mistrial to preserve error in Texas

2010Mathis , 67 S.W.3d at 927 .

2010Mathis, 67 S.W.3d at 927 .

2024Cockrell, 933 S.W.2d at 89 . –6– “should have moved for a mistrial to preserve this error.”).

2018App. 2010) (even assuming State’s argument was so egregious that instruction to disregard would be ineffectual, defendant “should have moved for a mistrial to preserve this error”); Cockrell, 933 S.W.2d at 89 (right to trial untainted by improper jury argument is forfeitable).

2025See id.

2010See Young, 137 S.W.3d at 70 .

2019When prejudice arising from trial court error is incurable, a defendant is generally “required to request a mistrial to preserve error on appeal because a mistrial would be the appropriate remedy.” See McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim.

2012Id. (“Before a defendant will be permitted to complain on appeal . . . that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.”) (emphasis added). 9 In instances concerning an incurable jury argument, subsequent cases have required the defendant to, at the least, “request a mistrial to preserve error on appeal because a mistrial would be the appropriate remedy.” McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim.

2021“Even an inflammatory jury argument is forfeited if the defendant does not pursue his objection to an adverse ruling.” Id. at 622–23 (citing Estrada v. State, 313 S.W.3d 274, 303 (Tex.Crim.App. 2010)(observing that even if a prosecutor’s argument was so egregious that it could not be cured by an instruction to disregard, the defendant “should have moved for a mistrial to preserve this error”).

2016See also Estrada v. State, 313 S.W.3d 274, 303 (Tex.Crim.App.2010) ("Moreover, assuming, as appellant argues, that ‘the prosecution's argument was so egregious that no instruction to disregard could possibly [have] cure[d] the harm,’ then appellant should have moved for a mistrial to preserve this error.”) (citing Young)', Buchanan v. State, 207 S.W.3d 772 , 775 n. 9 (Tex.Crim.App.2006) (citing George E.

2016See Ex parte Masonheimer, 220 S.W.3d at 506 . .

2016See Ex parte Masonheimer, 220 S.W.3d at 506 .

2015Even had the testimony been improper an instruction to disregard would have cured it.511 507 (RRVI-252). 508 (RRVI-252). 509 (RRVI-252-253). 510 See Cureton v. State, 800 S.W.2d 259, 261 (Tex.App.—Houston [14th Dist.] 1990, no pet.); see also Doherty v. State, 892 S.W.2d 13, 19 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d) (appellant must timely object, request an instruction to disregard and request a mistrial to preserve error when an instruction would have been sufficient to cure error). 511 See id.; see also Doherty, 892 S.W.2d at 19 . 72 II.

2015Even had the testimony been improper an instruction to disregard would have cured it.511 507 (RRVI-252). 508 (RRVI-252). 509 (RRVI-252-253). 510 See Cureton v. State, 800 S.W.2d 259, 261 (Tex.App.—Houston [14th Dist.] 1990, no pet.); see also Doherty v. State, 892 S.W.2d 13, 19 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d) (appellant must timely object, request an instruction to disregard and request a mistrial to preserve error when an instruction would have been sufficient to cure error). 511 See id.; see also Doherty, 892 S.W.2d at 19 . 72 II.

2023App. 1996). 6 Nearly two decades ago in Estrada v. State, the Court of Criminal Appeals rejected an argument like the one Gauvin relies on here. 5 In Estrada, the Court of Criminal Appeals said: [A]ssuming, as appellant argues, that the prosecution’s argument is so egregious that no instruction to disregard could possibly have cured the harm, then appellant should have moved for a mistrial to preserve the error.6 If any question remained about whether the usual rules of error preservation apply to preserve the right to complain on appeal about an opposing party’s allegedly improper closing arg

2021“Even an inflammatory jury argument is forfeited if the defendant does not pursue his objection to an adverse ruling.” Id. at 622–23 (citing Estrada v. State, 313 S.W.3d 274, 303 (Tex.Crim.App. 2010)(observing that even if a prosecutor’s argument was so egregious that it could not be cured by an instruction to disregard, the defendant “should have moved for a mistrial to preserve this error”).

2023App. 2010) (stating even assuming prosecutor’s argument was so egregious that instruction to disregard would be ineffectual, defendant “should have moved for a mistrial to preserve this error”). 20 S.W.3d 717, 728 (Tex. Crim.

2016See also Estrada v. State, 313 S.W.3d 274, 303 (Tex.Crim.App.2010) ("Moreover, assuming, as appellant argues, that ‘the prosecution's argument was so egregious that no instruction to disregard could possibly [have] cure[d] the harm,’ then appellant should have moved for a mistrial to preserve this error.”) (citing Young)', Buchanan v. State, 207 S.W.3d 772 , 775 n. 9 (Tex.Crim.App.2006) (citing George E.

2016App. 2010) (“Moreover, assuming, as appellant argues, that ‘the prosecution’s argument was so egregious that no instruction to disregard could possibly [have] cure[d] the harm,’ then appellant should have moved for a mistrial to preserve this error.”) (citing Young); Buchanan v. State, 207 S.W.3d 772 , 775 n.9 (Tex. Crim.

2015Even had the testimony been improper an instruction to disregard would have cured it.511 507 (RRVI-252). 508 (RRVI-252). 509 (RRVI-252-253). 510 See Cureton v. State, 800 S.W.2d 259, 261 (Tex.App.—Houston [14th Dist.] 1990, no pet.); see also Doherty v. State, 892 S.W.2d 13, 19 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d) (appellant must timely object, request an instruction to disregard and request a mistrial to preserve error when an instruction would have been sufficient to cure error). 511 See id.; see also Doherty, 892 S.W.2d at 19 . 72 II.

2014Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim.

2012App. 1998) (citing Cockrell, 933 S.W.2d at 89 ); Thompson v. State, 89 S.W.3d 843, 851 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“[I]f the prejudice arising from the improper argument is incurable, a mistrial is appropriate and a request for a mistrial will preserve error on appeal.”) (emphasis in original); Nixon v. State, 940 S.W.2d 687, 693 (Tex. App.—El Paso 1996, pet. ref’d) (“The Court of Criminal Appeals recently overturned the long- standing rule that a defendant need not object to incurable jury argument in order to preserve error.

2012App. 1998) (citing Cockrell, 933 S.W.2d at 89 ); Thompson v. State, 89 S.W.3d 843, 851 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“[I]f the prejudice arising from the improper argument is incurable, a mistrial is appropriate and a request for a mistrial will preserve error on appeal.”) (emphasis in original); Nixon v. State, 940 S.W.2d 687, 693 (Tex. App.—El Paso 1996, pet. ref’d) (“The Court of Criminal Appeals recently overturned the long- standing rule that a defendant need not object to incurable jury argument in order to preserve error.

2012Id. (“Before a defendant will be permitted to complain on appeal . . . that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.”) (emphasis added). 9 In instances concerning an incurable jury argument, subsequent cases have required the defendant to, at the least, “request a mistrial to preserve error on appeal because a mistrial would be the appropriate remedy.” McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim.