Gailey v. State , 671 S.W.2d 123 ( 1984 )

OPINION

BASS, Justice.

This is an appeal from a conviction of driving while intoxicated. A jury convicted appellant and the trial court assessed punishment at 30 days confinement probated for two years and a fine of $250. The judgment is affirmed.

In his sole ground of error, appellant complains that the trial court erred in denying appellant’s motion for mistrial after the jury was instructed to disregard the prosecutor’s question to the appellant, who testified at trial that he had drunk only two or three mixed drinks that night.

The prosecutor asked the appellant:

Q: Do you recall telling [Officer Richards] that you had about fifteen beers?

A: No ma’am.

The jury was immediately removed, and the defense attorney objected and requested a mistrial. A hearing commenced and the prosecutor stated that she understood from conversations with her witnesses that the appellant had made such a statement. Out of the jury’s presence, Officer Richards testified that the appellee had made no such statement. Two other police officers had previously testified for the State at trial regarding their observation of the appellant near the time of his arrest. The appellant had the opportunity, both at the hearing out of the presence of the jury, and in a hearing on his motion for new trial, to question these other officers to determine whether they had heard him make such a statement. This was never done. If they had testified, as did Officer Richards, that the appellant did not make such a statement, bad faith would have been shown. We cannot presume the existence of bad faith under these circumstances. Only negligence has been shown.

After determining that the appellant did not make the statement to Officer Richards, the trial court instructed the jury to disregard the question but denied the mistrial. The defense later recalled Officer Richards, who testified before the jury that the appellant made no such statement. Thus, the jury heard the appellant deny making the statement and heard Officer Richards corroborate that testimony.

Except in extreme cases, where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds, error in the admission of improper testimony is usually cured by an instruction to disregard. Thompson v. State, 612 S.W.2d 925 (Tex.Crim.App.1981). In this case no improper testimony was admitted, only an improper question was asked. Any error resulting from the prosecutor’s question was cured for the reasons stated. This ground of error is overruled.

The judgment is affirmed.

Publication. Tex.R.Crim.App.P. 207.

COHEN, J., filed a concurring opinion.