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Jason Neal McBurnett v. The State of Texas
Case Number: 02-19-00418-CR
Judge: Brian Walker
Court: Court of Appeals
Second Appellate District of Texas
at Fort Worth
Plaintiff's Attorney: Shelby White
Joseph W. Spence
Fort Worth, Texas - Criminal defense attorney represented Jason Neal McBurnett with a Aggravated Sexual Assault charge.
McBurnett was formerly married to S.W., K.M.’s mother. He was a father
figure to K.M. and, after his divorce from her mother, she continued to visit him at
the Budget Suites hotel where he lived.
In the fall of 2016, S.W.’s cousin, C.W.,
1 was living at the Budget Suites with
McBurnett. Late one night when K.M. was visiting, McBurnett asked C.W. to go to
Walmart for him. McBurnett had been drinking and was intoxicated at the time.
K.M. wanted to go with C.W. but McBurnett insisted that she stay behind. C.W. was
gone for about an hour and, when she returned, she noticed that K.M. and McBurnett
were unusually quiet and that McBurnett had changed his pajama pants. C.W.
testified that after that night, K.M. slept all the time, threw up often, and became
1S.W. testified that C.W. is her cousin. C.W. testified that S.W. is her aunt but
she also explained that S.W. is her father’s brother’s daughter, which confirms that
S.W. is C.W.’s cousin.3
On June 1, 2017, K.M. told her mother that McBurnett had raped her during a
visit at the Budget Suites hotel. She said that McBurnett was very drunk and
threatening at the time. S.W. then learned that K.M. was approximately eight months
pregnant. K.M. gave birth to a baby girl on June 29, 2017. K.M. was 12 years old at
the time of the sexual assault and 13 when her child was born.
After the baby’s birth, the police obtained DNA swabs from K.M., the baby,
and McBurnett. DNA comparison testing revealed that it was “2.2 billion times more
likely that Jason McBurnett is the true father than an untested random person in the
The jury found McBurnett guilty of aggravated sexual assault of a child and
assessed punishment at 55 years’ confinement and a $10,000 fine. The court entered
judgment in accordance with the jury’s verdict.
II. MOTION FOR MISTRIAL
Sergeant Hopson, an officer with the Fort Worth Police Department, testified
about obtaining DNA samples from McBurnett, K.M., and the baby. The State asked
Hopson on direct examination when a DNA sample was collected from McBurnett.
The officer responded, “I don’t remember. I know that he -- I know that I visited him
in the Tarrant County Jail -- .” The defense immediately objected to “custodial
references in detention.” The trial court sustained the objection and, upon the
defense’s request, instructed the jury to disregard the officer’s answer. The defense 4
then moved for a mistrial, which the court denied. McBurnett asserts in his first point
on appeal that this denial was error.
“A mistrial is the trial court’s remedy for improper conduct that is ‘so
prejudicial that expenditure of further time and expense would be wasteful and
futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v.
State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). A mistrial is appropriate only when
the record reveals highly prejudicial and incurable error. Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003). The court of criminal appeals has recognized that
“[o]rdinarily, a prompt instruction to disregard will cure error associated with an
improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.
2000); see Simpson, 119 S.W.3d at 272. Thus, a trial court must grant a mistrial only
when an improper question or answer 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.” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)
(quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)); see Simpson,
119 S.W.3d at 272.
We review the denial of a motion for mistrial for abuse of discretion, viewing
the evidence in the light most favorable to the trial court’s ruling and considering only
the arguments before the court at the time of its ruling. Ocon v. State, 284 S.W.3d 880,
884 (Tex. Crim. App. 2009). We must uphold the trial court’s ruling if it is within the
zone of reasonable disagreement. Id.5
McBurnett argues that he was entitled to a mistrial because the reference to his
incarceration violated his constitutional right to a presumption of innocence. He
urges that the error in this case is comparable to those at issue in Randle v. State,
826 S.W.2d 943 (Tex. Crim. App. 1992), and Long v. State, 823 S.W.2d 259 (Tex. Crim.
App. 1991). Randle involved a defendant who was compelled to appear at trial in jail
clothing. 826 S.W.2d at 944. Long involved a defendant who was compelled to
appear in court in shackles. 823 S.W.2d at 282. In both instances, the court of
criminal appeals recognized the potential for violating the defendant’s right to be
presumed innocent. See Randle, 826 S.W.2d at 944; Long, 823 S.W.2d at 282.
Unlike Randle or Long, the present case involves a single brief, unsolicited
reference to the defendant being in jail. Such a reference, standing alone, is generally
cured by an instruction to disregard. Smith v. State, 491 S.W.3d 864, 873 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). Indeed, the court of criminal appeals has
repeatedly held that a prompt instruction to disregard is sufficient to cure an
inadvertent reference to a defendant’s prior incarceration. See, e.g., Kemp v. State,
846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Nobles v. State, 843 S.W.2d 503, 514
(Tex. Crim. App. 1992); Gardner v. State, 730 S.W.2d 675, 697 (Tex. Crim. App. 1987).
McBurnett nevertheless contends that he was entitled to a mistrial under the
court of criminal appeals’ reasoning in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App.
2000). In that case, the trial judge explained to potential jurors that the jury selection
process was delayed because the defendant and his attorney were discussing whether 6
to accept a plea offer from the State. Id. at 130. The judge also told the jury,
“obviously, I prefer the defendant to plead.” Id. The court of criminal appeals held
that these comments tainted the defendant’s presumption of innocence and
constituted fundamental constitutional error. Id. at 132.
The error in Blue was clearly of a different character and magnitude than the
error here at issue. As the court explained in Blue:
A juror who knows at the outset that the defendant seriously considered
entering into a plea agreement no longer begins with a presumption that
the defendant is innocent. A juror who hears the judge say that he
would have preferred that the defendant plead guilty might assume that
the judge knows something about the guilt of the defendant that the
juror does not. Surely, no trial judge would want an innocent man to
plead guilty, no matter how much delay and expense he might be
In contrast to the judge’s comments in Blue, Hopson’s reference in this case to
McBurnett’s incarceration was “uninvited and unembellished and mirrored those
references typically cured by an instruction to disregard.” See Smith, 491 S.W.3d at
873. Also unlike the judge’s comments in Blue, Hopson’s mere reference to seeing
McBurnett in jail would not have given the jury any reason to believe that he knew
something about McBurnett’s guilt or innocence that the jury did not know or that
McBurnett was contemplating accepting a plea deal. While the reference to
McBurnett’s incarceration was inadmissible, it was “not so inflammatory as to 7
undermine the efficacy of the trial court’s instruction to disregard.” Kemp, 846 S.W.2d
at 308; see Gardner, 730 S.W.2d at 697.
We conclude that the trial court’s prompt instruction to disregard the officer’s
reference to McBurnett’s incarceration cured the error. See Smith, 491 S.W.3d at 873.
As a result, the court did not abuse its discretion by denying McBurnett’s motion for
mistrial. See id. Even so, we briefly address the issue of harmful error to correct an
apparent misunderstanding evident from the briefing.
McBurnett seems to conflate harmful error analysis with the determination of
whether error exists in the first instance. While the two concepts are related in the
context of a motion for mistrial, they are not coextensive:
A harm analysis is employed only when there is error, and ordinarily,
error occurs only when the trial court makes a mistake. Here, the trial
court sustained the defense objection and granted the requested
instruction to disregard. The only adverse ruling—and thus the only
occasion for making a mistake—was the trial court’s denial of the
motion for mistrial. Under those circumstances, the proper issue is
whether the refusal to grant the mistrial was an abuse of discretion.
Hawkins, 135 S.W.3d at 76–77 (footnotes omitted).
The Hawkins court went on to explain that whether a mistrial should be granted
involves many of the same considerations as a harm analysis, but that analysis is
conducted in light of the trial court’s curative instruction. Id. at 77. Again, “[o]nly in
extreme circumstances, where the prejudice is incurable, will a mistrial be required.”
We have determined that, in light of the trial court’s instruction to disregard,
the prejudice from the reference to McBurnett’s incarceration was not incurable and
that denying the motion for mistrial was therefore not error. As a result, we need not
conduct a harm analysis. See id. at 76–77; see also Tex. R. App. P. 44.2(a) (defining the
harm standard applicable to constitutional error).
Point one is overruled.
III. JURY CHARGE
McBurnett requested that the trial court include an instruction on temporary
insanity caused by intoxication in the jury charge on punishment. The court denied
that request, stating that there was no nexus between McBurnett’s intoxication and
any temporary insanity. McBurnett asserts in his second point that this refusal to
charge the jury was error.
The first step in addressing a claim of jury charge error is to determine whether
the charge was, in fact, erroneous. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim.
App. 2015); Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If the charge
is erroneous, then the court engages in a harm analysis. Cortez, 469 S.W.3d at 598;
Kirsch, 357 S.W.3d at 649.
While voluntary intoxication is not a defense to the commission of a crime, a
defendant may introduce evidence of temporary insanity caused by voluntary
intoxication in mitigation of the punishment for the offense for which he is being
tried. Tex. Penal Code Ann. § 8.04(a), (b). A trial court must instruct the jury in9
accordance with Section 8.04 “[w]hen temporary insanity is relied upon as a defense
and the evidence tends to show that such insanity was caused by intoxication.” Id.
“It is well settled that an accused has the right to an instruction on any
defensive issue raised by the evidence, whether that evidence is weak or strong,
unimpeached or contradicted, and regardless of what the trial court may or may not
think about the credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex.
Crim. App. 1999). As a result, a defendant is entitled to an instruction on temporary
insanity caused by intoxication if “some” evidence supports it. Trevino v. State,
100 S.W.3d 232, 238 (Tex. Crim. App. 2003). But it is not sufficient to “merely
present evidence of intoxication or even gross intoxication.” Arnold v. State,
742 S.W.2d 10, 14 (Tex. Crim. App. 1987). Rather, there must also be evidence that
the defendant was unable to understand the wrongfulness of his conduct. Ex parte
Martinez, 195 S.W.3d 713, 722 (Tex. Crim. App. 2006); see Tex. Penal Code Ann.
§ 8.01(a) (providing that “insanity” requires a showing that the defendant did not
know that his conduct was wrong).
There is evidence in this case that McBurnett was intoxicated, and perhaps
grossly intoxicated, at the time of the offense. But concerning the issue of temporary
insanity caused by that intoxication, McBurnett argues only that “where a 41-year old
law-abiding man drinks to the point of intoxication and thereby impregnates his 12-
year old stepdaughter, there is more than merely circumstantial evidence of temporary 10
insanity.” This, in essence, is an argument that McBurnett must have been
temporarily insane to commit such a heinous crime because he was not otherwise a
criminal. In other words, he argues that, given his lack of prior unlawful behavior, he
must not have known his conduct was wrong or else he would not have engaged in it.
This argument ignores the applicable standard.
The question is whether there was any evidence that, at the time of the sexual
assault on his minor stepdaughter, McBurnett did not know that that sexual assault was
wrong, not whether his conduct was out of character, without precedent, or without
some rational explanation. See Johnson v. State, 452 S.W.3d 398, 406 (Tex. App.—
Amarillo 2014, pet. ref’d) (rejecting argument that defendant was entitled to
temporary insanity caused by intoxication instruction because shooting was so out of
character); Strong v. State, No. 06-16-00174-CR, 2017 WL 2913825, at *5 (Tex. App.—
Texarkana July 10, 2017, pet. ref’d) (mem. op., not designated for publication)
(concluding that evidence that crime was out of character for defendant was
insufficient to warrant temporary insanity by intoxication instruction).
There is no evidence in the record that McBurnett did not know at the time of
the offense that his conduct was wrong. The trial court therefore properly refused to
include an instruction on temporary insanity caused by intoxication in the punishment
phase jury charge. Point two is overruled.
Outcome: The trial court’s judgment is affirmed