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Click here for the full text of this decision FACTS:During Noel Betancourt Ramon’s trial for aggravated sexual assault, the defense introduced evidence about a message the prosecutor left at the state DNA expert’s office. The CCA says the record indicates the expert had asked if the state would be sending DNA samples from other people for comparison, and the prosecutor left a message that was recorded in the expert’s office as “The grandson and his roommate had access to the home, but they only care about suspect’s DNA.” Ramon offered the evidence to show that the state had focused on Ramon and ignored evidence that potentially inculpated others. The prosecutor told the trial court that she needed to testify to clear up the “false impression” that Ramon had created with the message testimony. According to the prosecutor, the reason she asked for only Ramon’s DNA was because, at the time, she thought his defense was going to be that he wasn’t present at the scene of the crime and thus the state only was concerned with defeating that claim by proving his DNA was present. The trial court eventually instructed the jury to disregard the prosecutor’s comments. Nonetheless, the subject of the prosecutor’s message resurfaced twice during the remainder of the trial. The trial court, however, denied Ramon’s motion for a new trial. Ramon was convicted. San Antonio’s 4th Court of Appeals affirmed, finding the trial court did not abuse its discretion in denying Ramon’s motion for a mistrial, because Roman had failed to show how the prosectuor’s remarks had prejudiced his case. The CCA notes that a concurring opinion to the 4th Court’s decision chastised the prosecutor for what the CCA characterized as “her unprofessional behavior.” HOLDING:Affirmed. The court mentions in a footnote that the prosecutor in this case is the same one who called a defendant’s attorney to the stand in Flores v. State, decided by the 4th Court on the same day as this case. In both this case and Flores, the prosecutor said her actions were necessary to clear up a “false impression” left by the defense. The court rejects Ramon’s contention that considerations at issue in Gonzalez v. State, 117 S.W.3d 831 (Tex.Crim.App. 2003) � a decision in which defense counsel was disqualified because he was expected to testify to a contested matter bearing on guilt � serves to create a presumption of actual prejudice to his case when the prosecutor testified and then continued to prosecute the case. The court distinguishes the two cases. In Gonzalez, the trial court disqualified the defense attorney before trial, averting the problem at bar, and the 4th Court accorded deference to the trial court’s finding. Here, the trial judge let the prosecutor testify; after she refused to allow herself to be cross-examined, the judge instructed the jury to disregard her testimony but overruled the defense motion for a mistrial. Reviewing a denial of a motion for mistrial, the 4th Court used an abuse of discretion standard. The court uses the test from its 1998 decision in Mosley v. State to determine whether the argument warranted a mistrial, balancing three factors: “(1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remark), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).” While agreeing that the prosecutor’s conduct was “improper,” the court points out that the subject matter of the prosecutor’s testimony was not of great consequence to the outcome of the case, and that, regarding the second Mosley factor, the trial court’s instruction to disregard was sufficient to cure the error in allowing the prosecutor to testify. Finally, with regard to the third Mosley factor, the CCA finds that there was ample evidence to suggest that Ramon would have been convicted even without the prosecutor’s comments. “Given the strength of the evidence against appellant, the court’s instruction to the jury to disregard the prosecutor’s testimony, and the tangential nature of that testimony, we do not find an abuse of discretion in the trial court’s failure to declare a mistrial. Therefore, we affirm the judgment of the court of appeals.” OPINION:Johnson, J., delivered the court’s opinion.

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