*1 procedural to a rule in abrogation of the justice,
rule of equity.1 fairness and We
place form over substance. We retroac-
tively apply procedure to a substantive
right of contract. And eye we turn a blind apparent
on an upon fraud the court.
would reverse and remand. Douglas PEAK, Appellant,
Brian Texas, Appellee.
The STATE of
No. 14-99-01137-CR. Appeals Texas,
Court of (14th Dist.).
Houston
Junе alone, There, ship’s captain, judge 1. Like a justice equity. must not fix is the sound gaze solely right, to the the rule. She is middle course between slavish adherence to left, glance summoned to sometime the rule and the shoals fairness. *2 Isbell, Houston, TX, appel- for Allen C. lants. Roch, Houston, TX, for
S. Elaine lees. ANDERSON, consists of Justices
Panel HUDSON, and SEYMORE. examine
MAJORITY OPINION
hymen, appellant
offered to
perform the examination.
complain-
SEYMORE, Justice.
ant agreed
inserted his fin-
Peak,
Appellant, Brian
was indicted for
ger
vagina. Appellant
into her
was unable
*3
the offense of sexual assault of a child.
hymen
conclude whethеr her
was intact.
22.011(a)(2) (Vernon
§
Tex. Pen.Code Ann.
trial,
During
appellant
having
admitted
Supp.2000). A jury subsequently found
committed the
of a
elements
sexual as-
appellant guilty
punishment
and assessed
sault, but argued
qualified
that his conduct
at eight years confinement in the institu-
statutory
under the
“medical care for the
tional division of TDCJ. Challenging his
conviction,
exception. Attacking
child”
his
conviction, appellant now raises three is-
appellant
argues
first
that the State’s evi-
sues for review. We reverse and remand
dence
legally
factually
was both
insuf-
for a new triаl.
ficient to defeat his defense of medical
care.
Background
conviction, appellant
Prior
resided
Legal Sufficiency Standard
wife,
children,
with his
two
and one step-
sufficiency
of
resolving
daughter
complainant Brittany Boone.
—
issue,
whether,
evidence
we determine
af
during
part
April
Sometime
the later
of
viewing
ter
all the
light
evidence
1998, complainant approached appellant
prosecution, any
most favorable to the
ra
and asked for confidential advice. Com-
tional trier of fact would have found the
plainant informed appellant that she re-
beyond
essential elements of the offense
a
cently
boy-
had sexual intercourse with her
Also,
reasonable doubt.
we must deter
friend,
contraception.
without the aid of
ifmine
the trier of fact would have found
pregnancy.
Complainant
She
feared
against appellant on the defensive issue
appellant if
any way
asked
he knew of
beyond a
reasonable doubt.
Tex.
Pen.
pregnancy. Appellant responded
test for
2.03(d) (Vernon 1994);
§
Jack
Code Ann.
complainant
instructing
to inform her
307, 318-19,
v. Virginia,
son
443 U.S.
99
mother
opinion
physi-
and seek the
of a
2781,
(1979);
S.Ct.
plainant adamantly refused to follow this State, App.1991); Lynch v. 952 S.W.2d complainant advice. Both 594, 1997, (Tex.App 598 . —Beaumont using pregnancy considered a retail home writ). test; however, they did not believe complainant’s would be accurate because law, person Under Texas commits the sexual intercourse was recent. (1) of in- offense sexual assault when he: tentionally knowingly causes the
Hoping anxiety pos- to resolve her over penetration of the anus or female sexual pregnancy, complainant sible asked organ by any of a child means. lant if any he knew of other means of Tex. Pen. 22.011(a)(2)(A)(Vernon § Supp. detecting pregnancy. Appellant respond- Ann. Code 2000). A person younger “child” means a by telling complainant ed that she could years spouse age than of who is not the finger vagina insert her into her and deter- 22.011(c). § Finally, of the actor. Id. hymen rup- mine whether her had been may pros- defendant establish a defense to during Appеllant tured intercourse. told proof her she could not ecution with that his conduct consist- pregnant hy- be complainant men intact. ed of medical care for the child and did not After the was informed him that she did not know how to include contact between the anus or (the is that jury’s rejection a defensive issue of the child organ sexual defendant’s) mouth, anus, sufficiency review. an factual organ ordinary or sexual (d). party. third Hernandez v. of the actor or a Id. See refd) 1997, pet. (Tex.App . —Waco admitted inten Appellant that he rejection appel (finding jury’s penetration com tionally caused subject entrapment lant’s defense plainant’s with his vagina finger. middle standard). sufficiency ordinary an factual years fourteen on complainant was old Appellant regarding his mistak- testified question. the occurrence in date of not pregnancy belief could occur en that a Attempting to discredit defen ruptured. hymen Re- unless woman’s care, sive of medical intro issue state *4 belief, jury told the lying on this Dr. testimony duced from Rebecca Giar- probing inside only purpose for det, specialized in pediatrician a who sex complainant’s was to determine vagina Dr. that abuse cases. Giardet testified Appellant intact. hymen whether was patient’s hymen a in examination of order digital probing contends such medical not pregnancy to would consid detect be attempt care. In an to discredit any ered medical care under known medi defense, expert lant’s the State elicited Also, cal an standard. she testified that testimony Dr. Giardet testi- from Giardet. not actor’s belief would override the fact in an examining hymen fied that the at- sup that there is medical standard to not, tempt pregnancy to would determine port such examination. standard, qualify under medical as in Viewing this evidence a most light by if a medical care—even done doctor. prosecution, favorable to the we find that regard- the Finally, complainant testified any rational trier of fact would have found separate appellant, a wherein ing incident assault, the essential elements of sexual prior performing a few to the months and on the against appellant medical care test,” her breast “pregnancy fondled defense, beyond a reasonable We doubt. passionately. Appellant kissed her denied appellant’s overrule first issue review. for fondling the event. kissing Sufficiency Factual Standard In factual conducting a sufficien that, review, legal In contrast to a in mind sufficiency cy we bear while a review, sufficiency reviewing a factual re the may disagree review court with fact determination, quires employ that the evidence be in a it must also viewed finder’s State, light. appropriate nеutral Johnson v. the fact 23 S.W.3d deference to finder’s 1, Johnson, (Tex.Crim.App.2000) 7 at judgment. v. 23 S.W.3d (citing Clewis State, 126, Moreover, finder, jury (Tex.Crim.App. 922 S.W.2d. 134 fact the is enti as 1996)). witnesses, judge credibility conduct such a ex of by We review tled to the all, some, amining weighed the and can by the choose to believe evidence that prove testimony presented by tends to the of an none of the the existence dispute parties. comparing elemental fact Chambers tending (Tex.Crim.App.1991). with disprove According the evidence Johnson, ly, factually fact. at we hold that the evidence was 7. Under review, finding, sufficiency support jury’s the be factual court will set sufficient doubt, appellant’s only contrary yond it is so a reasonable aside a verdict did overwhelming weight of conduct not fall within defensive the evidence Therefore, the clearly wrong unjust. Id. realm of medical care. evi as to be factually sufficient to Finally, reviewing the standard for dence trial was appellant’s by sustain for sexual spouse, placing finger conviction as- his in the fe- sault of a child. We overrule organ [complainant], male sexual thеn issue second for review. [appellant] guilty will find the as indictment, charged (emphasis
Improper Jury Argument added). issue, appellant argues his final paragraphs pro- Subsequent charge that his conviction should be reversed be vide definitions and regarding instructions cause the trial overruling court erred care defense: medical objection to improper argument. instructed that You are it is a defense Specifically, appellant points prose of a prosecution sexual assault cutor’s closing argument in which he ar child thаt the conduct medi- consisted of gued appellant could convicted of be for cal care the child and did not include assault proof sexual without that he acted between the any contact anus or sexual “unlawfully.” mouth, anus, the child and organ of The four permissible areas of organ of the or a or sexual defendant jury argument consist of summation party. third *5 evidence, from reasonable deduction the Therefore, if you find from evi- evidence, argument opposing answer to of beyond a that dence reasonablе doubt counsel, pleas for law enforcement. [appellant] penetration ... did cause the (Tex. 253, Mijores State, v. 11 257 S.W.3d organ [complain- of the female sexual of 1999, App. pet.). [14th no Dist.] — Houston finger; you with his but further find ant] making jury argument, counsel may from the evidence or have a reasonable draw all reasonable inferences from the penetration was doubt thereof such “reasonable, fair, in facts evidence that are in the done ... belief that he was ad- State, legitimate.” v. 4 Melendez care, ministering you medical then will 437, 442 (Tex.Aрp. S.W.3d [1st — Houston acquit the defendant and say your 1999, However, pet.). argument Dist.] guilty.” “not verdict stating contrary charge law to the court’s During closing argument, the State’s Renteria, improper. State 977 v. prosecutor re- following Brewer made the (“Er 606, (Tex.Crim.App.1998) S.W.2d 608 regarding marks definitions instruc- in jury argument going ror lie in does not charge: in initial paragraph tions of the beyond the in charge, stating court’s but [appellant] But what no- Brewer: didn’t same.”). contrary law With this language charge] tice in [about mind, por in we turn relevant standard in- unlawfully, is between words of the jury charge tions and thе State’s tentionally, or not knowingly. There’s closing argument. you an “and” there. It’s a comma. If jury improper Central to ar- knowingly, you guilty. did it are gument following language issue is the true, That You Judge. Defense: is not charge: the court’s do it unlawfully. have to Now, if you find from the evidence Sustained. Court beyond [ap- ... reasonable doubt can pellant] unlawfully, gentlemen, you did then and there Ladies and Brewer: English. you Each En- intentionally, knowingly cause the read of read an penetration organ says you sexual If it can have glish. of the female [complainant], orange than comma comma or ba- person younger apple nana, apple seventeen and not have to take the years age do
19 rulings jury related to No. 44.2. Erroneous orange and the and the banana? comma, non- generally in- treated as says you unlawfully argument If it are any purview error within the tentionally, knowingly do constitutional 44.2(b). me, this, State, do all of Martinez v. 17 S.W.3d this —excuse Rule going argue 677, Mosley I’m not with guilty. (Tex.Crim.App.2000); 692 says oops State, 249, he I (Tex.Crim.App. the Court.... When 44.2(b) 1998). it I did unlawfully did not do but requires Rule that we disre intentionally knowingly do it but did substantial affecting error not gard [sic], 44.2(b). guess only what? It has do Tex.R.App. P. Stated dif rights. guilty. be one of the three. He’s conviction should not ferently, “[a] criminal for non-constitutional error definitely That’s not true. be overturned Defense: court, reviewing the appellate tell them on the if the after You second— whole, record as a has fair assurance Overruled. Court: or had the error did not influence That means I’m Brewer: Overruled. slight but a effect.” Johnson v. I’m right. right. That means (Tex.Crim.App.1998). Fi paragraph, In the initial we note that nally, following courts use the three fac in- disjunctive language chаrge of the with analyzing tors in the harm associated structed the to convict he (1) severity of improper jury argument: “unlawfully, intentionally, acted or know- (the prej magnitude the misconduct ingly.” light, prosecu- Viewed remarks); prosecutor’s udicial effect of the jury argument proper as it did tion’s adopted cure measures the miscon contrary para- not state law to the initial *6 (the efficacy cautionary in duct of graph charge. Subsequent of the court’s judge); and the cer struction however, language charge, in the includes absent the miscоnduct tainty of conviction instructions on the medical care defense (the supporting strength of the evidence and a requirement acquittal jury of conviction). Martinez, 17 at S.W.3d applicable. finds the defense When we 692-93; at 259. Mosley, 983 S.W.2d juxtapose prosecution’s jury argument portions charge, with the above of the it is Severity A. of the Misconduct
quite
prosecutor purposeful-
clear that the
ly misinterpreted
applicable
and misstated
44.2(b)
guide
Rule
is the
to our
jury
law. He instructed the
it could
that
analysis
harm
in this case.
It was taken
despite
convict
that
finding
appellant’s
directly from Federal Rule of Criminal
purpose.
conduct had a medical
Accord-
52(a)
Procedure
without
substantive
ingly,
prosecution’s
find that the
we
clos-
Tex.R.App.P. 44,
change. See
*7
around,
stupid
all the
laws.
ing
Moreover,
the
prosecutor compounded
the
later,
inac-
prosecutor
ruling
subsequent
effect of this
and
Moments
the
revisited
theme,
That
[appellant]
by exclaiming:
that:
tion
“Overruled.
arguing
this
“if
”
care,
right!
I’m
That means I’m
thought
right!
was medical
means
[his conduct]
court’s fail-
go.
Accordingly,
have to let him
How absurd is
we find that the
”
militates
the
ure to take curative measures
Immediately
that?
after
court sus-
appel-
appellant’s objection
argu-
finding
against
toward a
of harm
tained
law,
ment as a
of the
the
lant.3
misstatement
argu-
by
prosecutor during closing
prosecutor’s precise
were
raised
the
1. The
words
five-year
[appellant]
a
old
"unlawfully”]
“if
can find
"Scratch
word
out.
ment:
[the
into,
any way
part
After
can talk
convince in
[or]
don’t need it. It's not
of the law.”
that he
down,
get a
appellant objected,
prosecutor
panties
to take hеr
he can
stick
the
reiterated
cucumber,
by
microphone or a
saying
[and]
“I’ve now scratched out the
a dildo or a
himself
vagina.”
[unlawfully].
put it into her
word
You consider it because
charge
gives you.
part
judge
the
it’s
analysis
supported by our recent
3.This
is
the
But
can also consider either one of
v. State. See Jones v.
decision in Jones
intentionally].”
[knowingly
words
(Tex.App.
[14th
C. of the Conviction repeatedly misstating
Absent the Misconduct the by misconduct likely a source of confu- law. This was Mosley requires The final factor of the over- jury sion to the because court certainty appellant’s we ascertain the objections to the ruled one of improper jury conviction absent argument. prosecutor’s improper jury argument Appellant testified that his intended act sus- previously subsequently while purpose the medical detecting was for addition, objections. taining similar complainаnt’s hymen. in tear Notwith- prosecutor’s misleading argument en- standing his mistaken belief that an intact couraged disregard hymen prevent would pregnancy, statutory charge’s provision for the de- might lant testified that he be able to rule by labeling care the de- fense of medical pregnancy assuage complain- out a and “ridiculous.” The fense as “absurd” Complainant provide fears. ant’s did not trial court’s failure to take corrective testimony appellant’s asser- controverting improper tion that urged complainant argument he to infоrm measures to cure her mother emphasis visit doctor. Com- on the effect of prosecutor’s and/or plainant adamantly rejected appellant’s ruling significantly the court’s contributed advice, fearing her mother would discover Finally, to the harm. when the record that, problem. undisputed It is follow- examined, carefully evidence is there is no ing complainant’s approval, in- appellant certainty of conviction absent misconduct fingers serted one of his vagina. into her during argument. Accordingly, the final However, disputed evidence also showed appellant’s third The issue is sustained. had, prior some months to judgment of the trial court is reversed incident, complainant’s felt breasts and and remanded for a new trial. passionately lips. kissed her on the Based evidence,
on this record we believe there HUDSON, Justice, concurring. was some evidence contradicting appel- attorney granted potent State’s lant’s contention that his conduct had a procedural advantages closing argu- Nevertheless, medical purpose. we are First, privilege ment. he is afforded the unable to conclude any certainty with opening closing arguments. both rejected would have this defense Second, closing because his remarks improper jury argument. absent rebuttal, the prosecutor not restricted to he may advance theories and deductions
Conclusion possibly op- knows cannot be answered applying Mosley After three factors skillful, If *8 posing counsel. he will direct conjunction analysis with the harm re- evidence, jurors the damning to the most 44.2(b), quired in Rule we do not have conclusions; condemning most and his overruling fair assurance that the error in the hear. words are last will (or appellant’s objection had slight) no a Moreover, jury’s effect on the there are but a handful of finding guilt. Tex. R.App.P. 44.2(b); Johnson, topics attorney. at forbidden to the State’s that, Mosley arguments, during closing the while stated matters out- sis under second factor injected
side the record and new facts bolster- provide the court did not a curative instruc- Id credibility complainant. ing the tion, the prosecu- occurred because the harm appeal, agreed that 796. On the сourt nothing emphasize the erroneous tor did Id. improper jury argument. constituted Id. at 797. ruling. aspects However, majority analy- the concluded in its may, confidence, He with boldness and cal emergency, tends to refute his claim of sum up may care”; the evidence. He make rea “medical admis- sonable deductions from the evidence and complainant sion he did not doing is afforded wide latitude in so. He doing shortly know what he was after he may forcefully arguments answer digitally penetrated the vagina her demon- opposing permitted сounsel. He is strates he had no realistic intention of passionate make pleas However, for law enforce providing “medical care.” a fact, In prosecutor prohibited cannot, here, ment. prosecutor as argue only in making denigrate remarks that or simply should ignore the law. directly infringe upon a small number of attorney The State’s commenced his well statutory established constitutional or closing argument by saying laws “some rights. prosecutor Even when strays really silly.” say He went on to there are conduct, proper frоm the course of really apply some old statutes “that don’t judgment will not be reversed unless the ... any nobody more but has ever taken improper manifestly remark is extreme or them off the books.” He then said: improper, statute, mandatory violative of a If find him not guilty because he facts, injects new harmful the ac care, okay. it was medical believed cused proceeding. into the trial Wesbrook that, you’ve Then num- got to live with (Tex.Crim. ber one. App.2000). Not surprisingly, few convic true, ... gets go If that’s then he tions are reversed due to in argu error today. gets home He to if he can find a When, however, ment. the State’s attor 14-year-old 15-year-old a that he ney consciously deliberately assaults or, hell, five-year-old can he can upon pos the law which the defendant has into, way talk to take convince defense, ited his very error is its down, panties he can or a get stick nature manifestly improper.” “extreme and cucumber, microphone dildo or a or a Here, appellant admitted all the ele- anything, put vagina. he can it into her ments of sexual assault of a child. Hе police And when the come and arrest entirely statutory rested on the defense of day, say him the next he can I believed “medical care.” Tex. Pen.Code Ann. it was medical care. And would or 22.011(d) (Vernon § Supp.2001). In other group the next of twelve would have to words, the defendant’s sole defensive theo- go. let him was, ry was that he at the time of the objection Although appellant’s was sus- offense, providing “medical care” to the tained, prosecutor was undeterred. victim. pursued argument He the same line of response, prosecutor could have regard for the law or fear of the without properly argued that the evidence did not court: support appellant’s reliance on the “medi- [Appellant’s counsel]: MR. BLAINE example, cal care” defense. For That is such a misstatement of the law. attorney argued State’s could have that: THE COURT: Sustained. *9 (1) appellant possessed a lascivious intent have They MR. BLAINE: would to inconsistent with medical care as evi- find— alleged kissing fondling denced his and THE COURT: Sustained. occasion; complainant on another attorney]: [Stаte’s MR. training, lack of medical BREWER can conjunction gentlemen, Mr. Blaine with the absence of medi- Ladies wants; up complain stand all he but THE Sustained. COURT: you. telling that’s what he’s suspended at- prosecutor briefly his you His words to were if the defen- upon erroneously argue to tack the statute you dant —if twelve believe that it was should consider both the defendant’s belief he was adminis- to post-arrest lant’s silence and his failure Mr. tering medical care. Isn’t that what testimony offer in his own de- hearsay you Blaine said? Then have to let him Thereafter, attorney fensе.1 the State’s go. Right? That’s what Mr. Blaine is by sug- attack on the renewed his statute trying you to tell the law is. Now to gesting that when admitted law, let repeat— that’s the me finger in the com- intentionally placing MR. BLAINE: I’m That’s not what plainant’s vagina, judicially he confessed telling you them. That’s what told them committing regard the offense without the law is. statutory-defense: THE COURT: Sustained. [By attorney] got the State’s He kind MR. repeat my- BREWER: Let me I of real cute when showed him the go get self. Then he can out a five- what, you indictment. He said know year-old thing, okay. and to this same absolutely cor- everything on there is Jury He can come into Number Two and except rect. I admit to it that word I say thought it was medical care. And unlawfully. according says, to what Mr. Blaine if the But didn’t what he notice is between thought believes that he it was unlawfully, intentionally the words care, medical not that it was medical knowingly. There’s not an “and” there. okay, care but if thought he is was medi- you If it knowingly, It’s comma. did you got cal care him go. to let How guilty. are absurd is that? true, MR. BLAINE: That is not object MR. BLAINE: Judge, to him Judge. unlawfully. You have to do arguing the law is absurd. That’s the Judge— MR. BREWER: you gave law ’em. THE
THE COURT: Sustained. COURT: Sustained. MR. BREWER: How ridiculous is gentle- MR. BREWER: Ladies and that? men, you your Each English. read
MR. BLAINE: Judge, English. says you that is the law. read If it can have an [By attorney] subpoenaed the State’s or called them When was could have them very first time-think about this. This is just asked them to come to the stand. important. that, When was the first time that They’re certainly here. If he had said anybody our defendant wonderful here told they certainly could have told about it. this, about his medical intent? they MR. BLAINE: You know could not n = nn qjj jjg jjjs say pareilts t0 own have. throughout who have sat here this trial? THE COURT: Sustained. say anything just No. Didn’t about I was objected You MR. BLAINE: would have checking hymen. it, and it would not have been admissi- MR. BLAINE: There’s no evidence of ble. parents. what he said to his THE COURT: Sustained. Judge— MR. BREWER: we MR. BREWER: When is the first time gentlemen, you THE COURT: Ladies and anything hear about his medical intent? testimony. heard the ago. fishy you? days Is that a little Two Well, gentle- MR. BREWER: ladies men, parents obviously They here. *10 banana, than anything comma this case was other “ex- apple orange comma apple improper” have to you manifestly do take the treme would orange and banana? No. use error sanction the of intentional for advantage. tactical says you unlawfully comma inten- It tionally of this— knowingly do comments, I these concur. With me, guilty. do all of excuse this going argue
I’m not with the Court. Blaine. going argue
I’m not with Mr. If says.
Read it. That’s what it mirrors, all
think is smoke and it’s this
right here. says I oops
When he did not unlawful- it but I
ly intentionally do it but did do Raja ALAWAD, Appellant, Yousef only do it what? It knowingly guess did guilty. to be one of three. He’s has definitely BLAINE: not MR. That’s Texas, Appellee. The STATE of true. You tell them on the second— THE No. COURT: Overruled. 14-99-00971-CR. That MR. BREWER: Overruled. Texas, Appeals Court of I’m right. right. I’m That means means (14th Dist.). Houston definition, statutory “defense By June 2001. presumes defendant com- prosecution” alleged acts in the indictment. mitted the
Thus, an im- attorney made State’s law, contrary to
proper statement of the charge, argued he
the court’s when physical
appellant’s admission of certain disрensed jury’s with need to con-
acts statutory the merits of
sider erred Accordingly, trial court
defense. overruling appellant’s objection. jury to attorney
The State’s asked the 22.011(d) because, in his section
ignore
view, silly. advocating When
case, prosecutor to have fol- seems “law is adage
lowed the mistaken boldly plausibly
whatever is asserted adhering to
maintained.”2 Rather than state, statutes of the court’s
the actual repeated of the trial
charge, rulings or the prosecutor in his mis-
judge, persisted until, last, had been both
conduct error pre-
injected proceedings into the for our To hold the error
served review. 1858). (7th Parton, Life Burr ed. and Times of Aaron James Notes ing argument improper was because he Comments; State, v. Mosley 983 S.W.2d repeatedly stated law to the contrary 249, Therefore, (Tex.Crim.App.1998). 259 court’s instruction on the medical care de- construing impact this rule and of Renteria, fense. 977 S.W.2d relating improper jury three its factors Therefore, the trial court erred in overrul- provides federal case law useful argument, objection improper ing appellant’s at 259. An guidance. Mosley, 983 S.W.2d jury argument. precedent demon examination of federal of im that the cumulative effect strates the trial Having found that part parcel proper argument is ob court should have sustained severity prosecutorial of the assessing jection, we must determine whether Tex.R.App. State, Jones v. P. misconduct. reversal. error warrants 20 793, (Tex.App. prosecutor definatly stated ridicu- [14th Dist.] “[h] 800 ow — Houston ” filed) 2001, pet. (citing United States lous is that? A short time lаter he re- (2nd Millar, 338, Cir.1996); 79 F.3d 343 criticism the medical defense sumed this Palmer, 1080, United States v. 37 F.3d following question: with the rhetorical “Is (5th Cir.1994)) (Baird, J., dissenting). 1085 Is it ridiculous? absurd? [the defense] Do think that the law is that idiotic? prosecutor’s purposeful misinter- It not.”2 No. is mani- pretation charge of the court’s improper.1 argument His had a that the festly difficulty finding We have no painting prosecutor’s signifi- theme the medical care defense as defiant misstatements “ridiculous,” implying cantly greatly “absurd” or influenced the af- portion that disregard should fected the verdict. Johnson v. charge. example, prosecu- (Tex.Crim.App.1998). For began argument especially tor his final with the fol- true when we consider This lowing having engaged characterization of the medical care admitted constituting defense: conduct the offense and relied entirely “medical care” on the defense. [Earlier], really I said some laws are silly. Some laws make a lot of sense. Adopted B. Measures fact, argue percent In I’d that 99.9 Cure the Misconduct our laws make a whole lot of sense. some laws on the book from There’s Mosley requires The second factоr hundred, [sixty], a hun- [forty], [fifty], to cure we examine the court’s efforts plus really years ago dred don’t Specifically, we misconduct. look apply any They’re silly, more. kind of provided any cautionary whether the court nobody but has ever taken them off the instruction, efficacy in- and the of such books. But know what? More than case, present the court struction. years maturing in this coun- legal after provided cautionary instruction of, try gotten except we’ve rid with the appellant’s objection to the overruling exception just hang- of the ones kind of prosecutor’s improper jury argument.