Daniel Benavides a/k/a Daniel Benevides v. The State of Texas--Appeal from Crim Dist Ct 1 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00316-CR

No. 10-06-00317-CR

Daniel Benavides

a/k/a Daniel Benevides,

Appellant

v.

The State of Texas,

Appellee

From the Criminal District Court No. 1

Tarrant County, Texas

Trial Court Nos. 0992572D and 0992575D

MEMORANDUM Opinion

Benavides appeals his convictions for possession with intent to deliver of 45.26 grams of methamphetamine and unlawful possession of body armor by a felon. See Tex. Health & Safety Code Ann. 481.112(a), (d) (Vernon 2003); Tex. Penal Code Ann. 46.041(b) (Vernon 2003). We affirm.

In his one issue, Benavides contends that the trial court erred in overruling Benavides s motion for mistrial.

An appellate court reviews a trial court s ruling on a motion for mistrial . . . using an abuse-of-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); accord Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court s ruling and uphold the trial court s ruling if it was within the zone of reasonable disagreement. Webb at 112 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)); see Archie at 699. We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court s decision was arbitrary or unreasonable. Webb at 112. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Archie at 699 (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).

In considering whether the trial court erred in overruling a motion for mistrial, we must balance three factors:

1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor s remarks);

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).

Archie, 221 S.W.3d at 700 (quoting Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004)); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

As to the severity of the misconduct, the prejudicial effect of the argument was not great. Benavides complains of the following argument by the State:

Forty-five hundred dollars worth of methamphetamine in this apartment. He hung his head in shame because he knew his stash worth forty-five hundred dollars was down the drain. He knew he was not going to get it back. And even after the dope was found did he ever say, Wait, I don t live here. That s not mine. I don t live here.

(3 R.R. at 45.) The State s argument may refer only to Benavides s pre-arrest silence, a proper subject of argument. See State v. Lee, 15 S.W.3d 921, 924-26 (Tex. Crim. App. 2000), overruled on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). Moreover, the State did not repeat the argument of which Benavides complains.

As to the measures adopted to cure any misconduct, the trial court gave an effective and thorough instruction to disregard. The trial court instructed the jury as follows:

You will disregard the statement made by the prosecutor regarding the defendant not saying anything about that not being his dope at the time the drugs were found. And when I say disregard it, I mean that you don t consider it. It s as if it wasn t said, and it may not be part of your deliberations.

(3 R.R. at 45-46.)

As to the certainty of conviction absent the State s argument, the evidence supporting the conviction was strong. Benavides contends that the only disputed issue was whether he lived in the apartment where the methamphetamine was found, and thus whether he was in possession of the methamphetamine. The State points to the following evidence on that issue. Police officers found Benavides in the apartment at 1:00 a.m. while investigating a stolen vehicle. When Benavides answered the door, he told officers that he lived in the apartment.

The trial court did not abuse its discretion in overruling Benavides s motion. We overrule Benavides s issue.

Having overruled Benavides s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 14, 2007

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