Jury argument constitutes reversible error only if it is extreme, manifestly improper, or injects new and harmful facts into the evidence.
After a defendant was convicted of driving while intoxicated, the court of appeals reversed the conviction, ruling that the prosecutor's closing argument—which suggested the defendant refused a breath test because he knew his intoxication would be revealed—introduced evidence outside the record. The court must determine if jury argument is extreme or manifestly improper by looking at the entire record to see if there was a willful effort to deprive the defendant of a fair trial. Counsel is allowed wide latitude in drawing inferences from the evidence so long as those inferences are reasonable, fair, legitimate, and offered in good faith. Because the defendant's refusal was admitted into evidence, the prosecutor's comment was a reasonable deduction rather than an improper reference to facts outside the record.
At page 398 Examining permissible scope of jury argument321 citing cases“counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.”
- Polk, Artis Leon Jr., No. PD-0854-15 (Tex. Crim. App. Oct. 8, 2015).unpublished(Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.)
- Artis Leon Polk Jr. v. State, No. 02-13-00556-CR (Tex. App.—Fort Worth Apr. 23, 2015).unpublished(Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.)
- Solomon Hailu Solomon v. State, No. 05-14-00634-CR (Tex. App.—Dallas Dec. 30, 2014).published(In examining challenges to jury argument, this Court considers the remark in the context in which it appears.)
- Kevin Simmons v. State, No. 10-11-00212-CR (Tex. App.—Waco May 23, 2012).unpublished(Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.)
- Canton James Echols v. the State of Texas, No. 06-25-00079-CR (Tex. App.—Texarkana Nov. 4, 2025).unpublished“In examining challenges to a jury argument, [a] [c]ourt considers the remark in the context in which it appears.” Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Henry Silva v. the State of Texas, No. 13-24-00190-CR (Tex. App.—Corpus Christi–Edinburg May 22, 2025).unpublishedImproper argument will not constitute grounds for reversal unless it affected the defendant’s substantial rights—that is, unless the statements to the jury “injected new and harmful facts to the case” or were “so extreme and manifestly imp…
- Karina Yohera Flores v. the State of Texas, No. 13-22-00596-CR (Tex. App.—Corpus Christi–Edinburg Dec. 5, 2024).unpublishedCounsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App.…
- Kadir Guner v. the State of Texas, No. 13-23-00293-CR (Tex. App.—Corpus Christi–Edinburg Nov. 14, 2024).unpublishedCounsel is allowed wide latitude 13 without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Caesar Dominic Sanchez v. the State of Texas, No. 01-23-00275-CR (Tex. App.—Houston [1st Dist.] July 23, 2024).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Randy Ray Gutierrez v. the State of Texas, No. 13-22-00248-CR (Tex. App.—Corpus Christi–Edinburg Mar. 7, 2024).unpublishedCounsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
Show 164 more citing cases
- Juan Rangel v. the State of Texas, No. 12-23-00117-CR (Tex. App.—Tyler Feb. 22, 2024).publishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Martin Vega Guzman v. the State of Texas, No. 10-22-00258-CR (Tex. App.—Waco Jan. 11, 2024).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).
- Addison Douglas Mays v. the State of Texas, No. 05-21-01033-CR (Tex. App.—Dallas Nov. 20, 2023).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
- Ismael Lopez v. the State of Texas, No. 05-21-00989-CR (Tex. App.—Dallas Apr. 6, 2023).unpublishedCounsel has wide latitude when drawing inferences from evidence, so long as those inferences are “reasonable, fair, legitimate, and offered in good faith.” Brown, 270 S.W.3d at 572 (quoting Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.…
- Garry Lee Atterberry v. the State of Texas, No. 08-21-00069-CR (Tex. App.—El Paso Aug. 22, 2022).publishedGaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).
- Ryan Camille Roccaforte v. the State of Texas, No. 09-19-00428-CR (Tex. App.—Beaumont Jan. 12, 2022).unpublishedApp. 2019). 16Milton v. 17Gonzalez, 544 S.W.3d at 370 . 18See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Lavanders Marquis Muskin A/K/A Lavenders Muskin A/K/A Quez A/K/A Lavanders Muskin v. the State of Texas, No. 11-19-00391-CR (Tex. App.—Eastland Dec. 16, 2021).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
- Joel Garcia v. the State of Texas, No. 08-19-00274-CR (Tex. App.—El Paso Oct. 20, 2021).publishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Michael Andrew Kind v. the State of Texas, No. 08-19-00241-CR (Tex. App.—El Paso July 20, 2021).publishedGaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). 5 During closing argument, defense counsel argued to the jury that because it was not a crime for a man to be in the women’s restroom, the officer’s detention was unlawful because…
- Charles Reedy v. the State of Texas, No. 03-19-00573-CR (Tex. App.—Austin June 23, 2021).unpublished “Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith”
- Raymond Swan v. the State of Texas, No. 03-19-00422-CR (Tex. App.—Austin May 4, 2021).unpublished “Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith”
- Andrew Garza v. State, No. 11-19-00136-CR (Tex. App.—Eastland Apr. 23, 2021).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Robert Sabatini v. State, No. 14-20-00066-CR, 2020 WL 7866724 (Tex. App.—Houston [14th Dist.] Dec. 31, 2020).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Patrick Edward Winchester v. State, No. 02-19-00293-CR (Tex. App.—Fort Worth Dec. 10, 2020).unpublishedApp. 1990) (op. on reh’g). 6 See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- William Frederick Petty, III v. State, No. 10-18-00243-CR (Tex. App.—Waco Dec. 2, 2020).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Veronica Ann Arroyo v. State, No. 03-18-00703-CR (Tex. App.—Austin Sept. 30, 2020).unpublished(recognizing that “[c]ounsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith)
- John Wesley Carter v. State, No. 06-18-00124-CR (Tex. App.—Texarkana May 7, 2019).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Woodrow Wilson Baker v. State, No. 03-18-00240-CR, 2019 Tex. App. LEXIS 3062 (Tex. App.—Austin Apr. 17, 2019).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Barbara Galindo v. State, No. 03-17-00128-CR (Tex. App.—Austin Feb. 12, 2019).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- John Albert Santos v. State, No. 04-17-00707-CR (Tex. App.—San Antonio Dec. 5, 2018).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Randy Trevino Vialpando v. State, No. 11-16-00262-CR (Tex. App.—Eastland Aug. 30, 2018).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Quinton Cox TDCJ1624099 v. State, No. 13-17-00587-CR (Tex. App.—Corpus Christi June 14, 2018).unpublishedGonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.] 2011, pet ref’d); see Wesbrook, 29 S.W.3d at 115 ; Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Donald Griggs Scott v. State, No. 05-16-01325-CR (Tex. App.—Dallas Feb. 8, 2018).unpublishedApp. 2000) (citing Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Mark Brandon Hudson v. State, No. 13-17-00149-CR (Tex. App.—Corpus Christi Jan. 25, 2018).unpublishedGonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.] 2011, pet ref’d); see Wesbrook, 29 S.W.3d at 115 ; Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Aaron Bernard Carter v. State, No. 05-15-01213-CR (Tex. App.—Dallas Feb. 17, 2017).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Christopher Roberts v. State, No. 03-14-00637-CR (Tex. App.—Austin Oct. 26, 2016).unpublishedWe review challenged remarks in the context in which they appear, Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Jessie Haynes v. State, No. 09-14-00240-CR (Tex. App.—Beaumont Dec. 23, 2015).publishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Lindberg, Timothy James, No. PD-1389-15 (Tex. Crim. App. Nov. 24, 2015).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Lindberg, Timothy James, No. PD-1389-15 (Tex. Crim. App. Nov. 23, 2015).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Amilpas, Jose, No. PD-0614-15 (Tex. Crim. App. Nov. 18, 2015).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim. ; i ii I .i.i App. 1988). ; .J Courts have held that, during jury argument/ the State may comment on the defendant's failure to present evidence in his favor.
- Raymond Clinton Hammer v. State, No. 13-15-00165-CR (Tex. App.—Corpus Christi Oct. 29, 2015).unpublishedGaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Johnathan Ross Nickerson v. State, No. 01-14-00096-CR (Tex. App.—Houston [1st Dist.] Oct. 26, 2015).publishedBrown, 270 S.W.3d at 572 (quoting Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
- Christopher Lim v. State, No. 02-14-00365-CR (Tex. App.—Fort Worth Oct. 1, 2015).unpublished“Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith”
- Sneed v. State, 209 S.W.3d 782 (Tex. App.—Texarkana 2006).published
- Hernandez v. State, 219 S.W.3d 6 (Tex. App.—San Antonio 2007).published
- Bryant v. State, 282 S.W.3d 156 (Tex. App.—Texarkana 2009).published
- Weinn v. State, 281 S.W.3d 633 (Tex. App.—Amarillo 2009).published
- Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008).published
- Arnold v. State, 234 S.W.3d 664 (Tex. App.—Houston [14th Dist.] 2007).published
- Strahan v. State, 306 S.W.3d 342 (Tex. App.—Fort Worth 2010).published
- Gonzalez v. State, 337 S.W.3d 473 (Tex. App.—Houston [1st Dist.] 2011).published
- Adair v. State, 336 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2011).published
- Perez v. State, 352 S.W.3d 751 (Tex. App.—San Antonio 2011).published
- Paolilla v. State, 342 S.W.3d 783 (Tex. App.—Houston [14th Dist.] 2011).published
- Temple v. State, 342 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2010).published
- Michael Jason Tucker v. State, 456 S.W.3d 194 (Tex. App.—San Antonio 2014).published
- Larry Castro v. State, No. 04-13-00750-CR (Tex. App.—San Antonio Oct. 8, 2014).unpublished
- Norma Jean Clark v. State, No. 01-13-00373-CR (Tex. App.—Houston [1st Dist.] Jan. 16, 2015).unpublished
- Javier Noel Campos v. State, 458 S.W.3d 120 (Tex. App.—Houston [1st Dist.] 2015).published
- Alice Annette Steele v. State, No. 05-13-00930-CR (Tex. App.—Dallas Mar. 23, 2015).unpublished
- Johnathan Ross Nickerson v. State, 478 S.W.3d 744 (Tex. App.—Houston [1st Dist.] 2015).published
- George Washington Hicks v. State, No. 05-14-00417-CR, 2015 WL 4462277 (Tex. App.—Dallas July 21, 2015).unpublished
- Todd Allen Reich v. State, No. 05-14-00562-CR (Tex. App.—Dallas July 27, 2015).unpublished
- Salvador Martinez v. State, No. 01-06-01165-CR (Tex. App.—Houston [1st Dist.] Oct. 2, 2008).unpublished
- Jamal Lance Adair v. State, No. 01-08-00183-CR (Tex. App.—Houston [1st Dist.] Sept. 10, 2010).published
- Derrick Demond Terrell A/K/A Derrick Terrell v. State, No. 02-07-00083-CR (Tex. App.—Fort Worth Aug. 21, 2008).unpublished
- Michael McCabe v. State, No. 02-08-00331-CR (Tex. App.—Fort Worth Nov. 12, 2009).unpublished
- John Thomas Mendoza Jr. v. State, No. 03-06-00406-CR (Tex. App.—Austin Dec. 4, 2008).unpublished
- Christy Jo Franks v. State, No. 03-06-00417-CR (Tex. App.—Austin Jan. 9, 2008).unpublished
- Eric Ryles v. State, No. 04-06-00258-CR (Tex. App.—San Antonio Aug. 1, 2007).unpublished
- Carlos Rivas v. State, No. 04-06-00375-CR, 2007 WL 1608550 (Tex. App.—San Antonio June 6, 2007).unpublished
- Carlos R. Vega v. State, No. 04-07-00890-CR (Tex. App.—San Antonio June 10, 2009).unpublished
- Jacky Clay Reynolds v. State, No. 06-05-00155-CR (Tex. App.—Texarkana May 31, 2007).unpublished
- Charles Terrell McClure v. State, No. 06-08-00025-CR (Tex. App.—Texarkana Oct. 3, 2008).unpublished
- in the Interest of I. D. T., a Child, No. 06-08-00031-CV (Tex. App.—Texarkana July 17, 2008).unpublished
- Terri Lynn Stine v. State, No. 06-09-00044-CR (Tex. App.—Texarkana Oct. 21, 2009).unpublished
- Lyntorance J. Rawls v. State, No. 06-09-00122-CR (Tex. App.—Texarkana Oct. 16, 2009).published
- in the Interest of D. A. H., a Child, No. 06-09-00072-CV (Tex. App.—Texarkana Sept. 18, 2009).published
- Jessie Ruiz v. State, No. 06-08-00137-CR (Tex. App.—Texarkana Jan. 8, 2009).unpublished
- Jessie Ruiz v. State, No. 06-08-00136-CR, 2009 WL 36670 (Tex. App.—Texarkana Jan. 8, 2009).published
- Bobby J. Mitchell v. State, No. 07-07-00380-CR (Tex. App.—Amarillo Dec. 3, 2008).unpublished
- Corbett Kyle Wein v. State, No. 07-08-00081-CR (Tex. App.—Amarillo Feb. 12, 2009).published
- Bernardo Ibarra-Lopez v. State, No. 04-14-00776-CR (Tex. App.—San Antonio Sept. 9, 2015).unpublished
- Ex Parte: Julian Martinez, No. 08-05-00315-CR (Tex. App.—El Paso Feb. 15, 2007).published
- Patrick Evans v. State, No. 08-07-00213-CR, 2009 WL 2462538 (Tex. App.—El Paso Aug. 12, 2009).published
- Mark Mosley v. State, No. 12-07-00370-CR (Tex. App.—Tyler Feb. 25, 2009).published
- Enrique Cavazos v. State, No. 13-04-00325-CR, 2007 Tex. App. LEXIS 7174 (Tex. App.—Corpus Christi Aug. 30, 2007).unpublished
- Lester Eugene Volrie v. State, No. 13-05-00667-CR (Tex. App.—Corpus Christi Aug. 16, 2007).unpublished
- Melvin Carter v. State, No. 13-07-00567-CR, 2008 Tex. App. LEXIS 8967 (Tex. App.—Corpus Christi Nov. 20, 2008).unpublished
- Esteban Trevino Villegas v. State, No. 13-05-00371-CR (Tex. App.—Corpus Christi Mar. 13, 2008).unpublished
- Ivan Hernandez v. State, No. 14-08-00076-CR (Tex. App.—Houston [14th Dist.] Dec. 9, 2008).unpublished
- Jade Sheree Neal v. State, No. 14-07-00913-CR (Tex. App.—Houston [14th Dist.] Mar. 10, 2009).unpublished
- Antonio Vasquez v. State, No. 03-11-00545-CR (Tex. App.—Austin Aug. 29, 2012).unpublished
- Adolph Favela v. State, No. 03-12-00307-CR (Tex. App.—Austin May 8, 2013).unpublished
- Reynaldo Garcia v. State, No. 14-12-00805-CR (Tex. App.—Houston [14th Dist.] June 27, 2013).unpublished
- Eric Dewayne Watts v. State, 371 S.W.3d 448 (Tex. App.—Houston [14th Dist.] 2012).published
- Calvin Moore v. State, No. 14-09-01087-CR (Tex. App.—Houston [14th Dist.] Feb. 24, 2011).unpublished
- David Mark Temple v. State, No. 14-08-00074-CR (Tex. App.—Houston [14th Dist.] Dec. 21, 2010).published
- Timothy James Lindberg v. State, No. 02-14-00071-CR, 2015 Tex. App. LEXIS 10042 (Tex. App.—Fort Worth Sept. 24, 2015).unpublished
- James Scott Frels v. State, No. 12-13-00241-CR (Tex. App.—Tyler Apr. 22, 2015).published
- Melvin Pinion v. State, No. 08-13-00045-CR (Tex. App.—El Paso Apr. 22, 2015).published
- Ricky Joe Montgomery v. State, No. 08-13-00032-CR (Tex. App.—El Paso Feb. 11, 2015).published
- Jeffrey Dee Steadman v. State, No. 11-13-00034-CR (Tex. App.—Eastland Feb. 19, 2015).unpublished
- Mauricio Cabrera v. State, No. 05-13-00045-CR (Tex. App.—Dallas June 27, 2014).unpublished
- Ex Parte Paul Robert Wasserloos, No. 09-12-00178-CR (Tex. App.—Beaumont Mar. 27, 2013).unpublished
- Jose Amilpas v. State, No. 01-14-00053-CR (Tex. App.—Houston [1st Dist.] Apr. 23, 2015).unpublished
- Bobby Dewayne Evans v. State, No. 01-13-00593-CR, 2015 WL 1501808 (Tex. App. Mar. 31, 2015).unpublished
- Joshua Allen Schmude v. State, No. 13-12-00320-CR (Tex. App.—Corpus Christi May 29, 2014).unpublished
- Obed H. Montoya A/K/A Obed Hermeneguildo Montoya v. State, No. 13-12-00736-CR (Tex. App.—Corpus Christi Jan. 16, 2014).unpublished
- Jesus Cervando Lopez v. State, No. 13-12-00306-CR (Tex. App.—Corpus Christi Dec. 30, 2013).unpublished
- Gilbert John Melendez v. State, No. 13-12-00557-CR (Tex. App.—Corpus Christi July 3, 2013).unpublished
- William Gregory Dale v. State, No. 10-11-00381-CR, 2012 Tex. App. LEXIS 3127 (Tex. App.—Waco Apr. 18, 2012).unpublished
- Larry Anthony Harris v. State, No. 08-11-00117-CR (Tex. App.—El Paso Aug. 14, 2013).published
- Jesus Colunga v. State, No. 13-11-00182-CR (Tex. App.—Corpus Christi Aug. 27, 2012).unpublished
- Sonya Anaya v. State of Texas, No. 11-09-00120-CR (Tex. App.—Eastland July 29, 2010).unpublished
- Charles Orr v. State, No. 13-09-00515-CR (Tex. App.—Corpus Christi Nov. 17, 2011).unpublished
- Torrence Renard Ivy v. State, No. 01-13-00504-CR (Tex. App.—Houston [1st Dist.] July 10, 2014).unpublished
- Sergio Calderon v. State, No. 08-09-00315-CR (Tex. App.—El Paso May 4, 2011).published
- Nathan G. Mims v. State, 434 S.W.3d 265 (Tex. App.—Houston [1st Dist.] 2014).published
- David Andrew Gragert v. State, No. 07-10-00362-CR (Tex. App.—Amarillo May 24, 2011).unpublished
- Meria James Bradley v. State, No. 01-13-00133-CR (Tex. App.—Houston [1st Dist.] Feb. 25, 2014).unpublished
- Hogan, Lonnie Wayne v. State, No. 05-12-00405-CR (Tex. App.—Dallas May 30, 2013).unpublished
- Taureaus Alvaro Maxwell v. State, No. 02-11-00038-CR (Tex. App.—Fort Worth July 12, 2012).unpublished
- Lightner, Ronald Wayne v. State, No. 05-11-01660-CR (Tex. App.—Dallas Apr. 30, 2013).unpublished
- Edward Swanson v. State, No. 07-09-00089-CR (Tex. App.—Amarillo Nov. 19, 2010).unpublished
- Quentin Jerome Bell v. State, No. 01-12-00550-CR (Tex. App.—Houston [1st Dist.] July 2, 2013).unpublished
- John Paul Thomas v. State, 445 S.W.3d 201 (Tex. App.—Houston [1st Dist.] 2013).published
- Michael Lee Stout v. State, 426 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2012).published
- MacEo Jerate Downey AKA MacEo Jerard Downey v. State, No. 01-10-01133-CR (Tex. App.—Houston [1st Dist.] Aug. 9, 2012).unpublished
- David Dewayne Wilson v. State, No. 02-10-00445-CR (Tex. App.—Fort Worth Aug. 4, 2011).unpublished
- Tony Orlando Myles v. State, No. 01-11-00188-CR (Tex. App.—Houston [1st Dist.] June 21, 2012).unpublished
- Edward Bautista v. State, 363 S.W.3d 259 (Tex. App.—San Antonio 2012).published
- Abelardo Gerardo Gonzalez v. State, No. 04-10-00125-CR (Tex. App.—San Antonio Aug. 31, 2011).unpublished
- in the Matter of J.L.L., No. 01-09-00808-CV (Tex. App.—Houston [1st Dist.] Apr. 28, 2011).published
- Dennis Gonzalez v. State, No. 01-09-00845-CR (Tex. App.—Houston [1st Dist.] Mar. 17, 2011).published
- Albert Estrada v. State, No. 02-09-00302-CR (Tex. App.—Fort Worth June 10, 2010).unpublished
- Luis Martin Gonzalez v. State, No. 04-10-00003-CR (Tex. App.—San Antonio Dec. 8, 2010).unpublished
- Richard Earl Lozano v. State, No. 04-09-00600-CR (Tex. App.—San Antonio Sept. 15, 2010).unpublished
- Mark Anthony Jauregui v. State, No. 04-09-00254-CR (Tex. App.—San Antonio May 19, 2010).unpublished
- Johnathan David Strahan v. State, No. 02-08-00385-CR (Tex. App.—Fort Worth Jan. 7, 2010).published
- Johnathan David Strahan v. State, No. 02-08-00384-CR (Tex. App.—Fort Worth Jan. 7, 2010).published
- Timothy Deshun Waters v. State, No. 01-15-00768-CR (Tex. App.—Houston [1st Dist.] May 24, 2016).unpublished
- Steele, Alice Annette, No. PD-0442-15 (Tex. Crim. App. Apr. 21, 2015).unpublished
- Kevin Fahrni v. State, 473 S.W.3d 486 (Tex. App.—Texarkana 2015).published
- Roderick King v. State, No. 06-14-00166-CR (Tex. Crim. App. May 21, 2015).published
- Clark, Norma Jean, No. PD-0172-15 (Tex. Crim. App. Mar. 25, 2015).published
- Frels, James Scott, No. PD-0601-15 (Tex. June 25, 2015).published
- Reich, Todd Allen, No. PD-1081-15 (Tex. Crim. App. Aug. 20, 2015).unpublished
- Garcia, Jose Miguel, No. PD-0787-15 (Tex. Crim. App. July 24, 2015).unpublished
- Hicks, George Washington, No. PD-1059-15 (Tex. Crim. App. Aug. 17, 2015).unpublished
- Steadman, Jeffrey Dee, No. PD-0288-15 (Tex. Crim. App. Mar. 19, 2015).unpublished
- Andre Demont Thompson v. State, No. 01-14-00862-CR (Tex. App.—Houston [1st Dist.] Apr. 13, 2015).published
- Devon Hensley v. State, No. 01-14-00615-CR (Tex. App.—Houston [1st Dist.] Apr. 20, 2015).published
- Tonya Ann Rodriguez v. State, No. 06-14-00190-CR (Tex. App.—Texarkana Apr. 30, 2015).published
- Adrian Thomas Walker v. State, No. 05-14-00148-CR, 2015 Tex. App. LEXIS 1945 (Tex. App.—Dallas Feb. 27, 2015).unpublished
- Garcia, Jose Miguel, No. PD-0787-15 (Tex. Crim. App. July 22, 2015).unpublished
- Mahogany Marium Wells v. State, No. 05-14-00115-CR (Tex. App.—Dallas May 19, 2015).unpublished
- Jose Miguel Garcia v. State, No. 05-13-01578-CR, 2015 WL 3451867 (Tex. App.—Dallas May 29, 2015).unpublished
- Raymond Clinton Hammer v. State, No. 13-15-00165-CR (Tex. App.—Corpus Christi Aug. 5, 2015).published
- Joshua M. Willis v. State, No. 07-15-00013-CR (Tex. App.—Amarillo June 9, 2015).published
- Anthony Chamberlain v. State, No. 05-13-01213-CR (Tex. App.—Dallas May 27, 2015).unpublished
- Christopher Brian Roberts v. State, No. 03-14-00637-CR (Tex. App.—Austin Sept. 9, 2015).published
- Alejandro Martinez v. State, No. 08-15-00124-CR (Tex. App.—El Paso June 22, 2018).published
- Pedro Lopez v. State, No. 08-16-00239-CR (Tex. App.—El Paso Aug. 31, 2018).published
- Gregorio Garcia, Jr. v. State, No. 08-16-00242-CR (Tex. App.—El Paso Aug. 31, 2018).published
- Michael Hanley Penix v. State, No. 10-17-00012-CR (Tex. App.—Waco Sept. 26, 2018).unpublished
- Juan Antonio Gonzalez v. State, No. 08-14-00293-CR (Tex. App. Apr. 10, 2019).published
- Hilario Hernandez A/K/A Hilario Munoz Hernandez v. the State of Texas, No. 13-21-00147-CR (Tex. App.—Corpus Christi–Edinburg Feb. 2, 2023).unpublished
- Martreil Price v. the State of Texas, No. 08-22-00093-CR (Tex. App.—El Paso Mar. 30, 2023).published
- Barry Atun Roberts v. the State of Texas, No. 12-23-00100-CR (Tex. App.—Tyler Mar. 28, 2024).published
- William Travis Kitchens v. the State of Texas, No. 01-22-00195-CR (Tex. App.—Houston [1st Dist.] Mar. 28, 2024).unpublished
- Richard Earl Lozano v. State, No. 04-09-00599-CR (Tex. App.—San Antonio Sept. 15, 2010).unpublished
- Andre Demont Thompson v. State, No. 01-14-00862-CR (Tex. App.—Houston [1st Dist.] July 31, 2015).published
- Jimmy Rodriquez Ytuarte v. State of Texas, No. 09-01-00068-CR (Tex. App.—Beaumont Oct. 16, 2002).unpublished
At page 399 Permissibility of inference from refusal to take breath test36 citing casesthe jury may infer guilt from a defendant’s refusal to take a breath test
- Clifton Crews Hoyt v. State, No. 03-15-00228-CR (Tex. App.—Austin Dec. 14, 2015).publishedGaddis v. State, 753 S.W.2d 396, 399-400 (Tex. Crim.
- DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003).published
- Burkett v. State, 179 S.W.3d 18 (Tex. App.—San Antonio 2005).published
- Smith v. State, 881 S.W.2d 727 (Tex. App.—Houston [1st Dist.] 1994).published
- Russell v. State, 290 S.W.3d 387 (Tex. App.—Beaumont 2009).published
- Thomas v. State, 990 S.W.2d 858 (Tex. App.—Dallas 1999).published
- Emigh v. State, 916 S.W.2d 71 (Tex. App.—Houston [1st Dist.] 1996).published
- Candice Nunez v. State, No. 02-06-00220-CR (Tex. App.—Fort Worth May 3, 2007).unpublished
- Shawn McDermott v. State, No. 02-08-00180-CR (Tex. App.—Fort Worth Apr. 2, 2009).unpublished
- Miles Lee Decker v. State, No. 03-03-00096-CR (Tex. App.—Austin Mar. 11, 2004).unpublished
Show 19 more citing cases
- Gerald John Conger v. State, No. 03-07-00278-CR (Tex. App.—Austin Aug. 1, 2008).unpublished
- Daniel J. Peterson, D/B/A Chiarello Investments, D/B/A Home Equity lending.com v. Cnty. Line, Inc. James Houchins & Greg A. Weithoner, No. 03-07-00508-CV (Tex. App.—Austin Aug. 1, 2008).unpublished
- Ivey Albert Burkett v. State, No. 04-04-00362-CR (Tex. App.—San Antonio June 15, 2005).published
- Raymond Garcia v. State, No. 04-08-00897-CR (Tex. App.—San Antonio Dec. 2, 2009).unpublished
- Robert Ferguson v. State, No. 06-07-00103-CR (Tex. App.—Texarkana Oct. 18, 2007).unpublished
- Edward Johnson v. State, No. 06-09-00081-CR (Tex. App.—Texarkana Oct. 1, 2009).unpublished
- Torrey Montell Landry AKA Torrey Montel Landry v. State, No. 09-07-00573-CR (Tex. App.—Beaumont Mar. 25, 2009).unpublished
- David Frank Morgan v. State, No. 11-04-00133-CR (Tex. App.—Eastland Feb. 10, 2005).unpublished
- Christen Lee Shanehchian v. State, No. 14-11-01020-CR (Tex. App.—Houston [14th Dist.] Aug. 2, 2012).unpublished
- Jarett Wade Petroski v. State, No. 14-09-00153-CR (Tex. App.—Houston [14th Dist.] Mar. 9, 2010).unpublished
- Kyle Scott Huffman v. State, No. 02-13-00175-CR (Tex. App.—Fort Worth July 24, 2014).unpublished
- Alejandro Perez v. State, No. 09-09-00047-CR (Tex. App.—Beaumont Jan. 27, 2010).unpublished
- Bryan Matthew Campbell v. State, No. 07-10-00333-CR (Tex. App.—Amarillo Mar. 13, 2012).unpublished
- Harvey Dale Wright Jr. v. State, No. 02-11-00529-CR (Tex. App.—Fort Worth Mar. 21, 2013).unpublished
- Alejandro Garcia v. State, No. 08-08-00322-CR (Tex. App.—El Paso July 28, 2010).published
- Clifton Crews Hoyt v. State, No. 03-14-00454-CR (Tex. App.—Austin Feb. 23, 2015).published
- Zachary Dean Derrick v. State, No. 05-14-00802-CR, 2015 Tex. App. LEXIS 4723 (Tex. App.—Dallas May 8, 2015).unpublished
- Mynhier v. State, 762 S.W.2d 662 (Tex. App. 1988).published
- Bowman v. State, 782 S.W.2d 933 (Tex. App. 1989).published
At page 400 Assessing closing argument purpose and statutory intoxication standards17 citing casesThe purpose of closing argument is to assimilate the evidence to assist the fact- 13 finder in drawing proper conclusions from the evidence.
- Amanda Darlene Pixley v. State, No. 09-15-00522-CR (Tex. App.—Beaumont Sept. 20, 2017).unpublished(The purpose of closing argument is to assimilate the evidence to assist the fact- 13 finder in drawing proper conclusions from the evidence.)
- Justin Allison v. the State of Texas, No. 09-20-00280-CR (Tex. App.—Beaumont Feb. 22, 2023).unpublishedApp. 1997). 18Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim.
- Kourtney Johnson v. the State of Texas, No. 02-19-00392-CR (Tex. App.—Fort Worth May 6, 2021).unpublished“assimilate the evidence to assist the fact-finder in drawing proper conclusions from the evidence”
- Jason Ramjattansingh v. State, 587 S.W.3d 141 (Tex. App.—Houston [1st Dist.] 2019).publishedGaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim.
- Dejuan McLemore v. State, No. 05-15-00160-CR (Tex. App.—Dallas Dec. 31, 2015).unpublishedGaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim.
- Antonio Rodriguez v. State, No. 07-14-00361-CR (Tex. App.—Amarillo Oct. 23, 2015).unpublished Gaddis v. State, 753 S.W.2d 396, 400 (Tex.Crim.App. 1988); Graves v. State, 176 S.W.3d 422, 431 (Tex. App.—Houston [1st Dist.] 2004, pet. stricken).
- Bryan Matthew Campbell v. State, No. 07-10-00333-CR (Tex. App.—Amarillo Mar. 13, 2012).unpublished
- Davis v. State, 268 S.W.3d 683 (Tex. App.—Fort Worth 2008).published
- Mixon v. State, 179 S.W.3d 233 (Tex. App.—Houston [14th Dist.] 2005).published
- James Anthony Davis v. State, No. 02-07-00177-CR (Tex. App.—Fort Worth Aug. 26, 2008).published
Show 5 more citing cases
- Kevin Lloyd Dinsmore v. State, No. 14-06-01089-CR (Tex. App.—Houston [14th Dist.] May 20, 2008).unpublished
- Victor Hernandez v. State, No. 13-14-00457-CR (Tex. App.—Corpus Christi May 15, 2015).published
- Osvaldo Cruz Cornejo v. State, No. 01-16-00250-CR (Tex. App.—Houston [1st Dist.] Aug. 8, 2017).unpublished
- Wilbert Burse v. State, No. 01-18-01030-CR (Tex. App.—Houston [1st Dist.] Sept. 24, 2019).unpublished
- Wilbert Burse v. State, No. 01-18-01030-CR (Tex. App.—Houston [1st Dist.] Nov. 7, 2019).unpublished
At page 397 Permissible scope of jury argument in criminal cases6 citing cases
- Mays v. State, 904 S.W.2d 920 (Tex. App.—Fort Worth 1995).published
- Cain v. State, 893 S.W.2d 681 (Tex. App.—Fort Worth 1995).published
- Dixon v. State, 923 S.W.2d 161 (Tex. App.—Fort Worth 1996).published
- Bruton v. State, 921 S.W.2d 531 (Tex. App.—Fort Worth 1996).published
- Byas v. State, 906 S.W.2d 86 (Tex. App.—Fort Worth 1995).published
- Lincoln John Belle, Jr. v. State, No. 03-97-00358-CR (Tex. App.—Austin Aug. 31, 1998).unpublished
At page 396 Reviewing prosecutor's jury argument regarding intoxication evidence8 citing casesOPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW W.C. DAVIS, Judge. Appellant was convicted by a jury of the misdemeanor offense of driving while…
- Gonzalez v. State, 115 S.W.3d 278 (Tex. App.—Corpus Christi 2003).published
- Kandance Yancy Marriott v. State, No. 10-09-00122-CR (Tex. App.—Waco July 21, 2010).unpublished
- Jose Luis Jimenez v. State, No. 08-08-00347-CR (Tex. App.—El Paso Jan. 12, 2011).published
- Joseph Mark Daigle v. State, No. 07-07-00264-CR (Tex. App.—Amarillo May 24, 2010).unpublished
v.
the STATE of Texas, Appellee
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
W.C. DAVIS, Judge.Appellant was convicted by a jury of the misdemeanor offense of driving while intoxicated. Art. 67011-l(b), V.A.T.S. [1] The court assessed punishment at six months’ confinement in jail, probated for two years, and a fine of $200.00. The First Court of Appeals reversed the conviction, holding the argument of the prosecutor which referred to appellant’s refusal to take a breath test introduced evidence outside the record. Gaddis v. State, 714 S.W.2d 458 (Tex.App.—Houston [1st Dist.] 1986). We granted the State’s petition for discretionary review to determine whether the appeals court erred in holding the argument which implied that appellant refused to submit to a breath test because he knew his blood alcohol content would exceed .10 percent was outside the record. The State’s petition alleges the prosecutor’s argument was within the proper realm of jury argument, and moreover, if the argument was improper, it was not so harmful as to mandate reversal. Upon finding the prosecutor’s jury argument proper in this cause, we will reverse the judgment of the appeals court and remand this case to that court for further proceedings consistent with this opinion.
The evidence presented at trial reflects that Houston police officers Perez and Morrow responded to a disturbance call at Bentley’s Club on the evening of May 23, 1984. Upon their arrival, the officers were approached by two club employees who indicated that appellant, who was attempting to leave the scene in his car, was one of the people involved in the disturbance. Officer Perez questioned the appellant, determined from his speech and actions that he was intoxicated, and arrested appellant for driving while intoxicated. Officer Morrow also indicated that he believed the appellant was intoxicated. Both officers cited specific behavior which led them to this conclusion: slurred speech, heavy smell of alcohol on appellant’s breath, puffy, bloodshot eyes, and difficulty maintaining balance. Other State witnesses characterized appellant as being “loud” and “cocky” after being taken to the station house. One of the witnesses, Officer Larry Henderson, a certified intoxilizer operator, also testified that appellant refused a breath test when one was requested. Henderson also stated that in his opinion, based upon appellant’s behavior at the station, appellant was intoxicated.
The appellant testified that he was leaving Bentley’s Club when he was suddenly attacked by club employees, and while the shock of the attack made him appear intoxi[*398] cated, he was “absolutely not” drunk. Other defense witnesses corroborated his story. Appellant admitted he was asked to take a breath test, but told the officers he “would not take any test without benefit of having an attorney present.” He also explained his behavior at the station in terms of his being upset and having difficulty speaking due to his physical injuries from the fight at Bentley’s. The State then introduced part of the videotape made of the appellant shortly after his arrest to rebut appellant’s testimony relating to his physical behavior and appearance.
During the course of his closing argument, the prosecutor commented upon appellant’s refusal to take a breath test and drew the following objection::
(Mr. Munier): What’s he do? He does this. He does this. “I refuse. I refuse. I refuse to take the breath test. I refuse.” You know why he refuses? Because if he blows in the machine, the game is over.
(Mr. Hill): I object to that. There is no evidence at all on that point.
The trial court overruled appellant’s objection stating only, “This is argument. Objection is overruled.”
To fall within the realm of proper jury argument, the argument must encompass one of the following areas: summation of the evidence presented at trial; reasonable deduction drawn from the evidence; answer to the opposing counsel’s argument; or a plea for law enforcement. Albiar v. State, 739 S.W.2d 360, (Tex.Cr. App.1987); Todd, v. State, 598 S.W.2d 286, (Tex.Cr.App.1980); Dunbar v. State, 551 S.W.2d 382, (Tex.Cr.App.1977); Alejandro v. State, 493 S.W.2d 230, (Tex.Cr.App. 1973).
In examining challenges to jury argument, this Court considers the remark in the context in which it appears. Denison v. State, 651 S.W.2d 754, (Tex.Cr.App. 1983); Blassingame v. State, 477 S.W.2d 600 (Tex.Cr.App.1972). Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Denison, supra; Vaughn v. State, 607 S.W.2d 914, (Tex.Cr.App.1980); Antwine v. State, 572 S.W.2d 541 (Tex.Cr.App.1978); Wyatt v. State, 566 S.W.2d 597 (Tex.Cr.App.1978); Griffin v. State, 554 S.W.2d 688 (Tex.Cr. App.1977). Conversely, the jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error. Denison, supra; Kerns v. State, 550 S.W.2d 91 (Tex.Cr. App.1977).
The court below based its judgment on our decision in Jordan v. State, 646 S.W.2d 946 (Tex.Cr.App.1983) and their interpretation of Art. 67011-l(a)(2)(A) and (B).
In Jordan, supra, the prosecuting attorney, over objection, told the jury during final argument at the punishment stage of a felony marijuana possession trial to “look at the (drug) needle tracks” on the arms of the co-defendants. We reversed after finding no evidence in the record to support such argument, and citing Jackson v. State, 529 S.W.2d 544 (Tex.Cr.App.1975), we noted the following:
A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. A prosecuting attorney, although free to strike hard blows, is not at liberty to strike foul ones, whether directly or indirectly. Jordan, supra, at 948.
Here, the appeals court found the State to have struck such a “foul blow.” The court followed the rationale that the State chose to proceed to prove as its theory of intoxication the manner approved under Art. 67011-l(a)(2)(A), supra, the behavioral subsection, rather than subsection (2)(B), which defines intoxication in terms of alcohol concentration found in the breath or blood of a suspect. Following this rationale, the appeals court stated:
There was nothing in the record to show that appellant’s alcohol concentration was .10% or more, as asserted by the state’s argument. By use of improper[*399] jury argument, the state could not ask the jury to convict the defendant under either 6701L-l(a)(2)(A) or 6701L-1(a)(2)(B). The state’s argument was an attempt to inject new facts harmful to the accused into the trial proceeding.... The prejudicial effect of the prosecutor’s argument that appellant’s alcohol concentration was .10% or more (“if he blows the machine, the game is over”), unsupported by any admissible evidence, far outweighs any probative value it might have had. (citations omitted)
In reaching its decision in this case, the Court of Appeals clearly treated the prosecuting attorney’s comment during final argument as something it was not. The prosecutor did not say, for example, “If he blows the machine, he will blow a .10%.” While the difference may at first blush appear small, the two comments are not similar at all in the larger vein. Given the provisions found under Art. 67011-5, V.A.T. S. [2] allowing for the introduction into evidence of a defendant’s refusal to take a breath test upon request of law enforcement officials, and appellant’s presumed admissible refusal to submit to such test here, the prosecutor was entitled to infer that appellant refused because he thought himself legally drunk. To say that such a comment, couched in general terms, may be equated with a specific comment or reference to the statutorily-mandated “presumption” of intoxication, strains logic. Moreover, the fact remains that appellant’s refusal was admitted into evidence, a fact the Court of Appeals implicitly approves in its treatment of the case. That fact being in evidence, the State did not raise an inference based upon a fact outside the record, and any legitimate inference arising from the refusal was proper commentary. While it would be improper for the State’s counsel to say that appellant refused because he was intoxicated at a level of .10% or higher, since there was no evidence of any measured level of intoxication, it was not improper to simply argue that appellant refused because he was intoxicated. Argument by the prosecuting attorney following the objection demonstrates this general commentary:
Put yourself in that place. If you knew you weren't intoxicated; if you knew you hadn’t had enough to drink to be intoxicated; you knew you had the normal use of your mental and physical faculties, wouldn’t" you march right up there and blow in that machine? ....
We therefore hold that under the facts of the case, and assuming that a refusal to accede to a request for a breath sample was properly admitted at trial, the State’s contention that appellant refused to take a breath test for fear “the game (would be) over,” inferring he would fail the test for legal sobriety but not making a concrete assertion as to what level or percentage was thereby attained, is a reasonable and legitimate deduction given the evidence of the refusal, the evidence demonstrating appellant’s behavior and actions on the night in question, and the context in which the remark by the prosecutor appeared. See[*400] Denison, supra. The purpose of closing argument is to assimilate the evidence to assist the fact-finder in drawing proper conclusions from the evidence. The jury is then free to accept or reject such conclusions and inferences. In a case involving these facts, a jury could logically conclude appellant’s refusal indicated some degree of intoxication, or they could accept appellant’s own given reason for such a refusal. No improper reference to matters outside the record was made. See Johnson v. State, 698 S.W.2d 154 (Tex.Cr.App.1985); Cannon v. State, 668 S.W.2d 401 (Tex.Cr. App.1984); Denison, supra; Vaughn; supra.
Therefore, given the foregoing reasons, the judgment of the Court of Appeals is reversed and this cause is remanded to that court for consideration of appellant’s other points of error.
CLINTON, MILLER and CAMPBELL, JJ., concur in the result. TEAGUE, J., dissents.. Art. 67011-l(b), V.A.T.S., provides that "a person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place." The State proceeded under the theory found in § (a)(2) of the statute defín-ing "intoxication" as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body."
. The statute provides in pertinent part:
Sec. 1. Any person who operates a motor vehicle upon the public highways or upon a public beach in this state shall be deemed to have given consent, subject to the provisions of this Act, to submit to the taking of one or more specimens of his breath or blood for the purpose of analysis to determine the alcohol concentration or the presence in his body of a controlled substance or drug if arrested for any offense arising out of acts alleged to have been committed while a person was driving or in actual physical control of a motor vehicle while intoxicated. Any person so arrested may consent to the giving of any other type of specimen to determine his alcohol concentration, but he shall not be deemed, solely on the basis of his operation of a motor vehicle upon the public highways or upon a public beach in this state, to have given consent to give any type of specimen other than a specimen of his breath or blood. The specimen, or specimens, shall be taken at the request of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways or upon a public beach in this state while intoxicated.
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Sec. 3(g): If the person refuses a request by an officer to give a specimen of breath or blood, whether the refusal was express or the result of an intentional failure of the person to give the specimen, that fact may be introduced into evidence at the person’s trial.