Ricky Gene Jackson, Jr. v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00017-CR
RICKY GENE JACKSON, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 11-00398-CRF-85
MEMORANDUM OPINION
Ricky Jackson, Jr. appeals from a conviction for the offense of aggravated
robbery. TEX. PEN. CODE ANN. § 29.03 (West 2011). Jackson complains that the trial
court abused its discretion by denying his motion for mistrial during voir dire
regarding improper comments by the State and after a witness testified that he was
already in custody when he was served with the arrest warrant in this case. Because we
find no reversible error, we affirm the judgment of the trial court.
Motion for Mistrial
In his first issue, Jackson complains that the trial court abused its discretion by
denying his motion for mistrial after the State commented during voir dire that one of
the reasons Jackson might choose not to testify is because he is guilty. Jackson objected
to the State’s comment and the trial court sustained the objection. The trial court gave
an instruction to disregard the comment upon Jackson’s request. Jackson then made a
motion for a mistrial, which the trial court denied.
A denial of a motion for mistrial is reviewed under an abuse of discretion
standard, and a judge's ruling must be upheld if it was within the zone of reasonable
disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). "A mistrial is
an appropriate remedy in 'extreme circumstances' for a narrow class of highly
prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). A mistrial should be granted only when less drastic alternatives fail to cure the
prejudice. Id. at 884-85.
Improper Comment during Voir Dire
During the State’s voir dire, the following exchange occurred:
JUROR: So you're saying if it's just he said/she said, then I'd need
more; but if you're saying it's he said/she said but we have a
little bit more evidence then –
STATE: Well—and I hate to use that turn of phrase he said/she said
because in a criminal case—and we'll talk about the Fifth
Amendment, but the defendant has the right not to testify
actually. You may not know his side of the story. You may.
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UNIDENTIFIED JUROR: I have a problem with that.
STATE: Yeah, we'll talk about it in a minute.
You may have his side of the story, but you may not. You
may—I expect Mr. Barron is not going to just sit there and be
quiet. He'll definitely present his theory of the case in cross-
examination, but you may not hear the defendant testify in a
criminal case. And there's a million reasons why someone
might not testify: Maybe they're nervous. Public speaking is
not the number one fun thing for people to do. Especially
sitting up there being judged by 12 people. If they appear
nervous, then that may make them act like they're guilty.
And so their attorney may say, "Don't testify." That's why
he's the attorney. There's a million reasons why the
defendant may not testify. Maybe they're guilty, maybe they
don't want to get up there in front of you—
JACKSON: Judge, I'm going to object to that. That flies in the face
of the Fifth Amendment.
STATE: No, it's just a reason why someone may not testify.
THE COURT: Sustained.
JACKSON: Ask the jury panel to disregard it.
THE COURT: Disregard the prosecutor's last statements regarding
the question that he asked.
JACKSON: Request a mistrial.
THE COURT: Denied.
STATE: All right. So there's a million reasons why someone may not
testify. All we're asking you to do in this case, and in any
criminal case, is not hold that as evidence against them if
they don't testify. So if someone chooses not to testify—
they—they assert their Fifth Amendment right, they choose
Jackson v. State Page 3
not testify—then you can't say, "Well, the State's close but
because that person didn't testify, I'm going to find them
guilty." Then you're using evidence against them.
Jackson argues that the State’s comment about a reason why he might not testify
being because he is guilty constitutes a misstatement of the law because it invited the
prospective jurors to consider his failure to testify as a sign that he was guilty, which is
improper. Jackson further argues that this misstatement of the law by the State was so
extreme and manifestly improper that a mistrial should have been granted upon his
motion.
The trial court gave the jury an instruction to disregard the comment upon
Jackson’s request. The State continued after the objectionable comment to explain that
Jackson had the right to not testify and that the failure to do so could not be considered
against him. Additionally, the charge to the jury contained an instruction that Jackson’s
failure to testify could not be considered as evidence against him. We presume that the
jury obeyed the instruction and that the instruction was effective. See Archie v. State, 340
S.W.3d 734, 741 (Tex. Crim. App. 2011) ("The law generally presumes that instructions
to disregard and other cautionary instructions will be duly obeyed by the jury."). We
do not find that the trial court’s denial of the motion for mistrial was outside of the zone
of reasonable disagreement, and therefore the trial court did not err by denying the
motion. We overrule issue one.
Jackson v. State Page 4
Improper Comment by Witness
In his second issue, Jackson complains that the trial court abused its discretion by
denying his motion for mistrial after a detective testified that he served the arrest
warrant for the aggravated robbery in jail because Jackson was already in custody.
During the State’s questioning of an investigating detective, the detective explained
how the investigation proceeded. The witness testified that he had showed the victim
of the aggravated robbery a photo lineup and the victim had affirmatively identified
Jackson. The State then asked the detective what the next step in his investigation was,
and the detective responded, “I obtained a warrant based on the identification and then
served the warrant on him in jail, because he had already been arrested.” Jackson
objected to the question and the trial court sustained the objection. The trial court gave
an instruction to disregard the answer upon Jackson’s request. Jackson then made a
motion for mistrial, which the trial court denied.
It is well settled that improper remarks can be rendered harmless by a judge's
instruction to disregard, unless it appears they were so clearly calculated to inflame the
minds of the jury or were of such damning character as to suggest it would be
impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846
S.W.2d 289, 308 (Tex. Crim. App. 1992); Stoker v. State, 788 S.W.2d 1, 13 (Tex. Crim. App.
1989). Here, the detective's uninvited and unembellished reference to Jackson being
served with the arrest warrant in jail because he had already been arrested was not so
Jackson v. State Page 5
inflammatory as to undermine the efficacy of the judge's instruction to disregard. See
Kemp, 846 S.W.2d at 308. We presume the jury follows the judge's instructions, and
there is no evidence to the contrary in this case. See Colburn v. State, 966 S.W.2d 511, 520
(Tex. Crim. App. 1998). The trial court did not abuse its discretion in denying the
motion for mistrial. We overrule issue two.
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 6, 2015
Do not publish
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