Affirmed and Memorandum Opinion filed November 22, 2011.

In The

Fourteenth Court of Appeals

NO. 14-08-00779-CR

BREANNA MARIE BAKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal Court at Law No. 9

Harris County, Texas

Trial Court Cause No. 1510959

M E M O R A N D U M O P I N I O N

Appellant Breanna Baker appeals her conviction for misdemeanor driving while 

intoxicated (DWI). After the jury found her guilty, the trial court assessed punishment at 

180 days in the Harris County Jail and a $750 fine, suspended her sentence, and placed 

her on community supervision for 18 months. In three issues, appellant contends the trial 

court abused its discretion by denying her motion for mistrial after the prosecutor 

proffered appellant’s videotaped statement in violation of her Fifth Amendment privilege 

against self-incrimination and commented during closing argument regarding matters 

which were not admitted into evidence. Appellant further contends these actions 
2

amounted to prosecutorial misconduct. We affirm.

Background

Appellant was driving her vehicle after midnight on February 28, 2008 when she 

was stopped for speeding. The officer who performed the traffic stop testified that he 

noticed ―a strong odor of alcohol‖ on appellant, her eyes were ―bloodshot and glassy,‖ 

and her speech was ―slightly slurred.‖ The officer also testified that appellant initially 

told him she had consumed three beers but ―later admitted to four to five beers.‖ At that 

point, appellant’s counsel objected to the testimony regarding purported admissions about 

the number of beers appellant had consumed, as follows: ―I think that goes beyond [the 

prosecutor’s] question about that.‖

The court then excused the jury, and the officer testified that after appellant’s 

initial statement, he conducted four standardized field sobriety tests and then repeated his 

question regarding the number of drinks she had consumed. She responded, ―Four to five 

drinks is actually what I had.‖ Appellant’s counsel argued that appellant was in custody 

before she answered the last question, therefore, she was entitled to receive Miranda

warnings before questioning. The trial court agreed and said, ―I am suppressing the last 

statement.‖

The entire encounter between appellant and the officer was videotaped. 

Accordingly, the trial court instructed the prosecutor, ―So you just need to cut the video 

when it gets to that point, cut the sound off.‖ The prosecutor subsequently played the 

videotape to the jury. While the video was playing, appellant’s counsel objected as 

follows, ―Your Honor, I would like to ask that that be stricken from the record, the 

question—.‖ The court sustained the objection and instructed the jury to ―disregard that 

question,‖ but denied appellant counsel’s request for a mistrial. The court reporter did 

not transcribe the oral portion of the videotape into the record.
3

During voir dire, the prosecutor asked, ―Is there anybody here who has been 

personally affected by driving while intoxicated?‖ A venire member responded that he 

―was hit from behind by a motorcycle‖ and ―paralyzed from the waist down for six 

months.‖ During his closing argument, the prosecutor stated, 

[W]e already know that the law is driving while intoxicated and we know 

why the law is driving while intoxicated because people who drive while 

intoxicated are dangerous in our community. You heard from a man who 

had been paralyzed for six months because of a drunk driver, an intoxicated 

driver that he came into contact with.

Appellant’s counsel objected to the statement as ―outside the evidence.‖ The trial court 

sustained the objection and instructed the jury to disregard it, but denied counsel’s 

request for a mistrial. 

Fifth Amendment Privilege against Self-Incrimination

In her first and third issues, appellant contends that the prosecutor engaged in 

misconduct by violating her Fifth Amendment privilege against self-incrimination when 

he showed her videotaped statement in contravention of the trial court’s suppression 

order or, in the alternative, the trial court abused its discretion by denying her motion for 

mistrial. The State argues, among other things, that the prosecutor did not violate the trial 

court’s suppression order and appellant did not preserve error on this issue. We agree 

with the State.

When a defendant alleges prosecutorial misconduct, there are several factors for 

the court to consider. Relative to the facts in this case, the trial court should determine

whether the prosecutor deliberately violated a court order, whether the prosecutor’s 

conduct was so blatant as to border on being contumacious, and whether the defendant 

timely objected to the misconduct. See Stahl v. State, 749 S.W.2d 826, 831 (Tex. Crim. 

App. 1988). This list, however, is not exhaustive, and prosecutorial misconduct should

be determined based on the facts of each case. See id. at 830–31.

To preserve error relative to prosecutorial misconduct, a defendant must object on 

specific grounds, request an instruction that the jury disregard the comment, and move 
4

for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see also 

Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—Houston [14th Dist.] 2010, no pet.). 

On appeal, we determine whether the trial court abused its discretion by denying 

appellant’s motion for mistrial. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. 

App. 2007). We must uphold the trial court’s ruling if it was within the zone of 

reasonable disagreement. Id. ―Only in extreme circumstances, where the prejudice is 

incurable, will a mistrial be required.‖ Id. Any ―error . . . in the admission of evidence is 

cured where the same evidence comes in elsewhere without objection.‖ Lane v. State, 

151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see also Leday v. State, 983 S.W.2d 713, 

718 (Tex. Crim. App. 1998) (―[O]verruling an objection to evidence will not result in 

reversal when other such evidence was received without objection, either before or after 

the complained-of ruling.‖).

Appellant complains that the prosecutor violated her Fifth Amendment privilege 

against self-incrimination by showing the jury a portion of appellant’s videotaped 

interaction with the arresting officer, which the trial court had suppressed. However, we 

cannot determine from the record whether the prosecutor proffered any suppressed 

statements. The trial court ruled, ―I am suppressing the last statement. . . . So you just 

need to cut the video when it gets to that point, cut the sound off.‖ (Emphasis added.) 

The videotape was not transcribed. Consequently, the record does not reflect the exact 

moment when the videotape stopped. But while the videotape was playing, appellant’s 

counsel asked that ―the question‖ be stricken from the record; the trial court sustained the 

objection and instructed the jury to ―disregard that question.‖ (Emphases added.) Even 

if the suppressed statement on the videotape had been played to the jury, appellant did not 

ask that it be stricken from the record.

Even if the prosecutor had violated the trial court’s suppression order, appellant 

did not object on the basis of prosecutorial misconduct and thus did not preserve that 

issue for review.1 See Temple, 342 S.W.3d at 609 n.12. If appellant had preserved the 

 

1 Even constitutional error, of which appellant complains, is waivable unless it rises to the level of 
5

issue at that point, moreover, the objected-to evidence was admitted earlier during trial 

when the officer testified appellant told him she had drunk three beers but ―later admitted 

to four to five beers.‖ Although appellant’s counsel objected to the officer’s testimony as 

outside the scope of the prosecutor’s question and the trial court held, outside the 

presence of the jury, that he would suppress appellant’s ―last statement,‖ when the jury 

returned, appellant’s attorney did not request an instruction from the trial court for the 

jury to disregard the officer’s testimony regarding appellant’s admission. Likewise, 

appellant’s counsel did not request a mistrial at that point. Thus, he waived any error 

regarding the admissibility of appellant’s statement. Coe v. State, 683 S.W.2d 431, 436 

(Tex. Crim. App. 1984) (holding proper method to preserve error regarding admission of 

evidence is to (1) object timely; (2) request trial court to instruct jury to disregard any 

statements made; and (3) move for a mistrial based upon the complained-of evidence); 

see also Cureton v. State, 800 S.W.2d 259, 261 (Tex. App.—Houston [14th Dist.] 1990, 

no writ) (same). We hold any error resulting from the prosecutor’s proffer of suppressed 

evidence was waived because the same evidence was admitted earlier through the 

officer’s testimony and the trial court’s earlier error in admitting the same evidence was 

not preserved for appeal. See Lane, 151 S.W.3d at 193. 

We find appellant’s contention that the prosecutor engaged in misconduct by 

showing suppressed evidence to the jury to be without merit. We further hold that the 

trial court did not abuse its discretion by denying appellant’s motion for mistrial. We 

overrule appellant’s first issue and that portion of her third issue in which she complains 

of prosecutorial misconduct in showing previously suppressed statements to the jury.

Prosecutor’s Comment during Closing Argument

In her second and third issues, appellant argues the prosecutor engaged in 

misconduct by making an improper comment during closing argument and appellant was 

 

fundamental error, which is not the case here. See Powell v. State, 252 S.W.3d 742, 744–45 (Tex. App.—

Houston [14th Dist.] 2008, no pet.); see also Williams v. State, 194 S.W.3d 568, 579 (Tex. App.—

Houston [14th Dist.] 2006), aff’d, 252 S.W.3d 353 (Tex. Crim. App. 2008).
6

therefore entitled to a mistrial. The State argues that appellant waived her complaint 

regarding prosecutorial misconduct, but even if she had not, the prosecutor did not 

engage in misconduct because his comment was permissible jury argument as a plea for 

law enforcement. In that connection, the State argues that the trial court did not abuse its 

discretion by denying appellant’s request for a mistrial.

The permissible areas of jury argument include (1) summation of the evidence, 

(2) reasonable deductions from the evidence, (3) answers to arguments of opposing 

counsel, and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. 

Crim. App. 2000). Even when an argument exceeds the permissible bounds of these 

approved areas, it will not constitute reversible error unless, in light of the record as a 

whole, it is extreme or manifestly improper, violative of a mandatory statute, or injects 

new facts harmful to the accused into the trial proceeding. Id. The remarks must have 

been a willful and calculated effort on the part of the State to deprive appellant of a fair 

and impartial trial. Id. In most instances, an instruction to disregard the remarks will 

cure the error. Id.

The comment about which appellant complains is a reference to the earlier 

statement of a venire member during voir dire that he was injured by a drunken 

motorcyclist, as follows: ―[P]eople who drive while intoxicated are dangerous in our 

community. You heard from a man who had been paralyzed for six months because of a 

drunk driver, an intoxicated driver that he came into contact with.‖ Appellant’s counsel 

immediately lodged a successful objection to the statement as ―outside the evidence‖ and 

asked that the jury be instructed to disregard the comment. The judge complied but 

refused to grant counsel’s request for a mistrial. 

We note that appellant properly preserved his complaint that the prosecutor’s 

comment referred to matters outside the record. See Temple, 342 S.W.3d at 599. It is 

clearly improper to invite the jury to consider facts outside the record.2 See Wesbrook, 29 

 

2 The State argues that the comment was merely a plea for law enforcement. We agree that the 

prosecutor’s previous statement was such a plea: ―[W]e know why the law is driving while intoxicated 
7

S.W.3d at 115; Temple, 342 S.W.3d at 603. But the prosecutor’s comment was quickly 

followed by an instruction to disregard from the trial court that we presume was followed 

by the jury. See Wesbrook, 29 S.W.3d at 116; see also Temple, 342 S.W.3d at 599, 617–

19 (holding prosecutor’s reference to matters outside record was quickly remedied by 

court’s instruction to disregard). Only offensive or flagrant conduct provides a basis for 

reversal when there has been a trial court instruction to disregard, and, in the case at bar, 

this comment was not so flagrant that the instruction to disregard was ineffective.3 See

Wesbrook, 29 S.W.3d at 116; see also Temple, 342 S.W.3d at 618–19. Thus, the trial 

court did not abuse its discretion by denying appellant’s request for mistrial. 

We note, however, that an objection to jury argument based on facts outside the 

record does not preserve the issue of prosecutorial misconduct for review. See Temple, 

342 S.W.3d at 609 n.12. Regardless, for the same reasons that we have held the trial 

court did not abuse its discretion by denying appellant’s request for mistrial, we would 

overrule appellant’s prosecutorial misconduct argument even if preserved. The 

prosecutor’s comment was cured by the trial court’s instruction to disregard because the 

comment was not ―so blatant as to border on being contumacious.‖ See Stahl, 749 

S.W.2d at 831.

We overrule appellant’s second issue and that portion of her third issue 

complaining of prosecutorial misconduct related to improper commentary during closing 

argument.

 

because people who drive while intoxicated are dangerous in our community.‖ But injecting a comment 

regarding facts outside the record was not necessary for the prosecutor to make that plea. See Wesbrook, 

29 S.W.3d at 115; Temple, 342 S.W.3d at 603.

3 This is especially true in light of the fact that the jury had heard the venire member’s statement 

during voir dire about his injury.
8

Conclusion

We overrule appellant’s issues on appeal. The judgment of the trial court is 

affirmed.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Frost, Seymore, and Jamison.

Do Not Publish — TEX. R. APP. P. 47.2(b).