Erik Forrest Friend v. State

ACCEPTED
01-14-0884-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/9/2015 11:02:43 AM
CHRISTOPHER PRINE
CLERK

NO. 01-14-0884-CR

FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
1/9/2015 11:02:43 AM
FIRST JUDICIAL DISTRICT CHRISTOPHER A. PRINE
Clerk

AT HOUSTON, TEXAS

------------------------------------------------------------------------------------------------------
ERIK FORREST FRIEND
Appellant,

VS.

THE STATE OF TEXAS,
Appellee.
----------------------------------------------------------------------------------------------------

ON APPEAL FROM COUNTY COURT AT LAW NO. 3
OF BRAZORIA COUNTY, TEXAS

------------------------------------------------------------------------------------------------------
BRIEF FOR APPELLANT
------------------------------------------------------------------------------------------------------

BRIAN W. WICE

The Lyric Centre
440 Louisiana
Suite 900
Houston, Texas 77002-1635
(713) 524-9922 PHONE
(713) 236-7768 FAX

COUNSEL FOR APPELLANT
ORAL ARGUMENT REQUESTED
 IDENTIFICATION OF THE PARTIES

Pursuant to TEX.R.APP.P.. 38.1(a), a list of the names and addresses

of all interested parties is provided below so the members of this

Honorable Court may determine whether they are disqualified to serve or

should recuse themselves from participating in the decision of this case.

Complainant:
the State of Texas

Appellant or criminal Defendant:
Erik Forrest Friend

Trial counsel for Appellant:
Steve Gonzalez Jed Silverman
1520 Texas 6 1221 Studewood
Alvin, Texas 77511 Houston, Texas 77008

Counsel on Appeal for the Appellant:
Brian W. Wice
440 Louisiana Suite 900
Houston, Texas 77002-1635

Counsel for the State:
Aaron Perry & Rachel Schneider
Brazoria County District Attorney’s Office
111 East Locust Fourth Floor
Angleton, Texas 77515

Trial Judge:
Honorable Jeremy Warren
Presiding Judge
County Court at Law No. 3
Brazoria County, Texas
i
 TABLE OF CONTENTS
PAGE

IDENTIFICATION OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

POINT OF ERROR NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The trial court erred in overruling Appellant’s
objection to State’s Exhibit No. 2 in violation of Art.
38.22, § 2(b) of the Code of Criminal Procedure,
because it failed to show on its face that Appellant
knowingly, intelligently, and voluntarily waived all
of those rights set out in Art. 38.22, § 2(a)(1-5).

POINT OF ERROR NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of the Fifth Amendment to the United States
Constitution.

POINT OF ERROR NUMBER THREE . . . . . . . . . . . . . . . . . . . . . . . . . 6

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Art. I, § 10 of the Texas Constitution.

ii
POINT OF ERROR NUMBER FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Rule 401 of the Rules of Evidence.

POINT OF ERROR NUMBER FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Rule 403 of the Rules of Evidence.

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Hearing Outside the Jury’s Presence . . . . . . . . . . . 7

B. The Trial Court’s Ruling
Admitting State’s Exhibit No. 2 . . . . . . . . . . . . . . . . . . . 9

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . 10

A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Art. 38.22, § 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 17

D. Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

E. Rule 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

F. Rule 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

G. This Constitutional Error was Not Harmless Beyond
A Reasonable Doubt Pursuant to Rule 44.2(a) . . . . . . . 26
iii
 H. Alternatively, this Non-Constitutional
Error Violated Appellant’s Substantial
Rights Pursuant to Rule 44.2(b) . . . . . . . . . . . . . . . . . . 32

POINT OF ERROR NUMBER SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

The trial court erred in overruling Appellant’s
objection after the prosecutor improperly
commented on Appellant’s post-arrest silence
during final argument of the guilt-innocence stage
of trial, in violation of the Fifth Amendment to the
United States Constitution.

POINT OF ERROR NUMBER SEVEN . . . . . . . . . . . . . . . . . . . . . . . . 37

The trial court erred in overruling Appellant’s
objection after the prosecutor improperly
commented on Appellant’s post-arrest silence
during final argument of the guilt-innocence stage
of trial, in violation of Art. I, § 10 of the Texas
Constitution.

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . 38

A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 38

B. The Prosecutor’s Improper Comment Violated
the Fifth Amendment and Art. I, § 10 . . . . . . . . . . . . . 40

C. The Prosecutor’s Improper Final Argument
Was Constitutional Error Requiring Reversal . . . . . . . 42

iv
POINT OF ERROR NUMBER EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . 48

The trial court erred in denying Appellant’s motion
for mistrial after the prosecutor improperly argued
that Appellant had “hired a dream team to sit
there with him” during final argument of the guilt-
innocence stage of trial, in violation of Art. 38.38 of
the Code of Criminal Procedure.

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . 50

A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 50

B. The Prosecutor’s Final Argument Violated Art. 38.38 . 51

C. This Improper Argument Affected
Appellant’s Substantial Rights . . . . . . . . . . . . . . . . . . . 53

1. Severity of the Misconduct . . . . . . . . . . . . . . . . . . . . . . . 54

2. Steps Taken to Cure the Misconduct . . . . . . . . . . . . . . . 54

3. Certainty of Conviction Absent the Error . . . . . . . . . . . 55

4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

v
 INDEX OF AUTHORITIES

PAGE
CASES:
CASES

Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App. 1973) . . . . . . 39,50

Archie v. State, 340 S.W.3d 734 (Tex.Crim.App. 2011) . . . . . . . . . . . . 54

Barnum v. State, 7 S.W.3d 782
(Tex.App.– Amarillo 1999, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 29,45,54

Bhakta v. State, 981 S.W.2d 293
(Tex.App.– San Antonio 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 41

Booker v. State, 103 S.W.3d 521
(Tex.App.– Fort Worth 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 33

Borjan v. State, 787 S.W.2d 53 (Tex.Crim.App. 1990) . . . . . . . . . . 39,51

Breeding v. State, 809 S.W.2d 661
(Tex.App. – Amarillo 1991, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . 10,11

Brown v. State, 270 S.W.3d 564 (Tex.Crim.App. 2008) . . . . . . . . . 39,50

Brown v. State, 757 S.W.2d 739 (Tex.Crim.App. 1988) . . . . . . . . . . . . 22

Brown v. State, 978 S.W.2d 708
(Tex.App.– Amarillo 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 33,45,54

Bruton v. United States, 391 U.S. 123 (1968) . . . . . . . . . . . . . . . . . . . 22

Buitureida v. State, 684 S.W.2d 133
(Tex.App.– Corpus Christi 1984, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 41

Burnett v. State, 88 S.W.3d 633 (Tex.Crim.App. 2002) . . . . . . . . . . . . 33

vi
Bush v. State, 2014 WL 309780
(Tex.App. – San Antonio 2014, no pet.) . . . . . . . . . . . . . . . . . . . . 56,57

Byas v. State, 906 S.W.2d 86
(Tex.App.– Fort Worth 1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 53

Colorado v. Connelly, 479 U.S. 157 (1986) . . . . . . . . . . . . . . . . . . . . . . 13

Conway v. State, 625 S.W.2d 35
(Tex.App.– Eastland 1981, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . 41

Contreras v. State, 915 S.W.2d 510
(Tex.App.– El Paso 1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Cooper v. State, 961 S.W.2d 222
(Tex.App.– Houston [1st Dist.] 1997, pet. ref’d) 20,21,23,28,29,30,44,47

Crocker v. State, 248 S.W.3d 299
(Tex.App.– Houston [1st Dist.] 2007, pet. ref’d) . . . . . . . . . . . . . . . . . 42

Cruz v. State, 122 S.W.3d 309
(Tex.App. – Houston [1st Dist.] 2003, pet. ref’d) . . . . . . . . . . . . . . . . 22

Delane v. State, 369 S.W.3d 412
(Tex.App.– Houston [1st Dist.] 2012, pet. ref’d) . . . . . . . . . . . . . . 32,34

Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App. 1995) . . . . . . . . . . . 40

Doyle v. Ohio, 426 U.S. 610 (1976) . . . . . . . . . . . . . . . . . . . . . . . 17,18,40

Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App. 1994) . . . . . . . 15,16,29

Garcia v. State, 880 S.W.2d 497
(Tex.App.– Corpus Christi 1984, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 41

Gigliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App. 2006) . . . . . . . 24

vii
Godfrey v. State, 859 S.W.2d 583
(Tex.App.– Houston [14th Dist.] 1993, pet. ref’d) . . . . . . . . . . . . . 28,44

Gongora v. Thaler, 710 F.3d 267 (5th Cir. 2013) . . . . . . . . . . . . . . . 44,46

Gray v. State, 986 S.W.2d 814
(Tex.App.– Beaumont 1999, no pet.) . . . . . . . . . . 19,20,29,30,46,52,56

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) . . . . . . . . . . . 11

Hadden v. State, 829 S.W.2d 838
(Tex.App.– Corpus Christi 1992, pet. ref’d) . . . . . . . . . . . . . . . . . 27,43

Hampton v. State, 121 S.W.3d 778
(Tex.App.– Austin 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991) 18,20,21,23,25,52

Harris v. State, 790 S.W.2d 652 (Tex.Crim.App. 1989) 26,27,31,42,43,47

Harris v. State, 122 S.W.3d 871
(Tex.App.– Fort Worth 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 39,50

Hebert v. State, 836 S.W.2d 252
(Tex.App.– Houston [1st Dist.] 1992, pet. ref’d) . . . . . . . . . . . . . . . . . 11

Jamail v. State, 787 S.W.2d 380 (Tex.Crim.App. 1990),
overruled on other grounds,
Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991) . . . . . . . 23,25

Johnson v. State, 43 S.W.3d 1 (Tex.Crim.App. 2001) . . . . . . . . . . . . . 33

Joseph v. State, 309 S.W.3d 20 (Tex.Crim.App. 2010) . . . . . . . . . . . . . 17

Kalisz v. State, 32 S.W.3d 718
(Tex.App.– Houston [14th Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . 18,52

viii
Kelly v. State, 321 S.W.3d 583
(Tex.App.– Houston [14th Dist.] 2010, no pet.) . . . . . . . . . . . . . . . . . 55

King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) . . . . . . . . . . 32,53

Lajoie v. State, 237 S.W.3d 345
(Tex.App.– Fort Worth 2007, no pet.) . . . . . . . . . . . . . . . . . . . 23,26,36

Leos v. State, 883 S.W.2d 209 (Tex.Crim.App. 1994) . . . . . . . . . . 27,43

Lopez v. State, 314 S.W.3d 54
(Tex.App.– San Antonio 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 15

Loy v. State, 982 S.W.2d 616
(Tex.App.– Houston [1st Dist.] 1998, no pet.) . 19,28,29,30,44,47,52,56

Marsh v. State, 115 S.W.3d 709
(Tex.App.– Austin 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 28,45

Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App. 1991) . . . . . . . . . . . . . 22

McCarthy v. State, 65 S.W.3d 47 (Tex.Crim.App. 2001) . . . . . . . . . . . 32

McGautha v. California, 402 U.S. 183 (1971) . . . . . . . . . . . . . . . . . . . . 12

McKay v. State, 707 S.W.2d 23 (Tex.Crim.App. 1985) . . . . . . . . . . . . 55

Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . 13,14,17,18,40

Montgomery v, State, 810 S.W.2d 372 (Tex.Crim.App. 1991) . . . . 11,24

Moran v. Burbine, 475 U.S. 412 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 14

Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998) . . . . . . . . 53,57

Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002) . . . . . . . . . . . . 33

ix
Nelms v. State, 834 S.W.2d 110
(Tex.App. – Houston [1st Dist.] 1992, pet. ref’d) . . . . . . . . . . . . . . . . 34

North Carolina v. Butler, 441 U.S. 369 (1979) . . . . . . . . . . . . . . . . . . . 13

Opp v. State, 36 S.W.3d 158
(Tex.App.– Houston [1st Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . . . . . 29

Peak v. State, 57 S.W.3d 14
(Tex.App.– Houston 14th Dist.] 2001, pet. ref’d) . . . . . . . . . . . . . . . . 45

Peters v. State, 31 S.W.3d 704
(Tex.App.– Houston [1st Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . . . . . 35

Pollard v. State, 255 S.W.3d 184 (Tex.App.– San Antonio, 2008)
aff’d, 277 S.W.3d 25 (Tex.Crim.App. 2009) . . . . . . . . . . . . . . . . . . . . 36

Reese v. State, 33 S.W.3d 238 (Tex.Crim.App. 2000) . . . . . . . . . . . . . 25

Rhyne v. State, 387 S.W.3d 896
(Tex.App.– Fort Worth 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 34

Russell v. State, 113 S.W.3d 530
(Tex.App.– Fort Worth 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 25

Sanchez v. State, 707 S.W.2d 575 (Tex.Crim.App. 1986) . . . . . . . . . . 21

State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006) . . . . . . . . . . . . . 11

State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App. 2005) . . . . . . . . . . . 25

Temple v. State, 342 S.W.3d 572
(Tex.App.– Houston [14th Dist.] 2010
aff’d, 390 S.W.3d 341 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . 42

Thompson v. State, 89 S.W.3d 843
(Tex.App.– Houston [1st Dist.] 2002, pet. ref’d) . . . . . . . . . . . . . . 55,57
x
United States v. Lane, 474 U.S. 438 (1986) . . . . . . . . . . . . . . . . . . . . . 33

United States v. Murrah, 888 F.2d 24 (5th Cir. 1989) . . . . . . . . . . 39,51

United States v. Walker, 772 F.2d 1172 (5th Cir. 1985) . . . . . . . . . 11,12

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . 12

Washington v. State, 16 S.W.3d 70
(Tex.App. – Houston [1st Dist.] 2000, pet. ref’d) . . . . . . . . . . . 39,51,54

Watts v. State, 371 S.W.3d 448
(Tex.App.– Houston [14th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . 57

West v. State, 124 S.W.3d 732
(Tex.App.– Houston [1st Dist.] 2003, pet. ref’d) . . . . . . . . . . . . . . . . . 36

Willover v. State, 70 S.W.3d 841 (Tex.Crim.App. 2002) . . . . . . . . . . . 10

Wilson v. State, ___ S.W.3d ___, 2014 WL 6601218
(Tex.App. – Houston [1st Dist] November 20, 2014, pet. filed) . . . . . 47

Wilton v. Seven Falls Co., 515 U.S. 277 (1995) . . . . . . . . . . . . . . . . . . 12

Wyborny v. State, 209 S.W.3d 285
(Tex.App.– Houston [1st Dist.] 2006, pet. ref’d) . . . . . . . . . . . . . . . . . 40

Young v. State, 137 S.W.3d 65 (Tex.Crim.App. 2004) . . . . . . . . . . . . . 54

York v. State, 2008 WL 2677368
(Tex.Crim.App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

xi
TEXAS CODE OF CRIMINAL PROCEDURE:
PROCEDURE

Art. 38.22, §2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,13,14,16

Art. 38.22, §2(b) . . . . . . . . . . . . . . . . . . 4,8,9,12,13,14,15,16,17,26,27,29

Art. 38.38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,51,52,53,55

TEXAS RULES OF APPELLATE PROCEDURE:
PROCEDURE

Rule 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,26,42

Rule 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,32,33

TEXAS RULES OF EVIDENCE:
EVIDENCE

Rule 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,21,24,32

Rule 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Rule 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,24,32,35

UNITED STATES CONSTITUTION:
CONSTITUTION

AMEND. V . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,9,17,20,21,26,40,41,42

AMEND. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEXAS CONSTITUTION

Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,9,20,21,26,40,41,42

MISCELLANEOUS:
MISCELLANEOUS

Weinstein & Berger, WEINSTEIN’S FEDERAL EVIDENCE (2nd ed. 2000) . 22
xii
 STATEMENT REGARDING ORAL ARGUMENT

This case presents important issues regarding the admission of

evidence that the accused invoked his constitutional right to silence while

in custody, and the prosecutor’s ability to comment on the invocation of

this right in final argument. Because oral argument would significantly

assist the Court in its decision-making process, argument is warranted in

this matter. See TEX.R.APP.P. 39.1.

STATEMENT OF THE CASE

Appellant was charged by information with the misdemeanor offense

of driving while intoxicated alleged to have been committed on July 4,

2013. (CR 8). Appellant entered a plea of not guilty.1 (2 RR 7).

On October 16, 2014, the jury found Appellant guilty. (CR 133 ).

That same day, jurors assessed Appellant’s punishment at 30 days in jail

and a $7,500 fine, and ordered both the fine and jail time probated for a

period of 15 months. (CR 145, 149). The trial court’s certification of

appeal, (CR 152), and notice of appeal, (Supp. CR 4), were timely filed.

1
Appellant rejected the State’s offer that he plead guilty to the offense of reckless driving,
in exchange for a $200 fine. (2 RR 36-37).

1
 APPELLANT’S POINTS OF ERROR

POINT OF ERROR NUMBER ONE

The trial court erred in overruling Appellant’s
objection to State’s Exhibit No. 2 in violation of Art.
38.22, § 2(b) of the Code of Criminal Procedure,
because it failed to show on its face that Appellant
knowingly, intelligently, and voluntarily waived all
of those rights set out in Art. 38.22, § 2(a)(1-5).

POINT OF ERROR NUMBER TWO

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of the Fifth Amendment to the United States
Constitution.

POINT OF ERROR NUMBER THREE

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Art. I, § 10 of the Texas Constitution.

POINT OF ERROR NUMBER FOUR

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Rule 401 of the Rules of Evidence.

2
 POINT OF ERROR NUMBER FIVE

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Rule 403 of the Rules of Evidence.

POINT OF ERROR NUMBER SIX

The trial court erred in overruling Appellant’s
objection after the prosecutor improperly
commented on Appellant’s post-arrest silence
during final argument of the guilt-innocence stage
of trial, in violation of the Fifth Amendment to the
United States Constitution.

POINT OF ERROR NUMBER SEVEN

The trial court erred in overruling Appellant’s
objection after the prosecutor improperly
commented on Appellant’s post-arrest silence
during final argument of the guilt-innocence stage
of trial, in violation of Art. I, § 10 of the Texas
Constitution.

POINT OF ERROR NUMBER EIGHT

The trial court erred in denying Appellant’s motion
for mistrial after the prosecutor improperly argued
that Appellant had “hired a dream team to sit
there with him” during final argument of the guilt-
innocence stage of trial, in violation of Art. 38.38 of
the Code of Criminal Procedure.

3
 SUMMARY OF THE ARGUMENT

1-5. The trial court erred in overruling Appellant’s objections to State’s

Exhibit No. 2 because it failed to show on its face, the knowing, intelligent

and voluntary waiver of his constitutional rights required by Art. 38.22,

§ 2(b) of the Code of Criminal Procedure. The exhibit also was subject to

exclusion under the Fifth Amendment to the United States Constitution

and Art. I, § 10 of the Texas Constitution because it improperly directed

the jury’s attention to Appellant’s state and federally-protected rights to

be free from compulsory self-incrimination. Evidence that Appellant

invoked his constitutional right to silence is clearly inadmissible because

the jury may have construed it adversely to him by improperly considering

it as an inference of guilt. The exhibit was also inadmissible in the face of

Appellant’s objection under Rule 401 of the Rules of Evidence because his

exercise of the right to silence carried no probative value and did not make

any fact of consequence to this trial more or less likely. The exhibit was

also subject to exclusion pursuant to Rule 403 of the Rules of Evidence,

because the prejudicial effect of evidence that Appellant invoked his right

to silence clearly outweighed its probative value, if any. The admission of

the exhibit over Appellant’s art. 38.22, § 2(b) and Fifth Amendment and
4
art. I, § 10 objections was constitutional error that was not harmless

beyond a reasonable doubt. Alternatively, its admission over Appellant’s

rule 401 and 403 objections affected his substantial rights.

6-7. The trial court erred in overruling Appellant’s objection when the

prosecutor improperly commented on his post-arrest silence in summation

at the guilt-innocence stage, in violation of the Fifth Amendment to the

United States Constitution and Art. I, § 10 of the Texas Constitution. The

argument clearly penalized Appellant for exercising his state and federal

constitutional rights to remain silent. Because all of the rule 44.2(a) harm

factors fall on Appellant’s side of the ledger, this constitutional error was

not harmless beyond a reasonable doubt.

8. The trial court erred in denying Appellant’s motion for mistrial after

the prosecutor improperly argued that Appellant had “hired a dream team

to sit there with him” during final argument in the guilt-innocence stage,

in violation of Art. 38.38 of the Code of Criminal Procedure by improperly

alluding to Appellant having hired counsel. Because this argument was

inherently inflammatory, and could not have been cured by an instruction

to disregard, and because the certainty of conviction absent this comment

was minimal, a mistrial was the only remedy to cure this misconduct.
5
 POINT OF ERROR NUMBER ONE

The trial court erred in overruling Appellant’s
objection to State’s Exhibit No. 2 in violation of Art.
38.22, § 2(b) of the Code of Criminal Procedure,
because it failed to show on its face that Appellant
knowingly, intelligently, and voluntarily waived all
of those rights set out in Art. 38.22, § 2(a)(1-5).

POINT OF ERROR NUMBER TWO

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of the Fifth Amendment to the United States
Constitution.

POINT OF ERROR NUMBER THREE

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Art. I, § 10 of the Texas Constitution.

POINT OF ERROR NUMBER FOUR

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Rule 401 of the Rules of Evidence.

POINT OF ERROR NUMBER FIVE

The trial court erred in overruling Appellant’s
objection to that portion of State’s Exhibit No. 2 in
which he exercised his right to silence, in violation
of Rule 403 of the Rules of Evidence.
6
 STATEMENT OF FACTS

A. The Hearing Outside the Jury’s Presence

Department of Public Safety Trooper Joel Gonzalez identified State’s

Exhibit No. 2 as a “DWI INTERVIEW WITH LEGAL WARNINGS,” that he gave

to Appellant while the latter was in custody at the Oyster Creek Jail. (3

RR 203, 211). Gonzalez explained each of the warnings to Appellant, who

stated that he understood them. (3 RR 203). He opined that Appellant

knowingly, intelligently and voluntarily waived his rights, and agreed to

speak to Gonzalez, after Appellant signed the document. (3 RR 203).

Gonzalez admitted that the document did not contain Appellant’s

initials indicating he understood each of the five warnings, the document

was filled out in Gonzalez’s handwriting, and their interview was not

recorded, even though Gonzalez had the capability to do so. (3 RR 204-

205). While Appellant answered some of the questions contained on the

document, (3 RR 209), Gonzalez stated that Appellant responded, “not

saying” in response to those questions asking:

C Have you been drinking?

C What [have you been drinking]?

C How much [have you been drinking]?
7
C Time of last drink?

(3 RR 206-208).

Appellant testified that he did not recall Gonzalez reading him the

warnings that appeared at the top of State’s Exhibit No. 2. (3 RR 212).

While Appellant, who was not a lawyer, answered certain questions on the

document, he elected to exercise his right to remain silent, by using the

words “not saying,” and by refusing to answer the four questions having

to do with his consumption of alcohol, set out above. (3 RR 214-215).

When the State offered State’s Exhibit No. 2, Appellant objected to

it on the grounds, inter alia, that:

C it failed to show on its face that Appellant knowingly, intelligently,
and voluntarily waived all of those rights as required by Art. 38.22,
§ 2(a)(1-5), of the Code of Criminal Procedure.

C the portion of the document where he declined to answer questions
about his consumption of alcohol violated his constitutional right to
silence in violation of the Fifth Amendment to the United States
Constitution and Art. I, § 10 of the Texas Constitution.

C the portion of the document where he declined to answer questions
about his consumption of alcohol was not relevant pursuant to Rule
401 of the Rules of Evidence.

C the portion of the document where he declined to answer questions
about his consumption of alcohol was unfairly prejudicial pursuant
to Rule 403 of the Rules of Evidence.

8
(3 RR 220, 222, 235).

B. The Trial Court’s Ruling Admitting State’s Exhibit No. 2

In overruling Appellant’s objections to State’s Exhibit No. 2, the trial

court concluded, inter alia, that:

C it comported with art. 38.22, § 2(b), in that it recited the five rights
set out in § 2(a)(1-5).

C it contained an implicit voluntary, knowing, and intelligent waiver
of Appellant’s art. 38.22, § 2(a)(1-5) rights.

C it did not constitute a comment on Appellant’s invocation of his right
to silence, in violation of the Fifth Amendment to the United States
Constitution or Art. I § 10 of the Texas Constitution.

C it was relevant.

C it was not more prejudicial than probative.

(3 RR 236-237).

When the State offered State’s Exhibit No. 2 before the jury, (3 RR

241), the trial court it admitted it over all of Appellant’s objections raised,

and overruled, outside the jury’s presence. (3 RR 241-242).

During the rebuttal portion of his final argument, the prosecutor

directed the jury’s attention to the portion of State’s Exhibit No. 22 where

2
During its deliberations, the jury asked to see “the Troopers [sic] report that shows the
responses that [Appellant] gave written by Trooper Gonzales [sic].” (CR 139).

9
Appellant refused to answer questions as to any alcohol he had consumed

and when he had consumed it,3 reminding jurors that Appellant:

C “was keeping that evidence from you.”

C “went from [saying that he had] two to three drinks to not saying
anything.”

C was “not saying anything to [those questions] ... [b]ecause he knows
what that is going to come back as.”

(5 RR 57-58).

The trial court overruled Appellant’s objections that this argument

violated the Fifth Amendment to the United States Constitution and Art.

I, § 10 of the Texas Constitution. (5 RR 58).

ARGUMENT AND AUTHORITIES

A. The Standard of Review

Appellate review of the trial court’s admission of evidence is limited

to whether the trial court has abused its discretion. Willover v. State,
State 70

S.W.3d 841, 845 (Tex.Crim.App. 2002). An abuse of discretion occurs

when the trial court acts “arbitrarily and unreasonably, without regard to

State 809 S.W.2d 661, 663
any guiding rules and principles.” Breeding v. State,

3
This improper final argument comprises Appellant’s Points of Error Nos. 6 & 7, infra.

10
(Tex.App.– Amarillo 1991, pet. ref’d). Appellate courts give almost total

deference to the trial court’s findings of historical fact supported by the

record and to mixed questions of law and fact that turn on an evaluation

of credibility and demeanor. Guzman v. State
State,
te 955 S.W.2d 85, 89

(Tex.Crim.App. 1997). Determinations of the law and its application of

the law to the facts that do not turn on an evaluation of credibility and

demeanor are reviewed de novo. Id. When the trial court has not made

a finding on a relevant fact, an appellate court can imply the finding that

supports the trial court’s ruling, if it finds some support in the record.

State v. Kelly,
Kelly 204 S.W.3d 808, 818-819 (Tex.Crim.App. 2006).

While the abuse of discretion standard is deferential, it does not

insulate the trial court’s decision from reversal. Montgomery v. State,
State

810 S.W.2d 372, 392 (Tex.Crim.App. 1991)(op. on rehr’g). “Abuse of

discretion does not imply intentional wrong or bad faith, or misconduct,

but means only an erroneous conclusion.” Hebert v. State,
State 836 S.W.2d

252, 255 (Tex.App.–Houston [1st Dist.] 1992, pet. ref’d). “‘Abuse of

discretion’ is a phrase which sounds worse than it is. The term does not

imply intentional wrong or bad faith, or misconduct, nor any reflection on

Walker 772 F.2d 1172, 1176 n. 9 (5th Cir.
the judge.” United States v. Walker,
11
1985). A trial court lacks the discretion to determine what the law is, or

in applying the law to the facts, and has no discretion to misinterpret the

law. Walker v. Packer,
Packer 827 S.W.2d 833, 840 (Tex. 1992). “But discretion,

to be worthy of the name, is not unchanneled judgment; it is judgment

guided by reason and kept within bounds. Otherwise, ... it is ‘the law of

tyrants: It is always unknown.’” McGautha v. California,
California 402 U.S. 183,

285 (1971)(Brennan, J., dissenting); see also
also Wilton v. Seven Falls Co.,
Co.

515 U.S. 277, 289 (1995)(review for abuse of discretion is not “tantamount

to no review at all”).

B. Article 38.22, § 2(b)

Art. 38.22, § 2 of the Code of Criminal Procedure provides that:

Sec. 2. No written statement made by an accused
as a result of custodial interrogation is admissible
as evidence against him in any criminal proceeding
unless it is shown on the face of the document that:

(a) the accused, prior to making the statement,
either received from a magistrate the warning
provided in Article 15.17 of this code or received
from the person to whom the statement is made a
warning that:

(1) he has the right to remain silent and not make
any statement at all and that any statement he
makes may be used against him in court;

12
 (2) any statement he makes may be used as
evidence against him in court;

(3) he has the right to have a lawyer present to
advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the
right to have a lawyer appointed to advise him
prior to and during any questioning; and

(5) he has the right to terminate the interview at
any time; and

(b) the accused, prior to and during the making of
the statement, knowingly, intelligently, and
voluntarily waived the rights set out in the
warning prescribed by Subsection (a) of this
section.

(emphasis added).

The State has the burden of showing that a defendant knowingly,

voluntarily, and intelligently waived his constitutional rights, Miranda v.

Arizona,
Arizona 384 U.S. 436, 444 (1966), and must also demonstrate waiver by

Connelly 479 U.S. 157, 168
a preponderance of the evidence. Colorado v. Connelly,

(1986). While a waiver need not assume a particular form and, in some

cases, “can be clearly inferred from the action and words of the person

interrogated,” North Carolina v. Butler,
Butler 441 U.S. 369, 373 (1979), “a valid

waiver will not be presumed simply from the silence of the accused after
13
warnings are given or simply from the fact that a confession was in fact

eventually obtained.” Miranda v. Arizona,
Arizona 384 U.S. at 475. As the

Supreme Court concluded in Moran v. Burbine,
Burbine 475 U.S. 412, 421 (1986),

“Only if the ‘totality of the circumstances surrounding the interrogation’

reveals both an uncoerced choice and the requisite level of comprehension

may a court properly conclude that the Miranda rights have been waived.”

It is uncontradicted that Appellant was in custody when he signed

the exhibit, and that it did not contain on its face, the statutorily-required

language that he “knowingly, intelligently, and voluntarily waived the

[Subsection (a)] rights.” (3 RR 226). As the trial court pointed out:

C “38.22, Section 2, requires any written statement to have the
warnings on them and the waiver on the document, not in a separate
recording. It’s got to be on the document.”

C “[O]n your document, what I see problematic is that you don’t have
‘knowingly, intelligently, voluntarily waive.’”

C “That’s the problem that I see is that ‘Section B’ is not on the face of
State’s Exhibit No. 2. It just says the word ‘waive.’”

C “I’m not worried about the warnings. I’m worried about the
voluntarily, intelligently and knowingly waiver.”

(3 RR 227-228).

That the State failed to shoulder its burden of demonstrating a valid

14
waiver, or to show substantial compliance with the requirements of art.

38.22, § 2(b), is fortified by Lopez v. State,
State 314 S.W.3d 54, 60 (Tex.App. –

San Antonio 2010, pet. ref’d), ironically, one of the cases relied upon by the

State. (3 RR 228-229). In Lopez,
opez the trial court admitted a witness list

prepared by the accused while she was in custody, over objection that it

did not contain on its face, the § 2(a)(1-5) warnings. The State claimed

that it had substantially complied with art. 38.22 because the warnings

were orally given to the accused by a deputy, the warnings appeared on

a second statement in which she confessed, and the accused initialed and

signed a rights card prior to writing out the witness list. Id. The court of

appeals, however, rejected the State’s substantial compliance argument,

holding that “our research has failed to disclose any [cases], in which oral

warnings or warnings on another document have been held to constitute

substantial compliance.”4 Id.
Id

State 919
The trial court’s ruling is also at odds with Garcia v. State,

S.W.2d 370, 379 (Tex.Crim.App. 1994), where the document on its face

4
Although the court held that the admission of the witness list was harmless and did not
affect the defendant’s substantial rights because, “Neither the witness list nor testimony about [it]
played a major role in the State’s case, id., for those reasons recounted below, the same cannot be
said of the role that State’s Exhibit No. 2 played in the State’s case.

15
failed to show a knowing, intelligent, and voluntary waiver of the § 2(a)

warnings, even though the accused initialed each of the warnings. The

court held that because the language of art. 38.22, § 2(b) is clear and

unambiguous, “the Legislature is constitutionally entitled to expect that

[we] will faithfully follow the specific text that was adopted.” I d.

(emphasis in original)(citation omitted). The court rejected the argument

that the document substantially complied with art. 38.22, § 2(b) because:

The final paragraph on the instant statement is not
an express waiver of the rights reflected on the
form and the language does not convey the
knowing, intelligent waiver required by the
statute. Further, the final paragraph does not
address each of the rights to be waived under art.
38.22, § 2(b). The instant written statement is
clearly more than “technical non-compliance with
the statute.” ...

Given that there is no waiver on the face of the
documents, we hold the State failed to comply with
art. 38.22, § 2(b) and the trial judge erred in
admitting the written statement.

Id.
Id (emphasis in original)(citations and footnote omitted).

As in Garcia,
Garcia there was no express waiver on the face of State’s

Exhibit No. 2 reflecting a knowing, intelligent and voluntary waiver of the

rights contained in § 2(a), much less the accused’s initials contained on the

16
written statement in Garcia.
Garcia Because State’s Exhibit No. 2 suffered from

more than just “technical non-compliance with the statute,” the reasoning

and analysis in Garcia compels the conclusion its admission was error.5

C. The Fifth Amendment

Almost fifty years ago, in Miranda v. Arizona,
Arizona 384 U.S. 436, 438 n.

37 (1966), the Supreme Court held that it is “impermissible to penalize an

individual for exercising his Fifth Amendment privilege6 when he is under

police custodial interrogation. The prosecution may not, therefore, use at

trial the fact that he stood mute or claimed his privilege in the face of

accusation.” A decade later, in Doyle v. Ohio,
Ohio 426 U.S. 610, 618 (1976),

the Supreme Court extended the protections embodied in Miranda when

it held that the prosecution could not use a defendant’s post-arrest silence

5
The trial court found that the warnings on State’s Exhibit No. 2 substantially complied with
art. 38.22, §2(b), relying on Joseph v. State, 309 S.W.3d 20 (Tex.Crim.App. 2010). (3 RR 236).
In Joseph, the defendant continued to make inculpatory statements even after he was apprised of his
Miranda rights, and “urged that the detective stay to listen to his explanation” about his version of
events. Id. 22-23, 26. By contrast in this case, Appellant made it clear to Gonzalez that he was not
going to answer questions that might incriminate him, compelling evidence that he had invoked his
constitutional right to silence, and that the trial court’s conclusion that he had purportedly waived
this right was clearly erroneous. See id. at 29 (Cochran. J., concurring)(“The prosecution’s burden
is great” when the [accused’s waiver of his right to silence] is not express.”)(citation omitted).
6
The Fifth Amendment to the United States Constitution, made applicable to the States
through the Fourteenth Amendment, provides in pertinent part that, “No person ... shall be compelled
in any criminal case to be a witness against himself.”

17
after receiving Miranda warnings to impeach the defendant, holding that,

“[I]t would be fundamentally unfair and a deprivation of due process to

allow the arrested person’s silence to be used to impeach [him].”

Consistent with Miranda and Doyle,
Doyle Texas law makes it clear that

jurors may not hear that the defendant exercised any constitutional right,

whether to counsel or silence in any encounter with police – videotaped or

written – at his trial for the offense of driving while intoxicated. As the

Court of Criminal Appeals concluded in this vein:

We believe that evidence of an accused invoking his
or her [constitutional] right[s] ... may indeed be
construed adversely to a defendant and may
improperly be considered as an inference of guilt.
... Such adverse use of evidence that a defendant
invoked a right or privilege which has been granted
him, is constitutionally impermissible. ... We
therefore hold that evidence of one’s invocation of
the right to counsel is inadmissible as evidence of
guilt.

State 807 S.W.2d 319, 322 (Tex.Crim.App. 1991).
Hardie v. State,

The holding in Hardie has compelled reversal where, as here, trial

courts have erroneously admitted evidence that the defendant has invoked

his constitutional rights to counsel or silence. See Kalisz v. State,
State 32

S.W.3d 718, 723 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d)(“Because

18
evidence of an accused invoking his constitutional right to counsel may be

construed adversely to a defendant and may improperly be considered as

an inference of guilt, the trial court erred in admitting Officer Anderson’s

query concerning the right to counsel and everything that followed.”);

Gray v. State,
State 986 S.W.2d 814, 815 (Tex.App.– Beaumont 1999, no

pet.)(“In accordance with Hardie and its progeny, we hold the trial court

erred in admitting Gray’s invocation of his right to counsel and his right

to terminate the interview.”); Loy v. State,
State 982 S.W.2d 616, 617

(Tex.App.–Houston [1st Dist.] 1998, no pet.) (“Appellant clearly invoked his

right to counsel. Evidence showing that was inadmissible.”).

The State asserted that Appellant’s written responses that he was

“not saying” whether, what, how much and when he had been drinking

was not a sufficient invocation of his right to silence.7 (3 RR 235)(“I don’t

read it ... as him not wanting to talk or invoking any of his rights.”). But

the State’s claim that Appellant’s choice of the words “not saying” did not

act as an invocation of his right to silence8 was expressly rejected by this

7
See 3 RR 207-208 (Gonzalez refusing to agree with defense counsel that Appellant’s
written responses were tantamount to him invoking his right to silence.).
8
See 3 RR 214-215 (Appellant’s choice of the words “not saying” was his way of exercising
his right to remain silent as a layman.).

19
 State 961 S.W.2d 222, 226 (Tex.App.– Houston [1st
Court in Cooper v. State,

Dist.] 1997, pet. ref’d):

Appellant did, however, invoke his right to
terminate the interview when he stated, “I’m not
answering any questions,” and he continued to
invoke that right throughout the remainder of the
interview. Evidence of invoking the right to
terminate an interview is inadmissible as evidence
of guilt. See Hardie v. State,
State 807 S.W.2d 319, 322
(Tex.Crim.App. 1991). Although Hardie referred
specifically to invocation of the right to counsel, we
find no reason to differentiate an invocation of the
right to terminate.

Because Appellant’s written refusals to answer questions relating to

whether, what, how much and when he had been drinking was a sufficient

invocation of his right to silence, the trial court abused its discretion in

overruling Appellant’s objections pursuant to the Fifth Amendment to the

United States Constitution. See Hardie v. State,
State 807 S.W.2d at 322;

Cooper v. State,
State 961 S.W.2d at 226; Gray v. State,
State 986 S.W.2d at 815.

D. Art. I, § 10

In the cases noted above, the erroneous admission of evidence that

the accused invoked his right to silence was found to have violated the

Fifth Amendment to the United States Constitution and Art. I, § 10 of the

20
Texas Constitution.9 Hardie v. State,
State 807 S.W.2d at 320 (“Appellant

objected by way of ... [his] rights under the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution [and] Article 1, Secs. 10

and 19 of the Texas Constitution...”); Cooper v. State,
State 961 S.W.2d at 224

(same). Accordingly, admitting that portion of State’s Exhibit No. 2 where

Appellant invoked his constitutional right to silence was also an abuse of

discretion pursuant to Art. I, § 10 of the Texas Constitution, which affords

the same, if not greater, protection than the Fifth Amendment.10 Sanchez

State 707 S.W.2d 575, 585 (Tex.Crim.App. 1986)Clinton, J., concurring)
v. State,

(“The constitutional protection provided by [Art. I] § 10 forbids using mere

silence against an accused under arrest...”).

E. Rule 401

TEX.R.EVID. 401 provides that evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would

9
Art. I, § 10 of the Texas Constitution provides, in pertinent part, that, “In all criminal
prosecutions the accused ... shall not be compelled to give evidence against himself.”
10
Art. I, § 10 of the Texas Constitution provides greater protection than the Fifth
Amendment in cases where the State seeks to comment on, or impeach the accused with, his post-
arrest silence. Sanchez v. State, 707 S.W.2d at 580.

21
be without [it].” Mayes v. State,
State 816 S.W.2d 79, 84 (Tex.Crim.App. 1991).

In other words, evidence must satisfy two distinct requirements to be

relevant: it must be material and probative. Cruz v. State,
State 122 S.W.3d

309, 312 (Tex.App.– Houston [1st Dist.] 2003, pet. ref’d). Relevance is not

an inherent characteristic of any item of evidence, but exists as a relation

between an item of evidence and a matter properly provable in a given

State 915 S.W.2d 510, 519 (Tex.App.–El Paso 1995,
case. Contreras v. State,

pet. ref’d). “[F]or an item to alter the probabilities of the existence of the

consequential fact and thus be relevant it must logically increase one’s

knowledge and enhance the likelihood of ascertaining the truth about the

fact.” Brown v. State,
State 757 S.W.2d 739, 740 (Tex.Crim.App. 1988). “An

important element of a fair trial is that a jury consider only relevant and

competent evidence bearing on the issue of guilt or innocence.” Bruton v.

United States,
States 391 U.S. 123, 131 n. 6 (1968). As two distinguished legal

commentators have remarked, “Even the most comprehensive evidence

may not be admitted unless its significance can be ascertained.” 2 Jack

B. Weinstein & Margaret A. Berger, WEINSTEIN’S FEDERAL EVIDENCE, Sec.

401.04[2][d] (2nd ed. 2000).

Viewed against this backdrop, the trial court abused its discretion
22
in overruling Appellant’s relevance objection to that portion of this exhibit

where he invoked his constitutional right to silence. It is well settled that

the accused’s invocation of the constitutional right to either silence or to

counsel is inadmissible as evidence of guilt. Hardie v. State,
State 807 S.W.2d

at 321(right to counsel); Cooper v. State,
State 961 S.W.2d at 226 (right to

terminate interview). Here, evidence that Appellant opted not to answer

questions about the amount and time of his consumption of alcohol was

State 787 S.W.2d 380, 383
neither probative nor material, see Jamail v. State,

(Tex.Crim.App. 1990)(per curiam), overruled on other grounds, Hardie v.

State,
State, 807 S.W.2d at 322 (defendant’s invocation of his constitutional right

to counsel had no probative value and was inadmissible under Rule 402),

especially since his refusal was written and not oral. Compare Lajoie v.

State,
State 237 S.W.3d 345, 353 (Tex.App.– Fort Worth 2007, no pet.)(“Here

the evidence of Lajoie asking for an attorney does have some probative

value as evidence of his speech pattern on the night of his arrest.”). The

trial court, accordingly, abused its discretion in overruling Appellant’s

relevancy objection after he invoked his constitutional right not to answer

questions relating to whether, what, how much and when he had been

drinking. See Hardie v. State,
State 807 S.W.2d at 321; Cooper v. State,
State 961
23
S.W.2d at 226.

F. Rule 403

Even if the trial court did not abuse its discretion in holding that

evidence that Appellant invoked his right to silent was relevant pursuant

to rule 401, this evidence was nevertheless subject to exclusion pursuant

to TEX.R.EVID. 403.11 Evidence is unfairly prejudicial when it has “an

undue tendency to suggest that a decision be made on an improper basis.”

Montgomery v. State,
State 810 S.W.2d at 389. When conducting an analysis

under rule 403, the trial court must balance: (1) the inherent probative

value12 of the proffered evidence along with, (2) the proponent’s need for

the evidence against, (3) any tendency of the evidence to suggest a

decision on an improper basis, (4) any tendency of the evidence to confuse

or distract the jury from the main issues, (5) any tendency of the evidence

to be given undue weight by a jury that has not been equipped to evaluate

the probative value of the evidence, and (6) the likelihood that

11
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.”
12
See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006)(“probative value
means more than simply relevance.”).

24
presentation of the evidence will consume an inordinate amount of time.

State v. Mechler,
Mechler 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). In applying

these factors, this Court must “do more than decide whether the trial

judge did in fact conduct the required balancing between probative and

prejudicial value; the trial court’s determination must be reasonable in

view of all the relevant facts.” Reese v. State,
State 33 S.W.3d 238, 241

(Tex.Crim.App. 2000).

First, evidence that Appellant invoked his right to silence has no

State 787 S.W.2d at 383, overruled on other
probative value. Jamail v. State,

grounds, Hardie v. State,
State, 807 S.W.2d at 322. Second, the State’s need for

this evidence was minimal given the other evidence it elicited regarding

Appellant’s alleged intoxication. See State v. Mechler,
Mechler 153 S.W.3d at 441.

Third and fourth, this evidence could have certainly led the jury to convict

Appellant on an improper basis, and it was likely given undue weight by

the jury in deciding Appellant’s guilt, especially in light of the State’s

emphasis on it at trial and during summation. See Russell v. State,
State 113

S.W.3d 530, 545 (Tex.App.– Fort Worth 2003, pet. ref’d). Accordingly, this

Court is constrained to hold that evidence that Appellant invoked his right

to silence by refusing to answer those questions regarding whether, what,
25
how much and when he had been drinking, was inadmissible because its

probative value was substantially outweighed by the danger of its unfair

prejudice. See Lajoie v. State,
State 237 S.W.3d at 353 (trial court abused its

discretion in admitting evidence that defendant invoked a constitutional

right over his rule 403 objection where State’s need for this evidence was

minimal, evidence could have led jury to convict on improper basis, and

evidence had tendency to be given undue weight by jury in determining

if defendant was guilty).

G. This Constitutional Error was Not Harmless
Beyond a Reasonable Doubt Pursuant to Rule 44.2(a)

This Court’s task in determining whether the erroneous admission

of evidence in the face of his objections pursuant to art. 38.22, § 2(b), the

Fifth Amendment, and art. I, § 10, was constitutional error reviewed

under TEX.R.APP.P. 44.2(a),13 is not at all difficult. In Harris v. State,
State 790

S.W.2d. 652, 655 (Tex.Crim.App. 1989), the court held that if the error, as

here, is of a magnitude that disrupted the jury’s orderly evaluation of the

evidence, it could not be considered harmless beyond a reasonable doubt.

13
Constitutional Error. “If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a judgment of conviction
or punishment unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.”

26
These factors include the source and the nature of the error, the weight

a juror likely placed upon the error, whether and to what extent the error

was emphasized by the State, and whether the State would be encouraged

to repeat the error with impunity in the future if a reviewing court

declared it harmless. Id.
Id

In conducting this review, this Court must not focus on the propriety

of the trial’s outcome but rather upon the integrity of the process leading

to conviction. Id. at 597. “The question in our judgment is whether the

jury might have been influenced by an error and not whether in our

judgment the correct result was reached.” Leos v. State,
State 883 S.W.2d 209,

212 (Tex.Crim.App. 1994). This Court is obligated to review this record

in a neutral, impartial and even-handed manner to determine if this error

contributed to the conviction, a task that requires more than finding the

State’s evidence was overwhelming. See Hadden v. State,
State 829 S.W.2d

838, 842 (Tex.App.– Corpus Christi 1992, pet. ref’d).

Here, the source of the error was the State’s offering and the trial

court’s admitting evidence obtained in violation of art. 38.22, § 2(b), that

showed Appellant invoked his state and federal constitutional rights to

silence, a factor that falls on Appellant’s side of the ledger. See Godfrey
27
 State 859 S.W.2d 583, 585 (Tex.App.–Houston [14th Dist.] 1993, pet.
v. State,

ref’d)(when officer of the court commits an error, “the error is enhanced.”).

The nature of the error permitted the State to emphasize that Appellant:

(1) “was keeping that evidence from you,” (2) “went from [saying that he

had] two to three drinks to not saying anything,” (3) and was “not saying

anything to [those questions] ... [b]ecause he knows what that is going to

come back as,” (5 RR 57-58), a factor weighing heavily in favor of a finding

of harm. Cooper v. State,
State 961 S.W.2d at 227. The probable collateral

implications of the error was that Appellant was guilty, not because he

was intoxicated, but because he was trying to hide evidence from the jury

by invoking his state and federal constitutional rights to silence. See Loy

v. State,
State 982 S.W.2d at 618. Given the State’s emphasis on this error at

trial and during its summation, and the jury’s request to see State’s

Exhibit No. 2,14 the jury likely placed great weight upon the error, another

factor indicating harm. State 115 S.W.3d 709, 721
See Marsh v. State,

(Tex.App.– Austin 2003, pet. ref’d) (“The prosecutor in closing ... stressed

and overemphasized the erroneously admitted ... evidence.”). This tenet

14
(“[W]e would like the Troopers [sic] report that shows the responses that [Appellant] gave
written by Trooper Gonzalez [sic].” (CR 139).

28
is especially true where, as in this case, the State’s emphasis on the error

is among the final plea made to jurors before retiring to decide Appellant’s

guilt or innocence. See Barnum v. State,
State 7 S.W.3d 782, 794 (Tex.App.–

Amarillo 1999, pet. ref’d).

Finally, and perhaps most important of all, given the sheer number

of cases that have been reversed for this same or similar constitutional

violation, declaring this error harmless would encourage the State to

repeat it with impunity in future cases, as this Court has repeatedly held.

State 36 S.W.3d 158, 161 (Tex.App.– Houston [1st Dist.] 2000, pet.
Opp v. State,

ref’d)(“[I]f we were to declare this error harmless, we cannot say the State

would not be encouraged to offer this sort of inadmissible evidence in the

future. Even declaring the error harmful and reversing for it, as we did

in Cooper and Loy,
Loy has not prevented its recurrence.”); Gray v. State,
State 986

S.W.2d at 815 (“It is indisputable that this evidence was inadmissible, as

the case law cited herein demonstrates. We are loathe to sanction, much

less encourage, the offering of clearly inadmissible evidence.”). Moreover,

as in Garcia v. State,
State 919 S.W.2d at 381, where the court concluded that

the erroneous admission of the defendant’s written statement in violation

of art. 38.22, § 2(b) was not harmless beyond a reasonable doubt:
29
 [T]hrough appellant’s motion to suppress the
signed written statement and his objections at
trial, the prosecutor and the trial judge were well
aware of the deficiencies present on the face of
appellant’s written statement. Ignoring the
deficiencies, the prosecutor offered, and the trial
judge admitted, appellant’s signed written
statement. Consequently, we believe declaring the
error harmless would encourage the State to repeat
the error with impunity.

(emphasis added).

While the State will no doubt assert, as it does in every case where

constitutional error has tainted the integrity of the trial, that this error

is dissipated by overwhelming evidence of guilt, this rote rejoinder will not

support the great weight placed upon it. While evidence of Appellant’s

guilt may be legally sufficient, “it is not so overwhelming that the error’s

effect upon the jury’s function in determining the facts dissipated.” Gray

v. State,
State 986 S.W.2d at 816. Aside from the boilerplate facts testified to

by peace officers in every DWI prosecution,15 there was no blood or breath

test fortifying the State’s claim that Appellant was intoxicated. Moreover,

15
The State argued that Appellant failing the horizontal gaze nystagmus test administered
by Trooper Gonzalez was compelling evidence of his intoxication. (5 RR 50, 53). Notably, Dr.
Juliet Farmer, Appellant’s optometrist, testified that because of his amblyopia, Appellant’s eyes did
not track normally, resulting in a latent horizontal nystagmus, that would account for Gonzalez’s
testimony that he detected horizontal gaze nystagmus in Appellant’s eyes. (4 RR 251-252, 259).

30
in spite of the relatively brief time spent in trial, the jury deliberated from

10:04 a.m. until 4:14 p.m. before finally returning a verdict, (CR 125, 133),

compelling evidence, as this Court has held, that the State’s proof was

hardly overwhelming. Loy v. State,
State 982 S.W.2d at 618-619 (“[T]he jury

deliberated on guilt for nearly two hours, possibly indicating it thought

the evidence was close.16 Knowing this, and that the jury asked for the

videotape [where the defendant invoked his rights], we cannot conclude

with confidence that this error was harmless.”); see also Cooper v. State,
State

36 S.W.3d at 160 (rejecting State’s claim that evidence was overwhelming

where defendant drove up behind marked patrol unit at 110 mph, was

weaving and cutting off other traffic, officers chased him for almost three

miles to catch him, and he jumped out of his car and left it in drive).

All of the Harris factors informing this Court’s harm analysis fall on

Appellant’s side of the ledger. The State’s likely riposte that the effect of

this error is dissipated by overwhelming evidence of guilt is a non-starter.

The State’s insistence on offering, and the trial court’s decision admitting,

16
Unlike the facts in this case, the defendant in Loy was speeding, swerved, and screeched
to a halt, ignored multiple requests to exit his vehicle, had such difficulty standing that an officer was
called in to keep the defendant from falling, and gave the officers a cup of toilet water instead of a
urine sample. Id. at 618.

31
inadmissible evidence that disrupted the jury’s orderly evaluation of the

evidence compels a reversal of Appellant’s conviction.. McCarthy v. State,
State

65 S.W.3d 47, 56 (Tex.Crim.App. 2001)(“Although we are slow to overturn

the verdict of a jury, when fundamental constitutional protections are

violated, however innocently, we must uphold the integrity of the law.”).

The judgment of conviction entered below must be reversed and the

cause remanded for a new trial.

H. Alternatively, this Non-Constitutional Error Violated
Appellant’s Substantial Rights Pursuant to Rule 44.2(b)

Alternatively, the erroneous admission of State’s Exhibit No. 2, in

which Appellant invoked his right to silence in violation of rules 401 and

403, affected his substantial rights under TEX.R.APP.P. 44.2(b).17 Delane

State 369 S.W.3d 412, 423 (Tex.App.– Houston [1st Dist.] 2012, pet.
v. State,

ref’d). This rule requires this Court to determine if this error had “a

substantial and injurious effect or influence in determining the jury’s

verdict.” King v. State,
State 953 S.W.2d 266, 270 (Tex.Crim.App. 1997). If this

Court has “grave doubt” that the result was free from the substantial

17
Other Errors: “Any other error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”

32
influence of the error, it must treat the error as if it did. United States v.

Lane,
Lane 474 U.S. 438, 449 (1986); Burnett v. State,
State 88 S.W.3d 633, 638

(Tex.Crim.App. 2002)(“In cases of grave doubt as to the harmlessness the

[appellant] must win.”); Brown v. State,
State 978 S.W.2d 708, 716 (Tex.App.–

Amarillo 1998, pet. ref’d)(emphasis in original)(“The determination of

harm is little more than an educated guess. What the jurors actually

thought persuasive or actually considered is seldom, if ever, available to

us. So, we ... assess potentialities.”).

Appellant is not required to prove harm from this error; it is this

Court’s duty to review the record and assess harm. Johnson v. State,
State 43

S.W.3d 1, 4-6 (Tex.Crim.App. 2001). The proper inquiry is whether the

error substantially swayed or influenced the verdict. Booker v. State,
State 103

S.W.3d 521, 538 (Tex.App.– Fort Worth 2003, pet. ref’d). This Court must

consider the erroneous admission of evidence that Appellant invoked his

right to silence in the context of the entire record, and not merely whether

there was sufficient or overwhelming evidence of guilt. Motilla v. State,
State

78 S.W.3d 352, 355 (Tex.Crim.App. 2002).

In conducting its rule 44.2(b) harm analysis, this Court cannot lose

sight of two interrelated considerations. First, if there is any doubt that
33
this error affected a substantial right, it is dispelled by the prosecutor

directing the jury’s attention to Appellant’s refusal to answer questions as

to any alcohol he had consumed, and when he had consumed it, in his

rebuttal argument, when defense counsel was powerless to respond:

C Appellant “was keeping that evidence from you.”

C Appellant “went from [saying that he had] two to three drinks to not
saying anything.”

C Appellant was “not saying anything to [those questions] ... [b]ecause
he knows what that is going to come back as.”

(5 RR 57-58).

This Court has long held that prosecutorial emphasis on erroneously

admitted evidence at trial and in final argument, is powerful evidence

that an error affecting a substantial right warrants reversal. See Delane

v. State,
State 369 S.W.3d at 423 (misapplication of rules of evidence affected

substantial rights where State emphasized erroneously admitted evidence

during final argument); Nelms v. State,
State 834 S.W.2d 110, 114 (Tex.App. –

Houston [1st Dist.] 1992, pet. ref’d)(same); see also Rhyne v. State,
State 387

S.W.3d 896, 906 (Tex.App.– Fort Worth 2012, no pet.)(erroneous

admission of breath test result affected substantial rights when State

advised jury in summation that breath-test evidence was “best evidence”
34
Appellant was intoxicated.”).

Second, that evidence of Appellant’s guilt was not overwhelming

compels the conclusion that this error, and the State’s repeated emphasis

on it in final argument, was calculated to make its case significantly more

persuasive and Appellant’s significantly less so, a factor this Court has

relied upon in holding a substantial right has been affected. See Peters

State 31 S.W.3d 704, 723 (Tex.App.– Houston [1st Dist.] 2000, pet.
v. State,

ref’d). As one appellate court has held in a situation akin to this case,

finding the admission of the accused’s invocation of a constitutional right

over his rule 403 objection affected a substantial right:

Here the evidence of guilt was hardly
overwhelming. The evidence supporting guilt was
Lajoie’s refusal to perform the breath test, his slow
speech, and his poor performance on the horizontal
gaze nystagmus test. The only evidence that went
squarely to whether Lajoie had lost the normal use
of his mental faculties by the consumption of
alcohol was Officer Nelson’s opinion. ...

After reviewing the whole record, we believe that
it is clear that not only was evidence of Lajoie
asking for an attorney before the jury, but that the
State overtly emphasized and relied on that
evidence as proof of his guilt. Therefore, we hold
that the error had a substantial and injurious effect
or influence in determining the jury’s verdict and,

35
 thus, affected Lajoie’s substantial rights.18

Lajoie v. State,
State 237 S.W.3d at 354-355.

On this record, this Court cannot say with fair assurance that the

erroneous admission of evidence that Appellant invoked his constitutional

right to silence, and the State’s repeated emphasis on it during trial and

in summation, did not influence jurors, or had but a slight effect on their

verdict. See e.g.,
e.g Pollard v. State,
State 255 S.W.3d 184, 190 (Tex.App.– San

Antonio, 2008), aff’d, 277 S.W.3d 25 (Tex.Crim.App. 2009)(“[W]e conclude

the State’s emphasis of the murder conviction prejudiced the jury’s

decision-making, causing a substantial and injurious effect or influence on

the jury’s verdict...”); West v. State,
State 124 S.W.3d 732, 736 (Tex.App.–

Houston [1st Dist.] 2003, pet. ref’d)(State’s emphasis of error during final

argument was powerful indicia that trial court’s misapplication of rules

of evidence affected defendant’s substantial rights).

The judgment of conviction entered below must be reversed and the

cause remanded for a new trial.

18
Because the court sustained Lajoie’s claim that the trial court erred in admitting evidence
that he invoked his right to counsel, it did not reach his claim that the trial court erred in admitting
evidence that he invoked his right to remain silent. Id. at 355 n. 3.

36
 POINT OF ERROR NUMBER SIX

The trial court erred in overruling Appellant’s
objection after the prosecutor improperly
commented on Appellant’s post-arrest silence
during final argument in the guilt-innocence stage
of trial, in violation of the Fifth Amendment to the
United States Constitution.

POINT OF ERROR NUMBER SEVEN

The trial court erred in overruling Appellant’s
objection after the prosecutor improperly
commented on Appellant’s post-arrest silence
during final argument in the guilt-innocence stage
of trial, in violation of Art. I, § 10 of the Texas
Constitution.

STATEMENT OF FACTS

In the final moments of rebuttal argument, the prosecutor directed

the jury’s attention to the fact that Appellant declined to answer questions

about how much he had to drink, even after being apprised of his Miranda

warnings by police:

MR. PERRY: [Appellant] ponders it and he says, “I
am going to keep that evidence. He is keeping
evidence from you.

And if you want more evidence of that, then just
look at this State’s Exhibit No. 2. He answers all
of these questions. His Miranda warnings were
read to him. He signed it. There is a signature. ...
Have you been drinking?
37
 Now it went from two or three drinks to not
saying anything.

MR. SILVERMAN: We object at this point in time.

MR. PERRY: Not saying anything. ...

THE COURT: Hold on. Mr. Perry –

MR. PERRY: Yes, sir.

THE COURT: – if he stands up, just like you did, stop
talking.

MR. PERRY: I didn’t hear an objection.

MR. SILVERMAN: We’re objecting pursuant to the
Fifth Amendment of the United States
Constitution, Article 1, Section 10 of the Texas
Constitution.

THE COURT: Still overruled.

MR. PERRY: Not saying anything to that one. Why
not? Because he knows what that is going to come
back as.

(5 RR 57-58).

ARGUMENT AND AUTHORITIES

A. The Standard of Review

“The purpose of closing argument is to facilitate the jury’s proper

analysis of the evidence presented at trial in order to arrive at a just and

38
reasonable conclusion based solely on the evidence.” Harris v. State,
State 122

S.W.3d 871, 883 (Tex.App.– Fort Worth 2003, pet. ref’d). Permissible jury

argument generally falls within one of four areas: (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) responses to

argument of opposing counsel; and (4) pleas for law enforcement. Brown

v. State,
State 270 S.W.3d 564, 570 (Tex.Crim.App. 2008). As the Court of

Criminal Appeals cautioned over forty years ago, “The arguments that go

beyond these areas too often place before the jury unsworn, and most

times believable testimony of the attorney.” Alejandro v. State,
State 493

S.W.2d 230, 231 (Tex.Crim.App. 1973).

The law provides for, and presumes a fair trial for the accused, free

State 787 S.W.2d 53, 56
from improper prosecutorial argument. Borjan v. State,

(Tex.Crim.App. 1990). This Court has made it clear that appellate courts

should not hesitate to reverse when the State has departed from one of the

permissible areas in final argument and engaged in conduct that denies

the accused a fair and impartial trial. Washington v. State,
State 16 S.W.3d 70,

73 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d); see also United States

Murrah 888 F.2d 24, 27 (5th Cir. 1989)(internal quotation marks
v. Murrah,

omitted)(“Rules of fair play apply to all counsel and are to be observed by
39
the prosecution and defense counsel alike. ... If anything, the obligation

of fair play by the lawyer representing the government is accentuated.

Prosecutors do not have a hunting license exempt from the ethical

constraints on advocacy.”).

B. The Prosecutor’s Comment on Appellant’s Post-Arrest
Silence Violated the Fifth Amendment and Art. I, § 10

Prosecutorial comment on a defendant’s silence after his arrest and

after receiving Miranda warnings violates the Fifth Amendment of the

United States Constitution, Doyle v. Ohio,
Ohio 426 U.S. 610, 619 (1976), and

State 209 S.W.3d 285,
Art. I, § 10 of the Texas Constitution. Wyborny v. State,

291-292 (Tex.App. – Houston [1st Dist.] 2006, pet. ref’d). Such a comment

on the defendant’s post-arrest silence is tantamount to a comment on his

failure to testify at trial because it seeks to raise an inference of guilt

arising from the invocation of a constitutional right. Dinkins v. State,
State 894

S.W.2d 330, 356 (Tex.Crim.App. 1995).

The prosecutor’s argument that Appellant was “keeping evidence”

from the jury as to whether, what, how much, and when he had consumed

alcohol “because he knows what that is going to come back as” was clearly

and unmistakably calculated to penalize him for his post-arrest silence in

40
violation of the Fifth Amendment and art. I, § 10. Accordingly, the trial

court erred in overruling Appellant’s objections on both state and federal

grounds to the prosecutor’s improper jury argument. See Bhakta v. State,
State

981 S.W.2d 293, 295 (Tex.App.– San Antonio 1998, pet. ref’d)(prosecutor’s

final argument that, “We have already gone over what he didn’t say in his

statement, and coincidentally, that he didn’t say at the scene, and he

didn’t tell any officer...” improperly comment on defendant’s post-arrest

silence); Garcia v. State,
State 880 S.W.2d 497, 499 (Tex.App.– Corpus Christi

1994, no pet.)(“The prosecutor’s comment in argument is a direct assault

on Garcia’s constitutionally protected right to remain silent after arrest.”);

Buitureida v. State,
State 684 S.W.2d 133, 141 (Tex.App.– Corpus Christi 1984,

pet. ref’d)(prosecutor improperly commented on defendants’ post-arrest

silence by arguing, “You got a situation where the Defendants would not

talk to the police. They didn’t want to talk to the police.”); Conway v.

State,
State 625 S.W.2d 35, 38 (Tex.App.– Eastland 1981, pet. ref’d)(“[A]s the

referred to silence was post-arrest, it was not the proper subject of

comment by the District Attorney during ... closing arguments.”).

41
 C. The Prosecutor’s Improper Final Argument
was Constitutional Error Requiring Reversal

When jury argument falls outside the approved areas, “it will not

constitute reversible error unless [it] is extreme or manifestly improper...

or injects new facts harmful to the accused into the trial proceeding.

State 342 S.W.3d 572, 602-603 (Tex.App.– Houston [14th Dist.]
Temple v. State,

2010), aff’d, 390 S.W.3d 341 (Tex.Crim.App. 2013). Because this improper

final argument offended Appellant’s privilege against self-incrimination

under the Fifth Amendment to the United States Constitution, and Art.

I, § 10, of the Texas Constitution, it is error of constitutional magnitude

governed by a TEX.R.APP.P. 44.2(a)19 harm analysis. Crocker v. State,
State 248

S.W.3d 299, 305 (Tex.App.– Houston [1st Dist.] 2007, pet. ref’d).

State 790 S.W.2d. 652, 655 (Tex.Crim.App. 1989), the
In Harris v. State,

court held that if the error, as here, is of a magnitude that disrupted the

jury’s orderly evaluation of the evidence, it could not be considered

harmless beyond a reasonable doubt. The factors Harris mandates that

this Court must consider in conducting its harmless error review include

19
Constitutional Error. “If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a judgment of conviction
or punishment unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.”

42
the source and the nature of the error, the weight a juror likely placed

upon the error, whether and to what extent the error was emphasized by

the State, and whether the State would be encouraged to repeat the error

with impunity in the future, if a reviewing court declared it harmless. Id.

In conducting this review, this Court must not focus on the propriety

of the trial’s outcome, but rather upon the integrity of the process leading

to conviction. Id. at 597. “The question in our judgment is whether the

jury might have been influenced by an error and not whether in our

judgment the correct result was reached.” Leos v. State,
State 883 S.W.2d 209,

212 (Tex.Crim.App. 1994). This Court is obligated to review this record

in a neutral, impartial and even-handed manner to determine if this error

contributed to the conviction, a task that requires more than finding the

State’s evidence was overwhelming. See Hadden v. State
State,
ate 829 S.W.2d

838, 842 (Tex.App.– Corpus Christi 1992, pet. ref’d).

Here, the source of the error was the prosecutor violating one of the

most fundamental protections afforded to any citizen accused – the right

not to be penalized for his silence while in the custody of law enforcement.

As the Fifth Circuit remarked in granting federal habeas relief in a death

penalty case where prosecutors improperly commented on the defendant’s
43
right to silence during final argument, “To conclude otherwise empties all

meaning of this cornerstone of rights upon which the criminal justice

system rests. Its very centrality renders it a primal rule – etched in the

minds of all players in a criminal case.” Gongora v. Thaler,
Thaler 710 F.3d 267,

278 (5th Cir. 2013); see
see also Godfrey v. State,
State 859 S.W.2d 583, 585

(Tex.App.–Houston [14th Dist.] 1993, pet. ref’d)(when officer of the court

commits an error, “the error is enhanced.”).

The nature of the error permitted the prosecutor to emphasize that

Appellant: (1) “was keeping that evidence from you,” (2) “went from

[saying that he had] two to three drinks to not saying anything,” (3) and

was “not saying anything to [those questions] ... [b]ecause he knows what

that is going to come back as,” (5 RR 57-58). As this Court has concluded

in a similar case, this factor weighs heavily in favor of a finding of harm.

State 961 S.W.2d 222, 227 (Tex.App.– Houston [1st Dist.] 1997,
Cooper v. State,

pet. ref’d).

The probable collateral implications of the error was the prosecutor

arguing that Appellant was guilty, not because he was intoxicated, but

because he was trying to hide evidence from jurors by invoking his state

and federal constitutional rights to silence. See Loy v. State,
State 982 S.W.2d
44
616, 618 (Tex.App.– Houston [1st Dist.] 1998, pet. ref’d). Given the State’s

emphasis on this error at trial and during its summation, and the jury’s

request to see State’s Exhibit No. 2,20 the jury likely placed great weight

upon the error, yet another factor indicating harm. See Marsh v. State,
State

115 S.W.3d 709, 721 (Tex.App.– Austin 2003, pet. ref’d) (“The prosecutor

in closing ... stressed and overemphasized the erroneously admitted ...

evidence.”). This tenet is especially true when, as here, the argument not

only occurred during rebuttal, when its harmful effect could have been

attenuated by Appellant’s argument, see Brown v. State,
State 978 S.W.2d 708,

714-715 (Tex.App.– Amarillo 1998, pet. ref’d), but was among the final

plea made to jurors before retiring to decide Appellant’s fate. See Barnum

v. State,
State 7 S.W.3d 782, 794 (Tex.App.– Amarillo 1999, pet. ref’d).

Moreover, by overruling Appellant’s objections, the trial court placed its

seal of judicial approval on the State’s improper argument, and magnified

State 57 S.W.3d 14, 20 (Tex.App.– Houston [14th
the harm. See Peak v. State,

Dist.] 2001, pet. ref’d)(“[W]e find that the court’s failure to take curative

measures militates toward a finding of harm, against Appellant.”).

20
(“[W]e would like the Troopers [sic] report that shows the responses that [Appellant] gave
written by Trooper Gonzales [sic].” (CR 139).

45
 Finally, and perhaps most important of all, the prosecutor violated

a fundamental state and federal constitutional right that is “etched in the

minds of all players in a criminal case.” Gongora v. Thaler,
Thaler 710 F.3d at

278. Holding the prosecutor’s improper argument penalizing Appellant for

exercising his fundamental right to silence harmless “will only encourage

prosecutors to repeat the constitutional error with impunity.” Hampton

v. State,
State 121 S.W.3d 778, 784 (Tex.App.– Austin 2003, pet. ref’d).

As set out above, the State’s predictable rejoinder that overwhelming

evidence of Appellant’s guilt dissipates the harmful effect of this error will

not support the great weight placed upon it. While evidence of Appellant’s

guilt may be legally sufficient, “it is not so overwhelming that the error’s

effect upon the jury’s function in determining the facts dissipated.” Gray

v. State,
State 986 S.W.2d 814, 816 (Tex.App.– Beaumont 1999, no pet.) Aside

from the boilerplate facts testified to by peace officers in every DWI

prosecution,21 there was no blood or breath test fortifying the State’s claim

that Appellant was intoxicated. Moreover, in spite of the relatively brief

21
The State argued that Appellant failing the horizontal gaze nystagmus test administered
by Trooper Gonzalez was compelling evidence of his intoxication. (5 RR 50, 53). Notably, Dr.
Juliet Farmer, Appellant’s optometrist, testified that because of his amblyopia, Appellant’s eyes did
not track normally, resulting in a latent horizontal nystagmus, that would account for Gonzalez’s
testimony that he detected horizontal gaze nystagmus in Appellant’s eyes. (4 RR 251-252, 259).

46
time spent in trial, the jury deliberated from 10:04 a.m. until 4:14 p.m.

before finally returning a verdict, (CR 125, 133), compelling evidence that

the State’s proof was hardly overwhelming. Loy v. State,
State 982 S.W.2d at

618-619 (“[T]he jury deliberated on guilt for nearly two hours, possibly

indicating it thought the evidence was close.22 Knowing this, and that the

jury asked for the videotape [where the defendant invoked his rights], we

cannot conclude with confidence that this error was harmless.”); see also

State 36 S.W.3d at 160 (evidence was not overwhelming where
Cooper v. State,

defendant drove up behind marked patrol unit at 110 mph, was weaving

and cutting off other traffic, officers chased him for almost three miles to

catch him, and defendant jumped out of his car and left it in drive).

Viewed through the lens of the Harris factors, this Court cannot hold

that this constitutional error was harmless beyond a reasonable doubt.

See Wilson v. State,
State ___ S.W.3d ___, 2014 WL 6601218 at *5 (Tex.App.–

Houston [1st Dist.] November 20, 2014, pet. filed)..

The judgment of conviction entered below must be reversed and the

cause remanded for a new trial.

22
The defendant in Loy was speeding, swerved, and screeched to a halt, ignored multiple
requests to exit his vehicle, had such difficulty standing that an officer had to keep him from falling,
and gave the officers a cup of toilet water instead of a urine sample. Id. at 618.

47
 POINT OF ERROR NUMBER EIGHT

The trial court erred in denying Appellant’s motion
for mistrial after the prosecutor improperly argued
that Appellant had “hired a dream team to sit
there with him” during final argument of the guilt-
innocence stage of trial, in violation of Art. 38.38 of
the Code of Criminal Procedure.

STATEMENT OF FACTS

In the final moments of rebuttal argument, the prosecutor directed

the jury’s attention to the fact that Appellant had hired a trio of lawyers

as set forth in the following exchange:

MR. PERRY: Again, ladies, it comes down to this,
you can decide to give [Appellant] a pass because
he is sitting there and has hired a dream team to
sit there with him.

MR. GONZALEZ: Objection.

MR. SILVERMAN: That is so –

THE COURT: Sustained. Mr. Perry, have a seat.

MR. SILVERMAN: Judge, at this point in time, that’s
a comment – I can’t cite the specific code; but this
is a direct violation of the law. We ask that the
jury be instructed to disregard the last statement
of this prosecutor.

THE COURT: The jury is instructed to disregard the
last statement.

48
 MR. SILVERMAN: Actually, I move to strike it first.
I move to instruct the jury to disregard it.

THE COURT: Granted.

MR. SILVERMAN: And at this point in time, the
defense moves for a mistrial.

THE COURT: Denied.

MR. PERRY: Judge, I would ask for two minutes in
the interest –

THE COURT: No, sir. Have a seat. Thank you.

(5 RR 61).

As soon as the jury retired to begin its deliberations, the following

colloquy ensued:

THE COURT: Mr. Silverman wanted to put
something on the record. Go ahead, Mr.
Silverman.

MR. SILVERMAN: Yes, sir. At the conclusion of the
State’s closing argument, the prosecutor had,
quote, said that [Appellant] had hired this dream
team – this dream team, end quote.

This is a direct violation. The statute that I was
attempting to articulate was Article 38.38 of the
Texas Code of Criminal Procedure that in a
criminal case, neither the judge nor the attorney
representing the State may comment on the fact
that the defendant’s contacted or retained an
attorney in this case.
49
 I would re-urge my motion for mistrial pursuant
to Article 38.38.

THE COURT: Still denied.

(5 RR 62-63).

ARGUMENT AND AUTHORITIES

A. The Standard of Review

“The purpose of closing argument is to facilitate the jury’s proper

analysis of the evidence presented at trial in order to arrive at a just and

reasonable conclusion based solely on the evidence.” Harris v. State,
State 122

S.W.3d 871, 883 (Tex.App.– Fort Worth 2003, pet. ref’d). Permissible jury

argument generally falls within one of four areas: (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) responses to

argument of opposing counsel; and (4) pleas for law enforcement. Brown

v. State,
State 270 S.W.3d 564, 570 (Tex.Crim.App. 2008). As the Court of

Criminal Appeals cautioned over forty years ago, “The arguments that go

beyond these areas too often place before the jury unsworn, and most

times believable testimony of the attorney.” Alejandro v. State,
State 493

S.W.2d 230, 231 (Tex.Crim.App. 1973).

The law provides for, and presumes a fair trial for the accused, free

50
from improper prosecutorial argument. Borjan v. State,
State 787 S.W.2d 53, 56

(Tex.Crim.App. 1990). This Court has made it clear that appellate courts

should not hesitate to reverse when the State has departed from one of the

permissible areas in final argument and engaged in conduct that denies

the accused a fair and impartial trial. Washington v. State,
State 16 S.W.3d 70,

73 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d); see also United States

Murrah 888 F.2d 24, 27 (5th Cir. 1989)(internal quotation marks
v. Murrah,

omitted)(“Rules of fair play apply to all counsel and are to be observed by

the prosecution and defense counsel alike. ... If anything, the obligation

of fair play by the lawyer representing the government is accentuated.

Prosecutors do not have a hunting license exempt from the ethical

constraints on advocacy.”).

B. The Prosecutor’s Final Argument Violated Art. 38.38

Art. 38.38 of the Code of Criminal Procedure mandates that:

Evidence that a person has contacted or retained
an attorney is not admissible on the issue of
whether the person committed a criminal offense.
In a criminal case, neither the judge nor the
attorney representing the state may comment on
the fact that the defendant has contacted or
retained an attorney in the case.

The prosecutor’s remark that jurors had to “decide [whether] to give
51
[Appellant] a pass because he is sitting there and has hired a dream team

to sit there with him,” was a clearly improper, full-frontal attack on the

protections embodied in Art. 38.38. By directing the jury’s attention to the

fact that Appellant had hired a defense “dream team” to represent him,

the prosecutor’s remark improperly invited jurors to consider Appellant’s

invocation of his right to counsel as evidence of his guilt. See Hardie v.

State
State,
te 807 S.W.2d 319, 322 (Tex.Crim.App. 1991)(“Such adverse use of

evidence that a defendant invoked a right of privilege which has been

granted him, is constitutionally impermissible.”); Kalisz
Kalisz v. State,
State 32

S.W.3d 718, 723 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d)(“Because

evidence of an accused invoking his constitutional right to counsel may be

construed adversely to a defendant and may improperly be considered as

an inference of guilt, the trial court erred in admitting Officer Anderson’s

query concerning the right to counsel and everything that followed.”);

Gray v. State,
State 986 S.W.2d 814, 815 (Tex.App.– Beaumont 1999, no

pet.)(“In accordance with Hardie and its progeny, we hold the trial court

erred in admitting Gray’s invocation of his right to counsel. ...”); Loy v.

State 982 S.W.2d 616, 617 (Tex.App.–Houston [1st Dist.] 1998, no pet.)
State,

(“Appellant clearly invoked his right to counsel. Evidence showing that
52
was inadmissible.”); see also Byas v. State,
State 906 S.W.2d 86, 87 (Tex.App.–

Fort Worth 1995, pet. ref’d)(prosecutor’s final argument accusing defense

attorney of being “slick” was manifestly improper). Because the trial court

recognized this violation of Art. 38.38, it properly sustained Appellant’s

objection and instructed the jurors to disregard the improper comment.

C. This Improper Argument Affected Appellant’s Substantial Rights

Because the trial court sustained Appellant’s objection, instructed

the jury to disregard the argument, but denied his request for a mistrial,

this Court must determine whether the trial court abused its discretion

in denying a mistrial. Because improper final argument of this ilk is not

one of constitutional dimension, Mosley v. State,
tate 983 S.W.2d 249, 259

(Tex.Crim.App. 1998), this Court must decide if it “had a substantial and

injurious effect or influence in determining the jury’s verdict.” King v.

State,
State 953 S.W.2d 266, 270 (Tex.Crim.App. 1997). In resolving this issue,

this Court must balance a trio of factors: (1) the severity of the misconduct

(the magnitude of the prejudicial effect of the prosecutor’s remarks), (2)

the measures adopted to cure the misconduct (the efficacy of any

cautionary instruction by the judge), and (3) the certainty of conviction

absent the misconduct (the strength of the evidence supporting the jury’s
53
verdict). Archie v. State,
State 340 S.W.3d 734, 739 (Tex.Crim.App. 2011).

“Mistrial is the appropriate remedy when ... the objectionable events ‘are

so emotionally inflammatory that curative instructions are not likely to

prevent the jury from being unfairly prejudiced against the defendant.”

Young v. State,
State 137 S.W.3d 65, 71 (Tex.Crim.App. 2004).

1. Severity of the Misconduct

The prosecutor’s argument improperly directed the jury’s attention

to Appellant’s “dream team” of defense lawyers, inviting them to consider

Appellant’s invocation of his right to counsel as evidence of his guilt. The

argument took place during the State’s rebuttal, when its harmful effect

could not have been attenuated by Appellant’s argument, see Brown v.

State,
State 978 S.W.2d 708, 714-715 (Tex.App.– Amarillo 1998, pet. ref’d), and

was a final plea made to jurors before retiring to deliberate. See Barnum

v. State,
State 7 S.W.3d 782, 794 (Tex.App.– Amarillo 1999, pet. ref’d). This

factor, therefore, weighs in favor of a finding of harm. See Washington v.

State 16 S.W.3d 70, 74 (Tex.App.– Houston [1st Dist.] 2000).
State,

2. Steps Taken to Cure the Misconduct

Ordinarily, injury from improper jury argument is obviated when

the court instructs jurors to disregard, unless it is so inflammatory that
54
its prejudicial effect cannot reasonably be cured by an instruction. McKay

v. State,
State 707 S.W.2d 23, 37 (Tex.Crim.App. 1985). But this remark was,

by its very nature, inflammatory, and injected new facts harmful to

Appellant into the trial. See Thompson v. State
State, 89 S.W.3d 843, 851

(Tex.App.– Houston [1st Dist.] 2002, pet. ref’d)(because “argument was, by

its very nature, inflammatory ... an instruction from the trial court to the

jury to disregard such comment would have had no curative effect.”). Not

only did the remark violate Art. 38.38, a mandatory statute, its not-so-

subtle invitation to the jury to consider the “dream team” as evidence of

Appellant’s guilt, violated his constitutional right not to be penalized for

retaining counsel. Accordingly, the trial court’s instruction to disregard

State 321 S.W.3d 583, 597
was insufficient to cure the error. See Kelly v. State,

(Tex.App.– Houston [14th Dist.] 2010, no pet.)(“The argument was clearly

inflammatory. The argument occurred late in the State’s final closing

argument and likely left a strong impression on the jury. Thus, the

prejudicial effect of the ... argument was severe.”).

3. Certainty of Conviction Absent the Error

While the State will undoubtedly argue that Appellant’s conviction

was certain absent the prosecutor’s improper and inflammatory remark,
55
this rote response is unavailing. While evidence of Appellant’s guilt may

be legally sufficient, “it is not so overwhelming that the error’s effect upon

the jury’s function in determining the facts dissipated.” Gray v. State,
State

986 S.W.2d at 816. Aside from the boilerplate facts testified to by peace

officers in every DWI prosecution,23 there was no blood or breath test

fortifying the State’s claim that Appellant was intoxicated. In spite of the

relatively brief time spent in trial, the jury deliberated from 10:04 a.m.

until 4:14 p.m. before returning a guilty verdict, (CR 125, 133), compelling

evidence, as this Court held in a similar case, that the State’s proof was

State 982 S.W.2d at 618-619 (“[T]he jury
less than overwhelming. Loy v. State,

deliberated on guilt for nearly two hours, possibly indicating it thought

the evidence was close.”24). This factor weighs in favor of finding that the

prosecutor’s improper remark affected Appellant’s substantial rights. See

Bush v. State,
State 2014 WL 309780 at *6 (Tex.App.– San Antonio 2014, no

23
The State argued that Appellant failing the horizontal gaze nystagmus test administered
by Trooper Gonzalez was compelling evidence of his intoxication. (5 RR 50, 53). Notably, Dr.
Juliet Farmer, Appellant’s optometrist, testified that because of his amblyopia, Appellant’s eyes did
not track normally, resulting in a latent horizontal nystagmus, that would account for Gonzalez’s
testimony that he detected horizontal gaze nystagmus in Appellant’s eyes. (4 RR 251-252, 259).
24
Unlike the facts in this case, the defendant in Loy was speeding, swerved, and screeched
to a halt, ignored multiple requests to exit his vehicle, had such difficulty standing that an officer was
called in to keep the defendant from falling, and gave the officers a cup of toilet water instead of a
urine sample. Id. at 618.

56
pet.)(not designated for publication)(“Bush’s evidence of guilt was not ‘very

strong’ and the certainty of conviction was not ‘high’ despite the improper

statement by the prosecutor.”); York v. State,
State 2008 WL 2677368 at *11

(Tex.Crim.App. 2008)(not designated for publication)(“The certainty of a

conviction absent the improper argument is extremely speculative.”);

State 371 S.W.3d 448, 460 (Tex.App.– Houston [14th Dist.] 2012,
Watts v. State,

no pet.)(“Absent the prejudice from an improper argument, we cannot say

that appellant’s conviction ... was in any way certain.”).

4. Conclusion

As all three Mosley factors weigh in favor of a finding of harm, this

Court has no fair assurance the improper argument did not influence, or

had only a slight effect on the jury’s verdict. See Bush v. State,
State 2014 WL

309780 at *7 (“[B]ecause all three prongs of the harm analysis weighed in

Bush’s favor, and against the State, we conclude that Bush showed her

substantial rights were affected.”). The trial court, therefore, abused its

discretion in denying Appellant’s motion for mistrial. See Thompson v.

State,
State 89 S.W.3d at 851.

The judgment of conviction entered below must be reversed and the

cause remanded for a new trial.
57
 CONCLUSION AND PRAYER

Appellant respectfully prays that this Honorable Court sustain the

appellate contentions here advanced, reverse the judgment of conviction

entered below, and remand the cause for a new trial.

RESPECTFULLY SUBMITTED,

/s/ Brian W. Wice
______________________________
BRIAN W. WICE

The Lyric Centre
440 Louisiana Suite 900
Houston, Texas 77002-1635
(713) 524-9922 PHONE
(713) 236-7768 FAX
TBA NO. 21417800

COUNSEL FOR APPELLANT
ERIK FORREST FRIEND

CERTIFICATE OF SERVICE

Pursuant to TEX.R.APP.P. 9.5(d), I certify that a copy of this brief

was served upon opposing counsel, David Bosserman, Appellate Section,

Brazoria County District Attorney’s Office, 111 Locust, Angleton, Texas,

77515, by e-filing on January 9, 2015.

/s/ Brian W. Wice
_______________________________
BRIAN W. WICE
58
 CERTIFICATE OF COMPLIANCE

Pursuant to TEX.R.APP.P. 9.4(1)(i)(1), I certify that this document
complies with the type-volume limitations of TEX.R.APP.P.
.P 9.4(i)(2)(D):

1. Exclusive of the exempted portions set out in TEX.R.APP.P.
.P 9.4(i)(1),
this document contains 11,722 words.

2. This document was prepared in proportionally spaced typeface using
Word Perfect 8.0 in Century 14 for text and Times New Roman 12 for
footnotes.

/s/ Brian W. Wice
_______________________________
________________________
BRIAN W. WICE

59