What Is An Improper Jury Argument In Texas ?
Proper jury argument must be confined to four permissible areas, namely:
(1) summation of the evidence;
(2) reasonable deductions from the evidence;
(3) an argument of opposing counsel;
(4) a plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App. 1996).
The test to determine whether an improper argument constitutes reversible error is whether the argument: (1) violates a statute;
(2) injects a new and harmful fact into the case;
(3) is manifestly improper, harmful and prejudicial to the rights of the accused. Id.
It is the general rule that harm caused by an improper argument is cured by an appropriate and timely instruction to disregard, unless the remark was so inflammatory that its prejudicial effect cannot be effectively removed. Bower v. State, 769 S.W.2d 887, 907 (Tex.Crim.App.), cert. denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed. 2d 611 (1989); Jones v. State, 693 S.W.2d 406, 409 (Tex.Crim.App. 1985).
Generally, comments that fall outside these areas of permissible argument are not constitutional errors. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Instead, they constitute "other errors" within the purview of rule 44.2(b) of the Texas Rules of Appellate Procedure. Id.
Under rule 44.2(b), any error that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b).
In applying this rule, we look to three factors:
(1) the severity of the misconduct;
(2) measures adopted to cure the misconduct;
(3) the certainty of conviction absent the misconduct. See Mosley, 983 S.W.2d at 259.