CAUSE NO.  Cause #

THE STATE OF TEXAS

V.

DEFENDANT

§	IN THE _____________COURT
§
§	OF
§
§	___________ COUNTY, TEXAS

MOTION TO LIMIT JURY ARGUMENT OF STATE

TO THE HONORABLE JUDGE OF SAID COURT:
	NOW COMES , Defendant, and files this Motion to Limit Jury Argument of State, and for cause would show the Court as follows:
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	There are four permissible areas of jury argument for the State:

a.		a summary of evidence;
b.		discussion of reasonable deductions from the evidence;
c.		response to arguments of defense counsel; and
d.		a proper plea for law enforcement.
The Court should order the State to confine its summation to those areas and to refrain from any mention whatsoever of the various arguments set forth below which have caused appellate courts to reverse convictions.
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	That the prosecutor not argue that the people of the community want or expect a conviction, that there is community pressure or sentiment to convict, or that the jury verdict may or may not meet with public approval. Prohibited argument includes, but is not limited to, the following:
a.	That the people are asking the jury to convict the Defendant. Cox v. State, 247 S.W.2d 262 (Tex. Crim. App. 1951).

b.	That the community would want the Defendant sent to prison if the people knew what he had done. Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. 1982).

c.	That any particular punishment was required to satisfy the community. Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984).

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PERSONAL OPINION AND COUCHING FOR
CREDIBILITY OF WITNESSES OR STATE’S CASE
	That the prosecutor not express a personal opinion regarding the credibility of the witnesses, the strength of the evidence, the guilt of the Defendant or the appropriate punishment. Prohibited argument includes, but is not limited to, the following:

a.		That the prosecutor believes the Defendant is guilty.  Villalobos v. State, 568 S.W.2d 134 (Tex. Crim. App. 1978).

b.		That the prosecutor is not paid enough to try to convict an innocent man. Elizondo v. State, 545 S.W.2d 453 (Tex. Crim. App. 1976).

c.		That the prosecutor does not introduce evidence unless he believes it is true. Robillard v. State, 641 S.W.2d 910 (Tex. Crim. App. 1982).

d.		That the prosecutor would not prosecute the Defendant unless the State’s witnesses were telling the truth and the Defendant was guilty.  Hickerson v. State, 286 S.W.2d 437 (Tex. Crim. App. 1956).

e.		That the prosecutor had personal knowledge regarding the credibility of the witnesses. Tinker v. State, 93 S.W.2d 441 (Tex. Crim. App. 1936).

f.		That the prosecutor believes that any particular witness was honest or told the truth. Menefee v. State, 614 S.W.2d 167 (Tex. Crim. App. 1981).

g.		That police officers are entitled to greater belief than the Defendant because the Defendant has an interest in acquittal, whereas the officers are impartial and only arrest people whom they believe have committed an offense. Caka v. State, 302 S.W.2d 939 (Tex. Crim. App. 1957).

h.		That because the jurors are paying the police officers through their taxes and because the city has retained the officers on the payroll that the city must have confidence in their honesty and integrity. Woodard v. State, 368 S.W.2d 623 (Tex. Crim. App. 1963).

i.		That police officers are sworn to tell the truth and told the truth.  Puckett v. State, 330 S.W.2d 465 (Tex. Crim. App. 1959).

j.		That the race, creed or color of any witness should be a factor in assessing his credibility.  Arnold v. State, 256 S.W. 919 (Tex. Crim. App. 1923).

k.		That the prosecutor not attempt to bolster or rehabilitate the victim’s character under the guise of reading an imaginary letter from the victim to a third person reflecting what the victim would say or do if given the opportunity. Washington v. State, 668 S.W.2d 715 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d). (prosecutor read an imaginary Christmas card from the murder victim to his child which in effect subtly rehabilitated the victim’s character).
	
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IMPROPER REFERENCES TO THE DEFENDANT
	That the prosecutor not refer to the Defendant by any name other than his given name or nickname, nor by any generic term designed to subject the Defendant to personal abuse or suggest that he is “less than human.”  Prohibited argument includes, but is not limited to, the following:
a.	References to heinous criminals, such as Lee Harvey Oswald, Clyde Barrow and John Dillinger.  Rehm v. State, 78 S.W.2d 983 (Tex. Crim. App. 1935); Lee v. State, 97 S.W.2d 697 (Tex. Crim. App. 1936); Stell v. State, 711 S.W.2d 746 (Tex. App.--Corpus Christi 1986, no pet.).

b.		Derogatory references such as:
		
1.	“cowardly cur”.  Jupe v. State, 217 S.W. 1041 (Tex. Crim. App. 1920);

2.	“fiend from Hell”.  McGrew v. State, 143 S.W.2d 946 (Tex. Crim. App. 1940);

3.	“beast”. Marx v. State, 150 S.W.2d 1014 (Tex. Crim. App. 1941);

4.	“punk”.  Duran v. State, 356 S.W.2d 937 (Tex. Crim. App. 1962);

5.	"hippie, anti-Christ and Communist." Renn v. State, 495 S.W.2d 922 (Tex. Crim. App. 1973), overruled on other grounds by Burrell v. State, 526 S.W.2d 799, 804 (Tex. Crim. App. 1975).
	
	c.	References to the Defendant's race.  Richardson v. State, 257 S.W.2d 308 (Tex. Crim. App. 1953).

	d.	References to the Defendant being a foreigner. Marx v. State, 150 S.W.2d 1014 (Tex. Crim. App. 1941).
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	That the prosecutor not suggest or infer that the Defendant has committed any offense or act of misconduct not in evidence.  Prohibited argument includes, but is not limited to, the following:
	a.	There is a reasonable deduction that the Defendant has previously been arrested or in jail.  Lookabaugh v. State, 352 S.W.2d 279 (Tex. Crim. App. 1961).

	b.	That the Defendant earns his livelihood committing the type of offense for which he is on trial. Walker v. State, 664 S.W.2d 338 (Tex. Crim. App. 1984).

	c.	That the evidence raised the inference that the Defendant has committed other crimes similar to the offense on trial.  Rodriquez v. State, 520 S.W.2d 778 (Tex. Crim. App. 1975).

	d.	That the State is limited in its ability to introduce evidence regarding the Defendant's background, prior criminal record, other offenses or acts of misconduct. Parson v. State, 652 S.W.2d 616 (Tex. App.--Dallas 1983, no pet.); Everett v. State, 707 S.W.2d 638 (Tex. Crim. App. 1986).

	e.	That the prosecutor asked the State's reputation witnesses the only questions allowed by law. Robinson v. State, 701 S.W.2d 895 (Tex. Crim. App. 1985).

	f.	That the Defendant's failure to cross-examine the State's reputation witnesses regarding the factual basis for their testimony created an inference that their answers would be unfavorable to the Defendant. Robinson v. State, supra.

	g.	That the jury should speculate regarding the factual basis for the Defendant's bad reputation. Green v. State, 679 S.W.2d 516 (Tex. Crim. App. 1984).

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FAILURE OF THE DEFENDANT TO TESTIFY
	That the prosecutor not comment, directly or indirectly, on the Defendant's failure to testify at either state of the trial. Prohibited argument includes, but is not limited to, the following:
	a.	That the motive for the offense has not been revealed or is "locked up."  Koller v. State, 518 S.W.2d 373 (Tex. Crim. App. 1975).

	b.	That it has not been contested that the Defendant committed the offense. Angel v. State, 627 S.W.2d 424 (Tex. Crim. App. 1982).

	c.	That there has been no explanation for the offense.  Myers v. State, 573 S.W.2d 19 (Tex. Crim. App. 1978).

	d.	Where only the perpetrator was in a position to rebut the State's witnesses, that the State's evidence was uncontradicted or that the defense had presented no evidence to challenge the victim's credibility.  Dubose v. State, 531 S.W.2d 330 (Tex. Crim. App. 1975); Pollard v. State,  552 S.W.2d 475 (Tex. Crim. App. 1977).

	e.	Where only the perpetrator and the victim were present during the offense and the victim did not testify, that the jury would have to decide the case on circumstantial evidence alone.  McDaniel v. State,  524 S.W.2d 68 (Tex. Crim. App. 1975).

	f.	That the prosecutor not refer to or gesture at the Defendant and argue, "There is somebody we have not heard from in this case and I think you know who it is." Hicks v. State, 525 S.W.2d 177 (Tex. Crim. App. 1975); Thompson v. State, 651 S.W.2d 785 (Tex. Crim. App. 1983).

	g.	That the prosecutor not ask rhetorical questions of the Defendant under the guise of argument. Bird v. State, 527 S.W.2d 891 (Tex. Crim. App. 1975) (prosecutor referred to the Defendant's ability to manufacture a silencer for a pistol found at the crime scene and then asked the Defendant, "Where did you get it?).

	h.	That the prosecutor not refer to the Defendant's failure to raise any particular defense, followed by references in the first person to the manner in which the Defendant would have articulated that defense. Cherry v. State, 507 S.W.2d 549 (Tex. Crim. App. 1974) (prosecutor argued that Defendant failed to raise an alibi defense, such as, "I was somewhere else, I was with someone else."); Cook v. State, 702 S.W.2d 597 (Tex. Crim. App. 1984).

	i.	That the Defendant has not apologized or expressed remorse. Koller v. State, 518 S.W.2d 373 (Tex. Crim. App. 1975); Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App.1975); Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981); Elkins v. State, 647 S.W.2d 663 (Tex. Crim. App. 1983); Dickinson v. State, 685 S.W.2d 320 (Tex. Crim. App. 1984).
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IMPROPER REASONS TO CONVICT
That the prosecutor not argue that the Defendant should be convicted for any reason other than that the evidence has established guilt beyond a reasonable doubt. Prohibited argument includes, but is not limited to, the following:
	a.	That the Defendant should be convicted because of the rising cost of crime. Bridewell v. State, 114 S.W.2d 259 (Tex. Crim. App. 1938).

	b.	That the Defendant should be convicted to show the victim or his family that the victim did not suffer in vain. Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988).

	c.	That the jury should place itself in the victim's place in reaching a verdict. Boyington v. State, 738 S.W.2d 704 (Tex. App.--Houston {1st Dist.] 1985, no pet.).

	d.	That the jury might be in the victim's place if it does not convict the Defendant. Everett v. State, 707 S.W.2d 638 (Tex. Crim. App. 1986).

	e.	That the Defendant should be convicted of the highest offense because it has a greater penalty range than the lesser included offenses. McClure v. State, 544 S.W.2d 390 (Tex. Crim. App. 1976).

	f.	That the jury would have to disregard every honorable thought it could ever have to acquit the Defendant. Cook v. State, 540 S.W.2d 708 (Tex. Crim. App. 1976).

	g.	That criminal trials were not guests for truth and justice but were methods used by Defendants to escape the consequences of their acts. Cook v. State, 540 S.W.2d 708 (Tex. Crim. App. 1976).

	h.	That the Defendant can appeal a conviction but the State cannot appeal an acquittal. Stone v. State, 751 S.W.2d 579 (Tex. App.--Houston {1st Dist.] 1988, pet. ref'd).

	i.	That any mistake the jury made would be corrected by an appellate court. Borgen v. State, 682 S.W.2d 620 (Tex. App.--Houston {1st Dist.] 1984, no pet.).

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UNSWORN TESTIMONY
	That the prosecutor not mention any fact not in evidence. Prohibited argument includes, but is not limited to, the following:
	a.	That any witness did not testify due to fear of the defendant. Thomas v. State, 519 S.W.2d 430 (Tex. Crim. App. 1975); Johnson v. State, 662 S.W.2d 368 (Tex. Crim. App. 1984).

	b.	That any co-defendant or witness who did not testify has been convicted of the same offense for which the Defendant is on trial. Bailey v. State, 531 S.W.2d 628 (Tex. Crim. App. 1976); Thornton v. State, 542 S.W.2d 181 (Tex. Crim. App. 1976).

	c.	That ay State's witness does not have a prior criminal record.  Hill v. State, 659 S.W.2d 94 (Tex. App.--Houston [14th Dist.] 1983, no pet.).

	d.	That the type of offense for which the Defendant is on trial contributes to a substantial portion of the crime in the community.  White v. State, 492 S.W.2d 488 (Tex. Crim. App. 1973) (prosecutor argued that 60 percent of the crime in the county was attributable to narcotics).

	e.	That the Defendant's conduct would affect the victim in any manner not established by the evidence. Bennett v. State, 677 S.W.2d 121 (Tex. App.--Houston [14th Dist.] 1984, no pet.) (prosecutor argued that the Defendant's molestation of young boys could turn them into homosexuals).

	f.	References to the victims of unrelated crimes.  Escobedo v. State, 620 S.W.2d 590 (Tex. Crim. App. 1981). (prosecutor argued about the death of a police officer not connected to the case); Martinez v. State, 649 S.W.2d 728 (Tex. App.--San Antonio 1983, pet. ref'd.) (prosecutor argued that the headlines in the newspaper reflected that a store clerk had been shot during a robbery).

	g.	That the prosecutor could have called witnesses to testify that the Defendant has a bad reputation.  Pimentel v. State, 710 S.W.2d 764 (Tex. App.--San Antonio 1986, pet. ref'd.) (prosecutor argued that he could have brought in the entire police department to testify that the Defendant had a bad reputation).

	h.	That the Defendant did not cross-examine the State's reputation witnesses because he knew their answers would be unfavorable, so what the jury did not hear was more important than what they heard. Revis v. State, 714 S.W.2d 123 (Tex. App.--Houston [1st Dist.] 1986, no pet.).
	i.	That the Defendant's failure to call character witnesses meant that his family, friends, neighbors and minister had abandoned him.  McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981).

	j.	That the State did not call any particular witness because his testimony would have been cumulative of another State's witness.  Bush v. State, 773 S.W.2d 297 (Tex. Crim. App. 1989).

	k.	That the case is being tried only to determine punishment. Cherry v. State, 507 S.W.2d 549 (Tex. Crim. App. 1974).

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CRITICISM OF DEFENSE COUNSEL
	That the prosecutor not argue that defense counsel is subject to criticism for representing persons accused of crime nor criticize counsel's courtroom conduct or ethics. Prohibited argument includes, but is not limited to, the following:
	a.	That defense counsel is a mouthpiece for criminals whereas the prosecutor is a public servant paid to represent people of the community. Dykes v. State, 325 S.W.2d 135 (Tex. Crim. App. 1959).

	b.	That the prosecutor is grateful that he represents the people of the community and does not have to make a living representing criminal defendants. Bray v. State, 478 S.W.2d 89 (Tex. Crim. App. 1972).

	c.	That the prosecutor took an oath to seek justice but no such oath bore on defense counsel. Lewis v. State, 529 S.W.2d 533 (Tex. Crim. App. 1975).

	d.	That defense counsel's duty is to get the Defendant off even if counsel has to put on witnesses to lie.  Bell v. State, 614 S.W.2d 122 (Tex. Crim. App. 1981).

	e.	Assuming the Defendant is guilty, whether defense counsel wanted the truth before the jury. Lewis v. State,  529 S.W.2d 533 (Tex. Crim. App. 1975).

	f.	References to any other criminal cases handled by defense counsel. Summers v. State, 182 S.W.2d 720 (Tex. Crim. App. 1944) (prosecutor argued that defense counsel had previously represented a "dirty bootlegger" who had killed a prohibition leader).

	g.	That defense counsel has manufactured evidence or is capable of doing so. Jones v. State, 205 S.W.2d 590 (Tex. Crim. App. 1947); Sunday v. State, 745 S.W.2d 436 (Tex. App.--Beaumont 1988, pet. ref'd) (prosecutor argued that Defendant came up with his claim of self-defense only after hiring a lawyer).

	h.	That defense counsel and the Defendant lied in entering a plea of not guilty. Lopez v. State, 500 S.W.2d 844 (Tex. Crim. App. 1973).

	i.	That defense counsel was willing to or did lie to the jury. Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975); Everett v. State, 707 S.W.2d 638 (Tex. Crim. App. 1986) (prosecutor argued that defense counsel was "a little fast and loose with the truth").

	j.	That defense counsel did not argue that the defendant was innocent. Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975).

	k.	That defense counsel intimidated the witnesses, the court or the prosecutor. Andrew v. State, 558 S.W.2d 876 (Tex. Crim. App. 1977) (concurring opinion).

	l.	References to defense counsel's strategy, courtroom tactics or ethics, such as suggesting that counsel is shrewd and tricky. Jones v. State, 205 S.W.2d 590 (Tex. Crim. App. 1947); Cook v. State, 537 S.W.2d 258 (Tex. Crim. App. 1976); Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984); Lopez v. State, 705 S.W.2d 296 (Tex. App.--San Antonio 1986, no pet.) (prosecutor argued that counsel's strategy was to keep as much evidence from the jury as possible).

	m.	Reference to the fact that defense counsel made objections during the trial. Garza v. State, 160 S.W.2d 926 (Tex. Crim. App. 1942); Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975); Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984).

	n.	That as long as lawyers are for hire, justice is for sale. Borgen v. State, 672 S.W.2d 456 (Tex. Crim. App. 1984).

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COURT PROCEEDINGS
	That the prosecutor not comment on rulings of the Court or the Defendant's non-testimonial demeanor. Prohibited argument includes, but is not limited to, the following:
	a.	That the State could not introduce certain evidence due to the Defendant's objections. Lopez v. State, 705 S.W.2d 296 (Tex. App.--San Antonio 1986, no pet.).

	b.	That the court's inclusion in the jury charge of a defensive theory or lesser included offense does not mean that the court believed it. McClory v. State, 510 S.W.2d 932 (Tex. Crim. App. 1974); Dunbar v. State, 551 S.W.2d 382 (Tex. Crim. App. 1977).

	c.	Reference to the Defendant's non-testimonial demeanor in the courtroom. Good v. State, 723 S.W.2d 734 (Tex. Crim. App. 1986); Reynolds v. State, 505 S.W.2d 265, 266 (Tex. Crim. App. 1974) (prosecutor argued that the Defendant was "coming down from . . . drugs" in the courtroom).

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ARGUING THE LAW IN A MANNER CONTRARY 
TO THE COURT'S CHARGE

	That the prosecutor not argue the law in a manner contrary to the Court's charge. Prohibited argument includes, but is not limited to, the following:
	a.	Any statement of substantive law that is not contained in, and is contrary to, the Court's charge. Davis v. State, 506 S.W.2d 909 (Tex. Crim. App. 1974); Whiting v. State, 797 S.W.2d 45 (Tex. Crim. App. 1990).

	b.	That evidence admitted for a limited purpose be considered for any other purpose. Sanchez v. State, 591 S.W.2d 500 (Tex. Crim. App. 1979) (prosecutor argued that Defendant's prior convictions could be considered as evidence of guilt despite instruction limiting their consideration to credibility).

	c.	That hearsay can be considered the truth of the matter asserted. Girard v. State, 631 S.W.2d 162 (Tex. Crim. App. 1982), overruled on other grounds.

	WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that the Court grant this motion.

Respectfully submitted,

CERTIFICATE OF SERVICE
	I hereby certify that a true copy of the foregoing Motion was hand delivered, faxed, or mailed, postage prepaid, to the  of  County, Texas on the _____ day of .

                                                              

CAUSE NO.  

THE STATE OF TEXAS

V.

§	IN THE 
§
§	OF
§
§	 COUNTY, TEXAS

ORDER

	Defendant's Motion to Limit Jury Argument of State is hereby:

(GRANTED as to paragraphs. . . )

                                                                                                                                                      
(DENIED as to paragraphs. . . )

	SIGNED on this       day of .

							                                                                     
							JUDGE PRESIDING