                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-11-00577-CR
                          ____________________

                     SETH EVERETT NILES, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

_______________________________________________________          ______________

               On Appeal from the County Court at Law No. 5
                       Montgomery County, Texas
                        Trial Cause No. 10-263190
________________________________________________________          _____________

                         MEMORANDUM OPINION

      Claiming the prosecutor improperly introduced evidence that his driver’s

license was suspended during his trial for driving while intoxicated, Seth Everett

Niles appeals the jury’s verdict and contends he should receive a new trial. See

Tex. Penal Code Ann. § 49.04(b) (West Supp. 2012).1 We affirm the trial court’s

judgment.


      1
       We cite to the current version of the statute, as the amendments to the
section are not pertinent to the appeal.
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      In three issues, Niles complains the prosecutor improperly exposed the jury

to evidence that he was driving while his license was suspended. According to

Niles, the fact that his license had been suspended was not admissible to prove that

he was driving while intoxicated. The State argues Niles failed to raise a claim of

prosecutorial misconduct at trial, and it concludes that his complaints alleging

prosecutorial misconduct were not preserved for our review on appeal.

      To preserve error complaining of prosecutorial misconduct, the appellant’s

objection or motion must alert the trial court that it is being asked to make a

judgment regarding a claim of prosecutorial misconduct. See Hajjar v. State, 176

S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (explaining that

a failure to object on a claim of prosecutorial misconduct waives alleged

complaints including complaints about the introduction of evidence during trial).

Preserving a complaint of prosecutorial misconduct requires that defense counsel

“(1) object on specific grounds, (2) request an instruction that the jury disregard

the comment, and (3) move for a mistrial.” Penry v. State, 903 S.W.2d 715, 764

(Tex. Crim. App. 1995); see also Tex. R. App. P. 33.1 (explaining that error

preservation requires the complaining party to pursue his complaint to an adverse

ruling). The defendant’s failure to object to prosecutorial misconduct at the earliest

possible moment generally leaves the complaint unpreserved. See Penry, 903


                                          2
S.W.2d at 764. Therefore, to determine if the issues Niles raises in his appeal were

preserved, we examine the record of the trial to see when Niles first raised a claim

of prosecutorial misconduct, and whether he obtained an adverse ruling on his

complaint. See id; Hajjar, 176 S.W.3d at 566.

      In his appeal, Niles contends the prosecutor engaged in prosecutorial

misconduct at two points in the trial: (1) by failing to redact Trooper Michael

Martin’s statement referencing that Niles’s driver’s license had been suspended

from a DVD of the stop, and (2) by asking Trooper Martin, during the trooper’s

direct examination, if anything relevant to the stop occurred while Martin checked

Niles’s license.

      When the DVD was played before the jury, Trooper Martin can be heard

stating that Niles’s license was suspended. When the prosecutor was examining

Trooper Martin at trial at a point the videotape showed the trooper checking on

Niles’s license, she asked whether anything relevant was going on. Trooper Martin

answered: “[Niles] was suspended, unable to drive.” The admission of this same

evidence forms the basis of the request that Niles makes on appeal asking for a

new trial.

      The record reflects that before the DVD was admitted into evidence, the

attorneys for the parties agreed that certain parts of the DVD would be redacted,


                                         3
and their agreement was intended to include Trooper Martin’s statement that

concerned the status of Niles’s license. However, the record also shows that

defendant’s attorney was provided an opportunity to view the redacted DVD

before it was shown to the jury and that he did not do so. When the State offered

the partially redacted DVD into evidence, Niles’s attorney stated: “No objection,

Judge.” When the jury heard Trooper Martin’s statement from the DVD regarding

the status of Niles’s license, Niles’s attorney requested a conference at the bench.

When Niles’s attorney advised the trial court of the request he made to the

prosecutor to redact the portion of the DVD where Trooper Martin made the

statement about the status of Niles’s license, the prosecutor responded: “I thought

we redacted that out.” After Niles’s attorney admitted that he had not watched the

redacted video, the trial court stated: “I can give them a limit[ing] instruction or I

can do nothing. I’ll leave it up to you. If you want me to give a limit[ing]

instruction, I can. I’m not going to grant a mistrial.” Niles’s attorney responded: “I

just want [you] to acknowledge my objection that it’s there, but I don’t want you to

say anything to the jury, assuming there is nothing else in there.” Because Niles’s

attorney did not ask for an instruction to disregard, none was given.

      With respect to Trooper Martin’s trial testimony, the record reflects that

Trooper Martin was describing various parts of his stop of Niles while the DVD


                                          4
played. The bench conference occurred immediately after Trooper Martin testified

that while checking Niles’s license, he learned that “[h]e was suspended, unable to

drive.” During the bench conference, Niles never suggested that he was claiming

the prosecutor had intentionally injected inadmissible and incurable testimony in

violation of the parties’ agreements or the trial court’s rulings on the evidence to be

admitted during Niles’s trial. Additionally, Niles’s attorney first asserted his

objections after stating that he had no objection to the jury being shown the

redacted DVD. Consequently, the DVD was admitted for all purposes, and

anything in it was properly before the jury. See Hammock v. State, 46 S.W.3d 889,

892-93 (Tex. Crim. App. 2001).

      With respect to Niles’s complaint that the trial court did not grant a mistrial,

we note that Niles never asked for one during trial nor did he file a motion for new

trial after the jury returned a verdict. Nevertheless, if Niles had asked for a mistrial

and if his motion had been denied, a mistrial is generally required when the

prejudice is incurable. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004). Prejudice is incurable when the “evidence is clearly calculated to inflame

the minds of the jury and is of such a character as to suggest the impossibility of

withdrawing the impression produced on their minds.” See Ladd v. State, 3 S.W.3d

547, 567 (Tex. Crim. App. 1999); Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim.


                                           5
App. 1998). If, however, an instruction is capable of curing the admission of

improper testimony, a trial court’s decision to deny a motion for mistrial is not an

abuse of discretion when the party asking for a mistrial either did not object to the

admission of the evidence or he did not request the trial court to give the jury an

instruction to disregard the testimony. Young v. State, 137 S.W.3d 65, 70, 72 (Tex.

Crim. App. 2004).

      Generally, an instruction to disregard evidence improperly admitted or

admitted for a limited purpose, such as evidence that refers to extraneous offenses,

cures any harm. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see

also Rojas, 986 S.W.2d at 250. In our opinion, an instruction to disregard would

have cured any error with respect to the evidence at issue. Because Niles failed to

secure an adverse ruling regarding the trial court’s admission of the evidence at

issue, his complaints were not properly preserved for our review on appeal. See

Young, 137 S.W.3d at 70 (“The party who fails to request an instruction to

disregard will have forfeited appellate review of that class of events that could

have been ‘cured’ by such an instruction.”); Cook v. State, 858 S.W.2d 467, 473

(Tex. Crim. App. 1993) (explaining that an appellant is required to pursue the

complaint of objectionable conduct to an adverse ruling to preserve the appellant’s

right to review the conduct at issue).


                                         6
      Even if the claimed error is “‘incurable’ or ‘constitutional[,]’” trial counsel

must preserve error during trial to obtain review of the complaint on appeal. Haro

v. State, 371 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Although

Niles has not argued his complaints about the prosecutor’s conduct rise to the level

of fundamental error, some errors are considered so fundamental to the right to a

fair trial that the usual error preservation rules are not applied. See Tex. R. Evid.

103(d) (authorizing appellate courts to take notice of fundamental errors affecting

substantial rights which have not been preserved for appeal); Ariz. v. Fulminante,

499 U.S. 279, 309-10 (1991) (noting that fundamental error occurs when certain

constitutional rights are violated, such as the right to counsel, the right to an

impartial judge, the right for there not to be unlawful exclusion of members of the

defendant’s race from the grand jury, the right to represent oneself at trial, or the

right to a public trial). However, the conduct at issue, in our opinion, does not rise

to the level of fundamental error. See Clark v. State, 365 S.W.3d 333, 340 (Tex.

Crim. App. 2012) (concluding that “[w]hile the prosecutor may have been

aggressive in his cross-examination of Appellant, his tactics do not rise to the level

of fundamental error”). Assuming without deciding that the prosecutor acted




                                          7
improperly in introducing the evidence at issue, we conclude that conduct,

nevertheless, does not rise to the level of fundamental error. See id.

      In summary, the record fails to demonstrate that Niles made the trial court

aware that he was attempting to claim that the prosecutor was guilty of

misconduct. Consequently, having never put the court on notice of his complaint,

Niles complaints concerning misconduct were forfeited.

      Having overruled each of Niles’s issues, the trial court’s judgment is

affirmed.

      AFFIRMED.



                                                     _________________________
                                                          HOLLIS HORTON
                                                               Justice


Submitted on August 30, 2013
Opinion Delivered September 25, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




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