Background

• Appellant was charged by indictment with aggravated sexual assault of a child for penetrating his daughter’s anus with his penis.
• Daughter testified detailing the assault and past acts by Appellant.
• Son testified he saw Appellant on top of his sister with pants down.
• Defense argued the accusations were fabricated due to nonpayment of child support and lacked details.
• During closing, State responded to defense’s vagueness argument; objection and mistrial motion followed; court denied mistrial.

Issues

Key Cases Cited

• Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007) (standard for reviewing mistrial rulings; within zone of reasonable disagreement)
• Bryant v. State, 340 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010) (mistrial review; respect for trial court discretion)
• Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) (extreme prejudice required for mistrial)
• Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (mistrial when obvious procedural error would preclude conviction)
• Hernandez v. State, 805 S.W.2d 409 (Tex. Crim. App. 1990) (fact-specific inquiry for error and remedy)
• Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999) (proper scope of jury argument)
• Swarb v. State, 125 S.W.3d 672 (Tex. App.—Houston [1st Dist.] 2003) (invited argument permissible within scope)
• Sandoval v. State, 52 S.W.3d 851 (Tex. App.—Houston [1st Dist.] 2001) (consideration of argument in light of record)
• Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996) (disregard instructions as curative for error)
• Albiar v. State, 739 S.W.2d 360 (Tex. Crim. App. 1987) (invited argument response permissible)
• Soto v. State, 864 S.W.2d 687 (Tex. App.—Houston [14th Dist.] 1993) (response to defense argument not error when invited)
• Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) (limits of invited argument)
• Sanchez v. State, 837 S.W.2d 791 (Tex. App.—Houston [14th Dist.] 1992) (invited argument permissible)