                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00122-CR

KANDANCE YANCY MARRIOTT,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 13th District Court
                             Navarro County, Texas
                            Trial Court No. 30746-CR


                          MEMORANDUM OPINION


      Kandance Yancy Marriott was convicted by a jury for the offense of engaging in

organized criminal activity. See TEX. PEN. CODE ANN. § 72.01 (Vernon 2003). Based on

the jury’s verdict, the trial court assessed Marriott’s punishment at imprisonment for

ninety-nine (99) years in the Texas Department of Criminal Justice – Institutional

Division and a fine of $10,000.00. See TEX. PEN. CODE ANN. § 12.32 (Vernon 2003).

Marriott complains that the trial court erred by amending her indictment, that the trial

court improperly commented on the weight of the evidence through the introduction of

evidence, that the trial court erred by denying a requested instruction on Marriott’s
failure to testify during sentencing, that the trial court abused its discretion in admitting

evidence of extraneous acts, that the trial court erred in refusing an instruction in the

charge regarding comments by the trial court during trial, and that the trial court erred

by overruling Marriott’s objections to the improper jury argument by the State. Because

we find that the trial court’s failure to include a no-adverse-inference instruction

regarding Marriott’s failure to testify at the punishment phase of her trial was

erroneous and harmful to Marriott, we reverse and remand for a new trial on

punishment only. We affirm the judgment of guilt in all other respects.

        We will discuss Marriott’s issues in the order in which they arose during the

pendency of the proceedings:       pre-trial, guilt-innocence phase of the trial, and the

punishment phase of the trial.

                                     Pre-Trial Rulings

Error in Indictment

        Marriott complains that the trial court erred by overruling her objection to the

State’s motion to amend the indictment to correct an error in the wording of the

indictment. The indictment alleged that Darrell Lynn Marriott was the defendant, and

then listed Darrell Lynn Marriott as a member of the combination.             Darrell Lynn

Marriott was the spouse of Kandance Yancy Marriott and was indicted at the same time

for the same offenses. The State filed a motion to amend the indictment to ask the trial

court to correct the listed name of the defendant, to which Marriott objected. The trial

court granted the State’s motion and interlineated Marriott’s name in place of Darrell

Lynn Marriott.


Marriott v. State                                                                      Page 2
         Marriott contends that the indictment was void because it did not charge “a

person” with the commission of an offense. See TEX. CONST. Art. V, § 12(b). See also TEX.

CONST. Art. I, Sec. 10. We disagree. It is apparent from the face of the indictment that

“a person” was charged with the offenses. The purpose of naming the accused in the

indictment is for identification, which is “a matter of form which can easily be altered at

the election of the accused.” Jones v. State, 504 S.W.2d 442, 444 (Tex. Crim. App. 1974);

see also TEX. CODE CRIM. PROC. ANN. art. 26.08 (Vernon 2009). The act of changing the

name of the defendant is a ministerial act. See Jones, 504 S.W.2d at 442. Further,

changing the defendant’s name is not an amendment to the indictment for purposes of

article 28.10 of the Code of Criminal Procedure. See Kelley v. State, 823 S.W.2d 300, 302

(Tex. Crim. App. 1992); see also Wynn v. State, 864 S.W.2d 539, 541 (Tex. Crim. App.

1993).

         Further, the time for Marriott to have notified the trial court of a defect in her

name as stated in the indictment was at arraignment. Bowden v. State, 628 S.W.2d 782,

787 (Tex. Crim. App. 1982). An arraignment takes place for the purpose of fixing a

defendant’s identity and hearing her plea.        TEX. CODE CRIM. PROC. ANN. art. 26.02

(Vernon 2009). Marriott had appeared for arraignment, stated that she understood the

charges against her, and raised no objection to the wrong name being listed in the

indictment approximately two years before the State’s motion to amend the indictment

was filed. Had she made such a complaint, article 26.07 directly addresses errors in the

name of a criminal defendant:

         When the defendant is arraigned, h[er] name, as stated in the indictment,
         shall be distinctly called; and unless [s]he suggest by h[er]self or counsel
Marriott v. State                                                                       Page 3
        that [s]he is not indicted by h[er] true name, it shall be taken that h[er]
        name is truly set forth, and [s]he shall not thereafter be allowed to deny
        the same by way of defense.

        TEX. CODE CRIM. PROC. ANN. art. 26.07 (Vernon 2009). A criminal defendant who

wishes to have an indictment amended to reflect her true name may do so:

        If the defendant, or h[er] counsel for h[er], suggests that [s]he bears some
        name different from that stated in the indictment, the same shall be noted
        upon the minutes of the court, the indictment corrected by inserting
        therein the name of the defendant as suggested by h[er]self or his counsel
        for h[er], the style of the case changed so as to give h[er] true name, and
        the cause proceed as if the true name had been first recited in the
        indictment.

        TEX. CODE CRIM. PROC. ANN. art. 26.08 (Vernon 2009). Thus, if an indictment

contains an error in the defendant’s name, it is the defendant’s duty to call this error to

the attention of the trial court at the time of arraignment. If she fails to do so, she has

waived the error and cannot later use it as a defense. See Bowden, 628 S.W.2d at 787.

Appellant failed to notify the trial court at her arraignment that she is not Darrell Lynn

Marriott, but is in fact Kandance Yancy Marriott. Thus, she waived this error in the

indictment and she cannot raise it on appeal. See Jackson v. State, 05-01-01840-CR, 2002

Tex. App. LEXIS 8369 at *8 (Tex. App.—Dallas Nov. 26, 2002, no pet.) (not designated

for publication) (objection waived even though defendant’s brother was named as the

defendant in indictment). Appellant’s issue number one is overruled.

                                  Guilt-Innocence Issues

Statement of Facts—Guilt/Innocence

        Marriott and her husband, Lynn, were engaged in the business of selling

manufactured homes and land in a business called One-Way Home and Land. Lynn


Marriott v. State                                                                      Page 4
and David Martin became partners, with Martin providing financial backing on several

projects, including One-Way. Their oral agreement was that Martin would provide the

money and Lynn would provide the labor for whatever was needed for each project. At

each sale, Martin would first recover his investment and then any profits were to be

split equally between Martin and Lynn.

        Martin and Lynn purchased a vacant former Burger King restaurant building to

refurbish and convert to a Dickey’s Barbecue restaurant in Navarro County. Martin

provided the capital for the purchase and other amounts when and as requested by

Lynn prior to August of 2004. They also were working to open a Huddle House

restaurant together under the same terms. Martin and Lynn also entered into several

other real estate purchases.

        Martin discovered in August of 2004 that he had not been paid on some closings

through One-Way. He was given spreadsheets from One-Way’s bookkeeper and seized

many of their records. The spreadsheet given to him in early August was different from

the spreadsheet he received later in August. Martin ultimately discovered eighteen

checks issued by title companies in his name that he did not receive. These checks

formed the basis of the underlying offense alleged in the indictment, misapplication of

fiduciary property. See TEX. PEN. CODE ANN. § 32.45 (Vernon 2003).

        The checks contained forged endorsements and were deposited into various

accounts, including One-Way, the Dickey’s restaurant account, and the Huddle House

account. Martin was an authorized signer on the Huddle House account but had no

access to it, and was not an authorized signer on any of the other accounts into which


Marriott v. State                                                                Page 5
the checks were deposited. Martin denied giving anyone authority to sign his name or

to deposit those funds into those accounts. The checks were dated and deposited from

October of 2003 through August of 2004. Martin testified that when he confronted

Marriott and Lynn, Marriott stated that Martin had told them that they could take the

money and deposit it elsewhere.

        Marriott testified that Lynn would give her the checks and that she would

deposit them wherever he told her to. She denied ever forging Martin’s name on the

checks, but did admit to writing “For deposit only” and the account number below the

signature on the back of the check, which was already on there when Lynn gave her

each check. She also admitted to filling out some of the deposit slips to the various

accounts. She denied being in charge of the businesses and portrayed herself as an

unknowing victim who only did what her husband told her to. She also minimized her

involvement in Dickey’s and the Huddle House. She was not an authorized signer on

either the Dickey’s or the Huddle House bank accounts.

        During the operation of One-Way, Marriott and her employees would take

whatever steps were necessary to ensure that potential buyers could qualify for loans.

This included creating or altering official documents, forging signatures, falsifying

social security income letters, falsely verifying employment and rental qualifications,

paying off creditors for buyers, creating bank accounts with the buyer’s name prior to

closing, and forging the buyers’ signatures on documents, all allegedly taught, required,

and sometimes personally accomplished by Marriott. These activities resulted in many

buyers who would not have otherwise qualified for loans being approved. Linda


Marriott v. State                                                                  Page 6
Howard, a former employee of One-Way, testified that every employee of One-Way,

including herself, participated in these activities with Marriott. Lynn’s involvement in

the mortgage fraud was less clear, although Marriott testified that her husband was the

one directing where those checks went.

Admission of Temporary Injunction

        Marriott complains that the trial court erred by admitting a copy of a temporary

injunction signed by the trial court in a civil proceeding between the parties relating to

Martin’s allegations of theft and fraud because it constituted an impermissible comment

on the weight of the evidence by the trial court. Specifically, she contends that the

admission of the documents violated rule 605 of the Rules of Evidence, and article 38.05

of the Code of Criminal Procedure.

        Texas Rule of Evidence 605 states that “the judge presiding at the trial may not

testify in that trial as a witness.” TEX. R. EVID. 605. Article 38.05 of the Code of Criminal

Procedure provides that in ruling on admissibility of evidence, the trial court shall not

discuss or comment on the weight of the evidence, or “make any remark calculated to

convey to the jury his opinion of the case.” TEXAS CODE OF CRIMINAL PROCEDURE ANN.

art. 38.05 (Vernon 1979). A trial court improperly comments on the weight of the

evidence if it makes a statement that implies approval of the State’s argument, indicates

disbelief in the defendant’s position, or diminishes the credibility of the defense’s

approach to the case. Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th

Dist.] 2006, no pet.).

        A violation of rule 605 occurs when a judge makes a statement of fact that is “the


Marriott v. State                                                                      Page 7
functional equivalent of witness testimony.” Hammond v. State, 799 S.W.2d 741, 746

(Tex. Crim. App. 1990). A judge’s findings of fact are not technically the same as

testimony. In re M.S., 115 S.W.3d 534, 538 (Tex. 2003). “Our statutes, court-made rules,

and judicial decisions emphatically and repeatedly prohibit Texas judges from

commenting on the weight of the evidence.” In re T.T. & K.T., 39 S.W.3d 355, 359 (Tex.

App.—Houston [1st Dist.] 2001, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 36.14,

TEX. R. CIV. P. 277, and Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000)).

        The Honorable Robert G. Dohoney was assigned to hear both the civil case

between Marriott, Lynn, and Martin and the criminal cases of Marriott and Lynn. An

order was signed by Judge Dohoney during the civil case that granted a temporary

injunction against Marriott and Lynn in favor of Martin, and contained specific findings

regarding fraud perpetrated against Martin by Marriott. These specific allegations

related to evidence introduced during the trial regarding these fraudulent acts. It is

true that Judge Dohoney did not “step down from the bench” and become a witness in

the very same proceeding over which he was currently presiding. See Hensarling v.

State, 829 S.W.2d 168, 170 (Tex. Crim. App. 1992).

        However, the findings contained in the temporary injunction in the civil case

made by the same judge presiding over the criminal trial were intertwined with the

jury’s ultimate decision as to the existence of the combination, whether it was carrying

on criminal activities, and whether or not Martin had been stolen from by Marriott. The

temporary injunction, as admitted, contained findings of fact that certainly could

convey to the jury his opinion of the case. We find that the trial court abused its


Marriott v. State                                                                     Page 8
discretion in the admission of the temporary injunction.

Harm Analysis

        Having found error, we must address whether or not the error was harmful.

When determining harm from a non-constitutional error, we must disregard the error

unless it affects Marriott’s substantial rights. TEX. R. APP. P. 44.2(b). A substantial right

is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

Substantial rights are not affected by the erroneous admission of evidence “if the

appellate court, after examining the record as a whole, has fair assurance that the error

did not influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355

(Tex. Crim. App. 2002).

        In conducting the harm analysis, we consider everything in the record, including

any testimony or physical evidence admitted for the jury’s consideration, the trial

court’s instructions to the jury, the State’s theory, any defensive theories, closing

arguments, and even voir dire if material to Marriott’s claim. Motilla, 78 S.W.3d at 355-

56; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, the

factors to be considered are the nature of the evidence supporting the verdict, the

character of the alleged error, and how the evidence might be considered in connection

with the other evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867.

Whether the error was compounded or emphasized also can be a factor. See e.g., Motilla,

78 S.W.3d at 356. We ask if a reasonable probability exists that the error moved the jury

from a state of non-persuasion to one of persuasion beyond a reasonable doubt.


Marriott v. State                                                                      Page 9
Wesbrook, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). The existence of substantial

evidence of Marriott’s guilt may be the most significant factor in this harm analysis. Id.

at 359.

          The temporary injunction was offered and admitted during the testimony of the

victim. Martin’s testimony did not disclose the identity of the trial judge, nor did he

discuss the findings made by the trial court in that order other than to state that he got

what he wanted from the proceeding, which was his property, and that the injunction

led to a settlement of the case between the parties.

          During cross-examination, Marriott was questioned regarding the findings in the

injunction that the trial court had found that either Marriott or someone under her

control had forged documents. However, no mention was made that Judge Dohoney

had signed the temporary injunction or been involved in the civil action at all. There is

nothing in the record to indicate that the exhibit was published to the jury or that the

exhibits were taken to the jury room during deliberations. The State made reference to

Marriott’s ongoing criminal activities while she was under the supervision of a court

relating to the diversion of funds at closing to pay creditors of One-Way because her

bank accounts had been frozen by Martin through the civil suit in its cross-examination

of Marriott. The State also questioned Marriott about a forged foreign judgment that

was alleged to have been part of a fraud perpetrated against Martin while they were

“under the control of the Court.”

          The overwhelming evidence was that Marriott was the individual in charge of

the businesses and that everything went through her from the checks to instructions on


Marriott v. State                                                                  Page 10
how funds at closing were to be disbursed to the multitude of fraudulent acts

perpetrated by the employees of One-Way and her husband. After examining the

record as a whole, we have fair assurance that the error did not influence the jury, or

had but a slight effect. See Motilla, 78 S.W.3d at 355. We overrule issue two.

Extraneous Offenses

        Marriott complains that the trial court erred by admitting evidence of multiple

extraneous offenses during the guilt-innocence phase of the trial.          We review the

admission of evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d

870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion if its ruling is outside

the zone of reasonable disagreement. Id.

        The State contends that most, if not all, of the challenged evidence was not

evidence of extraneous offenses, but was evidence of the combination. Alternatively,

the State argues that the evidence was admissible as same-transaction contextual

evidence or for the reasons specifically enumerated in rule 404(b). We must first, then,

determine whether or not they were extraneous offenses at all.

Engaging in Organized Criminal Activity

        A person engages in organized criminal activity “if, with the intent to establish,

maintain, or participate in a combination or in the profits of a combination, . . . [s]he

commits” one of several enumerated offenses, including misapplication of fiduciary

property. TEX. PEN. CODE ANN. § 71.02(a)(8) (Vernon 2003). The State has the burden of

proving the combination. Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002). A

“combination” requires three or more people who collaborate in carrying on criminal


Marriott v. State                                                                     Page 11
activities. TEX. PEN. CODE ANN. § 71.01(a) (Vernon 2003). The State must prove (1) that

the defendant intended to establish, maintain, participate in, or participate in the profits

of a combination, and (2) that the members of the combination intended to work

together in a continuing course of criminal activity. Hart, 89 S.W.3d at 63; Dowdle v.

State, 11 S.W.3d 233, 236 (Tex. Crim. App. 2000).         There must be evidence of an

agreement to act together in a continuing course of criminal activity. Nguyen v. State, 1

S.W.3d 694, 697 (Tex. Crim. App. 1999). Similar methods of operation, together with

joint activities and relationships, support the finding of a single conspiracy. McGee v.

State, 909 S.W.2d 516, 518 (Tex. App.—Tyler 1995, pet. ref'd). A jury may infer criminal

intent from any facts that tend to prove its existence, including the acts, words, and

conduct of the accused, and the method of committing the crime. Manrique v. State, 994

S.W.2d 640, 649 (Tex. Crim. App. 1999).

Rules of Evidence 404(b) and 403

        Under Texas Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts is

not admissible “to prove the character of a person in order to show action in conformity

therewith.” TEX. R. EVID. 404(b). However, it may be admissible for other purposes,

“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” De La Paz v. State, 279 S.W.3d 336, 342-43 (Tex. Crim.

App. 2009). The rule excludes only that evidence that is offered solely for the purpose

of proving bad character and conduct in conformity with that character. Id at 343. In

addition, evidence admissible under rule 404(b) may nonetheless be excluded if the trial

judge determines that its probative value is substantially outweighed by the danger of


Marriott v. State                                                                    Page 12
unfair prejudice. TEX. R. EVID. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim.

App. 1999).

Same Transaction Contextual Evidence

        An exception to rule 404(b) exists in that extraneous offenses may be admissible

as same transaction contextual evidence when “several crimes are intermixed, or

blended with one another, or connected so that they form an indivisible criminal

transaction.” Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005) (quoting

Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). This type of evidence results

when an extraneous matter is so intertwined with the State’s proof of the charged crime

that avoiding reference to it would make the State’s case difficult to understand or

incomplete. Prible, 175 S.W.3d at 732.

Letterhead

        Marriott complains of the admission of two exhibits that purported to show

letterhead created by Marriott and the forged signature of Martin. In its case-in-chief,

the State sought to introduce documentary evidence of letterhead allegedly created and

forged by defendant using the victim’s name and law firm name. According to one

witness, the letterhead was used for the purpose of sending letters to creditors and

credit reporting agencies to clear up the credit reports of potential buyers.

The Midas Group

        Marriott complains of the admission of testimony during the State’s case-in-chief

by her sister Kathryn Davis regarding the establishment of a corporation in Kathryn’s

name with a forged signature and without her knowledge or consent. Marriott and


Marriott v. State                                                                 Page 13
Kathryn’s sister, Karen Hayes, had suggested the name of Midas Group to Kathryn

when Kathryn was becoming part of a legal pyramid scheme to sell electricity.

Unbeknownst to Kathryn, Lynn had used an entity called the Midas Financial Group on

a real estate transaction in December of 2004. Further, at a real estate closing in 2005,

$12,900 was wired to an account created for the Midas Group, which Kathryn

controlled. This money was diverted to the Midas Group because Martin had taken

control of all of the assets of the business, including the bank accounts.          Marriott

arranged for the money to be sent to her sister through the Midas Group by the title

company, which then was disbursed to Marriott and her sister Karen Hayes in several

installments shortly after the closing.

Mortgage Fraud

        Marriott complains of the introduction of multiple extraneous offenses offered by

the State through the testimony of Linda Howard, a former employee of One-Way.

Howard was called to testify in the rebuttal phase of the trial by the State. Howard

testified to Marriott’s knowledge, participation, and sponsorship of a course of conduct

relating to defrauding mortgage companies and the federal government.                    The

allegations of which Marriott complains are (1) that Marriott gave Howard $1,500 to

open a bank account for a prospective buyer so that they could state that the buyer had

a bank account, and then they removed the buyer’s name from the account after closing;

(2) manufacturing documents for mortgage fraud; (3) routinely forging social security

letters, check stubs, verifications of rent, divorce decrees, satisfaction of debt judgments;

(4) false verifications of rent and employment, which allowed buyers to obtain


Marriott v. State                                                                     Page 14
fraudulent mortgages; (5) creation of false credit reports; (6) generation of letters to

credit reporting agencies using Martin’s letterhead to improve credit scores; (7) forging

buyers’ signatures on credit documents using a “cut and paste” method; (8) paying off

delinquent accounts for potential buyers using Marriott’s money to improve their credit

scores; (9) forging signatures by tracing; (10) a mortgage broker confronting Marriott

about fraud, who stated she fired an employee over the incident; (11) manufacturing

false social security income letters; and (12) paying people to be false employers to give

false employment information to mortgage companies. Howard testified that Marriott

knew of and directed these activities.

Analysis

        The State contends that the letterhead provides some evidence of the existence of

the combination. We agree. We note that the language of the indictment did not define

the criminal activities of the combination, which was comprised of Marriott, her

husband, Mary Putnam, Debbie Grace, Katherine Davis, Karen Hayes, and unnamed

other individuals.   Mary Putnam and Debbie Grace were employees of One-Way.

Karen Hayes ran another business in Henderson County, but the contracts on those

sales listed One-Way as the seller.      The combination’s criminal activities included

Marriott and her employees falsifying whatever was necessary to ensure that buyers

qualified for mortgages.     The letterhead was admissible to assist in proving the

existence and ongoing criminal activities of a combination beyond a reasonable doubt

and was not an extraneous offense pursuant to rule 404(b), but went to prove an

element of the offense of engaging in organized criminal activity.


Marriott v. State                                                                  Page 15
        Further, the evidence elicited from Linda Howard regarding the ongoing

mortgage fraud in response to Marriott’s own testimony was also admissible as

evidence of the combination and the knowledge and intent as to the members of the

combination to engage in ongoing criminal activities that began before and ended after

the misappropriation of the 18 checks. Further, the testimony established that there

were multiple employees, as well as Marriott, that were involved in the combination,

and the State had to prove that there were at least three members of the combination.

These were not extraneous offenses, but were evidence to establish the existence of the

combination, its members, and its ongoing criminal activities, which are elements of the

offense.

        The forged signature on the articles of incorporation of the Midas Group and the

use of the Midas Group name on a real estate transaction by Lynn Marriott provide

some evidence of the ongoing criminal activities of the combination and that Karen was

involved in the combination with Marriott and Lynn.          The money taken from the

closing in 2005, diverted to the Midas Group, and disbursed to Marriott and Hayes by

Davis is also evidence that both Marriott and Karen were continuing the ongoing

criminal activity of the combination.

        However, to the extent that the money diverted to the Midas Group after the

closing is an extraneous offense, if it was, it was admissible under rule 404(b) as

evidence of motive, knowledge and intent, common scheme or plan, or absence of

mistake. See TEX. R. EVID. 404(b).

        Further, we find that the probative value of each act referred to in the trial was


Marriott v. State                                                                  Page 16
not substantially outweighed by any prejudicial effect. See TEX. R. EVID. 403. We find

that the trial court did not abuse its discretion. We overrule issue four.

Charge Error—Denial of Instruction

        Marriott complains that the trial court erred by denying her request to include an

instruction in the charge on guilt-innocence that the jury not consider any comment by

the trial court to express the trial court’s opinion as to an ultimate issue to be

determined by the jury.       This request arose from an objection to the temporary

injunction admitted into evidence that had been signed by the trial court. Marriott

objected again to the admission of that exhibit during the charge conference in the guilt-

innocence phase. The trial court included a limiting instruction regarding that exhibit,

that it was admitted for the limited purpose of demonstrating how a settlement was

reached in the civil case and instructing the jury that the findings and rulings contained

in the injunction were not to be considered as evidence of guilt, which is not an

impermissible comment on the weight of the evidence. See Bartlett v. State, 270 S.W.3d

147, 151 (Tex. Crim. App. 2008).

        Marriott provides no authorities demonstrating her entitlement to the requested

instruction, nor does she suggest how the denial of the instruction was harmful to her.

As such, this issue is inadequately briefed, and therefore, is waived. TEX. R. APP. P.

38.1(h). We overrule issue five.

Improper Jury Argument

        Marriott complains in issues six and seven that the trial court erred by overruling

two objections to the State’s closing argument. In issue six, Marriott complains that the


Marriott v. State                                                                   Page 17
State’s comparison of Marriott to Bernie Madoff and Allen Stanford was outside of the

evidence and improper. In issue seven, Marriott complains that the State’s argument

that Marriott made $75,000 per year defrauding the government, buyers, and David

Martin was a misstatement of the evidence and not a reasonable deduction from the

evidence.

        Proper jury argument generally falls within one of four general areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to

argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008) (citing Alejandro v. State, 493 S.W.2d 230, 231

(Tex. Crim. App. 1973)).

Comparison to Madoff and Stanford

        During the State’s closing argument in the guilt-innocence phase of the trial, the

prosecutor stated: “It’s easy to see how somebody like Bernie Madoff or Allen Stanford

or the Marriotts do this.” Marriott objected to the comment being outside of the record,

which the trial court overruled. The State then followed with “That’s how they do it.”

        “It is the duty of trial counsel to confine their arguments to the record; reference

to facts that are neither in evidence nor inferable from the evidence is therefore

improper.” Brown, 270 S.W.3d at 570 (internal citations omitted). “The arguments that

go beyond these areas too often place before the jury unsworn, and most times

believable, testimony of the attorney.” Alejandro, 493 S.W.2d at 231. Consequently,

error exists when facts not supported by the record are interjected in the argument, but

such error is not reversible unless, in light of the record, the argument is extreme or


Marriott v. State                                                                    Page 18
manifestly improper. Brown, 270 S.W.3d at 570.

        The State’s comments do not fall within any of the parameters set forth by the

Court of Criminal Appeals. The comparison of the Marriotts to Madoff and Stanford is

not unlike comparing defendants to other notorious criminals. See Brown v. State, 978

S.W.2d 708, 714 (Tex. App.—Amarillo 1998, pet. ref’d) (comparing defendant to Jeffrey

Dahmer, John Wayne Gacy, and Ted Bundy improper); Massey v. State, No. 04-99-00040-

CR, 1999 Tex. App. LEXIS 7372 at *9 (Tex. App.—San Antonio 1999, pet. ref’d)

(comparison to Killeen Luby’s shooting and New York subway shooting erroneous);

Gonzalez v. State, 115 S.W.3d 278, 284-85 (Tex. App.—San Antonio 2003) (comparison

between defendant and Osama Bin Laden and Al Qaida improper); Stell v. State, 711

S.W.2d 746, 748 (Tex. App.—Corpus Christi 1986, no pet.) (comparison to Lee Harvey

Oswald improper). These types of arguments that reference matters that are not in

evidence and may not be inferred from the evidence are usually, “designed to arouse

the passion and prejudices of the jury and as such are highly inappropriate.” Borjan v.

State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).     In examining challenges to jury

argument, we consider the remark in the context in which it appears. Gaddis v. State,

753 S.W.2d 396, 396 (Tex. Crim. App. 1988). We find that the argument by the State was

improper.

Harm Analysis

        We will analyze the alleged harm under rule 44.2(b), which requires that we

disregard any error not affecting substantial rights.       TEX. R. APP. P. 44.2(b).

Additionally, since we have determined that the State’s comments were improper jury


Marriott v. State                                                               Page 19
argument, the trial court’s erroneous overruling of Marriott’s objection is also not

reversible error unless it affected Marriott’s substantial rights. TEX. R. APP. P. 44.2(b);

Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000); Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g).

         When analyzing the harm caused by an improper jury argument, we examine

the following factors: (1) severity of the misconduct (the magnitude of the prejudicial

effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the

efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction

absent the misconduct (the strength of the evidence supporting the conviction). Ramon

v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (citing Mosley v. State, 983 S.W.2d

249, 259 (Tex. Crim. App. 1998)).

        In evaluating the first factor, the severity of the misconduct, we must consider

“whether [the] jury argument is extreme or manifestly improper [by] look[ing] at the

entire record of final arguments to determine if there was a willful and calculated effort

on the part of the State to deprive appellant of a fair and impartial trial.” Cantu v. State,

939 S.W.2d 627, 633 (Tex. Crim. App. 1997). Viewing the State’s argument as a whole

and after a review of the record, we must question whether the State’s argument was

made in a willful or calculated effort to deprive Marriott of a fair and impartial trial. See

Brown, 270 S.W.3d at 573; Cantu, 939 S.W.2d at 633. On this record, we cannot reach that

conclusion.

        Regarding the second factor, the trial court adopted no curative measures

because it overruled the objection by Marriott. Finally, in analyzing the third factor, we


Marriott v. State                                                                     Page 20
must determine the likelihood of conviction absent the improper argument. See Mosley,

983 S.W.2d at 693. We find that there was a strong likelihood of conviction without the

improper argument. We find the State’s improper argument and the trial court’s failure

to sustain the objection to that argument to be harmless. We overrule issue six.

The $75,000 Comment

         Marriott complains that the trial court erred by overruling her objection to the

State’s argument in the guilt-innocence phase of the trial that she received $75,000 a

year “defrauding the government, defrauding the buyers, and defrauding David

Martin…” However, Marriott had testified that she and her husband received over

$6,700 per month from One-Way.           There was evidence that Marriott had indeed

defrauded the government, multiple buyers, and Martin through the pattern of

mortgage fraud perpetrated by Marriott and by the other alleged members of the

combination. This argument was made in the rebuttal portion of the argument in

response to Marriott’s contention that she did not profit from the misapplication of the

checks, and was a reasonable inference from the evidence. The trial court did not err in

overruling the objection because the State’s argument regarding Marriott’s profits from

the combination was not improper. We overrule issue seven.

                                  Punishment Phase Issue

Charge Error—Failure to Testify

         Marriott complains that the trial court erred by failing to include an instruction

requested by Marriott regarding her failure to testify in the punishment phase of her

trial.   The State prepared the charge on punishment, which did not contain an


Marriott v. State                                                                   Page 21
instruction or reference of any kind to Marriott’s failure to testify. After Marriott

objected to the lack of an instruction, the State did not respond, and the trial court

overruled the objection. Although she had testified during the guilt-innocence phase of

the trial, Marriott did not testify during the punishment phase of her trial.

Statement of Facts—Punishment Phase

         The State’s case on punishment lasted for two days. During the punishment

phase, the State called multiple witnesses who gave further testimony regarding

extraneous offenses, some of which were brought out in the guilt-innocence phase, but

many were not.       These extraneous offenses bore little relation to Martin and the

misappropriated checks, but expounded at length upon Marriott’s extensive history in

mortgage fraud with multiple victims, multiple employees, and taking place in multiple

counties, even after Marriott’s arrest for this offense.       Marriott presented seven

witnesses on her behalf as well relating to her good character, charitable works, and

candidacy for probation. The State did not directly reference her failure to testify in the

punishment phase, but did refer to her prior testimony in the guilt-innocence phase in

its closing argument in the punishment phase, including a claim that she had

committed aggravated perjury with that prior testimony.

No-Adverse-Inference Instruction

         Upon a defendant’s request, the trial court must instruct jurors that they may not

draw any adverse inference from a defendant’s failure to testify at the punishment

phase.    Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989).        A criminal

defendant cannot be compelled to be a witness against herself. U.S. CONST. AMEND. V,


Marriott v. State                                                                   Page 22
cl. 3. The Fifth Amendment attempts to secure the right of a criminal defendant to elect

not to testify and to prohibit the State from exacting a price for exercising that right.

Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 1232-33, 14 L. Ed. 2d 106 (1965). The

omission of a no-adverse-inference punishment instruction attaches such a price to the

exercise of the privilege because “the members of a jury, unless instructed otherwise,

may well draw adverse inferences from a defendant’s silence.” Carter v. Kentucky, 450

U.S. 288, 301, 101 S. Ct. 1112, 1119, 67 L. Ed. 2d 241 (1981).

        Marriott’s right not to testify continued after her conviction until after she was

sentenced. Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989); Brown v. State,

617 S.W.2d 234, 236-37 (Tex. Crim. App. 1981). Further, as the State now concedes,

Marriott had a right to a no-adverse-inference instruction, which concerns the fact that

she elected not to testify, at the punishment stage of the trial. White v. State, 779 S.W.2d

809, 828 (Tex. Crim. App. 1989); Beathard, 767 S.W.2d at 432; Brown, 617 S.W.2d at 238.

The trial court’s denial of the instruction was erroneous.

Harm Analysis

        Finding error, we must now determine whether such error is reversible. We will

reverse upon a finding of error, unless we determine beyond a reasonable doubt that

the error did not contribute to Marriott’s punishment. TEX. R. APP. P. 44.2 (a). Since this

is a case of charging error with a timely objection, we will reverse only if the error was

calculated to injure the rights of Marriott, i.e., there must be some harm to her from the

error. See White, 779 S.W.2d at 828, citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim.

App. 1985) (op. on reh’g); Ulloa v. State, 901 S.W.2d 507, 512 (Tex. App.—El Paso 1995,


Marriott v. State                                                                       Page 23
pet. ref’d); De La Paz v. State, 901 S.W.2d 571, 580 (Tex. App.—El Paso 1995, pet. ref’d).

        Rule 44.2(a) requires us to focus on whether the error might have prejudiced the

jurors’ decision-making, not on the weight of other evidence of guilt. See Harris v. State,

790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). We must examine the source of the

error, the nature of the error, whether or to what extent it was emphasized by the State,

and its probable collateral implications. Id. at 587. Further, we must also determine

whether declaring the error harmless would encourage the State to commit the error

again with impunity. Id.; see Ulloa, 901 S.W.2d at 514.

        In other situations where courts have found the failure to include a no-adverse-

inference instruction to be harmless, generally there was nothing additional for the

defendant to refute in the punishment phase of the trial. See Beathard v. State, 767

S.W.2d 423, 432-33 (Tex. Crim. App. 1989) (error harmless when State introduced no

evidence at punishment phase; defendant would not need to counter factual assertions

made by the State); Martinez v. State, No. 04-98-00154-CR, 1999 Tex. App. LEXIS 5343 at

*4 (Tex. App.—San Antonio 1999, no pet.) (not designated for publication) (error

harmless when no evidence to rebut introduced by State during punishment phase); but

see White v. State, 779 S.W.2d 809 (Tex. Crim. App. 1989) (absence of instruction

harmless because evidence at guilt-innocence and punishment demonstrated defendant

had murdered and robbed another elderly woman, had a reputation for violence, and

defendant called no witnesses at punishment; lack of instruction was not “calculated to

injure the rights of the defendant”).

        Cases where the error was found to be harmful largely involve a potential


Marriott v. State                                                                    Page 24
expectation from the jury to refute some evidence presented in the punishment phase of

the trial. See Durham v. State, 153 S.W.3d 289, 293 (Tex. App.—Beaumont 2004, no pet.)

(error harmful when the State argued probation system flawed and defendant’s witness

made assurances as to defendant’s ability to complete probation coupled with sixty year

sentence and no prior convictions); Ruiz v. State, No. 08-01-00287-CR, 2003 Tex. App.

LEXIS 2365 at *11 (Tex. App.—San Antonio 2003, no pet.) (not designated for

publication) (error harmful when State argued against probation unless defendant

admits guilt and implied defendant had smuggled drugs previously); Ulloa v. State, 901

S.W.2d 507, 513-14 (Tex. App.—El Paso 1995, pet. ref’d) (error harmful when crime was

nonviolent and defendant called several witnesses to testify to his good character,

which raised expectation that defendant would express like sentiments and State likely

to repeat error); De La Paz v. State, 901 S.W.2d 571, 581-82 (Tex. App.—El Paso 1995, pet.

ref’d) (same).

        The length of the sentence given by the jury is not, in and of itself, dispositive of

the issue of harm. Accord White, 779 S.W.2d at 828 (defendant sentenced to death);

Castaneda v. State, 852 S.W.2d 291, 296 (Tex. App.—San Antonio 1993, no pet.).

However, in the cases where reversible error was found, the fact that the defendant

received more than the minimum sentence was considered in the harm analysis.

        While we agree with the State that the evidence supporting the sentence assessed

by the jury was strong, we cannot say beyond a reasonable doubt that the failure of the

trial court to properly instruct the jury regarding Marriott’s invocation of her

constitutional right to remain silent during the punishment phase did not contribute to


Marriott v. State                                                                     Page 25
her punishment. The jury may well have wondered why Marriott did not attempt to

refute any of the vast number of allegations against her in punishment, and we find,

after much deliberation, that the trial court’s refusal to aid the jury by including this

requested instruction was harmful to her. We sustain issue three.

Conclusion

        We find that Marriott waived any complaint to errors in her name in the

indictment. We find that the error relating to the admission of the temporary injunction

was harmless. We find that the evidence complained of regarding extraneous offenses

was not extraneous but was evidence of an element of the offense, or if it was

extraneous, it was properly admitted. We find that the complaint regarding the jury

instruction regarding comments made by the trial court to have been waived. We find

that the comments regarding Madoff and Stanford in the State’s closing argument in

guilt-innocence was erroneous but harmless, and the comment regarding Marriott’s

profiting from her deeds was not erroneous. We find that the erroneous refusal of the

trial court to include a no-adverse-inference instruction relating to Marriott’s failure to

testify in the punishment phase of her trial was harmful. We affirm the judgment of

guilt but reverse and remand the punishment phase for a new trial as to punishment

only.



                                          TOM GRAY
                                          Chief Justice




Marriott v. State                                                                   Page 26
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Justice Davis concurs without a separate opinion)
Affirmed in part; reversed and remanded as to punishment only
Opinion delivered and filed July 21, 2010
Do not publish
[CRPM]




Marriott v. State                                               Page 27
