holding that, in objecting to prosecutorial argument, defendant must pursue objection to adverse ruling or waive any error that would have been curable by instruction; motion for mistrial alone is sufficient to preserve claim of error incurable by instruction
How later courts described this case
- holding that, in objecting to prosecutorial argument, defendant must pursue objection to adverse ruling or waive any error that would have been curable by instruction; motion for mistrial alone is sufficient to preserve claim of error incurable by instruction
- holding that sustaining an objection to the prosecutor’s comment on the defendant’s failure to testify combined with an instruction to disregard was sufficiently ameliorative of any potential harm such that the error did not require reversal
- holding that error was not preserved regarding complaint about comment on failure to testify because “[t]o preserve error in prosecutorial argument a defendant must pursue to an adverse ruling his objections to jury argument.”
- stating that harmless-error analysis under Rule 44.2(a) is improper when trial court sustains objection but denies request for mistrial because only adverse ruling -denial of mistrial is reviewed for abuse of discretion
Written by the judges who cited it.
The opinion
MEYERS, J.,
filed a concurring opinion.
The only possible error in this case was the denial of the motion for mistrial, but the court of appeals analyzed the issue backward. Rather than considering the trial court’s failure to grant a mistrial and determining whether doing so was an abuse of discretion, the court found error in that the judge’s instruction did not cure the prejudicial effect of the comment, and then analyzed this to determine whether it was harmful. The court determined that because it may have contributed to the punishment assessed, the comment was harmful. The majority properly determines that because the trial court did not abuse its discretion in failing to grant the mistrial, there was no error and thus no harm.
I write separately to emphasize the distinction between this type of comment occurring during the guilt phase of trial and this type of comment occurring during the punishment phase of trial. The majority points out the difference in analysis of the third factor, but I feel that the other factors are analyzed differently as well. The magnitude of the comment on the failure to testify is not the same if it may have affected only the punishment as it would be if it may have affected the determination of guilt. Thus, the issue raised in this case may have been different if the comment on the failure to testify was during the guilt phase. In that situation, the judge’s admonition to the jury to follow the instructions in the charge may not have been sufficient.
With these comments, I join the opinion of the majority.