Cavazos v. State, 329 S.W.3d 838

Cavazos was convicted of murder and sentenced to 28 years' imprisonment and $5,000 fine.
The State alleged two paragraphs of murder; the trial court directed verdict on the first paragraph, leaving only the second paragraph for the jury.
The incident occurred at a party when Rogelio Terrazas allegedly provoked Cavazos with taunts; Cavazos shot Rogelio twice and fled.
Cavazos was extradited from Mexico after fleeing to the United States; he was eventually brought to trial in Texas.
During closing arguments, the prosecutor made a remark Cavazos contends violated the prohibition on commenting on a defendant's failure to testify, and Cavazos moved for mistrial.
Cavazos argued the trial court erred by failing to give a requested manslaughter instruction; the court denied relief and the jury was instructed on guilt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the prosecutor's closing remark warrant a mistrial?	Cavazos contends the remark commented on his failure to testify.	State asserts the remark was not a comment on failure to testify and could be cured by instruction.	No abuse of discretion; mistrial not warranted.
Should the jury have been instructed on manslaughter as a lesser offense?	Manslaughter is a lesser-included offense of murder under the indictment.	Manslaughter is not a lesser-included offense given the cognate-pleadings analysis and elements.	Manslaughter not a lesser-included offense; no instruction required.

Mayberry v. State, 532 S.W.2d 80 (Tex.Crim.App.1975) (trial court response to objection not an adverse ruling)
Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App.2004) (abuse of discretion in denying mistrial when curative instructions available)
Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998) (mistrial factors balancing framework)
Newby v. State, 252 S.W.3d 431 (Tex.App.-Houston [14th Dist.] 2008) (mistrial standards and curative instructions)
Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App.1995) (curative instruction sufficiency for improper argument)
Cruz v. State, 225 S.W.3d 546 (Tex.Crim.App.2007) (prosecutor cannot comment on failure to testify)
Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Crim.App.1983) (no culpable mental state required for act clearly dangerous to human life)
Ex parte Watson, 306 S.W.3d 259 (Tex.Crim.App.2009) (cognate-pleadings approach to lesser-included offenses)
Forest v. State, 989 S.W.2d 365 (Tex.Crim.App.1999) (firing a gun at an occupied vehicle implies intent to cause serious bodily injury)
Jackson v. State, 115 S.W.3d 326 (Tex.App.-Dallas 2003) (supporting analysis of greater offense containing lesser offense elements)
Ex parte Watson, 306 S.W.3d 259 (Tex.Crim.App.2009) (cognate-pleadings approach (reexamination of McCoy ruling))