A mistrial is required only in extreme circumstances where the prejudice is incurable.[In the Matter of D.J.T.](09-4-1)

On August 19, 2009, the Tyler Court of Appeals could not conclude that the impermissible questions and answers in this case caused the kind of incurable prejudice that could not be adequately addressed by the trial court's repeated instructions to the jury.

09-4-1. In the Matter of D.J.T., MEMORANDUM, No. 12-08-00378-CV, 2009 WL 2517111 (Tex.App.-Tyler, 8/19/09).

Facts:The State alleged that D.J.T. was a child who engaged in delinquent conduct, specifically, the offenses of aggravated sexual assault and indecency with a child, which would have been felony offenses had D.J.T. been an adult. D.J.T. denied the allegations, and a jury trial was held. During the trial, the State called five witnesses, including the complainant, D.S. (a pseudonym). David Wells, an investigator with the Angelina County Sheriff's Department, testified regarding the facts that led to formal allegations being brought by the State. During his testimony, the following exchange occurred:

D.J.T. objected to Well's answer, specifically to the assertion that Wells found the witness to be believable. The trial court sustained the objection and instructed the jury to disregard the statement about the believability of the witness.

Later in Wells's testimony, the following questions and answers occurred:

Again, D.J.T. objected. The trial court sustained the objection and instructed the jury that the offered standard was not a proper definition for probable cause.

Finally, as the State's questioning of Wells came to an end, the following exchange occurred:

D.J.T.'s counsel objected. The trial court sustained the objection and instructed the jury to disregard the question. D.J.T. then moved for a mistrial. The trial court overruled that motion.

D.J.T. and his father also testified. The jury found that D.J.T. had committed the acts as alleged in the State's petition. Based on that finding, the juvenile court placed D.J.T on intensive supervision probation. This appeal followed.

In a single issue, D.J.T. contends that the trial court abused its discretion in denying his motion for mistrial following the State's repeated attempts to have Investigator Wells testify about the believability of the complainant. D.J.T. contends that this was cumulative error which required the trial court to declare a mistrial and grant him a new trial.

Held:Affirmed

Memorandum Opinion:The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App.2003). In determining whether a mistrial should be granted, we must balance the following three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. See Ramon v. State, 159 S.W.3d 927, 929 (Tex.Crim.App.2004).

Severity of the Misconduct

There were three exchanges involving the believability of the complaining witness. In the first exchange, Wells's answer was not responsive to the question asked. Specifically, the State asked Wells for the basis of his belief that D.J.T. committed indecency. Wells replied that the basis of his belief was the complainant's description of the assault, but he went further in his answer and stated that her description was believable. This appears to be an unnecessary line of questioning, but the State did not specifically seek the answer given, and Wells's answer was not particularly invasive of the jury's role to determine credibility.

The second response, and the line of questions that provoked it, are more problematic. The State asked the investigator if he determined that probable cause existed. He stated that he did and then prompted an objection when he testified that the standard for probable cause was the believability of the complainant in the case. The purpose of this line of questioning may have been to set up a question that followed. Specifically, the State asked the witness if probable cause was a lower threshold than the beyond a reasonable doubt standard. He testified that it was, and then agreed with the prosecutor that he was never asked to determine if someone did or did not do something beyond a reasonable doubt.

The State appeared to be motivated, for reasons that are unclear, to explain to the jury that the investigator acted on a lower standard of proof than was required for the jury to convict. This was unnecessary, but we are not convinced that this question and answer constitute serious misconduct.

Finally, the prosecutor asked the officer if he would have gone forward with this case if he had not believed the complainant. No answer was given because Appellant immediately objected and moved for a mistrial based on the repeated revisiting of whether the investigator believed the witness. The jury likely understood that the officer believed the child witness even if this question had not been asked. Nevertheless, it is inappropriate for a witness to vouch for the credibility of another witness, and the State should not have asked the question. See Schutz, 957 S.W.2d at 69; Fuller v. State, 224 S.W.3d 823, 835 (Tex.App.-Texarkana 2007, no pet.) (improper for witness to testify that she saw nothing to indicate that child witness was being untruthful); see also Weathersby v. State, 627 S.W.2d 729, 730 (Tex.Crim.App.1982) (improper for two detectives to testify that they believed defendant was guilty); Greene v. State, 928 S.W.2d 119, 124 (Tex.App.-San Antonio 1986, no pet.) (improper for detective to vouch for State's main witness's credibility).

In considering Wells's testimony and the questions asked by the prosecution, we find it instructive to compare the facts of this case to the facts in Fuller. That case involved the sexual assault of a child. The State's case in chief consisted of the testimony of the victim and four witnesses, each of whom testified in some manner that the victim was a truthful and credible witness. Fuller, 224 S.W.3d at 837. Further, these witnesses' belief in the victim's truthfulness and credibility was emphasized during closing argument. Id. The court of appeals reversed the conviction in that case because trial counsel's failure to object to the testimony about the victim's credibility caused the defendant harm. Id.

This case is different. Here, only Wells gave testimony that could be considered as improperly bolstering the believability of the complainant and his two statements were relatively indirect. The prosecutor's third question went directly to the heart of the matter, whether Wells believed the complainant, but it was not answered. The State does not argue that the questions or the answers given were proper. Instead, the State argues that any error was harmless. Accordingly, we conclude that this is misconduct, though not especially egregious misconduct.

Measures Adapted to Cure the Misconduct

Following both of Wells's statements regarding the believability of the victim and the prosecution's question regarding the victim's believability, the trial court immediately instructed the jury to disregard the testimony or question. Not only did the trial court promptly instruct the jury while Wells was testifying, but it reemphasized those instructions during its charge to the jury by telling the jury to continue to observe all the instructions that I have previously given you. Moreover, the trial court further instructed the jury as follows: You are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, but in matters of law you must be governed by the instructions in the charge. In discharging your responsibility on this jury, you will observe all of the instructions which I have previously given.

We presume that a jury follows instructions given by a trial court. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2003); Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998); Reynolds v. State, 227 S.W.3d 355, 367 (Tex.App.-Texarkana 2007, no pet.). Furthermore, with respect to the unanswered question, the asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. See Wood, 18 S.W.3d at 648. The trial court's assiduous attention to this issue supports the presumption that the jury followed their instructions to disregard the inappropriate questions and answers.

Certainty of Conviction Absent the Misconduct

In sexual abuse cases, the testimony of the child victim alone is sufficient to support the conviction. See Tran v. State, 221 S.W.3d 79, 88 (Tex.App.- Houston [14th Dist.] 2005, no pet.). In this case, the jury was able to hear from both the complaining witness and from D.J.T and to make its own independent judgment as to the veracity and credibility of the witnesses.

The fact that the jury convicted D.J.T. is not enough, as the State argues, to show that there would have been a conviction absent the errant questions and answers. On the other hand, the questions and answers here are not the kind of evidence that is of such a damning character that it would leave an impression on the minds of the jury that was likely to override their ability and cause the jury to convict when it otherwise would not. See Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992). Instead, the idea that was conveyed to the jury, if any, was that the investigating officer believed the child. He did not offer any specialized expertise behind his belief in the child's account, did not suggest that his conclusion was based on inadmissible evidence or other misconduct on D.J.T's part.

The complaining witness's testimony encompassed all of the elements of the offense, and D.J.T.'s counsel cross examined her at length. The jury also heard of her reports to others about D.J.T.'s actions, and heard testimony from D.J.T. and his father. After considering all of the evidence, we cannot conclude that a jury was certain to find for the State. On the other hand, there was substantial evidence to support the verdict, and the transgressions by the State and its witness were not particularly egregious.

Conclusion:After balancing all of the factors, we hold that the trial court did not err in overruling D.J.T.'s motion for mistrial. The questions and answers about whether the investigator believed the complaining witness should not have been before the jury. A mistrial, however, is required only in extreme circumstances where the prejudice is incurable. See Archie, 221 S.W.3d at 699. In the context of this case, we cannot conclude that the impermissible questions and answers in this case caused the kind of incurable prejudice that could not be adequately addressed by the trial court's repeated instructions to the jury. We overrule D.J.T.'s sole issue.

Having overruled D.J.T.'s sole issue, we affirm the judgment of the trial court.