Mosley factors in Texas

2024The Mosley factors that we consider in determining whether the trial court abused its discretion in denying a mistrial . . . are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of conviction absent the misconduct. [See id.;] Mosley, 983 S.W.2d at 259 .

2024The Mosley factors that we consider in determining whether the trial court abused its discretion in denying a mistrial . . . are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of conviction absent the misconduct. [See id.;] Mosley, 983 S.W.2d at 259 .

2023“Prejudice is clearly the touchstone of the first factor in the Mosley test.” Hawkins, 135 S.W.3d at 77 .

2023“Prejudice is clearly the touchstone of the first factor in the Mosley test.” Hawkins, 135 S.W.3d at 77 .

2015See Archie, 221 S.W.3d at 700 (applying Mosley test to determine whether trial court abused its discretion in denying defendant’s motion for mistrial when prosecutor’s statement was allegedly a comment on defendant’s failure to testify).

2010Hawkins, 135 S.W.3d at 77 (citing Martinez v. State, 17 S.W.3d 677, 693-94 (Tex.Crim.App.2000)); see Archie, 221 S.W.3d at 700 . 11 The Tyler Court of Appeals applied the Mosley factors in Carnes v. State, and although Carnes moved for a mistrial during the guilt-innocence phase of his trial, we find the court’s reasoning instructive.

2024See Archie, 340 S.W.3d at 740-42 (finding no abuse of discretion in the trial court’s denial of a mistrial following the prosecutor’s comments on the defendant’s failure to testify when the magnitude of the prejudice from the prosecutor’s remarks “was not so great that a jury would necessarily have discounted the trial court’s firm instructions to disregard them.”); see also Lopez v. State, No. 2017 WL 1181294 , at *6 (concluding that the balance of the Mosley factors established that a mistrial was not warranted, even when the prosecutor repeated the challenged statement, because “the magnitu

2024Application of the Mosley factors In applying the three-factor Mosley test to determine whether the trial court erred in denying his motion for mistrial, we first examine “the severity of the misconduct, or in other words, the magnitude of the prejudicial effect of the prosecutor’s [misconduct].” Archie, 340 S.W.3d at 740 .

2015Accordingly, the first two Mosley factors weigh in favor of “scrupulous honoring.” Maestas, 987 S.W.2d at 63 .

2015Therefore, the third Mosley factor weighs in favor of “scrupulous honoring.” The subsequent questioning of the Appellant herein did not focus on a different crime, so the State concedes that the fourth Mosley factor does not weigh in favor of “scrupulous honoring.” However, as part of the Mosley analysis, this Court should also consider other facts and circumstances in determining whether a defendant’s right to remain silent was “scrupulously honored.” Maestas, 987 S.W.2d at 64 .

2006In determining whether the trial court abused its discretion in denying the mistrial, we consider the Mosley factors: "(1) severity of the misconduct (the magnitude of the prejudicial effect . . .), (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)." Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.

2006In determining whether the trial court abused its discretion in denying the mistrial, we consider the Mosley factors: "(1) severity of the misconduct (the magnitude of the prejudicial effect . . .), (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)." Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.

2009App. 1998); Tucker v. State , 15 S.W.3d 229, 237-38 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (applying Mosley factors to determine if improper guilt-innocence final argument constituted reversal). (19) We consider the argument in the context in which it appeared.

2009App. 1998); Tucker v. State, 15 S.W.3d 229, 237-38 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d) (applying Mosley factors to determine if improper guilt-innocence final argument constituted reversal).19 We consider the argument in the context in which it appeared.

2015App. 1998); see Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) (applying Mosley factors to determine whether trial court abused its discretion in denying mistrial motion where witness's testimony was improper); Delacerda, 425 S.W.3d at 388 (same).

2015App. 1998); see Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) (applying Mosley factors to determine whether trial court abused its discretion in denying mistrial motion where witness’s testimony was improper); Delacerda, 425 S.W.3d at 388 (same). 11 We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.

2024Watson v. State, No. 10-14-00359-CR, 2016 Tex. App. LEXIS 6580 , 2016 WL 3452777 , at *6 (Tex. App.—Waco June 22, 2016, no pet.) (mem. op., not designated for publication) (quoting Abbott v. State, 196 S.W.3d 334, 347 (Tex. App.—Waco 2006, pet ref'd)).

2024Watson v. State, No. 10-14-00359-CR, 2016 Tex. App. LEXIS 6580 , 2016 WL 3452777 , at *6 (Tex. App.—Waco June 22, 2016, no pet.) (mem. op., not designated for publication) (quoting Abbott v. State, 196 S.W.3d 334, 347 (Tex. App.—Waco 2006, pet ref'd)).

2015See Rojas v. State, 986 S.W.2d 241, 250-51 (Tex. Crim.

2015See Rojas v. State, 986 S.W.2d 241, 250-51 (Tex. Crim.

2013See Martinez v. State, 17 S.W.3d 677, 693 (Tex.Crim.App. 2000) (en banc). 6 Our review of the Mosley factors leads to our conclusion that appellant was not harmed by the comments of the State‘s attorney during final arguments.

2013See Martinez v. State, 17 S.W.3d 677, 693 (Tex.Crim.App. 2000) (en banc). 6 Our review of the Mosley factors leads to our conclusion that appellant was not harmed by the comments of the State‘s attorney during final arguments.

2001See Michigan v. Mosley , 423 U.S. 96, 104 (1975) (reviewing all of the facts and circumstances to determine whether the suspect's assertion of the right to silence was respected by law enforcement officers); Maestas v. State , 987 S.W.2d 59, 62 (Tex. Crim.

2001See Michigan v. Mosley , 423 U.S. 96, 104 (1975) (reviewing all of the facts and circumstances to determine whether the suspect's assertion of the right to silence was respected by law enforcement officers); Maestas v. State , 987 S.W.2d 59, 62 (Tex. Crim.

2015App. 1998) (listing three harm-analysis factors); Perez, 994 S.W.2d at 237–38 (applying Mosley factors).

2015See Perez v. State, 994 S.W.2d 233, 238 (Tex. App.—Waco 1999, no pet.) (applying Mosley factors to improper jury argument on parole at punishment phase).

2009App. 1998); see Hawkins , 135 S.W.3d at 77 (adopting Mosley factors to evaluate whether the trial court abused its discretion in denying a mistrial); Austin , 222 S.W.3d at 815 (applying Mosley factors when instruction to disregard was given after the State elicited testimony barred by trial court = s ruling on motion in limine).

2009Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998); see Hawkins, 135 S.W.3d at 77 (adopting Mosley factors to evaluate whether the trial court abused its discretion in denying a mistrial); Austin, 222 S.W.3d at 815 (applying Mosley factors when instruction to disregard was given after the State elicited testimony barred by trial court’s ruling on motion in limine).

2015Thomas v. State, 461 S.W.3d 305, 310 (Tex. App.—Fort Worth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7 ; Whitney v. State, 396 S.W.3d 696, 704 (Tex. App.—Fort Worth 2013, no pet.). 16 The Court of Criminal Appeals found that the "Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial...[in cases] in which constitutional rights are not implicated" Hawkins, 135 S.W.3d at 77 .

2015Thomas v. State, 461 S.W.3d 305, 310 (Tex. App.—Fort Worth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7 ; Whitney v. State, 396 S.W.3d 696, 704 (Tex. App.—Fort Worth 2013, no pet.). 16 The Court of Criminal Appeals found that the “Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial…[in cases] in which constitutional rights are not implicated” Hawkins, 135 S.W.3d at 77 .

2015Thomas v. State, 461 S.W.3d 305, 310 (Tex. App.—Fort Worth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7 ; Whitney v. State, 396 S.W.3d 696, 704 (Tex. App.—Fort Worth 2013, no pet.). 16 The Court of Criminal Appeals found that the "Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial...[in cases] in which constitutional rights are not implicated" Hawkins, 135 S.W.3d at 77 .

2015Thomas v. State, 461 S.W.3d 305, 310 (Tex. App.—Fort Worth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7 ; Whitney v. State, 396 S.W.3d 696, 704 (Tex. App.—Fort Worth 2013, no pet.). 16 The Court of Criminal Appeals found that the “Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial…[in cases] in which constitutional rights are not implicated” Hawkins, 135 S.W.3d at 77 .

2015App. 1998); see Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) (applying Mosley factors to determine whether trial court abused its discretion in denying mistrial motion where witness's testimony was improper); Delacerda, 425 S.W.3d at 388 (same).

2015App. 1998); see Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) (applying Mosley factors to determine whether trial court abused its discretion in denying mistrial motion where witness’s testimony was improper); Delacerda, 425 S.W.3d at 388 (same). 11 We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.

2009Denison v. State , 651 S.W.2d 754, 761 (Tex. Crim.

2009Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim.

2001Reed v. State, 991 S.W.2d 354, 364 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App.1997); Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App. 1988)).

2001Reed v. State, 991 S.W.2d 354, 364 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App.1997); Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App. 1988)).

2001Reed v. State, 991 S.W.2d 354, 364 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App.1997); Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App. 1988)).

2001Reed v. State, 991 S.W.2d 354, 364 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App.1997); Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App. 1988)).

2024Id. 13 (citing Mosley, 983 S.W.2d at 259 ).

2023However, we decline to adopt this interpretation for the reasons set forth in this opinion. 9 applicable to the prosecutor’s testimony in this case.”); Flores v. State, 513 S.W.3d 146, 153 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (using Mosley factors to determine whether the trial court abused its discretion when denying a mistrial for improper witness testimony); Perez v. State, 187 S.W.3d 110, 112 (Tex. App.—Waco 2006, no pet.) (using Mosley factors to determine whether the trial court abused its discretion when denying a mistrial for an improper witness answer that implicated cons

2006Johnson, 967 S.W.2d at 417 .

2003See Johnson , 967 S.W.2d at 417 .

2001Because the court found that Edwards had not invoked his right to silence at the first interview, a Mosley hearing was not required. (3) See id.

2001Because the court found that Edwards had not invoked his right to silence at the first interview, a Mosley hearing was not required. (3) See id.

1999See United States v. AlvaradoSaldivar, 62 F.3d 697, 699 (5th Cir.1995) (examining the record and weighing the Mosley factors).

1999See United States v. AlvaradoSaldivar, 62 F.3d 697, 699 (5th Cir.1995) (examining the record and weighing the Mosley factors).

2001Reed v. State, 991 S.W.2d 354, 364 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App.1997); Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App. 1988)).

2001Reed v. State, 991 S.W.2d 354, 364 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App.1997); Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App. 1988)).

2026See Clark, 365 S.W.3d at 339 .

2024App. 1998)). 2 2Appellant does not address the Mosley factors in his brief, whereas the State addresses the factors without calling them “Mosley factors,” but does cite Archie v. State, which discusses the Mosley factors. 9 Because a mistrial is an extreme remedy, “a mistrial should be granted ‘only when residual prejudice remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884 -85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim.

2024App. 1998)). 2 2Appellant does not address the Mosley factors in his brief, whereas the State addresses the factors without calling them “Mosley factors,” but does cite Archie v. State, which discusses the Mosley factors. 9 Because a mistrial is an extreme remedy, “a mistrial should be granted ‘only when residual prejudice remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884 -85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim.