Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00446-CR ___________________________ ADAM GALO, Appellant V. THE STATE OF TEXAS On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1840268 Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION Adam Galo appeals from his conviction by a jury of theft. In a single point on appeal, he contends that the trial court erred by overruling his objection to the State’s alleged improper jury argument alluding to his decision to not testify. We will affirm the trial court’s judgment. Background In August 2024, Galo entered a Target store, concealed a baby-vitals monitor and a baby-monitor camera in a bag that he had brought with him, and attempted to depart the store with the bag, passing the point of sale without attempting to pay. Loss-prevention personnel intercepted Galo; he told them that he had intended to resell the items on Facebook Marketplace. After arriving on the scene, Officer Robert Fulton of the Grand Prairie Police Department discovered additional baby monitors in Galo’s car, along with five unattended children. In October 2024, a grand jury indicted Galo for one count of theft of property with a value of less than $2,500, with two prior theft convictions, a state-jail felony. See Tex. Penal Code § 31.03(a)–(b), (e)(4)(D). On November 17, 2025, Galo pled not guilty and the case was tried to a jury, which found Galo guilty and assessed his punishment at eighteen months’ confinement in state jail. See id. § 12.35. The trial court sentenced him accordingly and this appeal followed. 2 Applicable Law and Standard of Review To be permissible, the State’s jury argument generally must fall within one of the following four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). We review a trial court’s ruling on an objection to improper jury argument for an abuse of discretion. Kitchens v. State, 721 S.W.3d 467, 485–86 (Tex. Crim. App. 2025). A trial court does not abuse its discretion where its ruling falls within the zone of reasonable disagreement. Id. at 486. Counsel may not allude to a defendant’s decision to not testify. U.S. Const. amend. V; Tex. Code Crim. Proc. art. 38.08. To determine if a prosecutor’s comment impermissibly referred to an accused’s decision to not testify, we must decide whether the language used was plainly intended to comment on the defendant’s decision to not testify or was of such a character that the jury naturally and necessarily would have considered it to be so. Sandoval v. State, 665 S.W.3d 496, 550 (Tex. Crim. App. 2022). We must view the offending language from the jury’s standpoint, and the implication that the comment referred to the accused’s decision to not testify must be clear. Id. A merely indirect or implied allusion to the defendant’s decision to not testify does not violate the accused’s right to remain silent. Id. Thus, we must consider the comment’s context. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). 3 Application The following exchange occurred at the beginning of the rebuttal portion of the State’s closing arguments: [Prosecutor]: Ladies and gentlemen of the jury, it’s a nice story. But part of what you’re doing today is you’re considering the evidence. You’re considering what people got up on the stand and testified to while they were under oath. For Mr. Galo, we did not hear any evidence that he was destitute. [Defense counsel]: Your Honor, I’m going to object. He’s testifying on his right to remain silent. It’s an improper argument. We asked that it be struck from record as well and instruction of the jury. THE COURT: It’s overruled. [Prosecutor]: There was no witness that testified to this destitute condition. Speculation. And I get it. I come from a family of five kids. I’m the 2nd to youngest. Because context matters in determining this argument’s permissibility, we examine what preceded this exchange. Prior to the State’s argument, defense counsel gave a closing argument heavily focused on “[t]heft, the effects it has, and why people do it.” Defense counsel went on to argue that Galo had “gone through some hard times. Hard enough that he was pushed to the point where he had to go commit theft to try to keep the lights on and food in his kid’s mouth.” The defense further argued that Galo had not been “acting in some type of organized criminal activity . . . [or] some type of gang” but was “simply . . . trying to feed his kids.” Defense counsel concluded by reinforcing to the jury the importance of considering that Galo “had no 4 choice but to steal in order to keep his life going” and by asking the jury to deliver a verdict of not guilty. A “prosecutor may comment on the defendant’s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify.” Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000). Additionally, a comment about the decision to not testify is permissible if it is a fair response to the defendant’s claims or assertions. Randolph, 353 S.W.3d at 892. Here, it is clear the prosecutor was referring to the defense’s immediately preceding argument that Galo had committed theft out of necessity when he said, “[I]t’s a nice story.” The prosecutor then reminded the jury of its duty to consider the evidence, specifically “what people got up on the stand and testified to while they were under oath.” Thus, the following statement––“For Mr. Galo, we did not hear any evidence that he was destitute”––was not a clear allusion to Galo’s choice to not testify but instead to the defense’s failure to produce evidence of Galo’s economic circumstances.1 See, e.g., Taylor v. State, No. 12-21-00176-CR, 2022 WL 1751372, at *5 (Tex. App.—Tyler May 31, 2022, pet. ref’d) (mem. op., not designated for publication); Devereaux v. State, No. 2-09-030-CR, 2009 WL 4114601, at *1–2 (Tex. 1 Even if the comment could be construed as alluding to Galo’s decision to not testify by referring to evidence only he could provide, we would consider it merely an indirect allusion and therefore not impermissible. See Woodard v. State, No. 02-24- 00148-CV, 2025 WL 494642, at *3–4 (Tex. App.––Fort Worth Feb. 13, 2025, no pet.) (mem. op., not designated for publication) (holding permissible argument that defendant never apologized or “at any point, [got] down on his knees and say, ‘What did I do? I can’t believe what I’ve just done’” because the murder “was planned”). 5 App.—Fort Worth Nov. 25, 2009, pet. ref’d) (mem. op., not designated for publication). Nothing in this record indicates that the prosecutor’s argument was plainly intended to comment on Galo’s decision to not testify or was of such a character that the jury naturally and necessarily would have considered it to be so. Rather, the comment was made in response to the defense’s argument about Galo’s economic situation at the time of the crime and the lack of evidence in support of that argument. See Jackson, 17 S.W.3d at 674; see also Sandoval, 665 S.W.3d at 550. We overrule Galo’s sole point. Conclusion Having overruled Galo’s sole point, we affirm the trial court’s judgment. /s/ Wade Birdwell Wade Birdwell Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 13, 2026 6