Nos. 05-09-01532-CR, 05-09-01533-CRCourt of Appeals of Texas, Fifth District, Dallas.
Opinion Filed August 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F09-01375-XM, F07-43790-TM.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
Opinion by Justice LANG-MIERS.
Celio Molina appeals his convictions for aggravated sexual assault. Appellant pleaded guilty before the jury, and he pleaded true to the enhancement allegation. The jury assessed appellant’s punishment in each case at 75 years’ imprisonment and a $10,000 fine. On appeal, appellant brings two issues asserting that the trial court erred by not granting a mistrial due to the State’s opening statement. We affirm the trial court’s judgments.
BACKGROUND
On the night of May 3, 2007, appellant and two friends met the complainants and offered to give them a ride to a house where the complainants could purchase some marijuana and they could all smoke marijuana. However, when they got to the house, appellant and his friends robbed the complainants at gunpoint, threatened to kill them, and raped them repeatedly through the night. The men tied up and blindfolded the complainants with duct tape and did not release them until the next morning. Appellant pleaded guilty to the aggravated sexual assault of each complainant.
MISTRIAL
In appellant’s two issues, he contends that the trial court erred by denying appellant’s motions for mistrial during the State’s opening statement. During the opening statement, the following occurred:
[Prosecutor:] The law says that as y’all are considering the evidence within the next couple of days, that you don’t only have to consider the defendant, but you can consider the facts of the case. The violence that was involved. And the lines that he crossed to commit these crimes that he has admitted that he committed.
You are going to be allowed to consider the effect this had on these girls.
And I am going to be asking one question at the end; and that’s when, when are you going to trust him to be out in your community again?
[Defense Counsel:] Your Honor, I am going to object, this is argument this is improper opening statement.
The Court:
Sustained.
[Defense Counsel:] Ask the jury to disregard.
The Court:
Ladies and gentlemen, you will disregard the last statement made by the prosecutor.
[Defense Counsel:] And we will move for a mistrial.
The Court:
Denied
[Prosecutor:] And I am going to ask you to consider when he has served enough time to be punished-
[Defense Counsel:] Again, this is argument.
The Court:
Sustained.
[Defense Counsel:] We would ask the jury to disregard.
The Court:
Ladies and gentlemen of the jury, you will disregard the statement.
[Defense Counsel:] And we move for a mistrial.
The Court:
Denied.
The State’s opening statement should consist of “the nature of the accusations and the facts which are expected to be proved by the State in support thereof.” Tex. Code Crim. Proc. Ann. art. 36.01(3) (West 2007); Hullaby v. State, 911 S.W.2d 921, 927 (Tex. App.-Fort Worth 1995, pet. ref’d). The prosecutor’s statement that she would be asking at the conclusion of the trial for the jurors to determine when they would trust appellant to be out in the community or when he would have served a long enough sentence did not fall within either category for an opening statement. Accordingly, the trial court’s decision to sustain the objection and instruct the jury to disregard was within the zone of reasonable disagreement and was not an abuse of discretion.[1] We next consider whether the trial court erred by denying the motions for mistrial.
Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In ruling on a motion for mistrial, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). This harm analysis is conducted in light of the court’s curative instruction. Id.
Only where the prejudice is incurable will a mistrial be required Id. We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard. Ladd, 3 S.W.3d at 567 see Dickerson v. State, 87 S.W.3d 632, 641 (Tex. App.-San Antonio 2002, no pet.) (no abuse of discretion in denying motion for mistrial concerning prosecutor’s opening statement). In considering whether the trial court abused its discretion, we consider three factors: (1) the severity of the misconduct (the prejudicial effect); (2) the curative measures applied by the trial court; and (3) the certainty of the punishment assessed absent the misconduct (that is, the likelihood of the same punishment being assessed). Hawkins, 135 S.W.3d at 77. When an instruction to disregard would be sufficient to cure the harm, the trial court does not err by denying the motion for mistrial Young v. State, 137 S.W.3d 65, 72 (Tex. Crim. App. 2004). Regarding the first factor, the severity and prejudicial effect of the misconduct, appellant argues the misconduct was severe and prejudicial because although “the defendant capitulated guilt and threw himself upon the mercy of the jury, the State determinedly sought to press its case for severe incarceration time from the outset by arguing improperly in its opening statement.” We disagree. The State did not argue in the opening statement that the jury should impose severe incarceration time. Appellant has not shown that the misconduct was severe and had an incurably prejudicial effect.
The second factor is the curative measures applied by the court. The trial court immediately applied the curative measure requested by appellant, the instructions to disregard the prosecutor’s statements. Ordinarily, prompt instructions are effective to cure the harm from improper argument. Hawkins, 135 S.W.3d at 84. And we generally presume that the trial court’s instruction will be obeyed by the jury. Colburn v. State, 996 S.W.2d 511, 520 (Tex. Crim. App. 1998). Appellant does not explain, and we do not perceive, why the instructions to disregard were not effective to cure the alleged error. Concerning the third factor, the certainty of the punishment assessed absent the misconduct, appellant argues that the likelihood of the same punishment cannot be great because appellant pleaded guilty, he “adduced a powerful mitigation case including evidence that he had been a molestation victim himself,” and the prosecutor referred to the erroneous statements during closing argument. We disagree that the likelihood of the same punishment was not great.
The facts of these offenses supported lengthy prison sentences. The complainants described a nightmarish, terrifying experience in which they were repeatedly sexually assaulted and made to believe throughout much of the ordeal that they were about to be shot and killed. One of the complainants testified appellant appeared to be in charge and was telling the other assailants what to do. Appellant pointed a sawed-off shotgun at the abdomen and head of one of the complainants, he was the first person to sexually assault each of the complainants, it was his idea to bind the complainants’ wrists and ankles and to blindfold them with duct tape, and after the men had raped the complainants once, he forced the bound complainants into the back bedroom where another assailant raped them during the night. Although appellant testified he released the complainants from their captivity the following morning, one of the complainants testified she was certain that he was not the person who released them. The State also presented evidence that appellant had a juvenile adjudication and eight prior criminal convictions, including felony convictions for possession of one gram or more of cocaine and three robberies. In light of this evidence, we conclude there was great certainty of appellant receiving a lengthy prison sentence, such as the seventy-five years the jury assessed, regardless of the prosecutor’s error during the opening statement.
After considering all the evidence in light of the three factors, we conclude that the trial court’s denials of appellant’s motions for mistrial were not an abuse of discretion. We resolve appellant’s two issues against him.
CONCLUSION
Having resolved appellant’s two issues against him, we affirm the trial court’s judgments.