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Click here for the full text of this decision FACTS: The appellant was convicted of possession of cocaine. He complained on appeal that the prosecutor made an improper comment regarding the application of parole law. The court of appeals agreed and reversed his conviction. In its petition for discretionary review, the state complains that the court of appeals conducted an improper harm analysis. HOLDING: The question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. The court agrees that the factors in Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999), should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated. The court applies the test as it has been tailored for punishment proceedings. The court balances three factors: 1. the severity of the misconduct (prejudicial effect); 2. curative measures; and 3. the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). The court of appeals’ opinion suggests that the prosecutorial misconduct was “severe” simply because it violated a “mandatory statute.” The “mandatory” nature of a statute is not particularly relevant. The court concludes that the “mandatory statute” part of the refrain has no place in the current harmless error scheme. Many of the points made in these five remarks were valid responses to opposing counsel’s arguments. Even when the remarks strayed from what was proper, they were not particularly egregious and, with the possible exception of the third comment, had no relevance to the complained-of argument about parole. The law specifically provides that the jury may consider the existence of parole law and good time in making its punishment determination; the jury is simply prohibited from considering how parole law and good time would be applied to a particular defendant. And the jury charge included an instruction to this effect as well as the other portions of the good time and parole law instructions required by statute. It was not improper for the prosecutor to accurately restate the law given in the jury charge nor was it improper for the prosecutor to ask the jury to take the existence of that law into account when assessing punishment. The error was isolated and not egregious. Curative action was taken by the court with two immediate instructions, by the prosecutor with an apology and retraction, and in the jury charge with a correct statement of the law and an admonition not to determine how good time and parole law would apply to appellant. And appellant’s possession of a deadly weapon in the present offense plus a string of prior convictions handily explains the jury’s eighteen year sentence in this case. Under the circumstances, the trial court was reasonable in believing that its instruction to disregard was effective and that appellant suffered no prejudice from prosecutor’s improper remark. The court concludes that the trial court did not abuse its discretion in denying the request for a mistrial. OPINION: Keller, P.J., delivered the opinion of the court in which Meyers, Price, Womack, Keasler, Hervey, Holcomb and Cochran, JJ., joined. Womack, J., filed a concurring opinion in which Holcomb and Cochran, JJ., joined. Johnson, J., filed a concurring opinion. CONCURRENCE: 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.” CONCURRENCE: Johnson, J. “I concur in the judgment of the Court. I write separately to note how closely the prosecutor treads to the ethical line. In Mosley v. State, 983 S.W.2d 249, 260 (Tex. Crim. App. 1998), cited by the majority, this Court also noted the decision in United States v. Ortiz-Arrigoitia, 996 F.2d 436, 441 (1 stCir. 1993), a case involving allegations of striking at the defendant over the shoulder of counsel.”The appellate court was”not persuaded that these comments were so prejudicial as to require reversal.” Id. at 441. But, the court added,”We do not understand . . . why, after numerous warnings from this court, the prosecuting attorneys . . . persist in spiking their arguments with comments that put their cases at risk.” Id. (Ellipses in original.) The same might be said of the case before us. The transgressions, while numerous, and the instructions to disregard, while tepid, may not merit reversal, but it is difficult to understand why, after five sustained objections for arguing outside of the record and several admonishments by the trial court, the prosecutor persisted in such behavior.”

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