       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00054-CR




                                     Donald Gillon, Appellant

                                                  v.

                                   The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
          NO. 006275, HONORABLE TOM BLACKWELL, JUDGE PRESIDING




                A jury found appellant Donald Gillon guilty of delivering less than one gram of

cocaine. See Tex. Health & Safety Code Ann. § 481.112(a), (b) (West Supp. 2001). After finding

that appellant had two previous felony convictions, the district court assessed punishment at

imprisonment for twelve years. See Tex. Pen. Code Ann. § 12.42(a)(2) (West Supp. 2001).

                The only issue presented on appeal is whether the court should have granted a mistrial

after the prosecutor asked the officer to whom the delivery was made if “12 people heard evidence

and voted and returned an indictment.” Appellant’s objection was sustained before the question was

answered. The court instructed the jury to disregard the question but overruled appellant’s motion

for mistrial.

                A mistrial is a device used to halt proceedings when error has occurred that is so

prejudicial that continuing the trial would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567

(Tex. Crim. App. 1999). The asking of an improper question will seldom call for a mistrial because,
in most cases, any harm can be cured by an instruction to disregard. Id. A mistrial is required only

if the improper question is clearly prejudicial to the accused and is of such character as to suggest the

impossibility of withdrawing the impression produced on the minds of the jurors. Id. The denial of

a mistrial is reviewed for an abuse of discretion. Id.

                While the prosecutor’s question was improper, it was not so improper as to suggest

the impossibility of curing the harm by instruction. See Harris v. State, 475 S.W.2d 922, 923 (Tex.

Crim. App. 1972) (jury argument that indictment was evidence of guilt cured by instruction). We

further note that the court told the jury in its charge that the indictment was not evidence and that the

reading of the indictment was not to be considered as a fact or circumstance against appellant during

deliberations. No abuse of discretion is shown.

                The judgment of conviction is affirmed.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: November 8, 2001

Do Not Publish




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