Lee v. Texas (original by judge yeary)Annotate this Case
The Court of Appeals reversed Appellant John Lee's conviction for misdemeanor driving while intoxicated. The court of appeals held that the trial court abused its discretion in failing to grant his motion for mistrial. The Texas Court of Criminal Appeals granted the State’s petition for discretionary review in order to address its contentions that: (1) Appellant failed to preserve error; and that, (2) in any event, any potential harm could have been forestalled by a curative instruction, which Appellant failed at any time to request before asking for a mistrial. Because an instruction to disregard the blood-draw testimony, including an admonishment not to consider the prosecutor’s opening statement assertion about the result of the BAC testing, would have been efficacious, Appellant should not have been heard to complain on appeal of the trial court’s failure to grant his motion for mistrial. For this reason, the Court of Criminal Appeals held the court of appeals should not have proceeded to its analysis of whether the trial court abused its discretion to deny the motion for mistrial. Accordingly, the court of appeals' judgment was reversed.