                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-352-CR


MICHAEL RAY LONG                                                       APPELLANT

                                              V.

THE STATE OF TEXAS                                                           STATE

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      FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Michael Ray Long appeals from his convictions for possession

of a gambling device, keeping a gambling place, and gambling promotion. In

two points, he argues that the trial court erred by failing to grant a mistrial after

an improper question and improper argument by the State. We affirm.




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          … See T EX. R. A PP. P. 47.4.
                                  Background

      Appellant does not challenge the legal or factual sufficiency of the

evidence to support his convictions; thus, a cursory review of the evidence will

suffice to provide context for his points.

      Appellant’s convictions arise from his ownership of “Pot of Gold,” an

“eight-liner” gaming room where Appellant operated about a hundred eight-liner

machines. James McNeal, an undercover deputy sheriff, investigated Pot of

Gold for possible violations of state gambling laws. After playing some of the

eight-liner games on two occasions and winning cash prizes, Deputy McNeal

determined that Pot of Gold was operating in violation of the law, and the

sheriff’s department raided the gaming room soon thereafter.

      The grand jury indicted Appellant for possession of a gambling device,

keeping a gambling place, and gambling promotion. The gist of Appellant’s

defense was that he reasonably believed he was acting in compliance with the

law. A jury convicted him on all three counts, and the trial court assessed

punishment at a year’s confinement, probated for two years, and a $2,000 fine

for each count.

               Failure to grant mistrial after improper question.

      In his first point, Appellant agues that the trial court erred by failing to

grant a mistrial after the prosecutor asked Deputy McNeal, “Are you aware of



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another raid that took place a year later?,” i.e., a year after the raid connected

with Appellant’s convictions. Appellant objected to the question as irrelevant.

After voir dire examination and argument outside the presence of the jury, the

trial court sustained the objection. Appellant then moved for a mistrial, which

the trial court denied. When the jury returned to the courtroom, the trial court

instructed them to disregard the last question and not consider it for any

purpose. Appellant argues that the question went to the heart of his defense

because the jurors could have supposed that Appellant had been given an

opportunity to bring his business into conformity with the law but had failed to

do so.

      An appellate court reviews a trial court’s ruling on a motion for mistrial

using an abuse of discretion standard. Webb v. State, 232 S.W.3d 109, 112

(Tex. Crim. App. 2007). The appellate court views the evidence in the light

most favorable to the trial court’s ruling and upholds the trial court’s ruling if

it was within the zone of reasonable disagreement. Id.; Wead v. State, 129

S.W.3d 126, 129 (Tex. Crim. App. 2004).           The appellate court does not

substitute its judgment for that of the trial court but rather decides whether the

trial court’s decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112.

      Mistrial is appropriate only for highly prejudicial and incurable errors.

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied,



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542 U.S. 905 (2004). A trial court may grant a mistrial when it is faced with

an error so prejudicial that the expenditure of further time and expense would

be wasteful and futile. Id. The general rule, however, is that any error in the

admission of improper evidence may be corrected by withdrawing the evidence

and instructing the jury to disregard it. See Rojas v. State, 986 S.W.2d 241,

250–51 (Tex. Crim. App. 1998).

      When a trial court strikes evidence and instructs the jury to disregard it,

in the absence of evidence indicating that the members of the jury failed to do

so, the jury is presumed to have followed the trial court’s instruction. See Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S.

1070 (2000); State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.—Dallas 2006,

pet. ref’d).

      Appellant points to no evidence that the jury failed to follow the trial

court’s instruction to disregard the prosecutor’s question, and our own review

of the record finds none.     Moreover, Deputy McNeal did not answer the

question before Appellant objected, and while the question itself suggested that

Appellant continued to operate Pot of Gold in violation of the law, the question

was not of such a highly prejudicial character that it was wasteful and futile to

continue the trial. See Simpson, 119 S.W.3d at 272. We therefore hold that




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the trial court did not abuse its discretion by denying Appellant’s motion for

mistrial, and we overrule his first point.




               Failure to grant mistrial after improper argument.

      In his second point, Appellant argues that the trial court erred by failing

to grant a mistrial after the prosecutor began his closing argument with these

words:

            Ladies and gentlemen, I want to start out by talking a little bit
      about this. If you have any problems with the Sheriff not calling
      the Defendant back or the DA’s office not calling the Defendant
      back, there was a Cease and Desist Order on June 13th of 2003.
      And it’s the policy of the Sheriff’s office and Mr. Curry, they don’t
      normally make contact with defendants. [Emphasis added.]

Appellant objected to the last sentence as outside the record, and the trial court

sustained the objection and instructed the jury to disregard the statement, but

it denied Appellant’s motion for mistrial.

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973).


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      W hen the trial court sustains an objection to improper argument and

instructs the jury to disregard but denies a defendant’s motion for a mistrial, the

issue is whether the trial court abused its discretion by denying the mistrial.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Faulkner v.

State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. ref’d) (en banc

op. on reh’g). Only in extreme circumstances, where the prejudice is incurable,

will a mistrial be required. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.

App. 2007); Hawkins, 135 S.W.3d at 77. We presume the jury complied with

an instruction to disregard improper jury argument. Wesbrook v. State, 29

S.W.3d 103, 116 (Tex. Crim. App. 2000). When assessing the curative effect

of the court’s instruction to disregard, the correct inquiry is whether the

argument was extreme or manifestly improper, injected new and harmful facts

into the case, or violated a mandatory statutory provision and was thus so

inflammatory that an instruction to disregard could not cure its prejudicial

effect. Faulkner, 940 S.W.2d at 312. Only offensive or flagrant error warrants

reversal when there has been an instruction to disregard.          Wesbrook, 29

S.W.3d at 116. If the instruction cured any harm caused by the improper

argument, a reviewing court should find that the trial court did not err. Dinkins

v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied, 516 U.S. 832

(1995); Faulkner, 940 S.W.2d at 312.



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      A significant theme in Appellant’s defense—including closing arguments

delivered immediately before the prosecutor’s complained-of remark—was that

he and his attorney attempted on several occasions to contact the sheriff’s

office and the district attorney’s office in a effort to determine whether Pot of

Gold was operating in compliance with the law. Under the circumstances, we

cannot say that the prosecutor’s statement that the sheriff and the district

attorney do not normally contact defendants was so extreme, offensive, or

inflammatory that it caused incurable prejudice and rendered the instruction to

disregard ineffective. See Archie, 221 S.W.3d at 699; Wesbrook, 29 S.W.3d

at 116; Faulkner, 940 S.W.2d at 312.        Nothing in the record overrides the

presumption that the jury complied with the instruction to disregard the

comment. See Wesbrook, 29 S.W.3d at 116. We therefore hold that the trial

court did not abuse its discretion by denying Appellant’s motion for mistrial, and

we overrule his second point.

                                   Conclusion

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.

                                            PER CURIAM

PANEL B:     GARDNER, LIVINGSTON, and HOLMAN, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)


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DELIVERED: July 3, 2008




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