Crocker v. State
In Crocker v. State, 248 S.W.3d 299 (Tex. App.--Houston 1st Dist. 2007, pet. ref'd), the State argued during closing:
"And I will tell you this: The State and the defense have the same ability to bring in witnesses in this case. The State can subpoena witnesses. The defense can subpoena witnesses. Okay. You heard from the State's witnesses as to who was there January 26, 2004. And the State's witnesses only. And I ask that you find him guilty." (Crocker, 248 S.W.3d at 303.)
The trial court sustained Crocker's objection to the argument, but denied his motion for mistrial. See id. Crocker's "theory of the case was that the State failed to meet its burden of proof beyond a reasonable doubt." Id. at 304.
No physical evidence connected Crocker to the robbery, the complainant was the source of all of the evidence offered by the State, and no one else was present during the offense. See id. at 304-05.
The First Court found the argument to be improper because it "was an indirect comment on Crocker's failure to testify, as it drew the jury's attention to the absence of evidence that only Crocker's testimony could supply." Id. at 305.