Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Authorities tried David Cruz before an El Paso county jury for capital murder. During the state’s closing argument, the following exchange occurred: The state: “They want to say first that it’s self-defense. Well, in order to have self-defense, what has to happen is someone says,”Yeah, I committed this crime. I committed this murder. I did this and I intended to do this because I was in fear of my life.’” Defense counsel: “Your Honor, we object. That is, number one, a comment on the Defendant’s right to remain silent. Number two, that is not the law. You can deny it. You can say it was an accident and still say you acted in self-defense, and Counsel knows that’s the law. We demand a mistrial.” The trial court: “Your objection is sustained. Your motion for mistrial is denied.” The jury found Cruz guilty and sentenced him to life in prison. The 8th Court of Appeals reversed, holding that the trial court erred in denying the Cruz’s motion for mistrial. The CCA granted the state’s petition for discretionary review, which asked us to determine whether: 1. The 8th Court erred in holding the prosecutor’s statements to be an impermissible comment on Cruz’s failure to testify; 2. the court erred in holding that the prejudice from such error was incurable; and 3. Cruz sufficiently preserved error for appellate review. HOLDING:Vacated and remanded. In its third ground for review, the state contended that Cruz failed to preserve error for appeal, because he failed to request an instruction to disregard the objectionable statements before moving for mistrial. The traditional and preferred procedure for a party to preserve error, the CCA stated, is t 1. object in a timely manner; 2. request an instruction to disregard; and 3. move for mistrial if the instruction to disregard seems insufficient. But such a sequence is not essential to preserve complaints for appellate review, the court stated. The only essential requirement to ensure preservation is a timely, specific request that is refused by the trial court. A request for an instruction to disregard is essential to the preservation of error only when such an instruction could have had the effect desired by the requesting party. If such an instruction would not be sufficient that is, if the harm caused by the objectionable statements is incurable then the defendant is entitled to a mistrial, and the denial of the motion for mistrial is sufficient by itself to preserve error for appellate review. In this case, the CCA stated that because Cruz moved for mistrial without delay, even though the motion was not preceded by an instruction to disregard, Cruz preserved for review the issue of whether the trial court erred in denying the motion for mistrial. In its first ground, the state contended that the 8th Court erred in finding the prosecutor’s statements to be an impermissible comment on the appellant’s failure to testify. It is settled law, the CCA stated, that neither the trial judge nor the prosecution may comment on the defendant’s failure to testify, and that any such comment violates the Fifth Amendment privilege against self-incrimination. To violate the right against self-incrimination, the CCA stated, the offending language must be viewed from the jury’s standpoint and the implication that the comment referred to the defendant’s failure to testify must be clear. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. In applying this standard, the context in which the comment was made must be analyzed. In this case, the state argued that although the prosecutor used the word “I” in a statement which seemingly referred to the defendant, it was merely a rhetorical device to explain to the jury the elements of the law of self-defense. Alternatively, the state contended that the use of the word “I” was permissible in this context because the prosecutor was referring to Cruz’s own written statement which had been admitted into evidence at trial. But the CCA found it clear from the record “that the prosecutor’s statements to the jury referred to the appellant’s own written statement which had been admitted into evidence and were therefore not a comment on the appellant’s failure to testify.” Thus, it granted the state’s first ground for review. OPINION:Womack, J., delivered the opinion for a unanimous court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.