# Mosley v. State

> Court of Criminal Appeals of Texas · July 1, 1998 · 983 S.W.2d 249

URL: https://www.frixlaw.com/law-library/cases/9668293

## Case

- **Full name:** DaRoyce Lamont MOSLEY, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 1, 1998
- **Citations:** 983 S.W.2d 249; 1998 Tex. Crim. App. LEXIS 86; 1998 WL 349513
- **Precedential status:** Published
- **Opinion:** Dissent by Overstreet
- **Judges:** Keller, McCormick, Mansfield, Holland, Womack, Meyers, Baird, Overstreet, Price, Court'S
- **Cited by:** 2,848 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/9668293

## How later opinions describe it (automated extraction)

- explaining that harm from erroneous exclusion of evidence may be mitigated by admission of evidence similar to excluded evidence, and finding no harm where excluded testimony was not “different or more powerful than that of other witnesses that actually testified”
- holding that closing statement that implied defense counsel wanted to divert jury from the truth was "mildly inappropriate” and was not reversible error because the statement did not directly accuse defense counsel of lying or manufacturing evidence
- holding that “a prosecutor runs 42 a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel’s character”
- holding that "a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character"
- holding that improper final argument is not constitutional error but is instead error reviewed under Rule 44.2(b), and then adopting three-fold test for reviewing whether improper argument substantially affected defendant’s rights

## Opinion text

OVERSTREET, Judge,
dissenting on court’s own motion for rehearing.
Because the Court granted rehearing on its own motion, my prior opinion is withdrawn. After reading appellant’s brief, the majority opinion of this Court, the concurring opinions, and the dissenting opinions, I am of the firm belief that the issues raised by appellant require additional briefing. As the court of last resort in Texas for criminal matters, we should not render a disposition of the issues as suggested by the majority *268 opinion. 1 The United States Supreme Court in various decisions has upheld the constitutionality of the Texas capital murder laws. Implicit is a requirement of meaningful appellate review for those cases wherein the death penalty has been assessed. It should be obvious to all that appellant, an indigent death row inmate, is working under unreasonable inflexible time restraints imposed by this Court in this case.
Even a strained sense of justice demands that we reorder briefing. Issues such as the actions of the trial judge toward appellant’s African-American lawyers and the creation of a hostile and racially charged courtroom atmosphere have far ranging potential consequences regarding the disposition of this case.
Rather than rushing to injustice as the majority seems intent on doing, I would order appellate counsel to rebrief per Tex. R.App.Pro. 38.9, formerly Tex.R.App.Pro. 74(p). Afterwards, this Court can provide the constitutionally required due process of law by providing meaningful review. Because the majority chooses to do otherwise, I strongly dissent.
. The majority dismisses 64 of appellant’s 173 points, 36.99% — well over one-third, as inadequately briefed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668293. Public record. Not legal advice.