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                                   CONCURRING OPINION

                                         No. 04-08-00405-CR

                                      William Andrew LEMON,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                       From the 198th Judicial District Court, Kerr County, Texas
                                        Trial Court No. B07-01
                              Honorable Emil Karl Prohl, Judge Presiding

Opinion:      Marialyn Barnard, Justice
Concurring opinion by: Steven C. Hilbig, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 19, 2009

           Although I agree the prosecutor’s improper argument did not affect Lemon’s substantial

rights, I write separately because I disagree with part of the majority’s analysis. The majority

correctly sets forth the standard of review and applicable law. The majority also correctly concludes

the trial court erred in overruling Lemon’s objection to the prosecutor’s argument, but that the error

was not harmful. My disagreement is with the majority’s conclusion that the prosecutor’s conduct
Concurring opinion                                                                                         04-08-00405-CR



was not manifestly improper and was somehow less severe because it was made in response to a

portion of Lemon’s final argument.

        During cross-examination, Javier Flores, the State’s DNA expert, admitted the complainant’s

DNA appeared in a DNA sample from a different and unrelated case. Flores acknowledged the

mistake. The court also admitted into evidence Defendant’s Exhibit 3, a report from the Texas

Department of Public Safety Crime Laboratory Service. The report, labeled a “Quality Action Plan,”

relates that a saliva sample from Guadalupe Rodriguez was contaminated by the saliva sample from

the complainant. Under a subsection labeled “Action Plan,” the report states “[m]ore attention will

be placed on injections that follow an off scale injection to detect this type of carryover

contamination.” The exhibit indicates Flores created the report. The testimony and exhibit plainly

demonstrate the DPS laboratory had an incident of contamination of a DNA sample.

        During his closing argument, Lemon highlighted this evidence and suggested the jury should

not trust the DNA analysis. This argument was proper and entirely based on the evidence before the

jury. See Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987) (holding that proper jury

argument includes summation of trial evidence and reasonable deductions from evidence). In

response, the State went outside the evidence, informing the jurors that (1) Lemon had a DNA

expert; (2) the county paid for the expert; (3) Lemon gave notice the DNA expert would testify at

trial; (4) no DNA expert testified on behalf of Lemon;1 and (5) there is a “rule” “out there” that

applies when the defendant does not call an available “credible” witness. The jury was left to




        1
            … The record reflects the parties entered into an agreement that the State would not call two of its experts and
in return, Lemon stipulated he would not call his DNA expert whom the State described as a “counter-expert.” This
agreement was placed on the record outside the presence of the jury.

                                                             -2-
Concurring opinion                                                                      04-08-00405-CR



speculate about the effect of the rule because the prosecutor was interrupted by an objection and

never completed his argument on the “rule.”

        The prosecutor’s argument was manifestly improper because it went outside the record,

injected new facts, and was not a proper response to Lemon’s argument. Lemon’s argument was

based on evidence before the jury, but the prosecutor injected new facts that were harmful to Lemon.

See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (“[A] prosecutor may not use closing

argument to get evidence before the jury which is outside the record and prejudicial to the accused.”).

The argument cannot be excused or justified as responsive to Lemon’s earlier, wholly proper jury

argument. Cf. Bush v. State, 773 S.W.2d 297, 301 (Tex. Crim. App. 1989) (holding prosecution may

argue outside record only in response to defense argument that is outside record). While the record

does not demonstrate the argument was made with the intent to deprive Lemon of a fair and impartial

trial, it certainly had the capacity to do so.

        Applying the factors enumerated in Brown v. State, 270 S.W.3d 564, 572-73 (Tex. Crim.

App. 2008), I find the misconduct severe, and note there were no curative measures. In fact, the trial

court’s comments when ruling may have exacerbated the harm because he overruled the objection

“based on the case that we discussed.” This statement may have unintentionally added credence to

the prosecutor’s argument. Relying solely on these two factors, a reversal is warranted. However,

the remaining factor – the certainty of the conviction absent the misconduct – weighs heavily in the

State’s favor, as demonstrated by the majority opinion. Accordingly, I agree Lemon’s substantial

rights were not violated.

                                                        Steven C. Hilbig, Justice
PUBLISH


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