discretion in determining his statement to the police

was voluntary, (3) the jury had insufficient evidence to determine that his

statement was given voluntarily, and (4) the trial court abused its discretion in

denying his motion for mistrial.

      We affirm.

                                   Background

      Ruben Juarez met Roger Rowland and Linda Hartsough in the spring of

2010. A couple of weeks after they met, Juarez arranged to sleep on Rowland and

Hartsough’s couch in exchange for $20 a night in rent, with the understanding that

it was a temporary arrangement because Juarez would be leaving for a job. During

the few weeks Juarez stayed with them, the three smoked crack cocaine together.

      One night around midnight, Juarez and Hartsough left the house together to

go beg for money to buy beer. At a nearby gas station, Juarez raised some money

and bought two beers. Juarez and Hartsough then went to buy some crack cocaine

from a dealer who lived about a block away. Hartsough waited in some nearby

woods while Juarez bought the drugs.         After smoking the crack, Juarez and

Hartsough had sex in the woods. While they were having sex, Juarez placed his

hand on her neck for about three minutes. She began to convulse and foam at the




                                         2
mouth. Juarez stood up and found that she did not have a pulse. Juarez then went

back to the house where Rowland was waiting.

      When he returned to the house, Juarez told Rowland that he had sent

Hartsough back with the beer while he bought the crack. After smoking crack with

Juarez, Rowland started to worry about Hartsough and took a walk looking for her.

The next day, Juarez left town for the job he had scheduled. Rowland continued to

search for Hartsough and reported her disappearance to the police.

      Six weeks later, a man entered the woods and saw human bones on the

ground. The bones were later identified as belonging to Hartsough. After asking

some bystanders about the bones, a police detective discovered that Rowland had

reported that Hartsough was missing. Detective Eli Cisneros contacted Rowland

and learned that Juarez had been with Hartsough on the night of her disappearance.

      The police arrested Juarez based on an open warrant for a parole violation

and brought him in for questioning. After Juarez was brought to an interview

room, Detective Cisneros introduced himself and informed Juarez that he was

investigating the skeletal remains. Cisneros turned on recording equipment in the

room and informed Ruben of his constitutional and statutory rights against self-

incrimination. Juarez then told the story of how he had gone to the store with

Hartsough, had sex with her, put his hand on her throat, and she had died.




                                         3
      The next day, the police contacted the medical examiner’s office to report

that Juarez had said he had his hand on Hartsough’s neck before she died. Based

on this information and the findings of the forensic anthropologist who examined

her bones, the assistant medical examiner determined that the cause of Hartsough’s

death was “homicidal violence.” The forensic anthropologist had found that a

small bone in Hartsough’s neck, her hyoid bone, had a small fracture in it. A

fracture in the hyoid bone can be a result of strangulation, but the anthropologist

could not determine with certainty whether this occurred before or after

Hartsough’s death.

      The State indicted Juarez.     Before trial Juarez moved to suppress his

recorded statement, arguing that he had not knowingly, intelligently, and

voluntarily waived his rights. During the suppression hearing, Detective Cisneros

testified that he offered Juarez food, water, and restroom breaks. He did not

promise anything in exchange for the statement, although the detective did say that

he would “help him get through this,” which he testified meant to help Juarez get

through the interview process. Juarez never asked for a lawyer or to terminate the

interview. After listening to Detective Cisneros’s testimony and the recording

several times, the trial court denied the motion, determining that Juarez had said

“yes” in response to the detective’s question of whether he waived his rights

against self-incrimination.

                                        4
      Later, during jury selection, the prosecutor referenced two levels of scrutiny

when the voluntariness of a statement is challenged:

      STATE: He doesn’t waive his rights, we can’t talk to him, okay? If
      somebody comes in, they’re read their rights, they knowingly,
      voluntarily waive their rights and a statement is obtained, if we get to
      the point where we go to trial, there are two levels of scrutiny that a
      statement’s going to go through, okay? The first level is the judge is
      going to look at it and she’s going to have a hearing outside the
      presence of the jury –

      DEFENSE COUNSEL: Judge, this is outside the presence of the jury
      itself and we object to it.

      TRIAL COURT: Sustained.

      STATE: She’s going to have a hearing then after that hearing, if a
      statement gets to come in, she’ll make a ruling, the jury then gets to
      see it-

      DEFENSE COUNSEL: Judge, I object. This is way outside the
      presence of the jury’s understanding.

      TRIAL COURT: Sustained. Sustained.

      DEFENSE COUNSEL: And I ask for a jury instruction.

      TRIAL COURT: To disregard?

      DEFENSE COUNSEL: Yes.

      TRIAL COURT: All right. The jury will disregard. Please move on
      counsel.

      DEFENSE COUNSEL: Move for a mistrial.

      THE COURT: Denied.




                                         5
During the trial, the State played the video recording of Juarez’s statement before

the jury.   The jury charge included an instruction to disregard the recorded

statement unless the jury found “from the evidence beyond a reasonable doubt that

prior to and during such oral statement, if any, the defendant knowingly,

intelligently, and voluntarily waived” his right against self-incrimination.

      The jury convicted Juarez of criminally negligent homicide, and the trial

court assessed punishment at 35 years in prison. On appeal, Juarez challenges the

sufficiency of the evidence supporting his conviction, the admission of his

statement, and the denial of his motion for mistrial.

                                      Analysis

I.    Sufficiency of the evidence

      In two issues, Juarez challenges the sufficiency of the evidence supporting

his conviction for criminally negligent homicide, emphasizing that the forensic

evidence was not conclusive that Hartsough’s hyoid bone had been fractured

around the time of her death. Juarez also contends that the jury could not have

determined beyond a reasonable doubt that he had voluntarily waived his right to

remain silent in the face of police questioning.

      When reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict to determine whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”


                                          6
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury is

the sole judge of the credibility of witnesses and the weight to be given to their

testimony, and we may not substitute our judgment for that of the jury. Id. We

review to ensure that the evidence presented supports the jury’s verdict and that the

State presented a legally sufficient case of the offense charged.                 Id.

“Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”

Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

      Our sufficiency review requires consideration of “all of the evidence in the

record, both direct and circumstantial, whether admissible or inadmissible.”

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Winfrey v.

State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). The rationale for this rule has

been explained by the Court of Criminal Appeals as follows:

      In the event a portion of this evidence was erroneously admitted, the
      accused may complain on appeal of such error. If his complaint has
      merit and the error is reversible [see TEX. R. APP. P. 44.2], a new trial
      should be ordered. But jurors do not act irrationally taking such
      evidence into account, since they are bound to receive the law from
      the trial judge. All evidence which the trial judge has ruled
      admissible may therefore be weighed and considered by the jury, and
      a reviewing court is obliged to assess the jury’s factual findings from
      this perspective.




                                         7
Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988); see also Moff v.

State, 131 S.W.3d 485, 488-90 (Tex. Crim. App. 2004). The Court has also

endorsed a further explanation by Professors Dix and Dawson:

      This rule rests in large part upon what is perceived as the unfairness of
      barring further prosecution where the State has not had a fair
      opportunity to prove guilt. A trial judge’s commission of trial error
      may lull the State into a false sense of security that may cause it to
      limit its presentation of evidence. Erroneous admission of hearsay
      evidence, for example, may cause the State to forego offering other
      evidence that would ultimately prove admissible.

Moff, 131 S.W.3d at 490 (quoting 43A GEORGE E. DIX & ROBERT O. DAWSON,

TEXAS PRACTICE: CRIMINAL PRACTICE       AND   PROCEDURE § 43.531, at 742 (2d ed.

2001)). Nevertheless, this rule does not mean that “all evidence, admissible and

inadmissible, has probative value and is capable of supporting a judgment.”

Gardner v. State, 699 S.W.2d 831, 835 (Tex. Crim. App. 1985).

      A legally sufficient showing of criminally negligent homicide requires the

State to prove that (1) the defendant’s conduct caused the death of an individual;

(2) the defendant ought to have been aware that there was a substantial and

unjustified risk of death from his conduct; and (3) the defendant’s failure to

perceive the risk constituted a gross deviation from the standard of care an ordinary

person would have exercised under like circumstances. Montgomery, 369 S.W.3d

at 192–93. Criminal negligence does not require proof that the defendant was

subjectively aware of the risk of harm, only that the defendant was aware of the


                                         8
attendant circumstances leading to such a risk. Id. at 193. “[T]he key to criminal

negligence is found in the failure of the actor to perceive the risk.” Lewis v. State,

529 S.W.2d 550, 553 (Tex. Crim. App. 1975).

      “Conduct that constitutes criminal negligence involves a greater risk of harm

to others, without any compensating social utility, than does simple negligence.”

Montgomery, 369 S.W.3d at 193. The seriousness of the negligence must be such

that any reasonable person sharing the community’s sense of right and wrong

would know it. Id. The risk must be “of such a nature that the failure to perceive it

was a gross deviation from the reasonable standard of care exercised by ordinary

people.” Williams v. State, 235 S.W.3d 742, 750–51 (Tex. Crim. App. 2007). So,

conduct such as an abrupt lane change in front of another vehicle on a highway that

results in the death of another person, or towing dirt in a homemade trailer with

obvious defects in the hitch that came loose and killed a pedestrian, are sufficiently

blameworthy acts as to constitute criminal negligence. See Montgomery, 369

S.W.3d at 193 (lane change); Tello v. State, 180 S.W.3d 150, 157–58 (Tex. Crim.

App. 2005) (faulty trailer hitch). “In finding a defendant criminally negligent, a

jury is determining that the defendant’s failure to perceive the associated risk is so

great as to be worthy of a criminal punishment.” Montgomery, 369 S.W.3d at 193.

      The State presented evidence to support all of the elements of criminally

negligent homicide.     After smoking crack cocaine, Juarez put his hand on

                                          9
Hartsough’s neck for “about three minutes” while having sex with her. Although

he denied killing her, Juarez stated that the sex “just got a little bit out of hand” and

“just got a little crazy.” He stated that she “went into convulsions” and “started

foaming from the mouth,” and after Juarez failed to find a pulse, he ran off with

the two beers he had bought. After returning to the house, he did not tell Rowland

what had happened, and he failed to call for medical assistance for Hartsough.

      The forensic evidence and testimony concerning the bones corroborated the

evidence from Juarez’s statement—the jury did not have to rely upon it alone in

finding that Juarez had been criminally negligent. The assistant medical examiner

testified that it is common for someone who is being strangled to convulse and

experience seizure activity, including appearing to foam at the mouth. A fracture

in the hyoid bone corroborated the theory that a strangulation occurred. The hyoid

bone did not bear any of the indicia of having been broken after Hartsough’s death,

such as scavenger or scraping marks, although the anthropologist who examined

the bones could not rule out such a possibility. Because there were no signs of

healing, however, the bone was certainly fractured shortly before or after death.

      Taken together, Juarez’s statement, the fact of Hartsough’s death, and the

evidence concerning her skeletal remains are sufficient evidence that Juarez caused

Hartsough’s death by putting his hand on her neck, which he ought to have known

created a substantial and unjustified risk. It is common knowledge that people can

                                           10
die by strangulation, even inadvertently. The jury reasonably could have found

that Juarez’s failure to appreciate that substantial and unjustified risk, given the

circumstances of which he knew at that time, was a gross deviation from a standard

of care that an ordinary person would exercise under the same circumstances. See

id. at 194–95. He was alone in the woods with Hartsough in the middle of the

night after they had taken drugs together, and he pressed on her throat or neck for

approximately three minutes while having sex with her.         After she began to

convulse, he checked her pulse and thought she was dead, but he then left her

alone, lying about what he knew to Rowland and failing to seek any medical

assistance for her. The question of whether Juarez’s conduct was a gross deviation

is a question for the factfinder, and a rational jury could have concluded it was.

See id. at 195. The jury was not required to rely only on direct or forensic

evidence; it could base its conclusion on “the combined and cumulative force of all

the incriminating circumstances.”     Temple, 390 S.W.3d at 359–60 (quoting

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Therefore, we

overrule Juarez’s issue regarding the sufficiency of the evidence supporting the

elements of criminally negligent homicide.

      Juarez asks us to separately analyze the sufficiency of the evidence without

considering his recorded statement which was presented as evidence at trial, on the

theory that the jury could not have rationally concluded beyond a reasonable doubt

                                        11
that the statement was voluntary, and as such they were obliged to disregard it.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2005). This argument

misconstrues the method of sufficiency review. Our task is to determine whether

there is evidence upon which “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”                 See, e.g.,

Montgomery, 369 S.W.3d at 192. The voluntariness of a statement given by the

defendant is not an element of any criminal offense. Even if inadmissible, we

consider any such statement as part of our sufficiency review if it was part of the

evidence at trial. See Winfrey, 393 S.W.3d at 767; Dewberry, 4 S.W.3d at 740.

And Juarez’s recorded statement—that he had sex with Hartsough after both of

them used crack cocaine, that during their intercourse he held his hand on her neck

for about three minutes, that she began to convulse and foam at the mouth, and he

then abandoned her in the woods—certainly had probative value capable of

supporting the jury’s determination on elements of criminally negligent homicide.

      “An appellant . . . is not entitled to have an appellate court first consider the

appellant’s complaints concerning improper admitted evidence and, if it resolves

any of those in favor of the appellant, to then, second, consider the sufficiency of

the properly-admitted evidence to support the conviction.” 43A DIX & DAWSON,

supra, § 43.531, at 742 (quoted with approval in Moff, 131 S.W.3d at 490). The

remedy for the improper admission at trial of a defendant’s statement does not

                                         12
come through a review of the sufficiency of the evidence, but instead through an

analysis of whether the resulting harm, if any, merits reversal. See Thomas, 753

S.W.2d at 695; TEX. R. APP. P. 44.2. Accordingly, we overrule Juarez’s challenges

to the sufficiency of the evidence supporting his conviction.

II.   Admission of recorded statement

      Juarez argues that the trial court abused its discretion in admitting his

recorded statement because it was not freely and voluntarily given.              The

determination of whether a statement is voluntary is a mixed question of law and

fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). We give

almost complete deference to the trial court’s determination of historical facts that

depend on credibility, while we conduct a de novo review of the trial court’s

application of law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000). When a defendant presents evidence raising a voluntariness

question, the prosecution must controvert the evidence and prove voluntariness by

a preponderance of the evidence. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim.

App. 1999). The trial court assesses the credibility of the witnesses and the weight

to be accorded to their testimony. Muniz v. State, 851 S.W.2d 238, 252 (Tex.

Crim. App. 1993). We must sustain the trial court’s ruling if it is reasonably

supported by the record evidence and is correct under any theory of law applicable

to the case. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).


                                         13
      A defendant’s statement may be used in evidence against him if the

defendant made it freely and voluntarily, without compulsion or persuasion. TEX.

CODE CRIM. PROC. ANN. art. 38.21. For the statement to be admissible, he must

knowingly, intelligently, and voluntarily waive his right to remain silent, to have

an attorney present, to have an attorney appointed if indigent, and to terminate a

police interview. Id. art. 38.22, § 3(a)(2); Joseph v. State, 309 S.W.3d 20, 23–24

(Tex. Crim. App. 2010).        A statement that is “involuntary” as a matter of

constitutional law is also “involuntary” under article 38.22 of the Code of Criminal

Procedure, although the converse is not necessarily true. Oursbourn v. State, 259

S.W.3d 159, 169 (Tex. Crim. App. 2008). We evaluate whether there has been a

valid waiver under the totality of the circumstances surrounding its acquisition,

including the defendant’s experience, background, and conduct. See Joseph, 309

S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,

1140–41 (1986)); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). A

waiver is voluntary if it is the product of a free and deliberative choice, rather than

intimidation, coercion, or deception. See Joseph, 309 S.W.3d at 25.

      The State bears the burden of proving a valid waiver by a preponderance of

the evidence. Id. at 24 (citing Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515

(1986)). There is no requirement that a defendant explicitly waive his rights;

neither an express oral or written waiver is required. Id. (quoting Watson v. State,

                                          14
762 S.W.2d 591, 601 (Tex. Crim. App. 1988)). An implicit waiver can be inferred

from the actions and words of the person being interrogated. Id. (quoting North

Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979)).

      When a question is raised about the voluntariness of the statement, the Code

of Criminal Procedure requires that the trial court hold a hearing outside the

presence of the jury and enter an order with a conclusion as to whether the

statement was made voluntarily. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6.

Once the trial court determines that the statement was voluntary, the statement may

be submitted to the jury with an instruction for the jury not to consider the

statement for any purpose unless they believe beyond a reasonable doubt that the

statement was made voluntarily. Id.

      Juarez does not dispute that he was informed of his rights, only that he did

not give his waiver voluntarily. He notes that the recording offered as evidence of

his answer to the detective’s question of whether he waived his rights is “so nearly

inaudible as to itself raise a reasonable doubt about whether he was giving a waiver

knowingly and voluntarily, without compulsion [or] persuasion.” Additionally, he

suggests when the detective said he would help Juarez “through this,” the detective

improperly persuaded him to waive his rights.

      The totality of circumstances surrounding the interrogation, however,

supports the trial court’s determination that Juarez made a free and deliberate

                                        15
choice to waive his rights. Juarez was lawfully arrested pursuant to a warrant and

transported to the police station. The video recording of the interview shows that

Detective Cisneros advised Juarez of his rights. Cisneros testified that Juarez was

not promised anything in exchange for his statement, not deprived of any necessity

such as food, water, or a restroom break, and was not threatened. Juarez never

asked for an attorney or to terminate the interview. He did not say that he was

under the influence of drugs or alcohol, and Cisneros testified that he appeared

sober. Cisneros also testified that he heard Juarez say “yes” to the question of

whether he waived his rights.       Our standard of review requires nearly total

deference to factual determinations that depend on credibility, such as the truth of

Cisneros’s testimony. See Garcia, 15 S.W.3d at 535.

      The recording does not reflect that Juarez was offered anything in exchange

for his statement except for the ability to tell his “side of it.” When Cisneros first

asked if Juarez wanted to waive his rights, he answered initially, “That means I’m

being convicted of it.” Cisneros immediately answered, “No, it does not, it does

not. No, what it means is in order for me to take your statement, to hear what you

have to say, I cannot even talk to you unless you waive these rights.” In reply,

Juarez did not remain silent or refuse to waive his rights; instead, as Cisneros

testified and the trial court found after reviewing the recording, he answered:

“yes.” After a single further question about what happened during the night of

                                         16
Hartsough’s disappearance, Juarez began to explain what happened.               This

exchange does not show that Cisneros resorted to “physical or psychological

pressure to elicit [the] statements,” Joseph, 309 S.W.3d at 26, but he merely

repeated his question of whether Juarez would waive his rights. Under these

circumstances, we conclude that the trial court did not err in determining that

Juarez made a voluntary waiver.

III.   Motion for mistrial

       Finally, Juarez contends that the trial court abused its discretion when it

denied his motion for mistrial. When a trial court denies a defendant’s motion for

mistrial after sustaining an objection and instructing the jury to disregard, the

dispositive issue is the denial of a mistrial. Hawkins v. State, 135 S.W.3d 72, 76–

77 (Tex. Crim. App. 2004). We review the trial court’s refusal to grant a mistrial

for an abuse of discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.

2009); Bokemeyer v. State, 355 S.W.3d 199, 202 (Tex. App.—Houston [1st Dist.]

2011, no pet.). We view the evidence in the light most favorable to the trial court’s

ruling, upholding the ruling if it was within the zone of reasonable disagreement.

Bokemeyer, 355 S.W.3d at 202 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.

Crim. App. 2004)). Only in extreme circumstances, when the prejudice is

incurable, will a mistrial be required. Hawkins, 135 S.W.3d at 77. “[O]rdinarily, a

prompt instruction to disregard will cure error associated with an improper


                                         17
question and answer.” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.

2003); see also Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005).

      Although we do not conduct the usual harm analysis in deciding whether the

trial court abused its discretion, “whether a mistrial should have been granted

involves most, if not all, of the same considerations that attend a harm analysis.”

Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (quoting Hawkins,

135 S.W.3d at 77). In determining whether a trial court abused its discretion in

denying a mistrial, we apply the three-part Mosley test. See Ramon v. State, 159

S.W.3d 928, 929 (Tex. Crim. App. 2004) (citing Mosley v. State, 983 S.W.2d 249

(Tex. Crim. App. 1998)). We balance: (1) the severity of the misconduct (the

magnitude of the prejudicial effect of the prosecutor’s remarks), (2) the 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). Id.

      A trial court’s order that a defendant’s statement is voluntary and admissible

“shall not be exhibited to the jury nor the finding thereof made known to the jury

in any manner.” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. At trial, the State

did not tell the jury during voir dire what the trial court had determined, but it did

begin to explain the process of determining the voluntariness of Juarez’s statement:

      STATE: . . . if we get to the points where we go to trial, there are two
      levels of scrutiny that a statement’s going to go through, okay? The
                                         18
      first level is the judge is going to look at it and she’s going to have a
      hearing outside the presence of the jury—

      DEFENSE COUNSEL: Judge, this is outside the presence of the jury
      itself and we object to it.

      TRIAL COURT: Sustained.

      STATE: She’s going to have a hearing then after that hearing, if a
      statement gets to come in, she’ll make a ruling, the jury then gets to
      see it—

A reasonable interpretation of the prosecutor’s remarks is that they do not

explicitly reference the trial court’s determination that Juarez’s statement was

admissible, but the remarks do imply to the jury that if they “see” the statement, it

is because the trial court ruled that it was permitted. After the prosecutor made

these remarks, Juarez’s counsel again objected, and the trial court sustained the

objection. At his counsel’s request, the trial court instructed the jury to disregard

the prosecutor’s remark. Counsel then moved for a mistrial, which the trial court

denied.

      In Johnson v. State, 510 S.W.2d 944 (Tex. Crim. App. 1974), the Court of

Criminal Appeals held that a similar comment made to the jury in violation of

article 38.22 was not harmful error. In that case, the prosecutor remarked: “if there

is anything wrong at all with the confession, Judge Power wouldn’t have let it into

evidence.” Id. at 947. The defense counsel objected to the remark. Id. While

explaining that it would not “condone such argument,” the Johnson Court held the


                                         19
remark was not reversible error, noting that the confession was admitted into

evidence in the jury’s presence and the remark did not refer to any specific finding

regarding voluntariness. Id.; see also Carter v. State, 650 S.W.2d 843, 848 (Tex.

App.—Houston [14th Dist.] 1982), aff’d, 650 S.W.2d 793 (Tex. Crim. App. 1983).

      Referring to Johnson, the Court of Criminal Appeals in DeRusse v. State,

579 S.W.2d 224, 231 (Tex. Crim. App. 1979), likewise determined that an

improper reference violating article 38.22 was not harmful error. In DeRusse, the

prosecutor said before the jury that a confession had “already been ruled to be

voluntary and that [the defendant] knowingly and intelligently waived his rights.”

Id. at 230.    The DeRusse Court noted that the prosecutor in that case had

referenced specific findings regarding the confession, but did not make the

statement during jury argument, when the jury may be expected to be “particularly

attentive,” but during an objection to testimony. Id. at 231. As the trial court had

given a prompt instruction to disregard and instructed them that it would be their

duty to pass upon the voluntariness of the statement, the prosecutor’s error was

held to not require reversal. Id.

      Analyzing under the Mosley factors and with the aforementioned authorities

in mind, we cannot say that the prosecutor’s comment on the article 38.22 process

was the kind of “extreme” and “prejudicial” circumstance meriting reversal. See




                                        20
Hawkins, 135 S.W.3d at 77, 82 (concluding that even statements violating a

mandatory statute must be analyzed for harmless error).

      The first factor, regarding the severity of the prosecutor’s misconduct, does

not weigh in favor of reversal. While the prosecutor did obliquely refer to the trial

court’s pretrial hearing on the voluntariness of the statement, the prosecutor

referred to the process in general, and not to the trial court’s order, specific

findings, or even that a hearing had yet occurred in this case. The statement was

later admitted into evidence by the court in the jury’s presence. See Johnson, 510

S.W.2d at 947 (considering this as a factor disfavoring reversal). Additionally, the

prosecutor’s remark was made during voir dire when hypothetical scenarios are

discussed, not during jury argument when the jurors are expected to be particularly

attentive. See DeRusse, 579 S.W.2d at 131.

      The second factor, regarding the curative measures adopted by the trial

court, also does not weigh in favor of reversal. The trial court immediately gave an

instruction to disregard the improper comment. This should have cured the error.

See Simpson, 119 S.W.3d at 272; Martinez v. State, 17 S.W.3d 677, 691 (Tex.

Crim. App. 2000) (“Even when the prosecutor mentions facts outside the record

during argument, an instruction to disregard will generally cure the error.”).

Further insulating the jury from the improper inference that the trial court had

already deemed the statement voluntary, the jury was properly instructed in the

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jury charge that they were to not consider the statement for any purpose unless

they themselves found beyond a reasonable doubt that the statement was

voluntarily made.

        The third factor, regarding the certainty of conviction, does not weigh in

favor of reversal. Although Juarez’s statement itself was integral to his conviction,

the prosecutor’s remark did not introduce new evidence into the trial, let alone the

sort of indelible, prejudicial evidence that normally warrants granting a mistrial.

See Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (improper

statement must be “of such character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jurors”). The jurors

themselves could also make their own determination of whether the statement was

made voluntarily based on the video recording introduced into evidence. They

were instructed that they were to make a voluntariness determination, and they

were never told to defer to the trial court in this regard. Thus, it is unlikely that the

jury’s determination was unduly swayed by the prosecutor’s remark during voir

dire.

        The prosecutor’s statement regarding the article 38.22 process was improper,

but the trial court’s instruction to disregard was adequate to cure that error.

Concluding the trial court did not abuse its discretion in denying Juarez’s motion

for mistrial, we overrule his final issue.

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                                    Conclusion

      We affirm the judgment of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Chief Justice Radack, and Justices Sharp and Massengale.

Justice Sharp concurs in the judgment only.

Publish. TEX. R. APP. P. 47.2(b).




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