Jacobson v. State, 343 S.W.3d 895

Appellant Jacobson was convicted by jury of aggravated sexual assault of a child and sentenced to 45 years in prison.
Appellant argued the trial court erred by overruling his objection to the State’s jury argument that struck at him over the shoulders of counsel.
The argument occurred during the State’s closing in punishment, after defense had characterized the investigation as a witch hunt.
During punishment, Appellant testified to having an ongoing sexual relationship with the minor, B.J.P.
The court analyzed DeGarmo and Leday to determine whether the error was preservable and fundamental, ultimately holding it was not and affirming the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State struck at appellant over the shoulders of counsel.	Jacobson	State	Issue not preserved; no fundamental error; affirmed.

DeGarmo v. State, 691 S.W.2d 657 (Tex.Crim.App. 1985) (limits on appeal of guilt-phase errors when guilt admitted at punishment)
McGlothlin v. State, 896 S.W.2d 183 (Tex.Crim.App. 1995) (clarifies DeGarmo doctrine)
Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998) (estoppel after confession; non-exhaustive exceptions list)
Gutierrez v. State, 8 S.W.3d 739 (Tex.App.-Austin 1999) (applies Leday framework for post-confession review)
Jarmon v. State, 263 S.W.3d 25 (Tex.App.-Houston 2006) ( Leday analysis in offense-confession context)
Houston v. State, 208 S.W.3d 585 (Tex.App.-Austin 2006) (same general principle on forfeiture and appeal)
Kelley v. State, 22 S.W.3d 628 (Tex.App.-Fort Worth 2000) (example of non-preservable objection)
Brown v. State, 270 S.W.3d 564 (Tex.Crim.App. 2008) (error of striking over counsel treated as nonconstitutional, harm analysis)
Martinez v. State, 17 S.W.3d 677 (Tex.Crim.App. 2000) (harm analysis for such errors)
Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998) (nonconstitutional error standard for this type of issue)