                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00107-CR

DAVID RAY BRATCHER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 278th District Court
                             Madison County, Texas
                         Trial Court No. 07-11167-278-06


                          MEMORANDUM OPINION


      A jury found David Bratcher guilty of aggravated robbery and assessed a forty-

year prison sentence and a $5,000 fine. Bratcher raises one issue in this appeal—the trial

court abused its discretion in denying his motion for mistrial. We will affirm.

      The evidence shows that the complainant, Mike Woycheshin, approached a

stopped green car at a highway intersection and noticed a man lying on the ground,

appearing to be injured, and a woman in the green car’s driver’s seat. Woycheshin

stopped and rolled his window down about six inches. The man, whom Woycheshin
identified at trial as Bratcher, jumped up, pointed a handgun at Woycheshin through

his open window, and told him to get out of his car. Woycheshin sped off, called the

police, and went home to enlist relatives and a friend to find Bratcher and the green car.

        Woycheshin returned to the vicinity in his car, followed by his stepson Ronnie

Standley, and they found the green car and pursued it. Standley followed it, and it

drove into a pasture. The police arrived and went down into the pasture to look for the

green car’s occupants. Standley, who was armed, had a hunch where they might come

out of the pasture on Highway 90, so he drove around to that location and found the

occupants, who were trying to flag down cars. They flagged down Standley, who

stopped, got out with his weapon, and told them to get down. Standley, who also

identified Bratcher at trial, held them at gunpoint until the police arrived about ten

minutes later. The woman who was with Bratcher testified as an accomplice-witness

and corroborated Woycheshin’s and Standley’s testimony.

        Bratcher’s issue on appeal arises out of the following occurrence during

Woycheshin’s direct examination by the State:

        Q.     Now, when you say you were searching the area, who all was
        searching?

        A.  We had Steven and Ronnie. We had the cell phones that was in
        communication with the police department as things went on.

        Q.     And why did you decide to conduct a search on your own instead
        of waiting for law enforcement?

        A.     Well, there is several factors involved in that. The man was a
        fugitive from Houston, Texas, that we knew, and he was wanted for
        murder.


Bratcher v. State                                                                   Page 2
                [DEFENSE COUNSEL]: Non-responsive, I object.

                THE COURT: Sustained.

                [DEFENSE COUNSEL]: And ask the Court to instruct the jury to
                disregard.

                THE COURT: I instruct the jury to disregard the last comment.

                [DEFENSE COUNSEL]: And Judge, I ask for a mistrial.

                THE COURT: Denied.

        The denial of a motion for mistrial, which is appropriate for “highly prejudicial

and incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson

v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d

642, 648 (Tex. Crim. App. 2000)); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

        [T]he question of whether a mistrial should have been granted involves
        most, if not all, of the same considerations that attend a harm analysis. A
        mistrial is the trial court’s remedy for improper conduct that is “so
        prejudicial that expenditure of further time and expense would be
        wasteful and futile.” In effect, the trial court conducts an appellate
        function: determining whether improper conduct is so harmful that the
        case must be redone. Of course, the harm analysis is conducted in light of
        the trial court’s curative instruction. Only in extreme circumstances,
        where the prejudice is incurable, will a mistrial be required.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); see also Archie v. State, 221

S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Thus, the appropriate test for evaluating

whether the trial court abused its discretion in overruling a motion for mistrial is a

tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60

(Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. “[T]he Mosley factors should be

used to evaluate whether the trial court abused its discretion in denying a mistrial for


Bratcher v. State                                                                     Page 3
improper argument . . . .” Id. Those factors are: (1) the prejudicial effect, (2) curative

measures, and (3) the certainty of conviction absent the misconduct. Id.; see Mosley, 983

S.W.2d at 259.

        Applying the Mosley factors, we conclude that any prejudicial impact of the

witness’s non-responsive and unsolicited comment was not so severe that it was not

cured by the trial court’s immediate instruction to disregard the comment. Further, the

jury was presented with strong evidence of guilt. Finally, in closing argument, the State

disavowed the comment, stating:

               And when Mr. Woycheshin was testifying he made a comment
        about the defendant being wanted for some things that—out of Houston.
        I want to tell you that those comments are not accurate. The word murder
        was mentioned. To my knowledge the defendant has never been charged
        with murder and never committed a murder and never been wanted for
        murder. So the Judge has asked you or instructed you to disregard that
        part of Mr. Woycheshin’s testimony. I’m asking you to do the same thing.
        It was not accurate testimony. It didn’t mean anything, forget it and
        consider just the facts in this case.

        Under these circumstances, we cannot say that the trial court erred in failing to

grant a mistrial. Bratcher’s sole issue is overruled, and we affirm the trial court’s

judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the result to the extent it affirms the trial court’s
       judgment. A separate opinion will not issue. He notes, however, that the closing
       argument set out in the opinion has nothing to do with the error analysis but

Bratcher v. State                                                                    Page 4
      would go to a harm analysis. While he concurs that the trial court did not err in
      refusing a mistrial, he also notes, alternatively that any error would be harmless
      in light of the State’s closing argument.)
Affirmed
Opinion delivered and filed December 9, 2009
Do not publish
[CRPM]




Bratcher v. State                                                                 Page 5
