           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0189-10



                              TRENT ARCHIE, Appellant

                                             v.

                                THE STATE OF TEXAS



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE TENTH COURT OF APPEALS
                           WALKER COUNTY

       P RICE, J., delivered the opinion for a unanimous Court.

                                      OPINION

       Trent Archie, the appellant, was convicted by a jury of murder, and the judge assessed

punishment at forty years’ imprisonment. In a published opinion, the Tenth Court of Appeals

in Waco reversed the appellant’s conviction and remanded the cause to the trial court,

concluding that the trial court abused its discretion by denying the appellant’s motion for a
                                                                                  Archie — 2
mistrial.1 In its petition for discretionary review, the State Prosecuting Attorney (SPA)

argues that the court of appeals erred when it found that the prosecutor improperly

commented on the appellant’s failure to testify during his closing argument. Moreover, even

assuming the prosecutor’s argument was improper, the SPA contends, it was within the trial

court’s discretion to deny the motion for mistrial. We granted the SPA’s petition for

discretionary review to address these issues, and we now reverse.

                       FACTS AND PROCEDURAL POSTURE

                                          At Trial

       The appellant and the victim, Anthony Williams, were competing drug dealers in the

Huntsville area. In the early morning hours of October 9, 2004, the appellant shot Williams

through a window at Williams’s home while his girlfriend, Angela Kizzee, and their child

were in the room. Dixie Willis, the appellant’s co-defendant, was the primary witness for

the State. He testified that the appellant wanted to steal drugs and money from Williams and

that the appellant was in possession of a 12-gauge shotgun. The two parked their car at a

friend’s house, started walking, and eventually made their way to Williams’s house. The

plan was for the appellant to distract Williams by calling him outside so that they could talk

while Willis was to go inside the house through the back door to steal the drugs and money.

Should Williams “get[ ] tripping,” then the appellant was to shoot Williams to “slow him



       1

        Trent Archie v. State, 311 S.W.3d 556 (Tex. App.—Waco 2009) (hereinafter “Trent
Archie”).
                                                                                         Archie — 3
down.” Willis testified that as he approached the back of the house in pursuit of the plan, he

heard a gunshot and took off running, and the appellant followed soon after.

         Because Willis was an accomplice to the murder, his testimony required

corroboration.2 There was other evidence in the record to support Willis’s description of the

events tending to connect the appellant with the offense. For example, Vince Johnson

testified that the appellant called him shortly after the murder and told him that Williams had

been shot and that the appellant needed to find Willis and the car. Several days after the

murder, the police attempted to stop the appellant for a routine traffic violation in a car

belonging to his girlfriend, and the appellant fled on foot, evincing a consciousness of guilt

for an offense greater than a mere traffic infraction. Jessica James, a witness who lived near

the appellant’s father in Houston, testified that she overheard the appellant say that he had

“cancelled a guy through a window” because “he was moving in on his turf.” Willis’s

girlfriend, Ashley Wyatt, testified that she and her roommate found the shotgun that Willis

testified the appellant had been carrying on the night of the murder hidden in a closet in their

home.3       The appellant was heard in phone conversations from the jail giving Willis


         2

        See TEX . CODE . CRIM . PROC. art. 38.14 (“A conviction cannot be had upon the testimony of
an accomplice unless corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows the commission of the
offense.”).
         3

        Wyatt also testified that Willis told her that “me and Trent [the appellant] killed somebody.”
An accomplice’s out-of-court statement may not be used to corroborate him for purposes of Article
38.14, Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). Still, Willis’s out-of-court
statement did not itself have to be corroborated under Article 38.14, Bingham v. State, 913 S.W.2d
                                                                                       Archie — 4
instructions to bury the murder weapon and to keep quiet about what had happened. Finally,

Paul Lewis, a jail informant, was initially passing “kites,” or letters written in jail, between

the appellant and Willis. In one of these kites, the appellant wrote that Kizzee was sitting on

the bed while Williams was standing in front of the window, and that Kizzee screamed when

Williams was shot—information that presumably only Kizzee and the shooter would know.

       During closing argument at the guilt-innocence phase of the trial, the prosecutor

reminded the jury about the kite in which the appellant stated that he had heard Kizzee

scream on the night of the offense:

              [PROSECUTOR]: But the only person who heard her scream, the only
       person who said she screamed was Trent Archie. Do you still hear it, Trent?
       Do you still hear her screaming? How do you know she screamed?

              [DEFENSE COUNSEL]: Your Honor, I object. I have to move for a
       mistrial.

               [PROSECUTOR]: Because you were there that night.

               TRIAL COURT: Approach the bench.

              [DEFENSE COUNSEL]: Judge, I move for a mistrial. It’s an improper
       jury argument.

               TRIAL COURT: Sustained.

               [DEFENSE COUNSEL]: I’m going to ask that you – in front of the
       jury, instruct Mr. Weeks to not ever – to refrain from ever –

               TRIAL COURT: You can’t ask him questions.


208 (Tex. Crim. App. 1995), and the jury was entitled to regard it as independent evidence of the
appellant’s guilt, as long as it was corroborated as required by TEX . R. EVID . 803(24), Bingham v.
State, 987 S.W.2d 54 (Tex. Crim. App. 1999).
                                                                                   Archie — 5
                [PROSECUTOR]: I didn’t. I’m making argument.

                TRIAL COURT: You can’t do that.

                [PROSECUTOR]: Judge, I’ve done it before.

                                            ***

              TRIAL COURT: The objection is sustained and the jury is ordered to
       disregard [the prosecutor’s] argument to which the objection was sustained.

                [DEFENSE COUNSEL]: And a motion for mistrial –

                TRIAL COURT: Denied. Other instructions?

                [DEFENSE COUNSEL]: I ask that you instruct that that doesn’t happen
       again.

                TRIAL COURT: [The prosecutor] is so instructed.

Later, at a hearing on the appellant’s motion for new trial, defense counsel testified that, as

the prosecutor was making the objected-to argument above, he had “turned from the jury,

faced defense counsel table and pointing, taking a step or two towards [the appellant],” asked

the objected-to questions. The SPA does not challenge the accuracy of this description. The

jury found the appellant guilty, and he appealed.

                                  In the Court of Appeals

       On appeal, the appellant raised the denial of his motion for mistrial. The court of

appeals held that the prosecutor’s argument, coupled with his physical actions, constituted

an improper comment on the appellant’s failure to testify in violation of his state and federal
                                                                                     Archie — 6
rights against self-incrimination.4 Having found the argument improper, the court of appeals

went on to address whether the trial court abused its discretion in refusing to grant a mistrial.

The court of appeals found that the argument was highly prejudicial, that any curative

instructions would not have ameliorated the prejudice, and the evidence was not so strong

that the appellant would necessarily have been convicted absent the improper argument.5

Accordingly, the court of appeals reversed the appellant’s conviction and remanded the cause

to the trial court.6

                                          ANALYSIS

                                           The Law

        Commenting on an accused’s failure to testify violates his state and federal

constitutional privileges against self-incrimination.7 Such a violation occurs when “the

language used was manifestly intended or was of such a character that the jury would

necessarily and naturally take it as a comment on the defendant’s failure to testify.” 8

        Because the trial court sustained the appellant’s objection and instructed the jury to


        4

        Trent Archie, supra, at 559.
        5

        Id. at 560-61.
        6

        Id. at 561.
        7

       Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003); Bustamante v. State, 48
S.W.3d 761, 764 (Tex. Crim. App. 2001).
        8

        Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007).
                                                                                   Archie — 7
disregard the argument, “[t]he only adverse ruling—and thus the only occasion for making

a mistake—was the trial court’s denial of the motion for mistrial.”9 Thus, “the proper issue

is whether the refusal to grant the mistrial was an abuse of discretion.”10 To evaluate whether

the trial court abused its discretion in denying a mistrial for improper jury argument, this

Court, in Hawkins v. State,11 adopted the three factors from Mosley v. State,12 which balance:

(1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s

remarks), (2) the measures adopted to cure the misconduct (the efficacy of any cautionary

instruction by the judge), and (3) the certainty of conviction absent the misconduct (the

strength of the evidence supporting the conviction).13 “Mistrial is the appropriate remedy

when . . . the objectionable events ‘are so emotionally inflammatory that curative instructions

are not likely to prevent the jury from being unfairly prejudiced against the defendant.’” 14

                    Was the Argument a Comment on Failure to Testify?

       In the State’s first ground for review, the SPA argues that the court of appeals



       9

       Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).
       10

       Id. at 77.
       11

       Id.
       12

       983 S.W.2d 249 (Tex. Crim. App. 1998).
       13

       Mosley v. State, supra; Julius Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007).
       14

       Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004).
                                                                                       Archie — 8
misconstrued Bird v. State,15 and Hicks v. State,16 when it found that the prosecutor’s

argument constituted reversible error. The SPA contends that the prosecutor’s argument was

simply a summation of the evidence and alluded to record evidence already before the jury,

i.e., the kite in which the appellant wrote that Kizzee screamed when Williams was shot.17

Kizzee herself testified that she was in her bedroom sitting on the bed while Williams was

standing in front of the window at the time he was shot. Thus, it is the SPA’s position that

the prosecutor’s argument simply referred back to the kite that was read aloud during the

course of the trial, thus inviting the jury to examine the record to determine who was the only

person, besides Kizzee, present when she screamed. The reasonable deduction from the

evidence, according to the SPA, is that it was the appellant.

       Bird and Hicks stand for the proposition that an argument, combined with physical

actions, can be of such a character that the jury would naturally and necessarily take it to be

a comment on the appellant’s failure to testify. The SPA takes issue with the court of

appeals’s reliance on these cases. According to the SPA, Bird and Hicks are distinguishable

from the instant case because the arguments in those cases invited the jury to go outside the

record to furnish an answer to the questions posed, but in this case, the prosecutor’s argument

       15

        527 S.W.2d 891 (Tex. Crim. App. 1975).
       16

        525 S.W.2d 177 (Tex. Crim. App. 1975).
       17

        Lewis, the jailhouse informant, read from one of the letters that the appellant wrote him
while they were incarcerated. The letter stated: “Where Ol’ Boy was shot they heard his girl scream.
She was sitting on the bed while he was standing by the window.”
                                                                                       Archie — 9
was a reasonable deduction from evidence already in the record. However, we agree with

the court of appeals that at least portions of the prosecutor’s argument in this case, coupled

with his actions, went beyond the bounds of invoking a logical inference from the record

evidence and strayed into impermissible territory.

       The prosecutor’s first assertion obviously referred to the kite in which the appellant

stated that he heard Kizzee scream on the night of the murder.18 The last question that the

prosecutor directed to the appellant might well have been construed by the jury as a rhetorical

question,19 not meant to emphasize his failure to testify during trial, but simply to illustrate

that only the shooter could have been privy to the information revealed in the kite. This

much constituted permissible jury argument—a reasonable deduction from the record

evidence.

       However, the questions posed by the prosecutor in between clearly go beyond asking

the jury to infer that the answer to these questions can be found in the evidence in the

record.20 These questions go more immediately to the appellant’s present state of mind as

he sat in the courtroom, seeming to ask whether he presently harbors a guilty conscience for



       18

       “But the only person who heard her scream, the only person who said she screamed was
Trent Archie.”
       19

         “How do you know she screamed?” The jury could infer the answer to this particular
rhetorical question from the kite, and thus, it did not necessarily invite the jury to go beyond the
record and penalize the appellant for failing to answer it from the witness stand.
       20

        “Do you still hear it, Trent? Do you still hear her screaming?”
                                                                                     Archie — 10
what transpired on the night of the murder. These questions could be answered only by the

appellant, and the asking of these questions, coupled with the prosecutor’s act of turning

from the jury to face the defense counsel table, pointing, and taking a step or two towards the

appellant, directly highlighted the fact that the appellant did not personally take the stand to

testify. We think the jury could only have construed this as an invitation to go beyond the

inference deriving from the kite to consider the appellant’s failure to testify, perhaps to

express remorse, from the witness stand. Thus, we agree with the court of appeals to the

extent that we hold that at least that part of the prosecutor’s argument was improper.

                                       Abuse of Discretion?

       In its second ground for review, the SPA argues alternatively that, even assuming that

the prosecutor’s argument was an improper comment on the appellant’s failure to testify, the

trial court did not abuse its discretion in denying the motion for mistrial under the Mosley

factors. The court of appeals correctly found that “[b]ecause the trial court sustained [the

appellant’s] objection and granted his request for an instruction to disregard,” 21 it did not err

in the sense that it admitted evidence it should not have. Instead, the “only adverse

ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the

motion for mistrial.”22 The question becomes whether, balancing the Mosley factors, the trial

court abused its discretion in failing to grant the mistrial motion. We hold that the court of


       21

        Trent Archie, supra, at 559.
       22

        Id.
                                                                                    Archie — 11
appeals erred to hold that the trial court abused its discretion.

       The first Mosley factor looks at the severity of the misconduct, or in other words, the

magnitude of the prejudicial effect of the prosecutor’s remarks. The court of appeals found

the prosecutor’s remarks in this case to be “highly prejudicial” because they “(1) disrupt[ed]

the jury’s orderly evaluation of the evidence, (2) caus[ed] prejudice to the jury’s decision-

making, and (3) den[ied] [the appellant’s] right to a fair and impartial trial.” 23 But the

question is not whether the prosecutor’s improper questions during his final argument had

these consequences, but rather, the extent to which they did—the “severity” or “magnitude”

of the prejudice they likely caused. Because the improper questions were embedded within

other remarks that invited the jury to draw a legitimate inference from information contained

in the appellant’s kite, we think the magnitude of the prejudice was concomitantly

diminished. We do not think that the extent of prejudice was so great here as necessarily to

render a firm and timely curative instruction inefficacious.

       Under the second Mosley factor, the reviewing court considers the character of the

measures adopted to cure the misconduct. In this case, the trial court sustained the objection

to the prosecutor’s argument and immediately instructed the prosecutor that he could not “ask

[the appellant] questions.” After a discussion at the bench, the trial court also ordered the

jury to “disregard [the prosecutor’s] argument to which the objection was sustained.”

Additionally, in its final charge, the trial court instructed the jurors on the appellant’s right


       23

        Id. at 560.
                                                                                 Archie — 12
to remain silent and their duty not to comment on or allude to the appellant’s failure to

testify. The law generally presumes that instructions to disregard and other cautionary

instructions will be duly obeyed by the jury.24

       The court of appeals nevertheless held that these curative instructions were not likely

to have obviated the prejudice inherent in the prosecutor’s improper argument.25 The only

justification that the court of appeals offered in support of this holding, however, was that

the prosecutor’s argument “called attention to the absence of evidence that [the appellant]

alone could provide.”26 This will be true, of course, of any comment on the accused’s failure

to testify—by definition. If the fact that an improper argument reminded the jury that the

accused did not take the witness stand would always suffice to completely undermine an

instruction to disregard, then no such instruction would ever be found to be efficacious. In

our view, the improper questions posed by the prosecutor in this case, while exceeding the

legitimate inference from the record that the appellant must have been the shooter because

only he knew that Kizzee screamed, were not so indelible that the jury would simply ignore

the trial court’s specific and timely instruction to disregard them.

       Lastly, under Mosley, the reviewing court looks to the certainty of conviction absent

the misconduct. The court of appeals held that the evidence in this case was “not so strong

       24

       Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).
       25

       Trent Archie, supra, at 561.
       26

       Id.
                                                                                  Archie — 13
that [the appellant] would necessarily have been convicted absent [the prosecutor’s] improper

argument.”27 The court of appeals reasoned that the credibility of the accomplice, Willis, had

been impeached because he admitted that he lied initially to the police several times in order

to cover up and ameliorate his involvement in the murder, and, apart from Willis’s testimony,

the record contained no direct evidence establishing that the appellant shot Williams.28 The

indirect evidence, in the court of appeals’s view, while significant, was not overwhelming.29

       But we find the evidence to support the appellant’s conviction to be fairly compelling.

Notwithstanding his admission that he has lied in the past, Willis’s testimony gave the jury

a detailed description of what happened on the night of the murder, pinpointing the appellant

as the shooter. There was ample evidence to corroborate his accomplice testimony. James

testified that she overheard the appellant admit that he “cancelled a guy in Huntsville through

a window” because “he was moving in on his turf.” Williams was indeed shot through his

bedroom window, with his girlfriend and child sitting on the bed in front of him.

Furthermore, Lewis read the appellant’s kites to the jury, detailing the appellant’s plan to

conceal his involvement in the murder and describing Kizzee sitting on the bed and

screaming when Williams was shot on the night of the murder. The jury was authorized to

convict the appellant as a party to the offense. Even if it doubted the veracity of some of

       27

       Id.
       28

       Id.
       29

       Id.
                                                                                    Archie — 14
Willis’s testimony, given the other evidence connecting the appellant to the offense, the jury

would likely have found beyond a reasonable doubt that the appellant was guilty of

complicity in the offense, even if he was not the shooter as Willis maintained. In our view,

the evidence supporting the conviction was strong, and the jury would almost surely have

convicted the appellant regardless of the prosecutor’s improper comment during his closing

argument.

       On this state of the record, the court of appeals erred to conclude that the trial court

abused its discretion. The magnitude of the prejudice caused by the prosecutor’s two

improper questions, embedded as they were within an invitation to the jury to draw a

legitimate inference from the record, was not so great that a jury would necessarily have

discounted the trial court’s firm instructions to disregard them. It seems unlikely that the jury

would have ignored the court’s explicit instructions and convicted the appellant, not on the

compelling evidence introduced against him, but because he failed to take the witness stand

to explain himself. Under these circumstances, we hold that it was well within the trial

court’s discretion to deny the appellant’s motion for mistrial.

                                       CONCLUSION

       The court of appeals did not err to conclude that at least two of the rhetorical questions

posed by the prosecutor directly to the appellant during his final argument constituted an

improper comment on his failure to testify. However, the court of appeals did err to hold

that, considering the factors described in Mosley v. State, the trial court abused its discretion
                                                                                          Archie — 15
in denying the appellant’s request for a mistrial. Accordingly, we reverse the judgment of

the court of appeals and remand the cause for that court to address the appellant’s remaining

claim of trial error on appeal.30




FILED:         June 8, 2011
PUBLISH




       30

         On appeal, the appellant raised two other points of error. In one, he challenged both the legal
and factual sufficiency of the evidence to support his conviction. In another, he challenged the
admissibility of testimony and evidence from Lewis, the jailhouse informant. The court of appeals
addressed the appellant’s legal sufficiency claim and found that the evidence was legally sufficient
to support his conviction. Trent Archie, supra, at 558. On remand, the court of appeals need not
address the appellant’s factual sufficiency claim, in light of Brooks v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010). But still extant is the appellant’s remaining point of error regarding the admission
of testimony and evidence from the jailhouse informant. See TEX . R. APP . P. 47.1 (“The court of
appeals must hand down a written opinion that is as brief as practicable but that addresses every
issue raised and necessary to final disposition of the appeal.”).
