explaining that because trial court sustained objection 6 and granted request for instruction to disregard, “[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the motion for mistrial,” that parties’ framing of issue as one involving harm was incorrect, and that “[a] harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake”
How later courts described this case
- explaining that because trial court sustained objection 6 and granted request for instruction to disregard, “[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the motion for mistrial,” that parties’ framing of issue as one involving harm was incorrect, and that “[a] harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake”
- explaining that because trial court sustained objection and granted request for instruction to disregard, “[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the motion for mistrial” and that “[a] harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake”
- holding that Mosley factors should be used to evaluate whether trial court abused its discretion in denying mistrial for improper argument, but stating “[n]evertheless, the question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis”
- explaining that the failure to grant a mistrial after an objection has been sustained and a curative instruction given is a question of error not of harm because "[t]he only adverse ruling and thus the only occasion for making a mistake was the trial court's denial of the motion for mistrial."
Written by the judges who cited it.
The opinion
WOMACK, J.,
filed a concurring opinion in which HOLCOMB and COCHRAN, JJ., joined.
I join the opinion of the Court, which lays to rest the notion that the harmfulness of an error depended in some way on whether it was contrary to “a mandatory statute.” The very term “mandatory statute” indicates the absence of thought behind it.
The Court’s opinion mentions another dictum that, although is not essential to today’s decision, is as nonsensical as the “mandatory statute.” I refer to that which the Court calls “our current jurispru *86 dence” that “analyzes argument error by determining whether an argument falls within four permissible areas,” a “mode of analysis [that] began in 1973 with Alejandro v. State, which drew together various authorities into the current framework.” 1
The opinion for a narrow majority of the Court in Alejandro said:
To receive the stamp of approval of this court, jury arguments need to be within the areas of: (1) summation of the evidence, e.g., [citations to two decisions]; (2) reasonable deduction from the evidence, e.g., [citations to two decisions]; (3) answer to argument of opposing counsel, e.g., [citations to two decisions]; and (4) plea for law enforcement, e.g.,[citations to two decisions]. The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney. 2
This surely is one of the most influential paragraphs in our jurisprudence, having been quoted (or closely paraphrased) hundreds of times in the opinions of this court and the courts of appeals. Its usefulness has not been much marred by its two flaws: it is obviously untrue, and it is logically invalid.
Anyone who has ever made, or even listened to, an argument in a criminal trial knows that there are more proper arguments than the four that are listed in Alejandro. I shall mention seven that are made in almost every trial: thanking the jury, telling the jury what procedure is now taking place, telling the jury what procedure will take place when the argument is concluded, re-reading portions of the charge of the court, explaining the charge in layman’s language, applying the law to the evidence, and distinguishing the evidence from hypothetical cases to which the charge might apply. None of these arguments are on the Alejandro list, but I’ll wager that a case has never been tried to a jury in Texas in which at least one of them has not been made, and made with unquestioned propriety. They do not bring unsworn testimony before the jury.
The unquestioned propriety of these, and other, arguments is why they went unnoticed by the collector of the eight appellate decisions that were cited in Alejandro. Appellate opinions can be about only rulings on complaints that parties made at trial, or narrow classes of grave mistakes that a trial court committed without complaint. 3 If it were true that in all the decisions of this Court appellants complained unsuccessfully about only four classes of arguments, that could not justify the conclusion that only four classes of arguments can withstand complaint. About many arguments, no one complains.
Trying to define any class of proper procedures by looking at the decisions of appellate courts is like trying to describe the health of a people by looking into a hospital. If there is no problem, most cases don’t go to either place. No one would believe the statement, made in reliance on a survey of all hospital patients in the state, “All Texans fall within four classes of health: the ill, the injured, the pregnant, and well babies.” It might be wise for a hospital to prepare itself for those kinds of cases, but that’s not the same as trying to deny that other kinds of people are in the population.
I think we have survived the Alejandro dictum, despite its falsity and fallacious *87 ness, because most of the serious cases get proper treatment. But I would welcome the correction of its statement about the four “areas” that “arguments need to be in” to “receive the stamp of approval of this court,” just as I welcome today’s decision to end the confusion about “mandatory statutes.”
. Ante, at 80 (italics omitted).
. Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Cr.App.1973).
.See generally Marin v. State, 851 S.W.2d 275, 277-80 (Tex.Cr.App.1993).