Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00029-CR Larry Laverne Dunn, Jr., Appellant v. The State of Texas, Appellee On appeal from the 12th District Court of Walker County, Texas Judge J. D. Langley, presiding Trial Court Cause No. 29834 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION A jury found Larry Dunn, Jr. guilty of the felony offense of driving while intoxicated, third or more. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b). The trial court found the enhancement allegation true and assessed Dunn’s punishment at fifteen years’ confinement in the penitentiary. In his sole issue on appeal, Dunn argues that the trial court erred in denying his motion for a mistrial. We affirm. A. Background There is no challenge to the sufficiency of the evidence to support Dunn’s conviction for driving while intoxicated. Therefore, we will summarize the underlying facts briefly and as relevant to the issue on appeal. On January 3, 2021, Officer Lucas Cowl, with the Huntsville Police Department, observed a vehicle operating without a headlight. Officer Cowl initiated a traffic stop and spoke with Dunn, who was the driver of the vehicle. Dunn admitted that he had consumed alcohol, and Officer Cowl observed signs that Dunn was intoxicated. Officer Cowl attempted, but was unable, to conduct the horizontal gaze nystagmus test or other field sobriety tests on Dunn. Officer Cowl determined that he had probable cause to arrest Dunn for driving while intoxicated based upon his slurred speech, his difficulty balancing and following simple instructions, and open containers of alcohol in the vehicle. Dunn was placed under arrest but refused to give a blood specimen. Officer Cowl obtained a search warrant for a blood draw and transported Dunn to the hospital. Officer Cowl described that Dunn’s demeanor would go from agitated to calm. Dunn told Officer Cowl that they would not get his blood without a fight. Officer Cowl requested another officer to come to the hospital for assistance. Medical personnel were able to obtain a blood sample from Dunn v. State Page 2 Dunn, which revealed an alcohol concentration of 0.23, well over the legal limit of 0.08. B. Standard of Review We review a trial court’s denial of a motion for mistrial for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). A reviewing appellate court will “reverse only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009) (internal quotation marks omitted). Absent such an abuse of discretion, an appellate court “would not be justified in reversing the judgment.” Smith, 286 S.W.3d at 339. C. Authority Permissible jury argument falls into one of four general categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to opposing counsel’s argument; or (4) pleas for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007). Prosecutorial argument that refers to a defendant’s failure to testify violates the defendant’s constitutional and statutory right against compelled self-incrimination. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08. Dunn v. State Page 3 The reviewing court must consider the prosecutor’s statement from the jury’s standpoint, and a reference to the defendant’s failure to testify must be clear. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The language must be more than an implied or indirect allusion to the failure of the accused to testify. Randolph, 353 S.W.3d at 891. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Id. (internal footnotes and citations omitted). D. Discussion Dunn argues that the trial court erred in denying his request for mistrial when the State improperly commented on his right not to testify at trial and that the trial court’s instruction exacerbated the State’s comment. During closing arguments, the State commented: We know he had a car full of open containers - - beer, whiskey, malt beverage. We saw his attitude. We have seen him sitting here for two days silent and polite and not reacting - - Dunn’s trial counsel objected that the State commented on his client’s right not to testify. The State responded that this was evidence that came out during Officer Cowl’s testimony. The trial court instructed the jury: Dunn v. State Page 4 If there is anything that the prosecutor just said that could be inferred by the jury to be a comment, then the jury should not consider that for any purpose whatsoever. Otherwise, as long as it is a reasonable connection to the evidence presented, it may be considered. Dunn’s trial counsel requested a mistrial, and the trial court denied his request. The State continued its argument by noting that Dunn’s attitude in the video evidence admitted at trial showed him threatening to fight Officer Cowl prompting a call for a backup officer to come to the hospital. The State’s comment was not a clear reference to Dunn’s failure to testify. See Bustamante, 48 S.W.3d at 765. During Officer Cowl’s testimony, the jury viewed video evidence of Dunn’s demeanor at the time of the offense. On redirect examination, the State asked Officer Cowl, “[b]ased solely on your observations here in court today, would you believe that [Dunn] had a less than normal use of his mental or physical faculties that day.” Officer Cowl responded in the affirmative. Then on cross-examination, Dunn’s counsel noted that Officer Cowl’s observations of Dunn in the courtroom “consists solely of him sitting here being quiet.” Officer Cowl agreed with counsel’s statement. Officer Cowl further testified that unlike in the courtroom, Dunn did not sit quietly on the night of the offense. Viewing the complained-of comment in context, the State was not commenting on Dunn’s failure to testify at trial, but rather was attempting to Dunn v. State Page 5 persuade the jury that Dunn’s attitude and demeanor at the time of his arrest was evidence of intoxication. The State’s comment was a reasonable deduction from Officer Cowl’s testimony that Dunn’s belligerent attitude at the time of the offense was an indication of his intoxication. See Gallo, 239 S.W.3d at 767. We cannot conclude that the jury argument was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on Dunn’s failure to testify. See Randolph, 353 S.W.3d at 891. In addition, we disagree that the trial court’s instruction to the jury exacerbated the State’s comment. The State’s remark was permissible as a deduction from the evidence, and the trial court properly instructed the jury that it could consider the prosecutor’s statement only if it had a reasonable connection to the evidence presented. The court also instructed the jury that, if anything the prosecutor had just said could be inferred as a comment, the jury was not to consider it for any purpose whatsoever. Moreover, we review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Coble, 330 S.W.3d at 292. To determine whether the trial court abused its discretion in denying a motion for mistrial for improper jury argument, we consider three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of Dunn v. State Page 6 conviction absent the error. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). Applying those factors, even if the State’s jury argument was a comment on Dunn’s right not to testify, the trial court did not abuse its discretion in denying the motion for mistrial. Because the State did not make any other reference to Dunn’s silence at trial, the severity of any misconduct was low. The trial court promptly gave the jury an oral instruction; the jury charge correctly instructed the jury on Dunn’s right not to testify at trial and that the jury could not hold his silence against him. We generally presume that a jury will follow the trial court’s instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). There was strong evidence supporting Dunn’s conviction. His blood alcohol concentration was 0.23, well over the legal limit of 0.08. Accordingly, even if we were to assume that the State commented on Dunn’s right not to testify, the trial court did not abuse its discretion in denying the motion for mistrial. We overrule Dunn’s sole issue on appeal. E. Conclusion Having overruled Dunn’s sole issue on appeal, we affirm the trial court’s judgment. Dunn v. State Page 7 MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: November 12, 2026 Before Chief Justice Johnson, Justice Harris, and Justice Westerfeld Affirmed Do not publish CR25 Dunn v. 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