Brad Lyle Bokemeyer v. State
355 S.W.3d 199
Tex. App.2011Background
- Brad Bokemeyer was convicted of driving while intoxicated under Tex. Penal Code § 49.04 and punished with 180 days’ confinement probated for one year and a $1000 fine.
- The conviction arose from a trial in Montgomery County, Texas, after a jury heard evidence including testimony from a state trooper about stopping Bokemeyer.
- During cross-examination, two jurors commented aloud about the trooper’s location, and the prosecutor nodded with two thumbs up in response.
- Defense moved for mistrial on the ground that the prosecutor’s gesture violated Tex. Code Crim. Proc. art. 36.22; the trial court denied the motion, opting for a curative instruction instead.
- The trial court admonished the prosecutor and instructed the jury that evidence comes from the witness stand, not from attorneys, and cautioned against improper communication.
- On appeal, Bokemeyer challenged the denial of mistrial; the court of appeals ultimately affirmed, holding no abuse of discretion in denying mistrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying mistrial | Bokemeyer argues the 36.22 violation required mistrial | State contends curative instruction cured prejudice and no extreme harm occurred | No abuse of discretion; mistrial denial affirmed |
| Did the prosecutor's hand gesture constitute improper communication with jurors under 36.22 | Gesture improper and prejudicial, violating juror isolation | Gesture did not convey substantive case information to jurors | Gesture did not require mistrial; cure sufficient |
Key Cases Cited
- Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) (mistrial extreme remedy; residual prejudice must exist)
- Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) (requires extreme prejudice for mistrial)
- Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (extreme remedy; assess prejudice and alternatives)
- Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (less drastic remedies; jury instructions can cure)
- Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) (jury presumed to follow curative instructions)
- McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985) (presumption of harm when juror hears outside information)
- Chambliss v. State, 647 S.W.2d 266 (Tex. Crim. App. 1983) (limits on 36.22 violations; isolation of jurors)
- Green v. State, 840 S.W.2d 394 (Tex. Crim. App. 1992) (presumption of harm rebuttable with non-prejudicial evidence)
- Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998) (courts’ discretion in handling improprieties and instructions)
- Robinson v. State, 851 S.W.2d 216 (Tex. Crim. App. 1991) (new trial warranted when juror exposed to outside information)