You can’t say that!

We prosecutors long for final argument. It is the reward for days, weeks, or even months of thanklessly slogging through trial. When the time for final argument arrives, prosecutors get to become the stars of the trial for a brief moment and release all of their pent-up angst from the trial in an explosion of impassioned oratorical brilliance.
    However, there are limits to what we may say in final argument, and exceeding those limits can have dire consequences because Texas courts have specifically restricted what prosecutors may properly engage in during final argument. This article is designed to give a brief overview of permissible argument as well as those areas of argument courts have held improper so that prosecutors might sidestep these potential pitfalls.

What arguments are ­permissible?
Prosecutors are entitled to strike “hard blows, but not foul ones” in closing argument.1 “The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may ‘arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence.’”2 There are four permissible areas of jury argument: 1) summation of the evidence, 2) reasonable deductions from the evidence, 3) answer to the argument of opposing counsel, and 4) pleas for law enforcement.3 These permissible areas of argument apply both at the guilt/innocence and punishment phases of trial.4
    While the Texas courts have generally defined the areas of permissible jury argument, it is impermissible jury argument that has been more specifically defined. Because it is impermissible jury argument that presents potential problems for prosecutors, an examination of some areas of impermissible jury argument is in order.

What arguments are impermissible?
Impermissible jury argument is anything that does not fall within the four broadly defined categories of permissible argument. This definition provides little practical guidance for prosecutors in trial; however, one can glean from an examination of caselaw addressing impermissible jury argument the general categories of improper argument, as well as specific factual situations that can serve as a guide to permissible argument. The following is a non-exhaustive list of general areas of impermissible jury argument with case citations to specific factual scenarios.
Arguing facts not in evidence
When discussing the facts of the case and what the jurors should glean from those facts, prosecutors must necessarily confine their argument to facts in the record and reasonable deductions from those facts.5 The Court of Criminal Appeals has held, “Argument injecting matters not in the record is clearly improper. …”6 Texas courts have taken this further in holding that argument inviting speculation is also improper, and in particular, implying that there was additional evidence of guilt that was not shown at trial is not only improper but reversible error.7

Comment on the defendant’s failure to testify
The prosecutor may not reference a defendant’s failure to testify in closing argument.8 A comment by the prosecutor on a defendant’s failure to testify violates both the state and federal constitutions and is also contrary to statute.9
    While the Texas courts have made clear that any comment by the prosecution that could be interpreted as a comment on the defendant’s failure to testify is to be treated with suspicion, there are scenarios where comments by prosecutors along these lines may be proper. For example, “implied” or “indirect allusion” to the defendant’s failure to testify are not a violation of the defendant’s rights.10 However, in practice, defining what is a direct versus an indirect allusion to the defendant’s failure to testify is difficult to determine and will doubtless be even more difficult to a prosecutor in the heat of an emotional argument.11 In that light, the best policy is to avoid any potential reference to a defendant’s failure to testify.
    It should be noted, however, that while comments even alluding to a defendant’s failure to testify should be avoided, commenting on the defendant’s refusal to present evidence is generally proper and may even be essential to rebut defense counsel’s final argument. The Texas Court of Criminal Appeals has held that “the prosecutor may comment on the defendant’s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify.”12 For example, Texas courts have upheld prosecutors’ final arguments where those arguments commented on the defendant’s failure to produce expert testimony or medical records13 in response to a defense attack on the State’s evidence. However, as with any final argument potentially touching on the defendant’s refusal to testify, this general rule must also be used with caution. This is because where there is no evidence before the jury that there were any witnesses who could have, or would have, testified on the defendant’s behalf about the issue in question, a prosecutor’s argument mentioning the defendant’s failure to call any such witnesses can still be reversible error.14
    
Stating law contrary to that contained in the court’s charge
Argument is improper where it states law contrary to that contained in the court’s charge.15 While the Court of Criminal Appeals has held that arguing law contrary to that contained in the court’s charge is improper, it has also held that “there is no error in correctly arguing the law, even if the law is not included in the court’s charge.”16 This rule insulates a prosecutor from a complaint that his argument went beyond the court’s charge, but it does not address the situation where the court’s charge contains a misstatement of the law.

Applying parole law to the defendant on trial
The prosecutor may give an accurate summary of the parole law applicable in a given case.17 However, the prosecutor may not specifically apply that parole law to the defendant on trial.18 Essentially, the prosecutor can and should do no more than restate the parole law given in the court’s charge, which should track the language in the Texas Code of Criminal Procedure.19

Striking at the defendant over the shoulders of counsel
The Court of Criminal Appeals has treated arguments attacking a defendant’s counsel personally both as obviously improper and as worthy of particularly close scrutiny. The Court of Criminal Appeals has held that it “maintains a special concern for final arguments that result in uninvited and unsubstantiated accusation of improper conduct directed at a defendant’s attorney.”20 “It is axiomatic that the State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity.”21 In interpreting these general statements, the Court of Criminal Appeals has generally allowed attacks on defense counsel’s theory of the case but has regarded with much greater suspicion any attack on defense counsel personally.22 The Court of Criminal Appeals has looked particularly negatively on arguments contrasting the duties of prosecutors and defense counsel.23

Name-calling
The prosecutor may not call the defendant derogatory names24 (no matter how much he wants to). “A prosecutor should not refer to a defendant by any name other than his given name or nickname. It is improper to refer to a defendant by a derogatory term designed to subject him to personal abuse.”25

Conclusion
Final argument is perhaps the most enjoyable part of trial practice. This is in part due to the latitude the prosecutor enjoys in making argument. However, it still is not without limitations, which should be taken seriously. Prosecutors should enjoy closing argument, but with moderation. There is no worse sensation than snatching appellate defeat from the jaws of trial victory because of an overreaching final argument.

Endnotes

1 United States v. McPhee, 731 F.2d 1150, 1152 (5th Cir. 1984).
2 Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980) quoting Stearn v. State, 487 S.W.2d 734, 736 (Tex. Crim. App. 1972).
3 Campbell, 610 S.W.2d at 756.
4 Harris v. State, 996 S.W.2d 232, 237 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
5 Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011); Berryhill v. State, 501 S.W.2d 86, 87 (Tex. Crim. App. 1973).
6 Id.
7 See id.; Watts v. State, 371 S.W.3d 448, 459-61 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (argument “inviting speculation into future events—including the fates of untried criminals” improper).
8 Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007).
9 Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); U.S. Const. amend. V; Tex. Const. art. I, §10; Tex. Code Crim. Proc. Art. 38.08.
10 Randolph, 353 S.W.3d at 891.
11 Id. at 892 (giving examples of scenarios where allusions to a defendant’s failure to testify would be proper or improper).
12 Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (prosecutor’s statement that defendant would have called his own DNA expert if he really believed State’s DNA evidence to be faulty was not an improper comment on defendant’s failure to testify).
13 Id.; Zavala v. State, 401 S.W.3d 171, 183 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
14 See Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982) (prosecutor’s final argument that defense could have called appointed expert was erroneous, though not reversibly so, where there was no mention of that expert in front of the jury).
15 Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982).
16 State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998).
17 Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).
18 Id.
19 Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007); Tex. Code Crim. Proc. Art. 37.07 §4 (requiring the jury to be given certain parole eligibility instructions).
20 Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998).
21 Fuentes v. State, 64 S.W.2d 333, 335 (Tex. Crim. App. 1984).
22 Mosley, 983 S.W.2d at 259; Williams v. State, 417 S.W.3d 162, 174 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
23 Wilson v. State, 938 S.W.2d 57, 62 (Tex. Crim. App. 1996) abrogation on other grounds recognized by Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002).
24 See, e.g., Duran v. State, 356 S.W.2d 937, 291 (Tex. Crim. App. 1962) (case reversed where prosecutor called defendant a “punk”); Ponce v. State (299 S.W.3d 167, 175 (Tex. App.—Eastland 2009, no pet.) (improper, though not reversible, for prosecutor to call defendant a “monster”).
25 Ponce, 299 S.W.3d at 175, citing Schumacher v. State, 72 S.W.3d 43, 49 (Tex. App.—Eastland 2009, pet. ref’d) (indirectly calling defendant a “scumbag” during voir dire).