                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00017-CR

RICKY GENE JACKSON, JR.,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 11-00398-CRF-85


                           MEMORANDUM OPINION


       Ricky Jackson, Jr. appeals from a conviction for the offense of aggravated

robbery. TEX. PEN. CODE ANN. § 29.03 (West 2011). Jackson complains that the trial

court abused its discretion by denying his motion for mistrial during voir dire

regarding improper comments by the State and after a witness testified that he was

already in custody when he was served with the arrest warrant in this case. Because we

find no reversible error, we affirm the judgment of the trial court.
Motion for Mistrial

        In his first issue, Jackson complains that the trial court abused its discretion by

denying his motion for mistrial after the State commented during voir dire that one of

the reasons Jackson might choose not to testify is because he is guilty. Jackson objected

to the State’s comment and the trial court sustained the objection. The trial court gave

an instruction to disregard the comment upon Jackson’s request. Jackson then made a

motion for a mistrial, which the trial court denied.

        A denial of a motion for mistrial is reviewed under an abuse of discretion

standard, and a judge's ruling must be upheld if it was within the zone of reasonable

disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). "A mistrial is

an appropriate remedy in 'extreme circumstances' for a narrow class of highly

prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.

2009). A mistrial should be granted only when less drastic alternatives fail to cure the

prejudice. Id. at 884-85.

Improper Comment during Voir Dire

        During the State’s voir dire, the following exchange occurred:

        JUROR:        So you're saying if it's just he said/she said, then I'd need
                      more; but if you're saying it's he said/she said but we have a
                      little bit more evidence then –

        STATE:        Well—and I hate to use that turn of phrase he said/she said
                      because in a criminal case—and we'll talk about the Fifth
                      Amendment, but the defendant has the right not to testify
                      actually. You may not know his side of the story. You may.
Jackson v. State                                                                       Page 2
        UNIDENTIFIED JUROR: I have a problem with that.

        STATE:     Yeah, we'll talk about it in a minute.

                   You may have his side of the story, but you may not. You
                   may—I expect Mr. Barron is not going to just sit there and be
                   quiet. He'll definitely present his theory of the case in cross-
                   examination, but you may not hear the defendant testify in a
                   criminal case. And there's a million reasons why someone
                   might not testify: Maybe they're nervous. Public speaking is
                   not the number one fun thing for people to do. Especially
                   sitting up there being judged by 12 people. If they appear
                   nervous, then that may make them act like they're guilty.
                   And so their attorney may say, "Don't testify." That's why
                   he's the attorney. There's a million reasons why the
                   defendant may not testify. Maybe they're guilty, maybe they
                   don't want to get up there in front of you—

        JACKSON:          Judge, I'm going to object to that. That flies in the face
                          of the Fifth Amendment.

        STATE:            No, it's just a reason why someone may not testify.

        THE COURT:        Sustained.

        JACKSON:          Ask the jury panel to disregard it.

        THE COURT:        Disregard the prosecutor's last statements regarding
                          the question that he asked.

        JACKSON:          Request a mistrial.

        THE COURT:        Denied.

        STATE:     All right. So there's a million reasons why someone may not
                   testify. All we're asking you to do in this case, and in any
                   criminal case, is not hold that as evidence against them if
                   they don't testify. So if someone chooses not to testify—
                   they—they assert their Fifth Amendment right, they choose
Jackson v. State                                                                       Page 3
                     not testify—then you can't say, "Well, the State's close but
                     because that person didn't testify, I'm going to find them
                     guilty." Then you're using evidence against them.

        Jackson argues that the State’s comment about a reason why he might not testify

being because he is guilty constitutes a misstatement of the law because it invited the

prospective jurors to consider his failure to testify as a sign that he was guilty, which is

improper. Jackson further argues that this misstatement of the law by the State was so

extreme and manifestly improper that a mistrial should have been granted upon his

motion.

        The trial court gave the jury an instruction to disregard the comment upon

Jackson’s request. The State continued after the objectionable comment to explain that

Jackson had the right to not testify and that the failure to do so could not be considered

against him. Additionally, the charge to the jury contained an instruction that Jackson’s

failure to testify could not be considered as evidence against him. We presume that the

jury obeyed the instruction and that the instruction was effective. See Archie v. State, 340

S.W.3d 734, 741 (Tex. Crim. App. 2011) ("The law generally presumes that instructions

to disregard and other cautionary instructions will be duly obeyed by the jury."). We

do not find that the trial court’s denial of the motion for mistrial was outside of the zone

of reasonable disagreement, and therefore the trial court did not err by denying the

motion. We overrule issue one.




Jackson v. State                                                                      Page 4
Improper Comment by Witness

        In his second issue, Jackson complains that the trial court abused its discretion by

denying his motion for mistrial after a detective testified that he served the arrest

warrant for the aggravated robbery in jail because Jackson was already in custody.

During the State’s questioning of an investigating detective, the detective explained

how the investigation proceeded. The witness testified that he had showed the victim

of the aggravated robbery a photo lineup and the victim had affirmatively identified

Jackson. The State then asked the detective what the next step in his investigation was,

and the detective responded, “I obtained a warrant based on the identification and then

served the warrant on him in jail, because he had already been arrested.” Jackson

objected to the question and the trial court sustained the objection. The trial court gave

an instruction to disregard the answer upon Jackson’s request. Jackson then made a

motion for mistrial, which the trial court denied.

        It is well settled that improper remarks can be rendered harmless by a judge's

instruction to disregard, unless it appears they were so clearly calculated to inflame the

minds of the jury or were of such damning character as to suggest it would be

impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846

S.W.2d 289, 308 (Tex. Crim. App. 1992); Stoker v. State, 788 S.W.2d 1, 13 (Tex. Crim. App.

1989). Here, the detective's uninvited and unembellished reference to Jackson being

served with the arrest warrant in jail because he had already been arrested was not so


Jackson v. State                                                                      Page 5
inflammatory as to undermine the efficacy of the judge's instruction to disregard. See

Kemp, 846 S.W.2d at 308. We presume the jury follows the judge's instructions, and

there is no evidence to the contrary in this case. See Colburn v. State, 966 S.W.2d 511, 520

(Tex. Crim. App. 1998). The trial court did not abuse its discretion in denying the

motion for mistrial. We overrule issue two.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 6, 2015
Do not publish
[CRPM]




Jackson v. State                                                                       Page 6
