Cases Dealing With Jury Instructions to Disregard Comments In Texas
Generally, a jury is presumed to follow a trial court's instruction to disregard improperly admitted evidence. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).
This presumption applies unless the improper evidence is "clearly calculated to inflame the minds of the jury, and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury." See id.
Whether the erroneous admission of such evidence requires a mistrial, even in the face of an admonishment to disregard the evidence, is determined by looking at the facts and circumstances of each individual case. See id. (citing Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990)).
Additionally, the court may consider the strength of the admonishment because specially strong admonishments to a jury to disregard have often been held in and of themselves sufficient to cure error.
See Helleson v. State, 5 S.W.3d 393, 398 (Tex. App.-Fort Worth 1999, pet. filed) (trial court's strong admonishment that the jury not consider parole law in assessing punishment cured the harm caused by the prosecutor's improper argument); Thomas v. State, 811 S.W.2d 201, 204 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd) (a prompt, strong instruction generally cures the harm from an improper question).
Not all cases have merited this result, however. See Tate v. State, 762 S.W.2d 678, 682 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd) (strong instructions to disregard did not cure error under former rule of appellate procedure 81(b)(2) where prosecutor violated court orders and injected inadmissible extraneous offense evidence before the jury).
Fortunately, the Court of Criminal Appeals has addressed this issue in the context of erroneous admission of a defendant's post-arrest silence. See Waldo v. State, 746 S.W.2d 750, 753-54 (Tex. Crim. App. 1988).
In Waldo, a police officer testified that he read the defendant his rights, asked him if he had anything to say, and received no response. Waldo, 746 S.W.2d at 751-52.
The trial court, after sustaining the defendant's objection to this testimony, instructed the jury to "to disregard the last comment of the witness" but denied the motion for mistrial. See id. at 752.
Treating the witness's answer as a clear comment on the defendant's invocation of his Fifth Amendment right to remain silent, the court of criminal appeals held the trial court's admonishment to the jury cured the admission of the answer. See id. at 757.
In so holding, the court first distinguished the admission of post-arrest silence from failure to testify. See Waldo, 746 S.W.2d at 753.
In the court's view, evidence of a defendant's post-arrest silence, that is not utilized in any overt fashion to impeach a defendant's testimony or rebut his defense, does not have the irrevocable prejudicial impact that a prosecutor's deliberate comment on a defendant's failure to testify has. See Waldo, 746 S.W.2d at 754.
As such, the prejudice from evidence of a defendant's post- arrest silence is not so irrevocable that jurors could not obey an instruction to ignore it in their deliberations. See id.
Thus, where the jury hears evidence of a defendant's post-arrest silence, which the trial court, on defendant's objection, subsequently instructs them to disregard, the court is to honor the presumption that the instruction was effective to cure error "unless consideration of the facts of the particular case 'suggest the impossibility of withdrawing the impression produced on the minds of the jury." See id. (quoting Hatcher v. State, 43 Tex. Crim. 237, 65 S.W. 97, 98 (1901)).