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Has anyone thought much about Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). It seems to say that when there is a curative instruction for a jury argument, we are now supposed to decide if a mistrial should have been granted by deciding if the argument was harmless. They limit this approach (at least for now) to cases where there is a constitutional issue. In a typical case, why would we care about the "certainty of the conviction" (or punishment) if the jury obeys the curative instruction.

This seems awful to me. Shouldn't we get both the presumption of cure and then be able to argue the uncured error was harmless.

I've had a lot of luck getting points of error tossed for failure to brief the presumption of cure. If an appellant can't make a compelling case that this particular argument was the 1 in 100 incurable type, these points of error deserve to get summarily rejected.
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001Reply With QuoteReport This Post
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