Affirmed and Opinion Filed February 28, 2013




                                       In The
                                Qrnttrt tif Anahi
                         Fifth 1itrirt uf rxa &tt Ia11ai

                                         No. 05-11-00438-CR


                            BRANDY LYNN JACKSON, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee


                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F08-30843-R

                              MEMORANDUM OPINION
                          Before Justices Lang-Miers, Myers, and Lewis
                                 Opinion by Justice Lang-Miers

       A jury convicted appellant Brandy Lynn Jackson of recklessly causing serious bodily

injury to a child.   In one issue, appellant argues that the trial court erred when it denied

appellant’s motion for mistrial. Because all dispositive issues are settled in law, we issue this

memorandum opinion. TEx. R. App. P. 47.2(a), 47.4. We resolve appellant’s issue against her

and affirm the trial court’s judgment.
                                          B AC KGROU N I)

        Appellant was charged with intentionally and knowingly causing serious bodily injury to

a child under 14 years of age by striking and dragging the child and lorcing her to the ground

with a motor vehicle. See ‘fex. Penal Code Ann, § 22.04 (West Supp. 2012). Appellant pleaded

not guilty and her ease was tried to a jury. The jury found appellant guilty of recklessly causing

serious bodily injury to a child.

       Appellant testified during the punishment phase and sought to be placed on probation.

On cross examination, the prosecutor and appellant had the following exchange:

       [Prosecutor:j Okay, Ms. Jackson, let’s start at the beginning here. You testified—
       your testimony here in court today is that you were in fact driving the car that
       struck Icomplainanti and caused her severe injuries: is that right’?

       [Appellant:1 That is correct.

       [Prosecutor:j That’s the first time you’ve ever said that out loud is here today in
       front of any other people—

       Appellant’s counsel objected “that is a comment on Ms. Jackson not testifying during

guilt or innocence” and “a comment on her Fifth Amendment right to remain silent.”              The

prosecutor responded that she was “referring to other court proceedings.”           The trial court

sustained the objection and asked the prosecutor to limit her questions to specific instances that

the prosecutor “want[edj to talk about so it’s not a comment.” Appellant’s counsel requested an

instruction to the jury to disregard the prosecutor’s statement. The trial court instructed the jury

to “[dlisregard the statement, the question, in so far as it is a comment on the defendant to

exercise her Fifth Amendment right.” And the court again instructed the prosecutor to “[ble

specific in [hen questions.” Appellant’s counsel then moved for a mistrial, and the trial court

denied the motion.




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       The prosecutor next asked appellant about her “testil monyl under oath before regarding

these incidents” during “prior proceedingsl .1” Appellant admitted that she had variously testited

that she was at home asleep when the incident happened, that she was at the house of her

boylriends mother at the time, that she did not know the location of the house where the offense

took place, that she had never been to the street where the house is located, and that she did not

know the people involved in the offense. Appellant admitted that she “testified today that [shej

did drive the car over there[.1” The jury assessed punishment at twenty years in prison. On

appeal, appellant argues that the trial court erred in not granting a mistrial, and requests that we

reverse the court’s judgment as to punishment and remand for a new punishment hearing.

                                     STANDARD OF REvIEw


       Because the trial court sustained appellant’s objection and granted the requested

instruction to the jury to disregard the prosecutor’s statement, the sole issue we must decide is

whether the trial court abused its discretion when it denied appellant’s motion for mistrial.

Archie v. State, 221 S.W.3d 695, 699—700 (Tex. Crim. App. 2007).

       Appellant argues that the court erred in denying the motion for mistrial because the

prosecutor’s statement was an impermissible comment on appellant’s failure to testify. But our

focus here is not on whether the prosecutor’s comment was impermissible; we assume, without

deciding, that it was an improper comment on appellant’s failure to testify. Rather our analysis

concerns whether the court abused its discretion in denying the motion for mistrial. See Arclzie,

221 S.W.3d at 699—700; Hawkins v. State, 135 S.W.3d 72, 76—77 (Tex. Crim. App. 2004).

Appellant also argues that this case resembles Snowden v. State, 353 S.W.3d 815, 817 (Tex.

Crim. App. 2011).     But in Snowden, the issue was whether the trial court had committed a

constitutional error under rule of appellate procedure 44.2(a) by overruling appellant’s objection



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that a prosecutor’s argument was a comment on appellant’s failure to testify, Id. at 817—18: see

Thx. R. App. P. 44.2(a). In this case, the trial court sustained appellant’s objection and granted

appellant’s requested instruction to disregard, but denied appellant’s motion for mistrial, The

harm analysis under rule 44.2(a) does not apply because the issue here is whether the courts

refusal to grant a mistrial was an abuse of discretion. See Archie. 221 S.W.3d at. 699—700.

        Whether a trial court should have granted a mistrial involves most, if not all, of the same

considerations that attend a harm analysis. hi. at 700. We apply a tailored version of the Mosley

test to determine whether the trial court abused its discretion by denying a mistrial.          Id.;

Hawkins. 135 S.W.3d at    77: see Moslcv ‘.State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

Under this tailored Mosley test, we are required to balance three factors: (1) the severity of the

misconduct (the magnitude of the prejudicial effect), (2) the measures adopted to cure the

misconduct, and (3) the certainty of conviction or punishment absent the misconduct. Archie,

221 S.W.3d at 700; Hawkins, 135 S.W.3d at 77.            A mistrial is required only in extreme

circumstances when the prejudice is incurable. Arcliie, 221 S.W.3d at 699.

                                            ANALYSIS


       Applying the three Mosley factors, and assuming, without deciding, that the prosecutor’s

comment was an improper comment on appellant’s failure to testify, we first analyze the severity

of the misconduct. We conclude that any prejudicial effect was not severe. The prosecutor’s

comment was not a clear reference to appellant’s failure to testify in the guilt-innocence phase of

the trial. And the prosecutor did not repeat her comment. Additionally, the prosecutor explained

that her statement referred to appellant’s testimony in other proceedings. After the instruction to

disregard, the prosecutor asked appellant numerous questions about her testimony in prior

proceedings and the defense did not object to these questions.


                                               -4-
       Applying the second Mosley factor, the trial court took immediate curative measures: it

sustained appellant’s objection that the prosecutor’s statement was an impermissible comment on

appellant’s failure to testify and instructed the jury to disregard the comment, specifically stating,

“Disregard the statement, the question, in so far as it is a comment on the defendant to exercise

her Fifth Amendment right” The court also twice instructed the prosecutor to ask specific

questions to avoid impermissibly commenting on appellant’s Fifth Amendment rights.                See

Hawkins, 135 SW.3d at $4 (discussing curative measures including trial court’s instruction to

disregard, court’s admonition that prosecutor’s statement was improper, prosecutor’s apology

and retraction, and proper instruction in jury charge): Weems v. State, 328 S.W,3d 172, 180 (Tex.

App.—Eastland 2010. no pet.) (“Except in the most blatant instances, an instruction to disregard

a comment on the defendant’s failure to testify will cure any harm caused by the comment.”)

(citing Moore v, State, 999 S.W.2d 385, 405—06 (Tex. Crim. App. 1999)).

       Lastly, applying the third Mosle      factor, the record supports the punishment the jury

assessed in the absence of the comment. At trial, numerous witnesses, including complainant,

identified appellant as the driver of the car that injured complainant.         Although witnesses

differed in their description of events preceding appellant’s actions, numerous witnesses testified

that appellant jumped the curb and accelerated the car as she drove through the front yard of

complainant’s house where people had congregated. Complainant, her mother, and her attending

physician testified to the severity of complainant’s injuries and her ongoing pain. The jury found

appellant guilty of recklessly causing serious bodily injury to a child, and found that appellant

had used or exhibited a deadly weapon—a motor vehicle—in committing the offense.

       During the punishment phase, complainant and her mother testified further concerning

the extent of complainant’s injuries and her ongoing pain and disabilities resulting from her



                                                -5-
injuries. Appellant testified that she was the driver of the car, She also testified that she had

assaulted an inmate while in Dallas county jail and that she had a previous conviction for

misdemeanor assault with bodily injury to which she had pled no contest and for which she was

placed on community supervision.       The jury assessed the maximum term of ewentyyears’

imprisonment.

       Balancing all three Mosley factors, if the prosecutor’s comment was impermissible, any

prejudice from the comment was isolated and not egregious and the court took various curative

actions to prevent harm. In addition, based on the evidence presented, we conclude that the jury

would likely have assessed the same punishment absent the prosecutor’s comment, See Archie,

221 S.W.3d at 700. Under these circumstances, the trial court did not abuse its discretion in

denying appellant’s motion for mistrial. We resolve appellant’s sole issue against her.

                                          CONCLUSION


       We resolve appellant’s issue against her and affirm the trial court’s judgment.




Do Not Publish
Tex. R. App. P. 47

1 10438F.U05




                                               -6-
                                  1rnwt uf T1iiats
                         2cIftI! Jifrict nf xaa at Oat1a
                                          JUDGMENT

BRANDY LYNN JACKSON. Appellant                        On Appeal from the 265th Judicial District
                                                      Court. Dallas County. Texas
No. O5 I 1-OO438CR           V                        Trial Court Cause No. FO8-3O843-R.
                                                      Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                          Justices Myers and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


                        th
                        28
Judgment entered this        day of February. 2013.




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