Opinion issued August 30, 2007




                                     In The


                                    For The
                                               feooa&




                             NO. 01-05-00516-CR



                       FRABON CROCKER, Appellant




                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 230th District Court
                             Harris County, Texas
                        Trial Court Cause No. 1012896



                           DISSENTING OPINION


      This appeal presents an interesting question that appears to be of first

impression inTexas regarding the preservation oferror in criminal cases. The usual
method for preserving error is to press for an adverse ruling from the trial court by

first objecting, then requesting an instruction for the jury to disregard, and finally

asking fora mistrial. But whatis the effect of defense counsel's requesting a motion

for mistrial before obtaining a ruling on his request for an instruction to disregard?

In other words, when the trial court denies the motion for mistrial, does that also

constitute a denial ofthe request for an instruction to disregard? The majority holds

thatthe single denial serves to deny bothrequests, butI disagree. Thedifference that

it makes is whether our review is focused on the trial court's error in denying an

instruction to disregard and a motion for mistrial, rather than on whether an

instruction to disregard couldhavecuredthe error. Importantly, themajority doesnot

hold that the argument here constituted incurable error; it holds that the trial court

erred in denying appellant's requests for an instruction to disregard and a mistrial.

In a case in which defense counsel proceeded directly to a request for a mistrial, the

Court of Criminal Appeals held that, although the adverse ruling on the request for

mistrial was sufficient to preserve error, even though no objection or request for an

instruction to disregard had been made, the focus of the analysis was on whether an

instruction to disregard could have cured the error. See Young v. State, 137 S.W.3d

65, 71 (Tex. Crim. App. 2004). The Court of Criminal Appeals held that an

instruction to disregard would have cured any harm. Id. at 72.
      Here is the state of the record that we are called upon to review. In closing

arguments, the following exchange occurred:

      [Prosecutor]: And I will tell you this: The State and the defense have
      the same ability to bring in witnesses in this case. The State can
      subpoena witnesses. The defense can subpoena witnesses. Okay. You
      heard from the State's witnesses as to who was there January 26,2004.
      And the State's witnesses only. And I ask that you find him guilty.

      [Defense Counsel]: Objection improper jury argument.

      [Trial Court]: Sustained.

      [Defense Counsel]: I'd ask the jury be instructed to disregard the last
      statement of the prosecutor. We ask for mistrial.

      [Trial Court]: Denied.

Notice that defense counsel asked for an instruction to disregard, but proceeded to ask

for a mistrial before the trial court had ruled on the request for an instruction to

disregard.

      Because the burden is on an appellant to produce a record that demonstrates

error and preservation of that error, I would place the burden on defense counsel to

have waited to receive a ruling on his request for an instruction to disregard before

going on to ask for a mistrial. I submit that it would be a rare case in which a trial

court, having sustained an objection, would deny a request for an instruction to

disregard. Having received only one ruling, defense counsel should have either

clarifiedon the recordthat it was a ruling on both requests, or asked the trial court to

go back and separately to rule on the request for an instruction to disregard.
Admittedly, I have found no casethat so holds. The closest case that I could find is

Young v. State, supra, in which the court held that a denial of a mistrial, in the

absence of an objection anda requestforan instruction to disregard, requires a review

of whether an instruction to disregard would have cured any harm.

      If we are not going to place the burden on an appellant in this situation, we are

placing the burden on trial courts to sort out multiple requests to be sure that each is

separately ruled on. I heartily disagree with such a practice,

      I do agree with the majority that appellant was entitled to an instruction to

disregard. My disagreement is thatI believe that an instruction to disregard would

have cured any harm for five reasons:

       1.    The comment on appellant's failure to testify appears to be an errant

attempt to comment on appellant's failure to call witnesses, which is ordinarily a

proper argument. As themajority states, there is nothing intherecord indicating that

the prosecutor had evil intent in making his argument. The problem is that the only

obvious witness wasappellant. Thus,the comment became a comment onappellant's

failure to testify. The comment was not direct, however, such as, "Manyof you may

have expected appellant to testify, and I cannot tell you why he did not." The

majority agrees thatthecomment here is anindirect comment. Anindirect comment

is obviously less prejudicial than a direct comment, and there was no mention in

appellant's general objection that the prosecutor was commenting on appellant's
failure to testify, as there is in some cases. At the out-start, therefore, we are faced

with a lesser degree of harm than many comments on the failure of the accused to

testify.

       2.    As the majority points out, the jury had been instructed during jury

selection by both the trial court and defense counsel that jurors could not hold

appellant's failure to testify against him. In the process, it was made very clear that

the burden was on the State, and the defense had no burden at all, not even to ask

questions, much less to present witnesses, including appellant. Although a few

venirepersons had some difficulty with the concept, all jurors agreed to place the

burden on the State and not to hold it against appellant for failingto testify or to bring

witnesses. Thus, no venireperson had to be struck for cause for being unable to

follow the trial court's instructions in this area. As the majority also points out, the

jury was again instructed in the trial court's charge notto hold appellant's failure to

testify against him. Thelawis as set out inthemajority opinion: thejuryis presumed

to follow the instructions of the trial court. Therefore, to the extent that the jurors

may have identified the impropriety in the State's argument as a comment on

appellant's failure to testify, they would have considered the prosecutor's action as

improper, particularly in light of the trial court's having sustained appellant's

objection. Therefore, the likelihood is that jurors would have held this argument

against the State, rather than against appellant.
      3.     Defense counsel made many objections during trial, the majority of

which were sustained. Accordingly, the jury was used to seeing the prosecutor's

actions objected to by the defense and the trial court's sustaining the defense's

objections. Once again, this reinforces theproposition thatiftheerror here produced

any prejudice, it was more likely directed against the prosecutor than against

appellant.

      4.     Theprosecutor'sargument initially focused onthecomplainant's having

recorded the license plate number of the red van in which his assailant had fled and

in which appellant was arrested as the soleoccupant and driver a few months later.

This was in rebuttal of defense argument dwelling on the lack of physical evidence,

sloppy police work, and tainted identification procedures. The prosecutor argued that

the van was one big piece of physical evidence. The prosecutor also focused on the

identification by the complainant who had observed appellant as he was surprised

literally with hishand inthe till and fled from thestore and again as the complainant

hung onto the van's mirror in a futile attempt to stop the van. It was during the

prosecutor's argument regarding the identification that he drew the only other

objection during argument; it was one of the few defense objections that was

overruled during trial. Thus, thejury had the benefit ofseeing where the prosecutor

was arguing properly, as opposed to where he was arguing improperly.




                                          6
      5.     Although defense counsel attempted to portray this case as one of

mistaken identity, the complainant's having written down the license plate number

of appellant's fleeing red van, which was stopped a few months laterwithappellant

driving, constituted objective, corroborating evidence so as to assure that the jury's

verdict was based on the evidence presented, rather than on the prosecutor's errant

comment onappellant's failure to callwitnesses, which, becauseofthe circumstances

of this case, constituted an indirect comment on appellant's failure to testify.

      Accordingly, I respectfully dissent from the implicit holding of the majority

that appellant either obtained a ruling on his request for an instruction to disregard

or thatappellant was relieved of the responsibility of obtaining such a ruling under

the unusual preservation posture of this case caused by defense counsel's failure to

obtain a ruling on his request for an instruction to disregard before asking for a

mistrial. A mistrial is an extreme remedy not to be granted until all lesserremedies

have been exhausted to no avail. Moreover, it is very helpful to the appellate court

for it to be able to consider an instruction to disregard in gauging its efficacy in

neutralizing any harm soas to beable to evaluate thepropriety ofa trial court's denial

of a mistrial. When a trial court is presented with a request for a mistrial before

having ruled ona request for an instruction to disregard, I believe that the trial court

isentitled to deem the request foran instruction to disregard to have beenabandoned,

i.e., to consider that counsel's position has quickly shifted to believing that no
instruction could cure the harm—so that, should the trial court be ofthe opinion that

an instruction would cure the harm, the trial court could properly overrule the motion

for mistrial. See Young, 137 S.W.3d at 72 (holding that because an instruction to

disregard venireperson'scomments wouldhave curedany resulting harm, trial court

did not err in denying appellant's motion for mistrial).




                                       Tim Taft
                                       Justice



Panel consists of Justices Taft, Alcala, and Hanks.

Justice Taft, dissenting.

En banc consideration was requested. See TEX. R. APP. P. 41.2(c).

A majority of the Justices of the Court voted to deny en banc consideration. See id.

Justices Taft,Nuchia, andHigleydissentfrom the denial ofen banc consideration for
the reasons stated in the dissenting opinion. See TEX. R. APP. P. 47.5.

Publish. TEX. R. App. P. 47.2(b).
