# McKay v. State

> Court of Criminal Appeals of Texas · October 2, 1985 · 707 S.W.2d 23

URL: https://www.frixlaw.com/law-library/cases/9777193

## Case

- **Full name:** David Wayne McKAY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 2, 1985
- **Citations:** 707 S.W.2d 23; 1985 Tex. Crim. App. LEXIS 1475
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Miller, Teague, Clinton
- **Cited by:** 321 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/9777193

## How later opinions describe it (automated extraction)

- concluding prosecutor’s statement that “there is no evidence to that effect” and “there is no evidence of any phantom [killer]” was not improper reference to defendant’s failure to testify but was invited by counsel’s argument that someone else had committed the murder
- concluding prosecutor=s statement that Athere is no evidence to that effect@ and Athere is no evidence of any phantom [killer]@ was not improper reference to defendant=s failure to testify but was invited by counsel=s argument that someone else had committed the murder
- explaining that “the prosecutor may argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record and not as constituting unsworn testimony”
- holding that in order for an improper argument to rise to a level mandating reversal, the argument must be "extreme or manifestly improper, or inject new and harmful facts into evidence"

## Opinion text

CLINTON, Judge,
dissenting.
While there is a great deal in the opinion of the Court with which I cannot agree, I would be content simply to dissent but for the majority’s overruling the second ground of error on a theory that evidence revealing the extraneous robbery offense is “relevant as rehabilitation evidence for the testimony of Kevin Long.” If there is authority for that proposition, it ought to be cited.
When Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983), speaks of “relevance to *40 a material issue the State must prove” in a circumstantial evidence case, id., at 346 , it and the cases cited make clear that “issue” means such matters as motive, intent and design, Etchieson v. State, 574 S.W.2d 753, 760 (Tex.Cr.App.1978) and Mulchahey v. State, 574 S.W.2d 112, 117 (Tex.Cr.App.1978), or identity, Jones v. State, 568 S.W.2d 847, 858 (Tex.Cr.App.1978). 1
Just as clearly, in Caldwell v. State, 477 S.W.2d 877, 879 (Tex.Cr.App.1972), the Court rejected the theory advanced by the majority opinion in this cause, viz:
“To hold that the cross-examination of this [complainant] would permit the introduction of an extraneous offense would be tantamount to holding that such testimony would be admissible in any case where defendant’s counsel exercised the constitutional right of cross-examination. This is not and should not be the law.” [Emphasis added]
Accordingly, I dissent.
TEAGUE, J., joins.
. While some opinions have drawn a distinction between cases proved by direct evidence and those proved by circumstantial evidence, based on what seems to be simply loose language in Etchieson and Mulchahey, supra, as well of the formulation in Jones, supra, just recently in Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App. 1985), the Court pointed out, “There is no conceptual necessity to differentiate between circumstantial and direct evidence in determining the admissibility of extraneous acts of misconduct,” id., at 879-880, n. 2 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777193. Public record. Not legal advice.