ARSLAN MOIN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00751-CR
............................
ARSLAN MOIN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 2
Dallas County, Texas
Trial Court Cause No. MB06-15961-M
.............................................................
OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Bridges
        Arslan Moin appeals his driving while intoxicated (DWI) conviction. A jury convicted appellant, and the trial court sentenced him to 150 days' confinement, probated for two years, and a $1200 fine. In a single issue, appellant argues the trial court erred in denying his motion for mistrial. We affirm the trial court's judgment.
        Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. Appellant was charged with DWI by information dated March 28, 2006. During the prosecutor's closing argument at guilt/innocence, the prosecutor made the following statement:
 
As far as the blood test - this blood test that the expert so eloquently defined to you - how come he didn't talk about the breath test at all? It seems that he avoided the breath test. He talked about that blood test. Well, let me tell you the law as far as that. The police officer has no duty to give that blood test to the defendant. He had no duty to advise the defendant of the blood test. The law is clear. An officer has no duty to advise the defendant . . . .
 
Appellant's counsel objected that the prosecutor was “reading from a book that is not in evidence.” The trial court sustained appellant's objection, instructed the jury to disregard, but denied appellant's motion for a mistrial. The jury convicted appellant of DWI, and this appeal followed.
        In a single issue, appellant argues the prosecutor's statement improperly permitted the State to present evidence bolstering the State's evidence, and the trial court therefore erred in denying appellant's motion for mistrial. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is appropriate for only “highly prejudicial and incurable errors.” Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648.
        Here, the prosecutor argued the evidence showed beyond a reasonable doubt that appellant did not have the normal use of his physical and mental faculties. Carrollton police officer P. Hare testified he found appellant asleep in his car in the westbound lane of traffic on Keller Springs Road. No traffic signal was nearby. As Hare drove closer to appellant's van, appellant “took off” and moved into the center lane three times before Hare pulled appellant over. Appellant's eyes were “kind of bloodshot and red or glassy and red,” and his speech was slurred slightly. There was an odor of an alcoholic beverage coming from appellant's car and from his body. Based on field sobriety tests and his observations of appellant, Hare concluded appellant was intoxicated. Appellant refused to provide a breath or blood specimen. During closing argument, the prosecutor acknowledged the evidence did not show that appellant had a blood alcohol concentration of .08 or more because appellant refused to take a breath test. Under these circumstances, we cannot conclude the prosecutor's statement that the arresting officer had no duty to give appellant a blood test was of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. See Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Further, we conclude the trial court's instruction to disregard cured any error, and no mistrial was warranted. See Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005). We overrule appellant's sole issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070751F.U05