Jacobson, Jonathan

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1466-11

JONATHAN JACOBSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

LUBBOCK COUNTY

Cochran, J., delivered the opinion of the Court in which Price, Johnson,

Hervey and Alcala, JJ., joined. Womack, J., filed a dissenting opinion in which

Keller, P.J., and Keasler, J., joined. Meyers, J., did not participate.

O P I N I O N

A jury convicted appellant of aggravated sexual assault of a child. During the

punishment phase, appellant testified and admitted that he had had an ongoing sexual

relationship with the young girl. The court of appeals held that, under the judicially created

De Garmo (1) doctrine, as modified by Leday , (2) appellant was estopped from complaining about

the State's jury argument during the guilt phase because he had later admitted his guilt.

Therefore, the court was precluded from addressing the merits of appellant's claim. (3) We

granted appellant's petition for discretionary review to decide whether Leday 's exceptions

to the De Garmo estoppel doctrine should "be extended to a broader class of guilty-phase

errors." (4) We conclude that Leday 's reasoning applies to all guilt-stage claims of error, not

merely "fundamental" claims, and we overrule any last vestiges of the De Garmo doctrine. (5)

Therefore, a defendant who testifies at the punishment stage of trial and admits his guilt does

not forfeit his right to complain on appeal about errors occurring during the guilt stage. We

remand this case to the court of appeals to address the merits of appellant's complaint.

I.

Appellant's mother was a friend of B.P.'s family. Appellant and B.P. had known each

other all of their lives. When he was twenty and B.P. was twelve, appellant moved in with

her family. At first, appellant treated B.P. like a little sister, but then he started touching her

inappropriately and, eventually, started having sex with her. This relationship lasted for

about eight months-until B.P.'s mother began to notice a decline in B.P.'s grades and a

general change in her attitude. Something was wrong. B.P.'s family kicked appellant out

of their house because they were suspicious of his influence over B.P.

Someone reported B.P.'s mother to CPS for not taking appropriate care of her

daughter. CPS determined that this charge was unfounded, but the investigators found "love

letters" between appellant and B.P. and called the police. B.P. then admitted that she and

appellant had had sex on many occasions.

B.P. testified that appellant told her that he "wanted to expand [her] horizons" as he

got more sexual and more possessive. B.P. said that appellant was a "Goth"-"[w]earing all

black, listening to heavy metal, you know, tattoos, black hair, all that stuff." At first he

would put his fingers in her vagina and she would "blow" him, but then appellant "wanted

to take it a step farther." Soon, they ended up having sex "just about every day." Appellant

told B.P. that he loved her and wanted to marry her.

Detective Richard Mayer of the Lubbock Sheriff's Office, testified that B.P. was

initially reluctant to discuss her sexual relationship with appellant, but she eventually

admitted to the relationship. On cross-examination, Det. Mayer said that, at the beginning

of his investigation, he did not know if appellant was innocent or guilty. Once B.P. admitted

that appellant had had sex with her, he explained that

I still knew that even with her saying yes that I would need more to prove the

case, which would be the CARE exam. So I wasn't like, ' Oh, I got this one in

my win pile, ' you know. . . . I still have to go through the steps of investigation

to be sure that I'm not just falsely accusing somebody of something.

During closing arguments, defense counsel seized on Det. Mayer's "win pile" phrase

and repeatedly suggested that his investigation had "turned into a global warming Salem

witch hunt trial." He said that Det. Mayer had "jumped to conclusions." Then counsel came

back to his "witch hunt" theme:

And the thing about it is the witch hunt. You know when witch hunts were

happening, they thought there was a witch. They tied them up. Weighted

them down. Threw them in the water. If they survived, they were a witch. If

they didn't survive, well, better safe than sorry.

Ladies and gentlemen, we got rid of those witch hunts. . . . Ladies and

gentlemen, our system must never be law enforcement saying, "I got to get

enough to put it in the win pile."

He claimed that Det. Mayer "started out with 'How do I get this to the win pile? How do I

get the witch in the water?'"

The prosecutor immediately responded to counsel's characterization of Det. Mayer's

testimony by noting, "Somebody in this courtroom has an end result that they will twist and

turn and fill in the holes to make it work . . . whatever they want to do to make it happen."

Defense counsel objected that the prosecutor was "attacking Defendant over counsel's

shoulder," but the trial judge overruled him, and the prosecutor continued:

The Defense in this case has their end result, and they will twist the words of

Detective Mayer. And if you don't believe me, how many times did he stand

up here and use the words "win pile"?

The jury found appellant guilty of aggravated sexual assault. Then, during the

punishment phase, appellant testified and admitted to having a "sexual relationship" with

twelve-year-old B.P., but stated that "she was the one kind of teaching [him] some of these

things." The jury sentenced appellant to forty-five years in prison.

Appellant's sole claim on appeal was that the trial judge erred in overruling his

objection to the prosecutor's argument. The court of appeals noted that, before it could reach

the merits of this claim, it had to decide if the De Garmo doctrine barred it from considering

appellant's claim because he had admitted to the offense during the punishment phase. (6) After a lengthy discussion of the development of the De Garmo/Leday doctrine, the

court of appeals concluded that no case directly addresses that doctrine's application to a

claim that the State struck at defendant over the shoulders of counsel. (7) The court then

analyzed "the treatment of this type of error in other contexts" to see if the State's argument

could be said to implicate a "fundamental right" under Leday . (8) After a second lengthy

discussion, the court concluded that this type of closing-argument error "does not implicate

fundamental rights, and, thus, is not in the category of error that would survive for our review

under Leday after appellant confessed to having committed the offense." (9) After three pages

of detailed legal analysis, the court of appeals finally determined that it could not address the

merits of appellant's claim of improper jury argument. It affirmed the trial court judgment. (10)

II.

Although the judicially created De Garmo doctrine derived its name from a

particularly grisly capital-murder case, (11) the core of the doctrine had been a part of Texas

criminal jurisprudence for many years before that. In De Garmo , this Court held that a

defendant who testifies at the punishment stage of trial and admits his guilt to the crime for

which he had been found guilty waives any challenge to the sufficiency of the evidence. (12)

We noted, "The law as it presently exists is clear that such a defendant not only waives a

challenge to the sufficiency of the evidence, but he also waives any error that might have

occurred during the guilt stage of the trial." (13) Whether that was the "law as it presently

existed" at that time, (14) the so-called De Garmo doctrine was solidified in McGlothlin v.

State . (15) In that 1995 case, Judge Baird characterized the doctrine as holding that "the judicial

confession at punishment waives all error that occurred at the guilt stage of the trial." (16)

The De Garmo doctrine was originally built upon the notion that "[i]t would be an

exercise in futility to reverse" a case for insufficient evidence when the defendant testified

at punishment and admitted his guilt because his testimony "could be used against him on

a retrial." (17) A second jury would necessarily convict the defendant based on his former

testimony, so it would be a waste of time and effort to require a retrial in which the evidence

clearly would be sufficient. But that rationale for the rule disappeared when the United

States Supreme Court held that, if an appellate court finds the evidence insufficient to

support the defendant's conviction, double-jeopardy principles bar a retrial. (18) Except for the

hoary doctrine of stare decisis , this was the only rationale for the unique Texas rule. (19)

Under the De Garmo waiver doctrine, if the defendant testified at the punishment

stage and admitted to committing the criminal offense, then it did not matter how egregiously

unfair or unconstitutional the guilt portion of the trial was. If the defendant's confession

were the product of physical or psychological torture, it would not matter that the trial judge

admitted it in violation of the Sixth Amendment. If the police battered down the defendant's

door, beat him up, and searched his home over his vehement protests, it was of no importance

that the trial judge admitted the illegally seized evidence in violation of the Fourth

Amendment. If the trial judge flagrantly violated the rules of evidence and procedure, too

bad. If the defendant admitted his guilt during the punishment phase, he automatically

waived appellate review of all errors-great and small-at the guilt stage.

The "waiver" holding in De Garmo was overturned by this Court in Leday v. State . (20)

Indeed, Leday jettisoned much of the De Garmo doctrine as having been built upon a false

premise of ensuring accuracy because trials are not merely a search for "truth." They are also

a societal exemplar of "fair play." (21)

Our criminal justice system makes two promises to its citizens: a

fundamentally fair trial and an accurate result. If either of those two promises

are not met, the criminal justice system itself falls into disrepute and will

eventually be disregarded. (22)

The De Garmo doctrine may arguably serve the interest of an accurate result at the guilt

stage, but it may also negate the equally important societal goal of a fair trial. And, at the

sentencing stage, it negates the interest in accuracy. (23) This Court recognized that problem

in Leday and therefore rejected the applicability of the De Garmo "waiver" doctrine to a

laundry list of various constitutional and other substantive or procedural guarantees. (24) These

guarantees were too important to be "waived" merely because the defendant had admitted

his guilt in a different stage of the proceedings. (25)

Our criminal-justice system depends upon trial judges making correct legal rulings.

Our laws provide for appellate review of those rulings to ensure that our system will deliver

accurate results in a fair proceeding. (26) Indeed, that is the rationale for permitting a defendant

to plead guilty with a plea bargain, yet appeal the correctness of judicial rulings on pretrial

motions. For example, a defendant might obtain an adverse ruling on a pretrial Daubert (27)

hearing on the scientific accuracy of a novel polygraph procedure, and, based upon the

inevitability of the polygraph results coming into evidence, plead guilty but appeal the trial

judge's ruling on the polygraph results. (28) The De Garmo doctrine, even as it exists post- Leday , strips away any right to judicial review of the admission of "junk science" evidence

because the defendant, although he had precisely the same pretrial hearing and ruling,

testified at the punishment stage and admitted guilt. (29)

The defendant who pleads guilty should not be treated more favorably in the appellate

review of legal rulings than the defendant who went to trial but had the temerity to testify

truthfully at the punishment phase. In the latter case, a defendant must give up his Sixth

Amendment right to a trial by jury or his Fifth Amendment right to testify to ensure appellate

review of the trial judge's "junk science" pretrial ruling. This trade-off of constitutional

rights invokes the same "cruel trilemma" concerns that Judge Womack addressed in Leday . (30)

This Court, in Leday , noted that the De Garmo doctrine has practical consequences

only when the trial judge commits reversible error. (31) Thus, if the defendant would not have

prevailed on the merits of his appellate claim and he would not otherwise have been entitled

to a new trial, then the De Garmo doctrine makes no difference at all. (32) To alleviate the

unfairness of this position, the Court, in Leday , separated procedural rights into two

groups-those too important to be "waived" by the De Garmo doctrine (33) and those not quite

so important, to which De Garmo waiver would continue to apply-the "great" rights and the

"small" rights.

According to the court of appeals in this case, the right to a trial not infected with a

prosecutorial closing argument that would otherwise be reversible error (34) is not an important

right. It is just a "small" right and does not fall within the Leday ambit of protected

procedural rights. (35) Reversible error for "small" rights is waived under the De Garmo

doctrine. This dichotomy does not make sense. Reversible error is reversible error,

regardless of the character of the right being substantially gouged. As Judge Meyers

explained in his McGlothlin dissent: When the unfairness occurs during the guilt stage of

a trial, "no legitimate interest of the system is served by holding that [the defendant's

admission of guilt during the punishment phase] somehow ratified the unfairness." (36)

Furthermore, the "cruel trilemma" rationale for rejecting application of the De Garmo

doctrine in Leday applies with equal force in cases in which the defendant claims non-fundamental or non-constitutional error on appeal. As Judge Womack explained in Leday ,

a defendant who has been found guilty faces a "cruel trilemma" in deciding whether to testify

and admit guilt at punishment. (37) If he admits guilt, he waives error under De Garmo ; if he

denies guilt, he is exposed to aggravated perjury charges and increased punishment; if he

does not testify, he loses the opportunity to give the sentencer information that only he

possesses. (38) As a practical matter, every defendant who has been found guilty faces this

"cruel trilemma" decision and the De Garmo doctrine has an outsized impact upon the

defendant's decision-making because his counsel cannot accurately predict, at the time the

decision to testify must be made, whether potential appellate claims might be waived under

the last vestiges of the De Garmo doctrine. Thus, while the De Garmo doctrine may be said

to serve the interest of accuracy at the guilt-stage of trial, it disserves that very same interest

at the punishment stage, and it disserves the interest in the "fairness" of the trial at both

stages. (39)

We do not need the De Garmo doctrine, (40) just as we did not need the judicially created

Helms waiver rule. (41) We have not relied upon the De Garmo doctrine even once in the

fourteen years since we severely limited it in Leday. (42) If a trial judge's legal ruling is wrong,

appellate courts should address that legal ruling (if properly preserved by objection) and

explain why it is wrong. But if that ruling did not "affect substantial rights," (43) i.e. , it did not

seriously affect the verdict or render the trial fundamentally unfair, then it is deemed

harmless. The harmless-error rule, not the De Garmo doctrine, protects the criminal-justice

system from unwarranted or undeserved reversals for improper closing arguments. (44)

For these reasons we extend the reasoning and analysis set out in Leday to all rights,

great and small, and give the De Garmo doctrine the burial it so richly deserves. We reverse

the judgment of the court of appeals and remand this case to that court for consideration of

the merits of appellant's sole claim.

Delivered: February 6, 2013

Publish

1. De Garmo v. State , 691 S.W.2d 657 (Tex. Crim. App. 1985).

2. Leday v. State , 983 S.W.2d 713 (Tex. Crim. App. 1998).

3. Jacobson v. State , 343 S.W.3d 895, 899 (Tex. App.-Amarillo 2011).

4. Appellant's sole ground for review asks, "Since defendants suffer the 'cruel trilemma'

created by De Garmo v. State , 691 S.W.2d 657 (Tex. Crim. App. 1985), regardless of the type of

error raised, should the precautions of Leday v. State , 983 S.W.2d 713 (Tex. Crim. App. 1998),

be extended to a broader class of guilty-phase errors?"

5. Although we have not said so expressly, it is arguable that we overruled De Garmo

entirely in Leday . That, at least, was the conclusion of the Leday dissent. 983 S.W.2d at 730

(McCormick, P.J., dissenting, joined by Keller, J.) ("The Court's thoughtful opinion, echoing

some but not all of Judge Meyers' dissenting opinion in McGlothlin v. State , apparently decides

to abandon entirely the De Garmo doctrine . . . .").

6. Jacobson , 343 S.W.3d at 898 .

7. Id.

8. Id. at 898-99.

9. Id. at 899.

10. Id.

11. A jury convicted Roger De Garmo of capital murder in 1980. 691 S.W.2d at 659 . At

the punishment stage of the trial, De Garmo testified and admitted that "I was the one that was

there and I was the one that did the crime. So, now you can at least sleep well knowing that you

picked the right person[.]" Id. at 660 . De Garmo also threatened to kill the members of the jury

and their families unless they sentenced him to death:

I'm not threatening, I'm promising that if and when some catastrophe happens and

I was put back on the street, if you are not available, somebody of your possession

would be and I would just say my statement is you should give me the death

penalty because that's the only way you're ever going to stop me because you

have put me in this position. . . . I'm going to die any way, so why not take with

me some of the people that's going to make me die. That's the way I feel . . . so

you better . . . put the 'Yes' on both of them questions from my point of view.

Id. The jury promptly did as De Garmo requested, and he was sentenced to death. Id. However,

his conviction was overturned, and, in 1994, a second jury convicted him of capital murder but

sentenced him to life in prison where he remains. De Garmo v. State , 922 S.W.2d 256, 260 (Tex.

App.-Houston [14 th Dist.] 1996, pet. ref'd).

12. De Garmo , 691 S.W.2d at 661 .

13. Id. According to Presiding Judge Onion in his dissent in an earlier case, Gordon v.

State , 651 S.W.2d 793 (Tex. Crim. App. 1983), the waiver doctrine historically applied only to

questions of sufficiency of the evidence and that doctrine "may well be questioned" in light of

the Supreme Court double-jeopardy cases. Id . at 797 (Onion, P.J., dissenting).

14. As this Court later explained in Leday ,

" the De Garmo -doctrine portion of the De

Garmo opinion is dictum, since the Court proceeded to consider and overrule the sufficiency of

the evidence point that De Garmo raised. " 983 S.W.2d at 723 n.14.

15. 896 S.W.2d 183 (Tex. Crim. App. 1995).

16. Id. at 188 .

17. Boothe v. State , 474 S.W.2d 219, 221 (Tex. Crim. App. 1971). Strangely, in Boothe , as

in De Garmo , this Court had already independently examined the evidence supporting the

defendant's conviction and found it sufficient before declaring that claim waived and explaining

its rationale for the waiver doctrine. So in the very cases setting out the waiver doctrine and its

rationale, we did not need to rely upon the waiver doctrine.

18. Burks v. United States , 437 U.S. 1 (1978); Greene v. Massey , 437 U.S. 19 (1978). See

Leday v. State , 983 S.W.2d 713, 721 (Tex. Crim. App. 1998). In Leday , Judge Womack traced

the history of the De Garmo doctrine and noted that the early cases

held that an appellant who had admitted his guilt in the punishment stage could

not appeal the sufficiency of evidence, but the Court allowed appeal of other

errors that were committed at the guilt stage. The stated reason for refusing to

reverse a conviction of such an appellant for insufficient evidence was that on the

retrial the State would certainly obtain conviction by using the appellant's

testimony from the first trial. If that reason ever had validity, it disappeared after

the Supreme Court's holding that the Double Jeopardy Clause of the Fifth

Amendment would be violated by a retrial after an appellate court held that the

evidence of guilt was legally insufficient.

896 S.W.2d at 721 (citations omitted).

19. See McGlothlin , 896 S.W.2d at 190 (Meyers, J., dissenting) (criticizing the majority

opinion which "merely summarizes the meager case law in

De Garmo 's family group, dismisses

appellant's challenge to De Garmo as if it really missed the point of that case, and concludes

with a brief homily on the virtues of stare decisis . ").

20. 983 S.W.2d 713 (Tex. Crim. App. 1998).

21. See id. at 724-25 . Judge Womack explained,

Just as the De Garmo doctrine is consequential only when the guilty verdict is

infected with reversible error, so too is it consequential only when an admittedly

guilty person has been convicted. Recalling that a purpose of trial is to reach a true

verdict is undoubtedly necessary to the resolution of the issue before us. But it can

only begin our consideration. It cannot end it, because the ascertainment of truth is

not the only objective of our law of criminal procedure. We as a people have

deliberately chosen to adopt laws which interfere with the truth-seeking function

of the criminal trial. "Due process and those individual rights that are fundamental

to our quality of life co-exist with, and at times override, the truth-finding

function."

Id. (citation omitted).

22. Ex parte Thompson ,

153 S.W.3d 416, 421 (Tex. Crim. App. 2005) (Cochran, J.,

concurring).

23. See text accompanying notes 38-39 infra .

24. 983 S.W.2d at 725 . This list included

•the right to have guilt proved beyond a reasonable doubt;

•the right against double jeopardy after an acquittal;

•the right to refuse to testify at trial and to be free from comment upon the exercise

of that right;

•the right not to have a confession obtained by coercion or improper inducement

used at trial;

•the right not to have illegally seized evidence used at trial;

•the right not to have privileged communications used against one at trial;

•the right not to have confessions obtained in violation of article 38.22 used at trial;

•the right to have jurors prevented from propounding questions to witnesses.

Id. This Court admitted that "[t]his list of examples may not be complete, and it cannot be final.

The agonia , the constant struggle in American criminal procedure, is between truth-finding and

other values." Id. But we have not identified which other rights are sufficiently important to

make the grade for purposes of non-waiver under Leday and which are not. We did hold, in

Reyes v. State , 994 S.W.2d 151 (Tex. Crim. App. 1999), that the De Garmo doctrine did not

preclude appellate review of a trial court's ruling dismissing a disabled juror during the guilt

stage of trial because that purported error would affect the punishment stage as well as the guilt

stage. Id. at 153. Presumably, then, even non-constitutional and non-fundamental claims of

error involving jury selection or other aspects of a trial that affect both the guilt and punishment

stages are not waived under the post- Leday De Garmo doctrine.

25. Leday , 983 S.W.2d at 725 .

26. The correctness of trial-court legal rulings and the fairness of trial procedures were the

rationales for giving the State a right to appeal in 1987. As Presiding Judge McCormick has

noted, the "Background" section of the State's Right to Appeal Bill states,

" The Texas Constitution provides that the State has no right to appeal in a

criminal case, making Texas the only state that bans all prosecution appeals. This

prohibition is viewed as a serious problem in the administration of criminal justice

for several reasons: (1) On occasion, defendants are released because of

questionable legal rulings excluding what may be legally admissible evidence; (2)

Legal issues that have been wrongly decided by trial courts nevertheless stand as

precedent, albeit unbinding, for police, prosecutors, and courts; and (3) Trial

judges may have a tendency to resolve doubtful legal questions in favor of the

defendant because such a ruling cannot harm the judge's reversal rate.

The Texas constitutional ban, which has been in place since 1876, had its

genesis in the Federal constitutional right not to be twice put in jeopardy for the

same offense. In varying degrees, the federal government and all the states have

enacted legislation to accommodate both a defendant's right to be free from

multiple trials for the same offense and the state's right to appeal erroneous legal

rulings. The focal point in the balance is that the prosecutor's right to appeal is

exclusively upon legal, not factual issues.["]

State v. Moreno , 807 S.W.2d 327 , 329 n.3 (Tex. Crim. App. 1991).

27. Daubert v. Merrell Dow Pharms., Inc. ,

509 U.S. 579 (1993) .

28. See Tex. R. App. P. 25.2(a)(2) ("In a plea bargain case . . . a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial[.]"). At one

time, this Court had judicially crafted a "waiver" of appeal doctrine by holding that when a

defendant pled guilty he "waived" all non-jurisdictional errors, including constitutional claims.

See Helms v. State , 484 S.W.2d 925, 927 (Tex. Crim. App. 1972), abrogated by Young v. State , 8

S.W.3d 656 (Tex. Crim. App. 2000). This rule "discouraged guilty pleas, and caused a

defendant, who wanted to preserve his appellate issues, to force the State to a full trial on the

merits." Lyon v. State ,

872 S.W.2d 732, 734 (Tex. Crim. App. 1994) (citing Morris v. State , 749

S.W.2d 772, 779 (Tex. Crim. App. 1986) ). In response to this judicially created waiver doctrine,

the Texas Legislature amended Article 44.02 to explicitly permit both plea bargains and the

appeal of trial-court legal rulings on written motions. See Griffin v. State , 145 S.W.3d 645, 646-47 (Tex. Crim. App. 2004) (discussing history of the Helms "waiver" rule and its demise via

legislative action).

29. The State claims that permitting a defendant to testify and admit his guilt while also

permitting him to appeal guilt-stage rulings allows him to "have his cake and eat it, too." State's

Brief at 11. First, a defendant who pleads guilty is still entitled to appeal trial-court rulings on

pretrial motions, so he can have his cake and eat it, too. Second, a defendant who testifies at

punishment and admits his guilt may still appeal trial court rulings on "important" guilt-stage

claims under Leday , so he can have his cake and eat it, too.

30. 983 S.W.2d at 723 . Judge Womack explained:

The decision whether to testify [at the punishment stage] is made even less

voluntary by the cruel trilemma in which the defendant is placed. If the defendant

testifies truthfully and admits guilt, De Garmo waiver results. If the defendant

testifies untruthfully and denies guilt, the consequences are exposure to

punishment for aggravated perjury and, of more immediate consequence, an

increased punishment on account of the perjury. And if the defendant does not

testify, the opportunity is lost for the defendant to give the sentencer information

that only the defendant can provide. This would exclude in every case some

information that is relevant to two important objectives of the system of criminal

punishment: a penalty that will prevent this offender from committing other

crimes, and a recognition of the possibility of rehabilitating the individual

defendant. And it will in many cases exclude information that is necessary for a

defendant to carry burdens of proof. The defendant has the burden to prove

eligibility for probation if the case is tried to a jury. The defendant also has the

burden to prove certain mitigating issues.

Id. at 723-24 (internal citations and footnotes omitted).

31. Id. at 723. Judge Womack explained,

It must be remembered that the De Garmo doctrine has consequences only if the

trial court committed reversible error at the guilt stage. (If there was no reversible

error, the De Garmo waiver is inconsequential.) Therefore every appellant who is

subjected to a meaningful consequence of the De Garmo doctrine is a defendant

whose verdict of guilty was infected with reversible error. Without such a tainted

verdict of guilt, there would be no punishment stage, and there would be no

occasion for the defendant to face the decision whether to testify.

Id.

32. Of course the De Garmo waiver doctrine does sometimes make life easier for

prosecutors and appellate judges. Both can reject the defendant's claims with a single,

dismissive sentence-"We reject all of appellant's claims concerning the fairness of his guilt-stage

trial under De Garmo "-instead of addressing the merits of those claims. However, in cases such

as this one, in which the alleged error has not previously been categorized as " De Garmo waiver"

error or " Leday non-waiver" error, that categorization exercise may take more time and trouble

than would any analysis of the merits of the alleged error itself.

33. If the error "interfere[s] with the truth-seeking function of the trial," or is one of "those

individual rights that are fundamental to our quality of life [that] co-exist with, and at time

override, the truth-finding function," that error is not waived under the De Garmo doctrine.

Leday , 983 S.W.2d at 724-25 (internal quotation marks omitted). See the list of Leday 's "great"

rights set out in note 24 supra.

34. We are not suggesting that the prosecutorial argument in this case was reversible error,

but rather that, as a general proposition, prosecutorial arguments that are otherwise reversible

error are waived under the De Garmo doctrine because the right to be free from improper closing

arguments is not an important right under Leday .

35. One could certainly claim that a prosecutor's argument attacking the defendant "over

the shoulders of his counsel" is an error that interferes with the truth-seeking function of the trial

because it diverts attention from the quality and quantity of the State's evidence and focuses

attention on the personal attributes of the defendant and his counsel. One could argue either side

of this "great right" vs. "small right" battle over almost any alleged error. The De Garmo

doctrine encourages this sort of sophistic reasoning instead of focusing the appellate court's

attention of the underlying merits of the alleged error in the particular case.

36. McGlothlin v. State , 896 S.W.2d 183, 191 (Tex. Crim. App. 1995) (Meyers, J.,

dissenting).

37. 983 S.W.2d at 723-24 .

38. Id. Indeed, if the De Garmo doctrine were to prevent the defendant from testifying at

the punishment phase, it would "in many cases exclude information that is necessary for a

defendant to carry burdens of proof," such as when the defendant must prove his eligibility for

probation. Id.

39. See id. ; see also McGlothlin , 896 S.W.2d at 191 (Meyers, J., dissenting) (noting the

difficult decisions that a defendant, who believes that his guilt-stage trial was unfair, must make

about whether and how to testify during the punishment stage). As Judge Meyers explained,

So far as I can tell, De Garmo and its cousins are the only vestiges of the

profoundly anti-adversarial attitude which forces an accused to give up his right to

appeal for the privilege of defending himself at trial. Abandoning it would not

only restore fairness to the resolution of disputes in criminal litigation, but would

also promote legitimate social interests, similar to those underlying article 44.02 ,

by encouraging defendants to seek a satisfactory disposition of the case at trial in

spite of judicial errors, and thereby avoid the time and expense of appellate

review.

Id. at 192.

40. The State notes that, in any case in which the defendant has testified at the punishment

phase and admitted his guilt, his judicial confession would be admissible in a retrial unless he

established that he was somehow "forced" to testify and admit his guilt. See Tex. Code Crim.

Proc. art. 38.21 and 38.22, § 5; see also Brito Carrasco v. State , 154 S.W.3d 127, 130-32 (Tex.

Crim. App. 2005) (Cochran, J., concurring). But that is also true in the post- Leday "great-right"

cases to which the De Garmo doctrine does not apply.

41. See note 28 supra .

42. Indeed, the only time that this Court has addressed the De Garmo doctrine since Leday

was in Reyes v. State , 994 S.W.2d 151 (Tex. Crim. App. 1999), in which Judge Womack,

speaking for a unanimous court, stated that "[t]he court below was led into the error of literally

following our ill-written dictum in De Garmo ." Id. at 153.

43. Tex. R. App. P. 44.2(b) ("Any other [nonconstitutional] error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.").

44. See Mosley v. State ,

983 S.W.2d 249 , 258 - 60 (Tex. Crim. App. 1998) (harm analysis

for improper jury argument uses a three-factor test); see also Brown v. State , 270 S.W.3d 564,

572 (Tex. Crim. App. 2008) ("improper-argument error . . . is non-constitutional in nature");

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

analysis applicable to improper jury argument is conducted under rule 44.2(b)).