Erik Forrest Friend v. State ( 2015 )


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  •                                                                                                              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 Bur. 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 Pet. 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