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Click here for the full text of this decision FACTS:After Julius Archie attacked his girlfriend, authorities charged Archie by indictment with three offenses: aggravated assault with a deadly weapon, “to-wit: his hands”; felony family violence; and unlawful restraint. Evidence at trial showed that Archie assaulted the victim in her car when she picked him up at his work and committed a second assault over a number of hours in her home. The jury convicted Archie of felony family violence and the lesser-included offense of misdemeanor assault. It then assessed punishment at incarceration for 10 years and a fine of $10,000 for family violence and one year in jail and a fine of $4,000 for misdemeanor assault. During the punishment phase, the state called as witnesses Bria Alexander, one of Archie’s former girlfriends, and Desiree Briscoe, his current girlfriend but not the complainant. Alexander testified about assaults on her by Archie that were similar to the assault described by the complainant. Briscoe testified that she and Archie had argued but that the only violence was one occasion on which he held her against a wall. Archie called a former girlfriend, Brandy Dunlap, who testified that she had dated him for five years and had never been assaulted by him. Although he had testified during the guilt phase, Archie did not testify at punishment. During final punishment arguments, the prosecutor stated, “I think you have also learned that he has no respect for women. You have heard from three women now. And two of them tell you, frighteningly, the same story; that things are okay in the beginning of a relationship and then things start to go downhill, and that he strangles them and he ties them up. That is his MO . . . heard that now from two people. You heard no evidence to the contrary as to Bria Alexander, the second victim. You heard no denial.” Defense counsel objected to the prosecutor’s comment on Archie’s failure to testify. The trial court sustained the objection and instructed the jury in the jury charge to not consider for any purpose whatsoever that Archie did not testify. Archie then moved for mistrial, which the trial court denied. The jury assessed the maximum available sentences. On appeal, Archie argued that the prosecutor’s remark that there had been no denial constituted an impermissible comment on his failure to testify. Therefore, Archie argued, the trial court erred by not granting his motion for mistrial. The 10th Court of Appeals, finding that the state “does not seriously challenge Archie’s assertion that the statement at issue was an erroneous comment on this failure to testify,” limited its inquiry to whether the trial court’s instruction was sufficient to cure any harm that resulted from the improper comment. Citing 2004′s CCA opinion Hawkins v. State, the 10th Court considered three factors: 1. the severity or prejudicial effect of the misconduct; 2. the curative measures taken by the trial court; and 3. the certainty of the punishment assessed absent the misconduct. The 10th Court concluded that the comment was a direct reference to failure to testify and was more difficult to cure than an indirect comment but also noted that the state did not emphasize the comment. Second, as to curative measures, the 10th Court noted that the trial court did not direct the jury to disregard the improper argument but only included the instruction in the jury charge as one of 19 instructions. Third, the 10th Court found that, given the state’s strong evidence at punishment, the improper argument did not result in a more severe penalty than would have been assessed without the improper argument. After balancing the three factors, the 10th Court found error in that “the instruction did not cure the prejudicial effect of the comment.” Next, the 10th Court stated that it could not find, beyond a reasonable doubt, that the error did not contribute to the punishment. The court affirmed the conviction but remanded to the trial court for reassessment of punishment. The state appealed to the CCA. HOLDING:The CCA reversed the judgment of the 10th Court and affirmed the judgment of the trial court. First, the CCA found that Archie preserved error. The usual sequence in preserving an error, the CCA stated, is objection, instruction to disregard, and motion for mistrial but “this sequence is not essential to preserve complaints for appellate review.” Rather, the CCA stated, the essential requirement is a timely, specific request that the trial court refuses. The party who fails to request an instruction to disregard, the CCA stated, will have forfeited appellate review of that class of events that could have been “cured” by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, the CCA stated. For such a complaint, the CCA stated that a motion for a mistrial alone preserves error. The CCA then did its own Hawkins analysis. The CCA first stated that the prosecutor’s offending statement was brief and related only to Bria Alexander, the second victim. Under the facts of this case, the court concluded that in sustaining Archie’s objection and instructing the jury as it did, the trial court sufficiently ameliorated any potential harm. The court then analyzed the third Hawkins factor with regard to the certainty of the punishment assessed. After reviewing the record, which included evidence of the facts of the offenses in question and Archie’s dealings with other girlfriends, as well as evidence of Archie’s convictions for unauthorized use of a motor vehicle, multiple criminal-trespass offenses, criminal mischief, misdemeanor thefts, violation of a protective order, a previous family-violence assault conviction and evidence that he had helped a girlfriend attempt to perpetrate insurance fraud by burning her van, the court found that the jury would have assessed the same punishment regardless of the improper comment. Thus, the CCA held that the trial court did not err in overruling Archie’s motion for mistrial. OPINION:Johnson, J., delivered the opinion of the court in which Price, Womack, Hervey, Holcomb and Cochran, J.J., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “I disagree with the court’s decision to overrule the State’s first ground for review. The point of that ground was that appellant forfeited the higher level of scrutiny . . . that he might have obtained if he had requested, and was denied, an instruction to disregard. The Court says that the instruction that was given was functionally an instruction to disregard, but I disagree. The instruction was a curative instruction of sorts, but it was not an explicit instruction to disregard, and a party with a valid objection is entitled to an explicit instruction, upon request. Here, there was no request, a fact the court of appeals failed to take into account.” Meyers, J., filed a concurring opinion. “[T]he 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.” Keasler, J., concurred in the result without an opinion.

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