# Hawkins v. State > Court of Criminal Appeals of Texas · May 19, 2004 · 135 S.W.3d 72 URL: https://www.frixlaw.com/law-library/cases/9657014 ## Case - **Full name:** Daniel Dallas HAWKINS, Appellant, v. the STATE of Texas - **Court:** Court of Criminal Appeals of Texas - **Decided:** May 19, 2004 - **Citations:** 135 S.W.3d 72; 2004 Tex. Crim. App. LEXIS 899; 2004 WL 1103290 - **Precedential status:** Published - **Opinion:** Concurrence by Johnson - **Judges:** Keller, Meyers, Price, Womack, Keasler, Hervey, Holcomb, Cochran, Johnson - **Cited by:** 1,289 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9657014 ## How later opinions describe it (automated extraction) - explaining that because trial court sustained objection 6 and granted request for instruction to disregard, “[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the motion for mistrial,” that parties’ framing of issue as on… - explaining that because trial court sustained objection and granted request for instruction to disregard, “[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the motion for mistrial” and that “[a] harm analysis is employed… - holding that Mosley factors should be used to evaluate whether trial court abused its discretion in denying mistrial for improper argument, but stating “[n]evertheless, the question of whether a mistrial should have been granted involves most, if not all, of the same considera… - explaining that the failure to grant a mistrial after an objection has been sustained and a curative instruction given is a question of error not of harm because "[t]he only adverse ruling — and thus the only occasion for making a mistake — was the trial court's denial of the … - holding that a mistrial is warranted when the improper conduct is so prejudicial as to render the continuation of the trial wasteful and futile and that only in extreme circumstances, when the prejudice is incurable, will a mistrial be required ## Opinion text JOHNSON, J., filed a concurring opinion. I concur in the judgment of the Court. I write separately to note how closely the prosecutor treads to the ethical line. In Mosley v. State, 983 S.W.2d 249, 260 (Tex.Crim.App.1998), cited by the majority, this Court also noted the decision in United States v. Ortiz-Arrigoitia, 996 F.2d 436, 441 (1st Cir.1993), a case involving allegations of striking at the defendant over the shoulder of counsel. “The appellate court was ‘not persuaded that these comments were so prejudicial as to require reversal.’ Id. at 441 . But, the court added, “We do not understand ... why, after numerous warnings from this court, the prosecuting attorneys ... persist in spiking their arguments with comments that put their cases at risk.’ ” Id. (Ellipses in original.) The same might be said of the case before us. The transgressions, while numerous, and the instructions to disregard, while tepid, may not merit reversal, but it is difficult to understand why, after five sustained objections for arguing outside of the record and several admonishments by the trial court, the prosecutor persisted in such behavior. Further, with respect to arguments made about prior offenses, I find it disingenuous of the prosecutor in Jefferson County to complain to the jury that appellant had received successively lower sentences for each subsequent offense. The complained-of prior sentences were all from Jefferson County. According to the prosecutor, at least one of those increasingly lower subsequent sentences (1981) was the result of a plea bargain with Jefferson County. If appellant received increasingly lower sentences, it was because judges, juries, and/or prosecutors in Jefferson County determined that the increasingly smaller penalties were appropriate to the charges brought by Jefferson County. It is a duplicitous act unworthy of the state to create a situation and then to deplore its existence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9657014. Public record. Not legal advice.