Reversing Court Decision Because of Improper Jury Argument
When a court reverses a decision because of improper jury argument ?
In Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), the court relied on the following three factors to analyze the harm associated with improper jury argument and to determine whether reversal was required:
(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks);
(2) 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 conviction). See Mosley, 983 S.W.2d at 259.
The Mosley court found that the first factor (severity of the misconduct) did not weigh very heavily in Mosley's favor because the inappropriate argument of the prosecutor did not inject new facts into the record; thus, the jury was in a position to evaluate the truthfulness of the prosecutor's assertion.
In contrast, the argument of the prosecutor in this case did inject new facts into the record.
Further, the argument was calculated to negate appellant's interpretation of the only piece of physical evidence she offered to show self-defense.
It is very likely that the jury, upon hearing the improper comment and being unable to evaluate the truthfulness of the remark, attached great weight to it coming from the prosecutor, who could be seen as having some special expertise in the realm of autopsies.
In addition to the Mosley factors, the emphasis placed on the improper comment and the cumulative effect of multiple errors are appropriate considerations in determining the injurious effect of the argument. See Reed v. State, 991 S.W.2d 354, 364 (Tex. App.--Corpus Christi 1999, pets. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex. Crim. App. 1997) and Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988)).