                                    NO. 07-06-0288-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL C

                                     AUGUST 14, 2007

                           ______________________________


                           HULEN SESSION, JR., APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 258 TH DISTRICT COURT OF TRINITY COUNTY;

                    NO. 9030; HONORABLE ERVIN ERNST, JUDGE

                          _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Hulen Sessions, Jr., was convicted by a jury

of aggravated robbery and sentenced to forty years confinement. Presenting a single point

of error, Appellant contends the trial court erred when it refused to declare a mistrial after

a State witness commented on his post-arrest silence. W e affirm.
       Appellant was indicted for the aggravated robbery of an illegal gaming establishment.

At his jury trial, the arresting officer, Deputy Bart Riley of the Angelina County Sheriff’s

Department, testified on behalf of the State. Appellant’s complaint arises from the following

exchange that occurred during direct examination:


       Prosecutor:   Okay. And did this Defendant -- I believe that Mr. Davis asked
                     you if they resisted in any way, was there anything unusual
                     about the arrest of this Defendant?
       Riley:        Only thing that really stood out in my mind after I Mirandized
                     him, I made an attempt to identify him and he wouldn’t even tell
                     me his name, I mean he just --
       Prosecutor:   Okay.
       Riley:        -- said nothing.
       Counsel:      Your Honor, objection, that’s inadmissible comment on my client’s right
                     to not incriminate himself under the 5th Amendment.
       The Court:    Sustained.
       Counsel:      Your Honor, we’d like to approach.
       The Court:    All right.
       Counsel:      Your Honor, at this time we ask for a mistrial based on the
                     elicited attempt to make him violate his 5th Amendment rights.
       The Court:    I’ll instruct them he had no obligation to say anything. Your
                     motion is denied. I’ll give you instruction, if you want it.
       Counsel:      I’d like the instruction.
       The Court:    The jury is instructed that the arrestees as described by this
                     officer had no obligation to say anything to the officers. Carry
                     on.


At the conclusion of the evidence, Appellant was convicted of the offense.




                                                 2
       By his sole issue, Appellant maintains that the trial court should have granted his

motion for mistrial because the provided instruction was “insufficient to cure the prejudice

resulting from the injection of the improper matter.” The State on the other hand, while

conceding that the witnesses’ response was improper, argues that the comment was

inadvertent and unsolicited. It further argues that the comment was insignificant in light of

the overwhelming evidence of Appellant’s guilt and that any potential prejudice was cured

by the trial court’s instruction.


       It is well established that a defendant's post-arrest silence may not be used against

him at trial. Under both the Fifth Amendment to the United States Constitution and Art. I,

§ 10 of the Texas Constitution, a defendant that has been placed under arrest has the right

to remain silent and the right not to have that silence used against him, even for

impeachment purposes. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91

(1976); Sanchez v. State, 707 S.W .2d 575, 580 (Tex.Crim.App. 1986). However, motions

for mistrial are an extreme remedy for curing prejudice occurring during trial and should be

employed only when the evidence is so clearly calculated to inflame the minds of the jury

or is of such damning character as to suggest it would be impossible to remove the harmful

impression from the jury's mind. Kem p v. State, 846 S.W .2d 289, 308 (Tex.Crim.App.

1992); State v. DeLeon, 971 S.W .2d 701, 705 (Tex.App.–Amarillo 1998, pet. ref'd).


       W ith respect to a defendant’s post-arrest silence, any potential prejudice resulting

from an improper comment may be cured by an instruction to disregard. W aldo v. State,

746 S.W .2d 750, 754 (Tex.Crim.App. 1988). Such a curative instruction will be presumed

                                             3
effective unless the facts of the case suggest the impossibility of withdrawing the impression

produced on the minds of the jury. Id. The effectiveness of a curative instruction is

determined on a case-by-case basis.            Swallow v. State, 829 S.W .2d 223, 227

(Tex.Crim.App. 1992); Veteto v. State, 8 S.W .3d 805, 811 (Tex.App–W aco 2000, pet. ref’d).

Although not expressly adopted as exhaustive or definitive, the Court of Criminal Appeals

has analyzed the following factors when determining whether an instruction to disregard

cured the prejudicial effect:


       (1) the nature of the error,
       (2) the persistence of the prosecution in committing the error,
       (3) the flagrancy of the violation,
       (4) the particular instruction given,
       (5) the weight of the incriminating evidence, and
       (6) the harm to the accused as measured by the severity of the sentence.
Id.


       A trial court’s decision to deny a motion for mistrial is subject to review based upon

an abuse of discretion standard. Ladd v. State, 3 S.W .3d 547, 567 (Tex.Crim.App. 1999).

That is to say, as long as the trial court's ruling was at least within the zone of reasonable

disagreement, the appellate court will not intercede. If we determine that the trial court

erred, we must reverse its judgment unless we determine beyond a reasonable doubt that

the error did not contribute to the defendant’s conviction. Tex. R. App. P. 44.2(a).


       In the present case, we are satisfied that the trial court did not err in denying

Appellant’s motion for mistrial. As previously cited, upon defense counsel's request, the trial

                                               4
court instructed the jury that Appellant had no obligation to say anything to the officers at

the time of his arrest.   Although the trial court did not specifically instruct the jury to

disregard Deputy Riley’s comment, the provided instruction effectively eliminated any

negative connotations that the jurors could have associated with the statement.

Furthermore, the witness did not make the comment in response to a specific question

concerning Appellant’s post-arrest silence. The prosecutor merely asked Deputy Riley

whether there was anything unusual about Appellant’s arrest. Following defense counsel’s

objection, the prosecutor did not attempt to broach the subject again.


       In our view, the witness’s momentary and unrepeated reference to Appellant’s post-

arrest silence was not so emotionally inflammatory as to preclude the effectiveness of the

curative instruction.   This is particularly true in light of the overwhelming evidence of

Appellant's guilt. The State presented multiple eyewitnesses to the robbery in addition to

the gun, ski m ask, and stolen cash that were found in the vehicle where Appellant was

apprehended a short time after the crime was reported.


       Because we do not believe the trial court abused its discretion in denying Appellant's

motion for mistrial, we overrule Appellant's issue and affirm the judgment of the trial court.




                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.

                                              5
