effectiveness instruction in Texas

2025In reaching that conclusion, we followed our sister court’s approach in Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. ref’d) which gauged the effectiveness of an instruction to disregard by using the following criteria: ‘“the nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence.”’ Id.

2025In reaching that conclusion, we followed our sister court’s approach in Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. ref’d) which gauged the effectiveness of an instruction to disregard by using the following criteria: ‘“the nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence.”’ Id.

2007It should be noted, too, that Anna Whitaker Gray testified that Searcy was crying and saying that he had "f* ⅞ *ed up.” So while there is evidence that Searcy did not feel remorse, there is also evidence that could support the contrary. 10 .The Waco court has evaluated the effectiveness of an instruction to disregard by weighing the following factors: "the nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the s

2007The Waco court has evaluated the effectiveness of an instruction to disregard by weighing the following factors: "the nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence." Roberson v. State , 100 S.W.3d 36, 41 (Tex. App.--Waco 2002, pet. ref'd); see Adams v. State , 156 S.W.3d 152, 157 (Tex. App.--Beaumont 2005, no pet.). rmal style='text-align:justify;text-justify:inter-ideograph; line-height:200%;m

1992We believe that only the court can commit "error." However, many appellate courts have implied that the improper act itself is the "error." See Hernandez v. State, 819 S.W.2d 806 (Tex.Crim.App. 1991) (holding that reversible "error" occurs only when the argument is extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given, thus incorporating the test for harm into the test for the effectivene

1991We believe that only the court can commit “error.” However, many appellate courts have implied that the improper act itself is the “error.” See Hernandez v. State, 819 S.W.2d 806 (Tex.Crim.App.1991) (holding that reversible “error” occurs only when the argument is extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given, thus incorporating the test for harm into the test for the effectivenes

1992App.1989) (holding that to preserve "error" in jury argument, the defendant must object) [4] ; Hall v. State, 753 S.W.2d 438, 441 (Tex.App.—Texarkana 1988), rev'd on other grounds, 795 S.W.2d 195 (Tex.Crim.App. 1990) (holding that the "error" resulting from improper testimony may be cured by instructing the jury to disregard the testimony).

1991We believe that only the court can commit “error.” However, many appellate courts have implied that the improper act itself is the “error.” See Hernandez v. State, 819 S.W.2d 806 (Tex.Crim.App.1991) (holding that reversible “error” occurs only when the argument is extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given, thus incorporating the test for harm into the test for the effectivenes

2015The Court announced a two-part test to gauge the effectiveness of defense counsel: (1) whether 19 counsel’s representation falls “below an objective standard of reasonableness,” and (2) whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694 .

1985Strickland v. Washington, — U.S. -, 104 S.Ct. 2052 , 80 S.Ct. 674 (1984).

2003E.g., Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. ref'd) (citing Waldo, 746 S.W.2d at 754 ); Mendoza v. State, 959 S.W.2d 321, 324 (Tex.App.-Waco 1997, pet. ref'd); accord Hardin v. State, 20 S.W.3d 84, 93-94 (Tex.App.-Texarkana 2000, pet. ref'd); Fletcher v. State, 852 S.W.2d 271 , 275-76 & n. 5 (Tex.App.-Dallas 1993, pet. ref'd).

2003E.g., Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. refd) (citing Waldo, 746 S.W.2d at 754 ); Mendoza v. State, 959 S.W.2d 321, 324 (Tex.App.-Waco 1997, pet. refd); accord Hardin v. State, 20 S.W.3d 84, 93-94 (TexApp.-Texarkana 2000, pet. refd); Fletcher v. State, 852 S.W.2d 271 , 275-76 & n. 5 (Tex.App.-Dallas 1993, pet. refd).

2003E.g., Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. ref'd) (citing Waldo, 746 S.W.2d at 754 ); Mendoza v. State, 959 S.W.2d 321, 324 (Tex.App.-Waco 1997, pet. ref'd); accord Hardin v. State, 20 S.W.3d 84, 93-94 (Tex.App.-Texarkana 2000, pet. ref'd); Fletcher v. State, 852 S.W.2d 271 , 275-76 & n. 5 (Tex.App.-Dallas 1993, pet. ref'd).

2003E.g., Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. refd) (citing Waldo, 746 S.W.2d at 754 ); Mendoza v. State, 959 S.W.2d 321, 324 (Tex.App.-Waco 1997, pet. refd); accord Hardin v. State, 20 S.W.3d 84, 93-94 (TexApp.-Texarkana 2000, pet. refd); Fletcher v. State, 852 S.W.2d 271 , 275-76 & n. 5 (Tex.App.-Dallas 1993, pet. refd).

2003See id. at 692 .

2003E.g., Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. ref'd) (citing Waldo, 746 S.W.2d at 754 ); Mendoza v. State, 959 S.W.2d 321, 324 (Tex.App.-Waco 1997, pet. ref'd); accord Hardin v. State, 20 S.W.3d 84, 93-94 (Tex.App.-Texarkana 2000, pet. ref'd); Fletcher v. State, 852 S.W.2d 271 , 275-76 & n. 5 (Tex.App.-Dallas 1993, pet. ref'd).

2003E.g., Veteto v. State, 8 S.W.3d 805, 811 (Tex.App.-Waco 2000, pet. refd) (citing Waldo, 746 S.W.2d at 754 ); Mendoza v. State, 959 S.W.2d 321, 324 (Tex.App.-Waco 1997, pet. refd); accord Hardin v. State, 20 S.W.3d 84, 93-94 (TexApp.-Texarkana 2000, pet. refd); Fletcher v. State, 852 S.W.2d 271 , 275-76 & n. 5 (Tex.App.-Dallas 1993, pet. refd).

1988See Brown, 627 S.W.2d at 393 ; TEX.FAM.CODE ANN. § 15.03 (Vernon 1986). 2 Appellant attempts to separate the waiver of citation contained within the affidavit of relinquishment itself and claims that the waiver of citation may be revoked even though the relinquishment of parental rights cannot be revoked.