671 S.W.2d 123 | Tex. App. | 1984
Lead Opinion
OPINION
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.
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.
Concurrence Opinion
concurring.
I disagree with the suggestion in the majority opinion that, because the appellant had the opportunity to call but failed to call other officers to deny hearing him admit to drinking fifteen beers, that bad faith cannot be presumed. Here the prosecutor asked an extremely prejudicial question. After Officer Richards denied the statement, the prosecutor had no basis shown in this record indicating that the question was asked in good faith. Her claim that she got that impression from the State’s other witnesses is unconvincing because she never called such witnesses, never named them, and never gave any details concerning this supposed conversation. Of course, the defendant could have filled in the gaps by cross-examining the witnesses, or the prosecutor, at the non-jury hearing or at a motion for new trial, but he should not have been required to do so in order to show bad faith.
When the State throws a skunk in the jury box, the State, not the defendant, should be required to cure the stench. It could do so by showing that what appears to be bad faith is really negligence, or just a reasonable mistake. However, that should require more than an unsworn, self-serving, non-specific explanation like the one given in this case.
I would hold that a prima facie showing of bad faith was made when both Officer Richards and the appellant denied the conversation inquired about by the prosecutor. It should have been the State’s duty to disprove the reasonable inference of bad faith then arising by stronger evidence than was here produced.
Such bad faith will not always require a mistrial, however, and it should not in this case, where the jury heard every party to the conversation deny the statement, the court instructed the jury to disregard the statement, and no juror testified that the
With these reservations, I concur in the result.