XXI. Jury Argument
A. PERMISSIBLE
- DEFENDANT FAILED TO BLOW BECAUSE HE KNEW HE WOULD FAIL
- Nunez v. State, No. 2-06-220-CR, 2007 WL 1299241 (Tex.App.-Fort Worth 2007, no pet.) (not designated for publication).
- Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App. 1988).It is proper to argue that defendant failed to blow into instrument because “he knew he would fail.”
- Nunez v. State, No. 2-06-220-CR, 2007 WL 1299241 (Tex.App.-Fort Worth 2007, no pet.) (not designated for publication).
- DEFENDANT’S FAILURE TO DO FST’S ON VIDEO
- Emigh v. State, 916 S.W.2d 71 (Tex.App.-Houston [1st Dist.] 1996, no pet.).
- Prosecutors referring to defendant’s failure to do FSTs on the station house videotape was not a comment on violation of defendant’s privilege against self-incrimination.
- Emigh v. State, 916 S.W.2d 71 (Tex.App.-Houston [1st Dist.] 1996, no pet.).
- DEFENDANT’S REFUSAL TO DO ANYTHING (i.e. FST’S, BT)
- Castillo v. State, 939 S.W.2d 754 (Tex.App.-Houston [14th Dist.] 1997 pet. ref’d).
- Arguments that jurors should not reward defendant “for doing nothing” and that they should not send a message that it’s “okay to refuse to do everything,” both constituted a proper plea for law enforcement and a proper response to defense argument that asked jurors not to punish defendant for refusing to do unreliable tests.
- Castillo v. State, 939 S.W.2d 754 (Tex.App.-Houston [14th Dist.] 1997 pet. ref’d).
- DEFENDANT’S TRYING TO LOOK GOOD ON TAPE
- Gomez v. State, 35 S.W.3d 746 (Tex.App.-Houston [1st Dist.] 2000, pet ref’d).
- State argued in response to defense argument that they should rely on how defendant looked on the videotape was as follows, “They walked him into the room and common sense tells you that when an individual knows they are being taped and knows it’s important, they will straighten up. They are going to straighten up.” Defense argument this was outside the record was rejected by the Court which found that the argument represented a statement of common knowledge and was therefore proper.
- Gomez v. State, 35 S.W.3d 746 (Tex.App.-Houston [1st Dist.] 2000, pet ref’d).
- JURY DOES NOT HAVE TO BE UNANIMOUS ON THEORY OF INTOXICATION
- Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref’d).
- The definition of intoxication sets forth alternate means of committing one offense. It does not set forth separate and distinct offenses. A jury is not therefore required to reach a unanimous agreement on alternative factual theories of intoxication.
- Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref’d).
- TESTIMONY REGARDING AND ARGUMENT ABOUT DEFENDANT’S FAILURE TO CALL ITS EXPERT WAS PROPER
- Pope v. State, 207 S.W.3d 352 (Tex.Crim.App. Nov. 15, 2006).
- Testimony elicited from State’s DNA experts indicating that defendant’s DNA expert had been provided with the State’s DNA testing and had failed to request additional testing did not violate work product doctrine; such fact was within the personal knowledge of the State’s experts, and a party could be allowed to comment on the fact that the opponent failed to call an available witness and then argue that the opponent would have called witness if witness had anything favorable to say. This does not violate the attorney work product doctrine.
- Pope v. State, 207 S.W.3d 352 (Tex.Crim.App. Nov. 15, 2006).
B. IMPERMISSIBLE
Blessing v. State, 927 S.W.2d 266 (Tex.App.-EI Paso 1996, no pet.).
It was reversible error for prosecutor to inform jury of the existence of two for one good time credit the defendant would receive if sentence was for jail time as opposed to prison and to urge them to consider its existence in assessing punishment.