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Dunn v. State8/19/2004
567 (Tex.Crim.App. 1999); cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). We look at the facts of the case to determine whether a given error necessitates a mistrial. Id. A mistrial is required only when the improper statements are clearly prejudicial to the defendant and are of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id.; Hardin v. State, 20 S.W.3d 84, 93-94 (Tex.App.--Texarkana 2000, pet. ref’d)(summarizing factors in determining cure). A mistrial will not be granted during voir dire unless the statement complained of injects injurious and prejudicial matters before the panel which are reasonably calculated to prevent a fair trial before an impartial jury. See Pennington v. State, 353 S.W.2d 451, 452 (Tex. 1962). Error in admitting improper evidence may be corrected by a withdrawal and an instruction to disregard it except in extreme cases where evidence is clearly calculated to inflame the mind of the jury and suggests the impossibility of withdrawing the impression produced on their minds. Waldo v. State, 746 S.W.2d 750, 752 (Tex.Crim.App. 1988).
Appellant maintains that the communication about the stipulation was muddled and that the loss of the stipulation’s benefit was exacerbated by the State’s failure to proffer the stipulation to the court in a timely fashion. He further suggests that the State intended to manipulate the situation in such a way as to place the previous convictions before the jury in a conspicuous and prejudicial way. He argues that the court’s comments conveyed its opinion of the case on a pivotal issue and that the court’s extensive voir dire raised an issue as to whether the judge overstepped his role as a referee. Finally, Appellant claims that every panelist heard inadmissible evidence about his prior convictions which irrevocably prejudiced his chances of receiving a fair trial. We disagree. Since prior convictions are a legitimate subject of voir dire, Appellant could not have been prejudiced or denied a fair trial by the judge’s mention of them to the panel. See Hollen, 117 S.W.3d at 802. Finding no abuse of discretion, we overrule Point of Error No. Two.
PROSECUTORIAL MISCONDUCT
In Point of Error No. Three, Appellant asserts that the prosecutor’s conduct deprived him of a fair trial. He complains that the improper conduct spanned the entire trial but began with his withholding the stipulation until after voir dire had begun. In doing so, he continues, the prosecutor prevented the trial court from knowing about the stipulation, which resulted in the court’s injection of considerations of prior offenses into the case. Further, the prosecutor allegedly misstated the law when he said that the prior convictions would have to come in one way or another and that the previous convictions were emphasized in the State’s closing argument. Finally, Appellant argues that the prosecutor’s intentional use of his prior convictions inflamed and prejudiced the jury and resulted in an inherently unfair trial.
As we have already detailed--and as the prosecutor correctly explained--the existence of two prior convictions are jurisdictional elements of felony DWI. Hollen, 117 S.W.3d at 801. The State has to prove that the defendant has been convicted on two previous occasions in order to obtain a conviction. Id. Thus, the State must present evidence of these prior convictions through either a stipulation by the defendant or through admitting the judgments of conviction during trial. See id. If the evidence is to be proved by stipulation, the stipulation itself is evidence which can be submitted to the jury. And the prior convictions can be mentioned during voir dire
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