State emphasized error in Texas

2026We may also consider “the jury instructions, the State’s theory and any defensive theories, closing arguments and even voir dire, if applicable,” as well as “whether the State emphasized the error.” Motilla v. State, 78 S.W.3d 352 , 355–56 (Tex. Crim.

2025“The reviewing court may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments and even voir dire, if applicable,” and the court may also consider “whether the State emphasized the error.” Motilla, 78 S.W.3d at 355-56 .

2007I would hold that the error was harmless under the Dinkins factors. (1) Source of the error The source of the error was the State's single question about appellant's post-arrest silence as to his claim of self-defense *295 prior to appellant's counsel's objection and its single repetition of the question after the objection was overruled. (2) Extent to which the State emphasized the error There was no other mention of appellant's post-arrest silence, so this evidence was not strongly emphasized by the State. (3) Weight a juror would probably place on appellant's post-arrest silence In applying

2006I would hold that the error was harmless under the Dinkins factors. (1) Source of the error The source of the error was the State’s single question about appellant’s post-arrest silence as to his claim of self-defense prior to appellant’s counsel’s objection and its single repetition of the question after the objection was overruled. (2) Extent to which the State emphasized the error There was no other mention of appellant’s post-arrest silence, so this evidence was not strongly emphasized by the State. (3) Weight a juror would probably place on appellant’s post-arrest silence In applying the

2024In making this determination, we consider “everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.” Easley, 424 S.W.3d at 542 (quoting Rich v. State, 160 S.W.3d 575 , 577–78 (Tex. Crim.

2013Mendoza v. State, 349 S.W.3d 273, 283 (Tex.App.-Dallas 2011, pet. ref’d). 38 .See Kresse v. State, No. 2-09-271-CR, 2010 WL 1633383 , at *2 (Tex.App.-Fort Worth, April 22, 2010, no pet.) (not designated for publication) (finding "some harm" under Al-manza when the improper charge was "introduced repeatedly throughout the trial and emphasized by the State during its opening statement and closing argument"); see also Rich v. State, 160 S.W.3d 575, 577-78 (Tex.Crim.App.2005) (noting that a harm analysis properly considers "whether the State emphasized the error”). 39 .

2023Id. at 518–19.

2013“The reviewing court may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error.” Haley v. State, 173 S.W.3d 510 , 518–19 (Tex. Crim.

2026App. 2014) (“Important factors [in a Rule 44.2(b) harm analysis] include the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and may include whether the State emphasized the error and whether overwhelming evidence of guilt was present.”) (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim.

2024We “consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert.” Id.

2019The reviewing court may also consider the jury instruction given by the trial judge, the state’s theory, defensive theories, closing arguments, voir dire, and whether the state emphasized the error. 14 Barshaw, 342 S.W.3d at 94 (internal citations omitted).

2018We also consider "the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and *399 may include whether the State emphasized the error and whether overwhelming evidence of guilt was present." Id. ; Barshaw , 342 S.W.3d at 94 .

2013“The reviewing court may also consider the jury instruction given by the trial judge, the state’s theory, defensive theories, closing arguments, voir dire, and whether the state emphasized the error.” Id. (citing Morales, 32 S.W.3d at 867 ; Haley, 173 S.W.3d at 518-19; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim.

2013“The reviewing court may also consider the jury instruction given by the trial judge, the state’s theory, defensive theories, closing arguments, voir dire, and whether the state emphasized the error.” Id. (citing Morales, 32 S.W.3d at 867 ; Haley, 173 S.W.3d at 518-19; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim.

2023To answer this question, we consider several non-exclusive factors including the error’s nature, whether the State emphasized the error, the error’s probable implications, the weight the jury would likely give the error in its deliberations, and the presence of “overwhelming evidence.” Snowden, 353 S.W.3d at 818 . –4– Applying these factors here, we note that the State did not emphasize or make additional use of the comment on Mr. Monk’s post-Miranda silence.

2023We consider several non- exclusive factors including the error’s nature, the extent to which the State emphasized the error, the error’s probable implications, the weight the jury would likely give the error in its deliberations, and the presence of “overwhelming evidence.” Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim.

2024Easley, 424 S.W.3d at 542 (citing Rich v. State, 160 S.W.3d 575 , 577–78 (Tex. Crim.

2024In making this determination, we consider “everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.” Easley, 424 S.W.3d at 542 (quoting Rich v. State, 160 S.W.3d 575 , 577–78 (Tex. Crim.

2026“In making this determination, we consider: the character of the alleged error and how it might be considered in connection with other evidence; the nature of the evidence supporting the verdict; the existence and degree of additional evidence supporting the verdict; and whether the State emphasized the error.” Id. (citing Macedo v. State, 629 S.W.3d 237 , 240 (Tex. Crim.

2025“In deciding that question, we consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence supporting the verdict; and (4) whether the State emphasized the error.” Id.

2025“Important factors include the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and may include whether the State emphasized the error and whether overwhelming evidence of guilt was present.” Id.

2025We also consider “the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and may include whether the State emphasized the error and whether overwhelming evidence of guilt was present.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim.

2020App. 2002) (citing King v. State, 953 S.W.2d 266, 272 (Tex. Crim.

2011The court of criminal appeals has "also recognized that whether the State emphasized the error can be a factor." Id. at 356. (citing King v. State, 953 S.W.2d 266, 272 (Tex. Crim.

2024See 807 S.W.2d at 735 .

2015Higginbotham v. State, 807 S.W.2d 732, 735 (Tex. Crim.

2019Id.; Mosley v. State, 960 S.W.2d 200 , 204–05 (Tex. App.—Corpus Christi 1997, no pet.).

2006Id.; Mosley v. State, 960 S.W.2d 200, 204-05 (Tex.App.-Corpus Christi 1997, no pet.).

2015App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 , 66 S. Ct. 1239, 1253 (1946)). 11 error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” 31 In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. 32 We may also consider the jury instruct

2015App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 , 66 S. Ct. 1239, 1253 (1946)). 11 error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” 31 In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. 32 We may also consider the jury instruct

2014Jones v. State, 264 S.W.3d 26, 28 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). 6 We must reverse Sotelo’s conviction unless we determine, beyond a reasonable doubt, that the error did not contribute to Sotelo’s conviction or punishment.

2013Jones v. State, 264 S.W.3d 26, 28 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd); Lancaster v. State, 319 S.W.3d 168, 171 (Tex.App.-Waco 2010, pet. ref'd).

2014Wappler v. State, 183 S.W.3d 765, 778 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd).

2014Wappler v. State, 183 S.W.3d 765, 778 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

2013See Hoffman v. State, 874 S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (holding that one “hint” during argument is insufficient to show the State emphasized the error).

1995Harris, 790 S.W.2d at 587-88 , Higginbotham v. State, 807 S.W.2d 732, 735 (Tex.Crim.App.1991); Hoffman v. State, 874 S.W.2d 138, 141 (Tex.App. — Houston [14th Dist.] 1994, pet. refd).

2012Id. at 355–56. ―[T]he proper inquiry is whether the trial court‘s error . . . substantially swayed or influenced the jury‘s verdict, or whether we are left in grave doubt as to whether [the error] substantially swayed or influenced the jury‘s verdict.‖ Russell v. State, 113 S.W.3d 530, 550 (Tex. App.—Fort Worth 2003, pet. ref‘d).

2012Id. at 355–56. “[T]he proper inquiry is whether the trial court’s error . . . substantially swayed or influenced the jury’s verdict, or whether we are left in grave doubt as to whether [the error] substantially swayed or influenced the jury’s verdict.” Russell v. State , 113 S.W.3d 530, 550 (Tex. App.—Fort Worth 2003, pet. ref’d).

2009Wall v. State , 286 S.W.3d 372, 374 (Tex. App.-Corpus Christi 2008, pet. ref'd) (citing Harris v. State , 790 S.W.2d 568, 587 (Tex. Crim.

2009Wall v. State, 286 S.W.3d 372, 374 (Tex. App.–Corpus Christi 2008, pet. ref’d) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim.

2006When a trial court improperly refuses to allow defense counsel to ask a proper voir dire question, it is almost impossible to determine how the error affected “the way in which a defense counsel would [have] conducted] the trial.” Gonzales v. State, 2 S.W.3d 600, 606 (Tex.App.-Texarkana 1999, pet. ref'd) (noting that prudent defense counsel — when faced with trial court error preventing him from questioning potential jurors about their attitudes toward a specific defense — would not attempt to present evidence of that defense to jury).

2006When a trial court improperly refuses to allow defense counsel to ask a proper voir dire question, it is almost impossible to determine how the error affected “the way in which a defense counsel would [have] conduct[ed] the trial.” Gonzales v. State , 2 S.W.3d 600, 606 (Tex. App.—Texarkana 1999, pet. ref’d) (noting that prudent defense counsel—when faced with trial court error preventing him from questioning potential jurors about their attitudes toward a specific defense—would not attempt to present evidence of that defense to jury).

2003Page v. State, 88 S.W.3d 755, 766 (Tex. App.-Corpus Christi 2002, pet. granted).

2003Page v. State, 88 S.W.3d 755, 766 (Tex.App.-Corpus Christi 2002, pet. granted).

2016We may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, whether the State emphasized the error, and whether there was “overwhelming evidence of guilt.” Id. at 357 .

2015Id. at 356 ; Solomon, 49 S.W.3d at 365 . ' Overwhelming evidence of guilt is relevant to this issue, but it is only one factor in the analysis.

2025Ultimately, we will not reverse for harmful error “if, after examining the record as a whole, we have a fair assurance that [the error] did not influence 33 the jury, or influenced [it] only slightly.” Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim.