Opinion issued June 23, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00166-CR
                           ———————————
                    NIARE QUENETTE LYTE, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                         Trial Court Case No. 69744


                         MEMORANDUM OPINION

      A jury convicted appellant Niare Quenette Lyte of murder and assessed

punishment at 50 years in prison. See TEX. PENAL CODE § 19.02(b)(1). Lyte asserts

on appeal that the trial court abused its discretion in two ways: by admitting

evidence that she previously had been arrested for threatening the complainant, and
by refusing to grant a mistrial after the prosecution made an improper comment

during the punishment phase.

      Finding no reversible error, we affirm.

                                    Background

      The complainant, Jasmine Miller, was a friend of a sister of appellant Niare

Quenette Lyte. Once when her apartment lost electricity, Miller briefly stayed at

Lyte’s family’s apartment. After a dispute arose, Lyte told Miller to leave the

apartment. Miller then called the police and reported that Lyte had threatened to

kill her. Lyte was arrested and held in jail overnight, though her sister insisted that

Miller had not been threatened. Lyte was never convicted of any crime relating to

this incident.

      Roughly two weeks later, Lyte confronted Miller outside the apartment

complex. Miller ran away, but Lyte pursued her. Several witnesses followed and

saw Lyte yelling and kicking at Miller. Lyte fled the scene, and the witnesses

found Miller bloodied and gasping for air. Miller died of her injuries from the

assault. Subsequent medical examination showed that she had sustained several

stab wounds from a knife.

      After the police contacted her, Lyte voluntarily gave a written statement in

which she described her prior hostility toward Miller, including her prior arrest.

Lyte stated that when Miller ran away she thought it was funny, and she no longer



                                          2
wanted to “beat” her. Lyte’s statement did not describe any physical altercation

between her and Miller. The police investigators also recorded two separate

interviews with Lyte; the first recording was audio-only, and the second a video

recording.

        At trial, the State introduced the written statement, the audio recording of the

first interview, and the video recording of the second interview. Lyte objected on

the basis of Rule 403 for both the written statement and the audio recording. The

court overruled the objection but gave the following limiting instruction to the

jury:

                      The State intends to introduce evidence of these
              recordings of extraneous crimes or bad acts other than the one
              charged in this indictment. This evidence is for the purpose of
              assisting you, if it does, for purpose of showing the defendant’s
              motive, opportunity, intent, preparation, plan, knowledge,
              identity, or absence thereof, mistake, or accident, if any. You
              cannot consider the testimony unless you find and believe
              beyond a reasonable doubt that the defendant committed these
              acts, if any were committed, you can only consider the crime or
              bad act for the purpose submitted.

For the video recording, Lyte offered no specific objection other than “the previous

objections,” which the judge noted had been overruled.

        The jury convicted Lyte of murder. During the punishment phase, Lyte

called several witnesses to testify about her character, though she did not testify

herself. Many of these witnesses testified about the positive way Lyte interacted




                                            3
with the rest of her family. The defense also asked questions relating to these

character witnesses’ feelings about the verdict, including the following exchange:

       Defense:      And when you heard about the allegations or about the
                     murder, what did you think?

       Witness:      I didn’t believe it at all. It’s not what she’s capable of
                     doing.

       Defense:      How do you feel about the verdict?

       Witness:      I wasn’t there. I don’t understand it. But I don’t agree too
                     much with it.

In the middle of the punishment hearing, the prosecutor stated in front of the jury,

“Judge, we’ll stipulate that all these people will come in and say she’s very

motherly and a good person and never would have seen this coming if they’ll

stipulate that she did it.”

       Outside of the presence of the jury, defense objected and moved for a

mistrial, claiming that this was an improper comment on Lyte’s failure to testify.

The court noted that the language used by the prosecutor did appear to request that

defense counsel and defendant stipulate to the crime. The prosecutor denied this

and stated that the comment was intended to request that the witnesses stipulate

that they were aware that the jury found Lyte guilty of the crime. The judge told

the parties that he intended to sustain the objection and instruct the jury to

disregard, but he would not rule on a mistrial at that time. The judge also clarified

his intention to avoid repeating the prejudicial comments by giving a specifically


                                           4
worded instruction. The court eventually told the jury, “you are instructed to

disregard the comment made by Mr. Caldwell right before we broke the first time.”

      The trial court ultimately overruled the motion for mistrial. The jury

sentenced Lyte to 50 years in prison. Lyte appealed.

                                      Analysis

I.    Admissibility of prior arrest

      In her first issue, Lyte asserts that the trial court erred by admitting evidence

that she previously had been arrested for threatening the complainant. Lyte argues

that this evidence should not have been admissible under Rule 403 of the Texas

Rules of Evidence. The State responds that this was proper evidence of motive and

identity, making its probative value substantially outweigh any danger of unfair

prejudice. Consequently, it was admissible.

      We review a trial court’s decision to admit evidence for abuse of discretion.

Santellan v. State, 939 S.W.2d 155, 168–69 (Tex. Crim. App. 1997). As long as the

trial court’s ruling is within the “zone of reasonable disagreement,” there is no

abuse of discretion and the ruling will be upheld. Id. at 169.

      Rule 403 states that the “court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence.” TEX. R. EVID. 403. The trial court is



                                          5
entitled to broad discretion in ruling on a Rule 403 objection. State v. Mechler, 153

S.W.3d 435, 439 (Tex. Crim. App. 2005). When a trial court balances the

probative value of the evidence against the danger of unfair prejudice, there is a

presumption in favor of the evidence’s probative value. Smith v. State, 355 S.W.3d

138, 154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The Rule 403 analysis

includes, but is not limited to, four factors: (1) the probative value of the evidence;

(2) the potential to impress the jury in some irrational yet indelible way; (3) the

time needed to develop the evidence; and (4) the proponent’s need for the

evidence. Mechler, 153 S.W.3d at 440.

      The first factor of the Rule 403 analysis looks to how compellingly the

evidence serves to make a fact of consequence more or less probable. Id. The State

argued that the evidence showed evidence of Lyte’s potential motive in committing

the murder, as well as her identity when there was no eyewitness to the actual

stabbing. The State also argues on appeal that the evidence was admissible as

relevant facts and circumstances going to show the condition of the mind of the

accused at the time of the offense. See TEX. CODE CRIM. PROC. art. 38.36. Lyte

argues that because the allegations that she threatened Miller were unsubstantiated,

they do not serve to make any facts in this case more probable.

      We conclude that the trial court reasonably could have found that the

evidence of Miller’s accusation resulting in Lyte’s prior arrest made it more



                                          6
probable that Lyte had a motive to attack Miller. Even if the accusation of a threat

was a false one, the fact that Lyte was arrested as a result was relevant to a

potential motive. It also helped to establish Lyte’s state of mind at the time of the

offense as permitted by statute, which she put in issue through her affidavit, in

which she stated that after Miller ran away, she no longer wanted to hurt her.

      The second factor asks whether the evidence had the potential to impress the

jury in an irrational but indelible way, thereby creating an “unfair” prejudice.

Mechler, 153 S.W.3d at 440. In this case, the evidence of Lyte’s prior arrest due to

Miller’s accusation undoubtedly was prejudicial, but not unfairly prejudicial, as it

provided direct evidence of potential motive.

      The third factor deals with the time needed to develop the evidence and

whether this would distract the jury from consideration of the indicted offense. Id.

at 441. Lyte asserts that at least an hour of trial was devoted to presenting the

challenged evidence, including the recorded statements and testimony about them.

However, in the course of an eight-day trial with 148 separate exhibits, an hour is

not a relatively inordinate amount of time. Furthermore, the evidence was directly

linked to the offense through both the testimony and the court’s limiting

instruction, which weighs against a finding that the jury was distracted from the

charged offense. See id.




                                          7
       The fourth factor focuses on the proponent’s need for the evidence, and

includes considerations of whether the fact in question was disputed and whether

the proponent had other evidence to establish that fact. Id. Lyte concedes that

without “the statements regarding Appellant’s arrest, there was limited evidence

showing her motive to harm Miller.” Whether Lyte had the motive to kill Miller

was a disputed issue throughout the trial, and it was contested even in the

punishment phase. Therefore, this factor weighs in favor of admissibility.

       We conclude that the trial court did not abuse its discretion in determining

that the Rule 403 factors weighed in favor of the admissibility of the evidence of

Lyte’s prior arrest for threatening Miller. See id. at 440–41. We overrule Lyte’s

first issue.

II.    Motion for mistrial

       In her second issue, Lyte contends that a mistrial was required because the

prosecutor’s comment during the punishment phase was an implied comment on

her exercise of her right not to testify. The prosecutor stated: “Judge, we’ll

stipulate that all these people will come in and say she’s very motherly and a good

person and never would have seen this coming if they’ll stipulate that she did it.”

Lyte’s objection to the comment was sustained, and the jury was instructed to

disregard it, but the trial court declined to grant a mistrial.




                                            8
      Lyte argues that this comment caused incurable constitutional harm by

violating her privilege against self-incrimination. The State responds that the

comment did not create a clear and necessary implication regarding Lyte’s failure

to testify, and that any harm caused by the comment was cured by the judge’s

instruction, obviating the need for a mistrial.

      An improper comment on a defendant’s failure to testify may violate both

the federal and state constitutions, as well as the Texas Code of Criminal

Procedure. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM.

PROC. art. 38.08; Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011).

We must reverse constitutional error unless we determine beyond a reasonable

doubt that the error did not contribute to the conviction or punishment. See TEX. R.

APP. P. 44.2(a).

      The privilege against self-incrimination extends to the punishment phase at

trial, and it may be asserted even if the defendant testified during the guilt stage.

Randolph, 353 S.W.3d at 891. When assessing whether a defendant’s self-

incrimination rights have been violated, a court must view the prosecutor’s

comment from the jury’s standpoint and resolve any ambiguities in the State’s

favor. See id. To violate the privilege, the State’s reference to the defendant’s

failure to testify must be a “clear and necessary” implication. Id. “If the language

might reasonably be construed as merely an implied or indirect allusion, there is no



                                           9
violation.” Id. Comments during the punishment stage that argue that a defendant

is not deserving of leniency or a probated sentence because he has not taken

responsibility for his actions or shown remorse can constitute an impermissible

comment on the failure to testify. See id. at 891–92.

      The error alleged in this case is not the trial court’s response to the objection

nor the instruction to disregard, but the trial court’s failure to grant Lyte’s motion

for a mistrial. In reviewing a motion for mistrial, an appellate court uses an abuse-

of-discretion standard and must uphold the trial court’s ruling if it was within the

zone of reasonable disagreement. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

App. 2004); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).

      A mistrial is an extreme remedy that is granted only when the improper

conduct is “so prejudicial that expenditure of further time and expense would be

wasteful and futile.” Hawkins, 135 S.W.3d at 77. To determine whether improper

argument warranted a mistrial, this court must balance three factors: (1) the

severity of the misconduct; (2) measures adopted to cure the misconduct; and

(3) the certainty of the punishment assessed. Martinez v. State, 17 S.W.3d 677, 693

(Tex. Crim. App. 2000); see also Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim.

App. 2007); Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004). This

harm analysis is “conducted in light of the trial court’s curative instruction.”

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



                                          10
      The first factor, “severity of the misconduct,” correlates with “the magnitude

of the prejudicial effect of the prosecutor’s remarks.” Id. In this case, the comment

did not clearly and necessarily implicate Lyte’s failure to testify. See Randolph,

353 S.W.3d at 891. While there was some ambiguity about whether the

prosecutor’s allusion—“if they’ll stipulate that she did it”—referenced a stipulation

from Lyte herself or from the witnesses, even a request for Lyte to stipulate to the

verdict would not constitute a comment on her failure to testify. See id. at 891–92.

The request to stipulate to the guilty verdict was at most an indirect allusion to

Lyte’s failure to take responsibility for the crime. See id. Furthermore, while the

implication of the comment may have been negative toward the defense’s case, the

comment did not argue that Lyte was undeserving of leniency, and thus it was less

prejudicial than actual argument against her receiving a lighter punishment on this

basis. See id.

      The second factor, the measures adopted to cure the misconduct, includes

any instruction to disregard the argument in question. See Archie, 221 S.W.3d at

700. In this case, the trial court sustained the objection and instructed the jury to

disregard the comment. The phrasing of the instruction avoided repeating the

prosecutor’s statement and thus attempted to prevent any further effect on the jury.

We conclude that this instruction was sufficient to ameliorate any potential harm

from the statement. See id.; Temple v. State, 342 S.W.3d 572, 599 (Tex. App.—



                                         11
Houston [14th Dist.] 2010), aff’d on other grounds, 390 S.W.3d 341 (Tex. Crim.

App. 2013).

      Because the comment in this case occurred during the punishment stage, we

analyze the third factor with regard to the certainty of the punishment assessed. See

Archie, 221 S.W.3d at 700; Martinez, 17 S.W.3d at 693. Lyte was convicted of

murder, which is a first-degree felony with a maximum sentence of 99 years of

imprisonment. See TEX. PENAL CODE §§ 12.32, 19.02(b)(1). The jury sentenced

Lyte to 50 years of imprisonment, which is substantially less than the maximum

penalty. Given the severity of the crime of murder and the strength of the

prosecution’s evidence of premeditation, we conclude that the assessment of

punishment was not substantially affected by the prosecution’s comment. See

Archie, 221 S.W.3d at 700; Martinez, 17 S.W.3d at 693–94.

      We conclude that the trial court did not abuse its discretion in refusing to

grant Lyte’s motion for a mistrial. See Randolph, 353 S.W.3d at 891; Archie, 221

S.W.3d at 700; Hawkins, 135 S.W.3d at 77. We overrule Lyte’s second issue.




                                         12
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           13
