# 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/9777194

## 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:** On rehearing
- **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/9777194

## 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

OPINION ON APPELLANT’S MOTION FOR REHEARING
On original submission we overruled Appellant’s second ground of error, concerning the admission of an extraneous offense, for two reasons. On motion for rehearing appellant contends that we erred in doing so. He complains, as did Judge Clinton in the dissent on original submission, that cross-examination of a witness cannot alone be justification for the admission of an extraneous offense and thus our opinion is wrong when it states that the extraneous offense was “relevant as rehabilitation evidence for the testimony of Kevin Long”. Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972). We agree, and that portion of the original opinion has been excised. We do not agree however that the extraneous offense was not admissible to show motive, as also contended by appellant. Thus appellant's second ground of error was properly overruled on original submission.
We have examined the remainder of appellant’s contentions in his motion for rehearing and find them to be without merit.
Appellant’s motion for rehearing is overruled.
CLINTON and TEAGUE, JJ„ dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777194. Public record. Not legal advice.