Ruben Escobedo Juarez v. State , 409 S.W.3d 156 ( 2013 )

Opinion issued July 2, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00061-CR
———————————
RUBEN ESCOBEDO JUAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1268678
OPINION
After being indicted for killing a woman with his hand, appellant Ruben
Escobedo Juarez was convicted of criminally negligent homicide and sentenced to
confinement for 35 years. See TEX. PENAL CODE ANN. § 19.05 (West 2011). On
appeal he argues that (1) the evidence was insufficient to support his conviction,
(2) the trial court abused its discretion in determining his statement to the police
was voluntary, (3) the jury had insufficient evidence to determine that his
statement was given voluntarily, and (4) the trial court abused its discretion in
denying his motion for mistrial.
We affirm.
Background
Ruben Juarez met Roger Rowland and Linda Hartsough in the spring of
2010. A couple of weeks after they met, Juarez arranged to sleep on Rowland and
Hartsough’s couch in exchange for $20 a night in rent, with the understanding that
it was a temporary arrangement because Juarez would be leaving for a job. During
the few weeks Juarez stayed with them, the three smoked crack cocaine together.
One night around midnight, Juarez and Hartsough left the house together to
go beg for money to buy beer. At a nearby gas station, Juarez raised some money
and bought two beers. Juarez and Hartsough then went to buy some crack cocaine
from a dealer who lived about a block away. Hartsough waited in some nearby
woods while Juarez bought the drugs. After smoking the crack, Juarez and
Hartsough had sex in the woods. While they were having sex, Juarez placed his
hand on her neck for about three minutes. She began to convulse and foam at the
2
mouth. Juarez stood up and found that she did not have a pulse. Juarez then went
back to the house where Rowland was waiting.
When he returned to the house, Juarez told Rowland that he had sent
Hartsough back with the beer while he bought the crack. After smoking crack with
Juarez, Rowland started to worry about Hartsough and took a walk looking for her.
The next day, Juarez left town for the job he had scheduled. Rowland continued to
search for Hartsough and reported her disappearance to the police.
Six weeks later, a man entered the woods and saw human bones on the
ground. The bones were later identified as belonging to Hartsough. After asking
some bystanders about the bones, a police detective discovered that Rowland had
reported that Hartsough was missing. Detective Eli Cisneros contacted Rowland
and learned that Juarez had been with Hartsough on the night of her disappearance.
The police arrested Juarez based on an open warrant for a parole violation
and brought him in for questioning. After Juarez was brought to an interview
room, Detective Cisneros introduced himself and informed Juarez that he was
investigating the skeletal remains. Cisneros turned on recording equipment in the
room and informed Ruben of his constitutional and statutory rights against self-
incrimination. Juarez then told the story of how he had gone to the store with
Hartsough, had sex with her, put his hand on her throat, and she had died.
3
The next day, the police contacted the medical examiner’s office to report
that Juarez had said he had his hand on Hartsough’s neck before she died. Based
on this information and the findings of the forensic anthropologist who examined
her bones, the assistant medical examiner determined that the cause of Hartsough’s
death was “homicidal violence.” The forensic anthropologist had found that a
small bone in Hartsough’s neck, her hyoid bone, had a small fracture in it. A
fracture in the hyoid bone can be a result of strangulation, but the anthropologist
could not determine with certainty whether this occurred before or after
Hartsough’s death.
The State indicted Juarez. Before trial Juarez moved to suppress his
recorded statement, arguing that he had not knowingly, intelligently, and
voluntarily waived his rights. During the suppression hearing, Detective Cisneros
testified that he offered Juarez food, water, and restroom breaks. He did not
promise anything in exchange for the statement, although the detective did say that
he would “help him get through this,” which he testified meant to help Juarez get
through the interview process. Juarez never asked for a lawyer or to terminate the
interview. After listening to Detective Cisneros’s testimony and the recording
several times, the trial court denied the motion, determining that Juarez had said
“yes” in response to the detective’s question of whether he waived his rights
against self-incrimination.
4
Later, during jury selection, the prosecutor referenced two levels of scrutiny
when the voluntariness of a statement is challenged:
STATE: He doesn’t waive his rights, we can’t talk to him, okay? If
somebody comes in, they’re read their rights, they knowingly,
voluntarily waive their rights and a statement is obtained, if we get to
the point where we go to trial, there are two levels of scrutiny that a
statement’s going to go through, okay? The first level is the judge is
going to look at it and she’s going to have a hearing outside the
presence of the jury –
DEFENSE COUNSEL: Judge, this is outside the presence of the jury
itself and we object to it.
TRIAL COURT: Sustained.
STATE: She’s going to have a hearing then after that hearing, if a
statement gets to come in, she’ll make a ruling, the jury then gets to
see it-
DEFENSE COUNSEL: Judge, I object. This is way outside the
presence of the jury’s understanding.
TRIAL COURT: Sustained. Sustained.
DEFENSE COUNSEL: And I ask for a jury instruction.
TRIAL COURT: To disregard?
DEFENSE COUNSEL: Yes.
TRIAL COURT: All right. The jury will disregard. Please move on
counsel.
DEFENSE COUNSEL: Move for a mistrial.
THE COURT: Denied.
5
During the trial, the State played the video recording of Juarez’s statement before
the jury. The jury charge included an instruction to disregard the recorded
statement unless the jury found “from the evidence beyond a reasonable doubt that
prior to and during such oral statement, if any, the defendant knowingly,
intelligently, and voluntarily waived” his right against self-incrimination.
The jury convicted Juarez of criminally negligent homicide, and the trial
court assessed punishment at 35 years in prison. On appeal, Juarez challenges the
sufficiency of the evidence supporting his conviction, the admission of his
statement, and the denial of his motion for mistrial.
Analysis
I. Sufficiency of the evidence
In two issues, Juarez challenges the sufficiency of the evidence supporting
his conviction for criminally negligent homicide, emphasizing that the forensic
evidence was not conclusive that Hartsough’s hyoid bone had been fractured
around the time of her death. Juarez also contends that the jury could not have
determined beyond a reasonable doubt that he had voluntarily waived his right to
remain silent in the face of police questioning.
When reviewing the sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict to determine whether “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
6
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury is
the sole judge of the credibility of witnesses and the weight to be given to their
testimony, and we may not substitute our judgment for that of the jury. Id. We
review to ensure that the evidence presented supports the jury’s verdict and that the
State presented a legally sufficient case of the offense charged. Id.
“Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”
Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
Our sufficiency review requires consideration of “all of the evidence in the
record, both direct and circumstantial, whether admissible or inadmissible.”
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). The rationale for this rule has
been explained by the Court of Criminal Appeals as follows:
In the event a portion of this evidence was erroneously admitted, the
accused may complain on appeal of such error. If his complaint has
merit and the error is reversible [see TEX. R. APP. P. 44.2], a new trial
should be ordered. But jurors do not act irrationally taking such
evidence into account, since they are bound to receive the law from
the trial judge. All evidence which the trial judge has ruled
admissible may therefore be weighed and considered by the jury, and
a reviewing court is obliged to assess the jury’s factual findings from
this perspective.
7
Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988); see also Moff v.
State, 131 S.W.3d 485, 488-90 (Tex. Crim. App. 2004). The Court has also
endorsed a further explanation by Professors Dix and Dawson:
This rule rests in large part upon what is perceived as the unfairness of
barring further prosecution where the State has not had a fair
opportunity to prove guilt. A trial judge’s commission of trial error
may lull the State into a false sense of security that may cause it to
limit its presentation of evidence. Erroneous admission of hearsay
evidence, for example, may cause the State to forego offering other
evidence that would ultimately prove admissible.
Moff, 131 S.W.3d at 490 (quoting 43A GEORGE E. DIX & ROBERT O. DAWSON,
TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 43.531, at 742 (2d ed.
2001)). Nevertheless, this rule does not mean that “all evidence, admissible and
inadmissible, has probative value and is capable of supporting a judgment.”
Gardner v. State, 699 S.W.2d 831, 835 (Tex. Crim. App. 1985).
A legally sufficient showing of criminally negligent homicide requires the
State to prove that (1) the defendant’s conduct caused the death of an individual;
(2) the defendant ought to have been aware that there was a substantial and
unjustified risk of death from his conduct; and (3) the defendant’s failure to
perceive the risk constituted a gross deviation from the standard of care an ordinary
person would have exercised under like circumstances. Montgomery, 369 S.W.3d
at 192–93. Criminal negligence does not require proof that the defendant was
subjectively aware of the risk of harm, only that the defendant was aware of the
8
attendant circumstances leading to such a risk. Id. at 193. “[T]he key to criminal
negligence is found in the failure of the actor to perceive the risk.” Lewis v. State,
529 S.W.2d 550, 553 (Tex. Crim. App. 1975).
“Conduct that constitutes criminal negligence involves a greater risk of harm
to others, without any compensating social utility, than does simple negligence.”
Montgomery, 369 S.W.3d at 193. The seriousness of the negligence must be such
that any reasonable person sharing the community’s sense of right and wrong
would know it. Id. The risk must be “of such a nature that the failure to perceive it
was a gross deviation from the reasonable standard of care exercised by ordinary
people.” Williams v. State, 235 S.W.3d 742, 750–51 (Tex. Crim. App. 2007). So,
conduct such as an abrupt lane change in front of another vehicle on a highway that
results in the death of another person, or towing dirt in a homemade trailer with
obvious defects in the hitch that came loose and killed a pedestrian, are sufficiently
blameworthy acts as to constitute criminal negligence. See Montgomery, 369
S.W.3d at 193 (lane change); Tello v. State, 180 S.W.3d 150, 157–58 (Tex. Crim.
App. 2005) (faulty trailer hitch). “In finding a defendant criminally negligent, a
jury is determining that the defendant’s failure to perceive the associated risk is so
great as to be worthy of a criminal punishment.” Montgomery, 369 S.W.3d at 193.
The State presented evidence to support all of the elements of criminally
negligent homicide. After smoking crack cocaine, Juarez put his hand on
9
Hartsough’s neck for “about three minutes” while having sex with her. Although
he denied killing her, Juarez stated that the sex “just got a little bit out of hand” and
“just got a little crazy.” He stated that she “went into convulsions” and “started
foaming from the mouth,” and after Juarez failed to find a pulse, he ran off with
the two beers he had bought. After returning to the house, he did not tell Rowland
what had happened, and he failed to call for medical assistance for Hartsough.
The forensic evidence and testimony concerning the bones corroborated the
evidence from Juarez’s statement—the jury did not have to rely upon it alone in
finding that Juarez had been criminally negligent. The assistant medical examiner
testified that it is common for someone who is being strangled to convulse and
experience seizure activity, including appearing to foam at the mouth. A fracture
in the hyoid bone corroborated the theory that a strangulation occurred. The hyoid
bone did not bear any of the indicia of having been broken after Hartsough’s death,
such as scavenger or scraping marks, although the anthropologist who examined
the bones could not rule out such a possibility. Because there were no signs of
healing, however, the bone was certainly fractured shortly before or after death.
Taken together, Juarez’s statement, the fact of Hartsough’s death, and the
evidence concerning her skeletal remains are sufficient evidence that Juarez caused
Hartsough’s death by putting his hand on her neck, which he ought to have known
created a substantial and unjustified risk. It is common knowledge that people can
10
die by strangulation, even inadvertently. The jury reasonably could have found
that Juarez’s failure to appreciate that substantial and unjustified risk, given the
circumstances of which he knew at that time, was a gross deviation from a standard
of care that an ordinary person would exercise under the same circumstances. See
id. at 194–95. He was alone in the woods with Hartsough in the middle of the
night after they had taken drugs together, and he pressed on her throat or neck for
approximately three minutes while having sex with her. After she began to
convulse, he checked her pulse and thought she was dead, but he then left her
alone, lying about what he knew to Rowland and failing to seek any medical
assistance for her. The question of whether Juarez’s conduct was a gross deviation
is a question for the factfinder, and a rational jury could have concluded it was.
See id. at 195. The jury was not required to rely only on direct or forensic
evidence; it could base its conclusion on “the combined and cumulative force of all
the incriminating circumstances.” Temple, 390 S.W.3d at 359–60 (quoting
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Therefore, we
overrule Juarez’s issue regarding the sufficiency of the evidence supporting the
elements of criminally negligent homicide.
Juarez asks us to separately analyze the sufficiency of the evidence without
considering his recorded statement which was presented as evidence at trial, on the
theory that the jury could not have rationally concluded beyond a reasonable doubt
11
that the statement was voluntary, and as such they were obliged to disregard it.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2005). This argument
misconstrues the method of sufficiency review. Our task is to determine whether
there is evidence upon which “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” See, e.g.,
Montgomery, 369 S.W.3d at 192. The voluntariness of a statement given by the
defendant is not an element of any criminal offense. Even if inadmissible, we
consider any such statement as part of our sufficiency review if it was part of the
evidence at trial. See Winfrey, 393 S.W.3d at 767; Dewberry, 4 S.W.3d at 740.
And Juarez’s recorded statement—that he had sex with Hartsough after both of
them used crack cocaine, that during their intercourse he held his hand on her neck
for about three minutes, that she began to convulse and foam at the mouth, and he
then abandoned her in the woods—certainly had probative value capable of
supporting the jury’s determination on elements of criminally negligent homicide.
“An appellant . . . is not entitled to have an appellate court first consider the
appellant’s complaints concerning improper admitted evidence and, if it resolves
any of those in favor of the appellant, to then, second, consider the sufficiency of
the properly-admitted evidence to support the conviction.” 43A DIX & DAWSON,
supra, § 43.531, at 742 (quoted with approval in Moff, 131 S.W.3d at 490). The
remedy for the improper admission at trial of a defendant’s statement does not
12
come through a review of the sufficiency of the evidence, but instead through an
analysis of whether the resulting harm, if any, merits reversal. See Thomas, 753
S.W.2d at 695; TEX. R. APP. P. 44.2. Accordingly, we overrule Juarez’s challenges
to the sufficiency of the evidence supporting his conviction.
II. Admission of recorded statement
Juarez argues that the trial court abused its discretion in admitting his
recorded statement because it was not freely and voluntarily given. The
determination of whether a statement is voluntary is a mixed question of law and
fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). We give
almost complete deference to the trial court’s determination of historical facts that
depend on credibility, while we conduct a de novo review of the trial court’s
application of law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000). When a defendant presents evidence raising a voluntariness
question, the prosecution must controvert the evidence and prove voluntariness by
a preponderance of the evidence. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim.
App. 1999). The trial court assesses the credibility of the witnesses and the weight
to be accorded to their testimony. Muniz v. State, 851 S.W.2d 238, 252 (Tex.
Crim. App. 1993). We must sustain the trial court’s ruling if it is reasonably
supported by the record evidence and is correct under any theory of law applicable
to the case. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).
13
A defendant’s statement may be used in evidence against him if the
defendant made it freely and voluntarily, without compulsion or persuasion. TEX.
CODE CRIM. PROC. ANN. art. 38.21. For the statement to be admissible, he must
knowingly, intelligently, and voluntarily waive his right to remain silent, to have
an attorney present, to have an attorney appointed if indigent, and to terminate a
police interview. Id. art. 38.22, § 3(a)(2); Joseph v. State, 309 S.W.3d 20, 23–24
(Tex. Crim. App. 2010). A statement that is “involuntary” as a matter of
constitutional law is also “involuntary” under article 38.22 of the Code of Criminal
Procedure, although the converse is not necessarily true. Oursbourn v. State, 259
S.W.3d 159, 169 (Tex. Crim. App. 2008). We evaluate whether there has been a
valid waiver under the totality of the circumstances surrounding its acquisition,
including the defendant’s experience, background, and conduct. See Joseph, 309
S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,
1140–41 (1986)); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). A
waiver is voluntary if it is the product of a free and deliberative choice, rather than
intimidation, coercion, or deception. See Joseph, 309 S.W.3d at 25.
The State bears the burden of proving a valid waiver by a preponderance of
the evidence. Id. at 24 (citing Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515
(1986)). There is no requirement that a defendant explicitly waive his rights;
neither an express oral or written waiver is required. Id. (quoting Watson v. State,
14
762 S.W.2d 591, 601 (Tex. Crim. App. 1988)). An implicit waiver can be inferred
from the actions and words of the person being interrogated. Id. (quoting North
Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979)).
When a question is raised about the voluntariness of the statement, the Code
of Criminal Procedure requires that the trial court hold a hearing outside the
presence of the jury and enter an order with a conclusion as to whether the
statement was made voluntarily. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6.
Once the trial court determines that the statement was voluntary, the statement may
be submitted to the jury with an instruction for the jury not to consider the
statement for any purpose unless they believe beyond a reasonable doubt that the
statement was made voluntarily. Id.
Juarez does not dispute that he was informed of his rights, only that he did
not give his waiver voluntarily. He notes that the recording offered as evidence of
his answer to the detective’s question of whether he waived his rights is “so nearly
inaudible as to itself raise a reasonable doubt about whether he was giving a waiver
knowingly and voluntarily, without compulsion [or] persuasion.” Additionally, he
suggests when the detective said he would help Juarez “through this,” the detective
improperly persuaded him to waive his rights.
The totality of circumstances surrounding the interrogation, however,
supports the trial court’s determination that Juarez made a free and deliberate
15
choice to waive his rights. Juarez was lawfully arrested pursuant to a warrant and
transported to the police station. The video recording of the interview shows that
Detective Cisneros advised Juarez of his rights. Cisneros testified that Juarez was
not promised anything in exchange for his statement, not deprived of any necessity
such as food, water, or a restroom break, and was not threatened. Juarez never
asked for an attorney or to terminate the interview. He did not say that he was
under the influence of drugs or alcohol, and Cisneros testified that he appeared
sober. Cisneros also testified that he heard Juarez say “yes” to the question of
whether he waived his rights. Our standard of review requires nearly total
deference to factual determinations that depend on credibility, such as the truth of
Cisneros’s testimony. See Garcia, 15 S.W.3d at 535.
The recording does not reflect that Juarez was offered anything in exchange
for his statement except for the ability to tell his “side of it.” When Cisneros first
asked if Juarez wanted to waive his rights, he answered initially, “That means I’m
being convicted of it.” Cisneros immediately answered, “No, it does not, it does
not. No, what it means is in order for me to take your statement, to hear what you
have to say, I cannot even talk to you unless you waive these rights.” In reply,
Juarez did not remain silent or refuse to waive his rights; instead, as Cisneros
testified and the trial court found after reviewing the recording, he answered:
“yes.” After a single further question about what happened during the night of
16
Hartsough’s disappearance, Juarez began to explain what happened. This
exchange does not show that Cisneros resorted to “physical or psychological
pressure to elicit [the] statements,” Joseph, 309 S.W.3d at 26, but he merely
repeated his question of whether Juarez would waive his rights. Under these
circumstances, we conclude that the trial court did not err in determining that
Juarez made a voluntary waiver.
III. Motion for mistrial
Finally, Juarez contends that the trial court abused its discretion when it
denied his motion for mistrial. When a trial court denies a defendant’s motion for
mistrial after sustaining an objection and instructing the jury to disregard, the
dispositive issue is the denial of a mistrial. Hawkins v. State, 135 S.W.3d 72, 76–
77 (Tex. Crim. App. 2004). We review the trial court’s refusal to grant a mistrial
for an abuse of discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009); Bokemeyer v. State, 355 S.W.3d 199, 202 (Tex. App.—Houston [1st Dist.]
2011, no pet.). We view the evidence in the light most favorable to the trial court’s
ruling, upholding the ruling if it was within the zone of reasonable disagreement.
Bokemeyer, 355 S.W.3d at 202 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.
Crim. App. 2004)). Only in extreme circumstances, when the prejudice is
incurable, will a mistrial be required. Hawkins, 135 S.W.3d at 77. “[O]rdinarily, a
prompt instruction to disregard will cure error associated with an improper
17
question and answer.” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.
2003); see also Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005).
Although we do not conduct the usual harm analysis in deciding whether the
trial court abused its discretion, “whether a mistrial should have been granted
involves most, if not all, of the same considerations that attend a harm analysis.”
Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (quoting Hawkins,
135 S.W.3d at 77). In determining whether a trial court abused its discretion in
denying a mistrial, we apply the three-part Mosley test. See Ramon v. State, 159
S.W.3d 928, 929 (Tex. Crim. App. 2004) (citing Mosley v. State, 983 S.W.2d 249
(Tex. Crim. App. 1998)). We 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). Id.
A trial court’s order that a defendant’s statement is voluntary and admissible
“shall not be exhibited to the jury nor the finding thereof made known to the jury
in any manner.” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. At trial, the State
did not tell the jury during voir dire what the trial court had determined, but it did
begin to explain the process of determining the voluntariness of Juarez’s statement:
STATE: . . . if we get to the points where we go to trial, there are two
levels of scrutiny that a statement’s going to go through, okay? The
18
first level is the judge is going to look at it and she’s going to have a
hearing outside the presence of the jury—
DEFENSE COUNSEL: Judge, this is outside the presence of the jury
itself and we object to it.
TRIAL COURT: Sustained.
STATE: She’s going to have a hearing then after that hearing, if a
statement gets to come in, she’ll make a ruling, the jury then gets to
see it—
A reasonable interpretation of the prosecutor’s remarks is that they do not
explicitly reference the trial court’s determination that Juarez’s statement was
admissible, but the remarks do imply to the jury that if they “see” the statement, it
is because the trial court ruled that it was permitted. After the prosecutor made
these remarks, Juarez’s counsel again objected, and the trial court sustained the
objection. At his counsel’s request, the trial court instructed the jury to disregard
the prosecutor’s remark. Counsel then moved for a mistrial, which the trial court
denied.
In Johnson v. State, 510 S.W.2d 944 (Tex. Crim. App. 1974), the Court of
Criminal Appeals held that a similar comment made to the jury in violation of
article 38.22 was not harmful error. In that case, the prosecutor remarked: “if there
is anything wrong at all with the confession, Judge Power wouldn’t have let it into
evidence.” Id. at 947. The defense counsel objected to the remark. Id. While
explaining that it would not “condone such argument,” the Johnson Court held the
19
remark was not reversible error, noting that the confession was admitted into
evidence in the jury’s presence and the remark did not refer to any specific finding
regarding voluntariness. Id.; see also Carter v. State, 650 S.W.2d 843, 848 (Tex.
App.—Houston [14th Dist.] 1982), aff’d, 650 S.W.2d 793 (Tex. Crim. App. 1983).
Referring to Johnson, the Court of Criminal Appeals in DeRusse v. State,
579 S.W.2d 224, 231 (Tex. Crim. App. 1979), likewise determined that an
improper reference violating article 38.22 was not harmful error. In DeRusse, the
prosecutor said before the jury that a confession had “already been ruled to be
voluntary and that [the defendant] knowingly and intelligently waived his rights.”
Id. at 230. The DeRusse Court noted that the prosecutor in that case had
referenced specific findings regarding the confession, but did not make the
statement during jury argument, when the jury may be expected to be “particularly
attentive,” but during an objection to testimony. Id. at 231. As the trial court had
given a prompt instruction to disregard and instructed them that it would be their
duty to pass upon the voluntariness of the statement, the prosecutor’s error was
held to not require reversal. Id.
Analyzing under the Mosley factors and with the aforementioned authorities
in mind, we cannot say that the prosecutor’s comment on the article 38.22 process
was the kind of “extreme” and “prejudicial” circumstance meriting reversal. See
20
Hawkins, 135 S.W.3d at 77, 82 (concluding that even statements violating a
mandatory statute must be analyzed for harmless error).
The first factor, regarding the severity of the prosecutor’s misconduct, does
not weigh in favor of reversal. While the prosecutor did obliquely refer to the trial
court’s pretrial hearing on the voluntariness of the statement, the prosecutor
referred to the process in general, and not to the trial court’s order, specific
findings, or even that a hearing had yet occurred in this case. The statement was
later admitted into evidence by the court in the jury’s presence. See Johnson, 510
S.W.2d at 947 (considering this as a factor disfavoring reversal). Additionally, the
prosecutor’s remark was made during voir dire when hypothetical scenarios are
discussed, not during jury argument when the jurors are expected to be particularly
attentive. See DeRusse, 579 S.W.2d at 131.
The second factor, regarding the curative measures adopted by the trial
court, also does not weigh in favor of reversal. The trial court immediately gave an
instruction to disregard the improper comment. This should have cured the error.
See Simpson, 119 S.W.3d at 272; Martinez v. State, 17 S.W.3d 677, 691 (Tex.
Crim. App. 2000) (“Even when the prosecutor mentions facts outside the record
during argument, an instruction to disregard will generally cure the error.”).
Further insulating the jury from the improper inference that the trial court had
already deemed the statement voluntary, the jury was properly instructed in the
21
jury charge that they were to not consider the statement for any purpose unless
they themselves found beyond a reasonable doubt that the statement was
voluntarily made.
The third factor, regarding the certainty of conviction, does not weigh in
favor of reversal. Although Juarez’s statement itself was integral to his conviction,
the prosecutor’s remark did not introduce new evidence into the trial, let alone the
sort of indelible, prejudicial evidence that normally warrants granting a mistrial.
See Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (improper
statement must be “of such character as to suggest the impossibility of
withdrawing the impression produced on the minds of the jurors”). The jurors
themselves could also make their own determination of whether the statement was
made voluntarily based on the video recording introduced into evidence. They
were instructed that they were to make a voluntariness determination, and they
were never told to defer to the trial court in this regard. Thus, it is unlikely that the
jury’s determination was unduly swayed by the prosecutor’s remark during voir
dire.
The prosecutor’s statement regarding the article 38.22 process was improper,
but the trial court’s instruction to disregard was adequate to cure that error.
Concluding the trial court did not abuse its discretion in denying Juarez’s motion
for mistrial, we overrule his final issue.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack, and Justices Sharp and Massengale.
Justice Sharp concurs in the judgment only.
Publish. TEX. R. APP. P. 47.2(b).
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