Melancon v. State

¶1MAJORITY OPINION ON REHEARING EN BANC.

¶2The State’s motion for rehearing en banc is granted, the majority and dissenting opinions issued in this case on September 21, 2000, are withdrawn, and the *378following majority, concurring and dissenting, and dissenting opinions are issued in their place.

¶3Albert Joseph Melancon appeals his conviction for aggravated robbery1 on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial court erred in (a) failing to sustain appellant’s objections or grant a mistrial with regard to the prosecutor’s closing arguments; and (b) its efforts to break the jury deadlock. We affirm.

¶4Ineffective Assistance

¶5The first four of appellant’s nine points of error contend that he received ineffective assistance of counsel because his trial counsel failed to: (1) subpoena an available alibi witness; (2) investigate the identity and availability of other witnesses who could corroborate appellant’s alibi; and (3) question other available witnesses who could possibly support appellant’s misiden-tification defense.

¶6To prevail on a claim of ineffective assistance of counsel, an appellant must show, first, that counsel’s performance was deficient, i.e., it fell below an objective standard of reasonableness, and, second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). To be sustained, an allegation of ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). In reviewing an ineffectiveness claim, a court need not determine whether counsel’s performance was deficient if it is easier to dispose of the challenge based on lack of prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

¶7A defendant is not entitled to perfect or errorless counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992). Moreover, in reviewing ineffectiveness claims, scrutiny of counsel’s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.2

¶8A motion for new trial is a prerequisite to presenting a point of error on appeal where it is necessary to adduce facts not in the record. Tex.R.App. P. 21.2. A trial court’s ruling denying a defendant’s motion for new trial is reviewed for abuse of discretion. Salazar v. State, 38 S.W.3d 141,148 (Tex.Crim.App.2001).3

¶9*379Failure to Subpoena Witness

¶10During trial, appellant presented evidence of the defenses of alibi and misiden-tification through a single witness, appellant’s girlfriend, Ava Germany. Appellant claims his trial counsel was ineffective in failing to also subpoena Rita Hearn4 to corroborate Germany’s alibi testimony.

¶11According to the testimony of appellant’s trial counsel at the motion for new trial hearing (the “hearing”), Hearn had agreed to testify on appellant’s behalf when trial counsel spoke with her the weekend before trial. At the time, counsel saw no reason to subpoena Hearn because, both times they spoke, she told him “very emphatically” that she would be at trial. To overcome any transportation obstacles, trial counsel arranged a taxicab to transport Hearn, Germany, and appellant’s mother to a location near counsel’s home from which counsel planned to drive them to the trial court. However, when the cab arrived at the designated location, Hearn was not in it. Despite considering her an important witness and being told that she was working at a restaurant that day, counsel made no further attempt to secure her presence at trial or to request a continuance because of her absence.

¶12Granting appellant a new trial for trial counsel’s failure to subpoena Hearn would be justified, if at all, only if it were shown that Hearn’s testimony, i.e., if given at a new trial, could indeed be helpful to appellant.5 However, despite contending that Hearn was so important a witness that the failure to subpoena her at trial was ineffective assistance, appellant presented no affidavit from Hearn with his motion for new trial and offered no testimony from her at the hearing or otherwise. Instead, evidence of the content of the testimony Hearn could purportedly have provided was limited to defense counsel’s conclusory testimony at the hearing that “Miss Hearn, to a certain extent, corroborated Ava Germany’s testimony.” Although defense counsel also testified in the abstract at the hearing that he believed Hearn’s testimony would have helped the defense and that she was an important witness, he did not state, and the record of the hearing does not otherwise contain, a single fact to which Hearn could testify about the events in question (or even showing that Hearn was ever in a position to possess any relevant knowledge).6*380Without a record reflecting what facts, if any, Hearn could have actually provided, prejudice from counsel’s failure to subpoena her was not shown by trial counsel’s global and unsubstantiated characterizations that Hearn, to an extent, corroborated Germany, or that Hearn’s testimony would have helped the defense.7 Therefore, the trial court did not abuse its discretion by denying appellant’s motion for new trial, and appellant’s first point of error is overruled.

¶13Failure to Investigate and Call Other Witnesses

¶14Appellant’s second point of error claims that he received ineffective assistance because his counsel failed to investigate the identity and availability of Michelle Driver, Tamala Driver, and Patrice Brock as alibi witnesses. Appellant’s trial counsel testified at the hearing that he was aware of these witnesses but his attempts to contact them were unsuccessful because they had moved from their previous residences and he had no leads on where they lived. Counsel further testified that he did not ask his investigator to locate these witnesses because he had no leads on them.

¶15*381Because the record again contains no evidence of what testimony the alleged witnesses could have provided (not even defense counsel’s assessment of its value), it is not possible to determine whether the witnesses could have supplied facts that would have supported appellant’s position on his alibi defense or otherwise. Accordingly, appellant’s second point of error also fails to show harm and is overruled.

¶16Appellant’s third point of error claims his trial counsel provided ineffective assistance by failing to call as a witness Kenneth Driver, who was present at trial because he had been subpoenaed by the prosecution. Although Driver did not testify at trial, he testified at the hearing that he was in the apartment during the robbery and clearly saw the two robbers, whose faces were mostly covered. However, Driver testified that he did not believe either robber was appellant because of their other physical differences from appellant, whom Driver described as his best friend.

¶17Appellant’s trial counsel testified at the hearing that he had spoken to Driver at least three times and intended to elicit testimony from Driver but later made a conscious decision not to do so because: (1) the favorable testimony Driver could have provided came out through a police officer’s testimony; (2) Driver could have been cross-examined on the State’s theory that he was part of a conspiracy with appellant to commit the robbery; and (3) any favorable testimony Driver could have provided would have been undermined by cross-examination revealing that he had a prior felony conviction. In light of these considerations and the deference we must afford strategic decisions made by trial counsel, appellant’s third point of error does not demonstrate that the decision not to call Driver to testify fell below an objective standard of reasonableness. Accordingly, the third point of error is overruled.

¶18Appellant’s fourth point of error contends that the foregoing conduct of his trial counsel, in the aggregate, deprived him of effective assistance of counsel. Although a number of errors can be found harmful in their cumulative effect, non-errors may not, in their cumulative effect, amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999). Because appellant has demonstrated no deficient performance by his trial counsel, there can be no cumulative error or harm. Accordingly, his fourth point of error is overruled.

¶19Jury Argument

¶20Appellant’s fifth point of error asserts that the trial court erred by overruling his objection and denying his request for a mistrial in response to the following argument by the prosecutor:

[Prosecutor]: [W]hat happened on that night is that Kenneth Driver was home alone with [Alicia Johnson], Kenneth Driver is the boyfriend of Tarauniqui’s sister. Of course, Tarau-niqui would mention something about her savings to her family members. Okay. Perhaps her sister let it slip one day that they were saving money.

[Defense counsel]: Excuse me, Your Honor, arguing outside the record.

THE COURT: Sustained.

[Defense counsel]: And ask that the jury be instructed to disregard.

THE COURT: Disregard the last comment.

[Prosecutor]: You can reasonably deduce whether or not the information about saving some money in the apartment ever got out of Tarauni-qui’s mouth to anyone else. You can reasonably deduce that once Kenneth *382Driver got that information, he decided he was going to want some of the money.

[Defense counsel]: I’m going to renew the objection about arguing outside the record.

THE COURT: Overruled.

[Prosecutor]: You can reasonably deduce that his friend here was told by Mr. Driver. They planned it....

¶21Appellant complains on appeal that the foregoing argument, suggesting that there was a conspiracy between appellant and Driver, was “improper,” because it was outside the record. However, the only portion of the argument associating Driver with appellant, assuming that appellant was even the person to whom the prosecutor was referring as “his friend here,” was the final portion to which appellant failed to preserve a complaint by failing to object. The preceding portions of the argument implicate only Driver in the robbery, not appellant. Because appellant does not explain, and it is not otherwise apparent from the context, how those statements, even if outside the record, could have thus been adverse to appellant, this complaint affords no basis for relief.

¶22Appellant also complains of the following portion of the prosecutor’s argument:

[Prosecutor]: This man thought, because he had his shirt over his head and because he was a neighbor, that that thirteen-year-old girl would never finger him. This man was wrong. The only issue here is a recognition.

And ladies and gentlemen, I’m telling you that that thirteen-year-old girl wouldn’t have any problems whatsoever seeing that man for a period of six or seven seconds.

[Defense counsel]: I’m going to object to the expression of his personal opinion by the prosecutor.

THE COURT: Sustained.

[Defense counsel]: Ask the jury be instructed to disregard.

THE COURT: Disregard counsel’s last comment.

[Defense counsel]: And move for a mistrial.

THE COURT: Be denied.

¶23Appellant claims that this argument: (1) attributed a motive to him that was not supported either by direct testimony or a reasonable deduction from the evidence; (2) injected a new and harmful fact, i.e., motive, into the case; and (3) encouraged the jurors to base the credibility of the complaining witness’s identification of appellant on the prosecutor’s personal opinion that the girl was being truthful.

¶24To the extent the robbers had shirts over their faces, which is undisputed, it is a reasonable inference that they did so to avoid being recognized or identified. Therefore, it is not apparent how the complained of argument introduced any new or unsupported motive to the case. Nor does this argument express a personal opinion by the prosecutor that the girl was being truthful, as appellant complains, but only that she had sufficient time to see the person she had identified as appellant. In any event, the foregoing argument is not of such a severe or flagrant nature that it’s effect could not be overcome by the instruction to disregard given by the trial court.8 Therefore, appellant’s fifth point of error is overruled.

¶25*383Jury Deliberations

¶26Appellant’s remaining points of error challenge the trial court’s actions during jury deliberations.

¶27Requiring Deliberations to Continue

¶28The jury deliberated in this case from 2:50 to 5:20 p.m. on February 11,1997, and from 9:00 a.m. to 2:00 p.m. on February 12, during which a lunch break and other breaks were taken. At about 11:00 a.m. on February 12, the jury sent the trial court a note stating:

We, the jury, cannot reach a unanimous verdict. We have studied the evidence and had very thorough discussions, and very open discussions and each juror firmly believes that additional discussions will not resolve the matter. We have taken numerous votes and each time there was a significant split in the vote. Discussions subsequent to requesting testimony have indicated that the [previously] requested testimony would not change anyone’s opinion.

¶29The court thereafter said the following to the jury:

Relative to your note, if you don’t want the testimony read, then I certainly have no right to insist that you read it; however, I’m not going to, at this time, discharge this jury. As I told you yesterday — and I take the same position now — I don’t want anybody to be forced to do anything and I don’t want to do anything that violates anybody’s conscience. But on the other hand, I certainly — you need to reexamine your positions. And if you can reach a verdict, why, we want you to do that. As I told you, if you don’t do it, then I’ve got to send over for another panel, and we go through the same process again. There is going to be some jury somewhere down the line that’s going to make a determination of guilt or innocence in this case based upon the testimony.

¶30Appellant’s sixth point of error contends that the trial judge abused his discretion by giving the above supplemental instruction to the jury urging them to reach a verdict. Appellant does not challenge the content of the instruction but complains only that giving any such instruction was unnecessary and coercive because the jury was willing and able to continue deliberating and attempting to reach a verdict on their own. However, because the jury’s note to the court conveyed precisely the opposite sentiment and had not been withdrawn by the jury, we do not agree with appellant that giving an instruction urging them to reach a verdict was unreasonable. Accordingly, appellant’s sixth point of error is overruled.

¶31Appellant’s eighth point of error contends that the trial court abused its discretion by ordering the jury to continue deliberating after the jurors communicated their inability to reach a verdict.9 After a case is submitted to the jury, the court may, in its discretion, discharge the jury where it has been kept together for such time as to render it altogether improbable that it can agree. Tex.Cobe CRiM. PROC. Ann. art. 36.31 (Vernon 1981). However, there is no limit on the length of time a jury may deliberate. Guidry v. State, 9 S.W.3d 133, 155 (Tex.Crim.App.1999). Thus, reversal is mandated only if the record reveals that the trial court abused its discretion by holding the jury for deliberations. Jackson v. State, 17 S.W.3d 664, 676 (Tex.Crim.App.2000).

¶32*384As noted above, the jury deliberated in this case for, at most, an elapsed time of 7.5 hours during which a lunch break and other breaks were taken. The only indication in the record of an impasse is the note (quoted above) that the jury sent to the trial judge at 11:00 a.m. on February 12. In reply to that note, the trial court gave the supplemental instruction quoted above. After taking a lunch break, the jury returned a verdict at 2:00 that afternoon.

¶33Appellant has not cited a case in which a conviction has actually been reversed for requiring a jury to deliberate too long and thus illustrating circumstances in which a trial court’s conduct has been unreasonable in that regard. In this case, the length of time the jury spent deliberating was certainly not excessive in relation to the seriousness of the felony charge appellant was facing. Nor do the circumstances otherwise suggest that it was altogether improbable that the jury could agree when it reported its first and only deadlock after, at most, 4.5 hours of deliberations. Accordingly, appellant’s eighth point of error is overruled.

¶34Soliciting Numerical Division

¶35Appellant’s seventh point of error argues that the trial court erred in asking the jury, during their deliberations, how they were divided: “How do you stand? Twelve ... to two?.... Six to six, or nine to three, or eight to four? Not any particular for or against. But have you taken a vote?.... What’s the last vote?” The jury foreman replied, “We were pretty well split down the middle.”

¶36Appellant contends that, under federal case law, the trial court’s asking the numerical division of the jury was coercive and thereby deprived appellant of a fair trial, particularly in the context of the subsequent jury deadlock and supplemental instruction, discussed above. See Brasfield v. United States, 272 U.S. 448, 449-50, 47 S.Ct. 135, 71 L.Ed. 345 (1926) (reversing conviction where trial judge inquired and was informed how jury was divided numerically, without indication of which number favored conviction, and despite that defense counsel made no objection). However, the Court of Criminal Appeals has expressly declined to follow such a contention:

Nevertheless, appellant insists the trial court committed error when it furnished the Allen charge while cognizant of the numerical division of the deadlocked jury. See United States v. Sae-Chua, 725 F.2d 530 (9th Cir.1984). In the instant case, in the period of deliberation prior to the Allen charge, the jury foreperson had informed the trial court [without being asked] of the numerical division of the jury. Appellant contends that under federal case law, the possession of such information makes an Allen charge coercive. Appellant’s reliance upon Sae-Chuais misplaced. In Sae-Chuathe Ninth Circuit, citing [Brasfield ] found reversible error when the trial court polled a deadlocked jury regarding the likelihood further deliberations would have in achieving a verdict.... Brasfieldcreated a prophylactic rule forbidding the federal trial courts from questioning their juries regarding numerical division. Id.However, such a prophylactic rule is based upon the U.S. Supreme Court’s exercise of supervisory powers and not upon any notion of constitutional infraction. Lowenfield v. Phelps, 484 U.S. at 239-249 n. 3, 108 S.Ct. 546,.... The prophylactic rule present in Brasfieldand Sae-Chua, supra, simply has no application to this state proceeding or this Court’s holding.

We are mindful that in some contexts, a trial court might engender coercion by actively identifying jurors with minority *385viewpoints and tacitly instructing them to reexamine their perspectives.. However, in the case at bar, the trial court did not probe the jury or attempt to identify the minority jurors. The trial court’s information as to numeric division was an unsolicited and extraneous reference in a note from the jury. In this context we find the Allen charge to be noncoercive.

¶37Howard v. State, 941 S.W.2d 102, 124 (Tex.Crim.App.1996). In light of Howard, the trial court’s inquiry into the jury’s numerical division, even if inappropriate, was not reversible error. Accordingly, appellant’s seventh point of error is overruled.

¶38Cumulative Error

¶39Appellant’s ninth point of error contends that the overall combination of the foregoing actions by the trial court during jury deliberations had a coercive effect on those deliberations and thereby deprived appellant of a fair trial. As noted previously, although a number of errors could be found harmful in their cumulative effect, non-errors may not, in their cumulative effect, produce error. Chamberlain, 998 S.W.2d at 238. Because appellant has demonstrated no error by the trial court, there can be no cumulative error or harm. Therefore, appellant’s ninth point of error is overruled, and the judgment of the trial court is affirmed.

¶40Justices YATES, ANDERSON, HUDSON, FOWLER, and FROST join in the Majority Opinion.

¶41Senior Justice WITTIG filed a Concurring and Dissenting Opinion.

¶42Former Judge BAIRD filed a Dissenting Opinion, in which Senior Chief Justice MURPHY and Former Justice AMIDEI join.

¶52concurring and dissenting on rehearing en banc.

¶53I concur with the majority on the issue of ineffective assistance of counsel. While trial defense counsel’s conduct may have fallen below acceptable standards, the incomplete record of all or any of the prospective testimony leaves us unable to gage the second prong of Strickland. Therefore the majority correctly affirms this issue on direct appeal. The dissent aptly notes that trial defense counsel was ineffective because he did not use tools at his disposal to corroborate the alibi defense. While trial defense counsel clearly should have subpoenaed the corroborating witness in this very close swearing match, he failed to do so.

¶54Beside my disagreement that this case merits en banc consideration mentioned below, I believe the majority opinion ignores part of the state’s final argument which was clearly outside the record. Because of the tenuous nature of the state’s case, it seems to me the argument of the prosecutor, making up conversations in contradiction to the state’s own evidence, was harmful error requiring reversal.

¶55In essence this case boils down to the testimony of a thirteen-year old girl. In a matter of several seconds, she swears she could and did identify a man with a T-shirt over his head. This identification is made on the basis of seeing only appellant’s eyes and shoes. Other adults present could not and did not identify appellant. Against this young teenager’s identification stands the testimony of appellant’s girlfriend, Ava. Ava saw two men other than appellant enter the apartment about the time of the robbery. It is no wonder the jury repeatedly advised the trial court they were deadlocked. The jury sent out a note at 11:00 a.m., February 12th, stating: “We, the jury, cannot reach a verdict.” At 5:18 *386in the evening, the trial court improperly inquired of the jury: “What’s your last vote?” The jury responded they were pretty well split down the middle. The jury was sent home by the retired senior judge presiding and continued deliberating the next day. According to trial counsel, testimony in this case only lasted four hours and fifty minutes. Jury deliberations spanned two days. Against this backdrop, I am constrained to dissent to part of issue five, improper jury argument by the state.

¶56The majority correctly recites the record of the state’s argument. The prosecutor argued Tarauniqui’s sister’s boyfriend, Kenneth Driver, was at the house and that: “Of course, Tarauniqui would mention something about her savings to her family members. Okay. Perhaps her sister let it slip one day that they were saving money.” Trial defense counsel timely objected to this argument outside the record, the objection was properly sustained, and the jury properly instructed to disregard this extraneous argument. Then the state refused to follow the ruling of the trial court and reiterated the identical argument. Masking the extraneous speculation, the state argued the jury could deduce whether or not the word of the savings money ever got out of Tarauni-qui’s mouth to anyone else. “You can reasonably deduce that once Kenneth Driver got that information, he decided he was going to want some of the money.” Again, defense counsel timely objected to the argument outside the record. Inexplicably, the senior judge overruled the same objection to the same argument he sustained moments before. The able prosecutor slammed the cell door shut right after the trial court’s erroneous ruling. The state’s attorney concluded: “You can reasonably deduce that his friend here was told by Mr. Driver. They planned it.”1

¶57So what the state argued was: Tarau-nique might have told a sister, say Tamala. Then Tamala might have told Alicia. Then Alicia might have told Driver. Then, the jury could reasonably deduce Driver told Melancon.

¶58The state argues, and the majority implicitly agrees, this was a reasonable inference or deduction from the evidence. The state’s own witness, Tarauniqui, testified she had just moved her money, and only her husband, Eze, knew the whereabouts of the money. The state’s own evidence, therefore, showed no one else knew the whereabouts of this money. Tarauniqui’s sisters did not know, Driver did not know; only her husband knew where the money was. Contrary to the state’s argument about “What happened that night ...” both Tarauniqui and her husband were gone that evening after the money was moved.2 How can anyone deduce or infer, against the state’s own evidence, that a person no longer in the house conveyed information from one sister to another who, in turn, conveyed the information to Driver, who then conveyed the information to Melancon?

¶59A valid argument can only be made from a valid premise. If the premise is invalid, the argument is invalid. One cannot deduce from either the unknown or, more like this case, from the contrary or the *387impossible.3

¶60The law is well settled. In Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), we are informed that the approved general areas of argument are: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Hathorn v. State, 848 S.W.2d 101, 117 (Tex.Crim.App.1992), cert. denied, 509 U.S. 932, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993). Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. (Emphasis added.) Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App.1980). The remarks must have been a willful and calculated effort on the part of the state to deprive appellant of a fair and impartial trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.1997), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). In most instances, an instruction to disregard the remarks will cure the error. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App.1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993). Such was not the case here. To the contrary, by overruling appellant’s objection to the improper argument, the trial court put “the stamp of judicial approval” on the argument, thus magnifying the potential harm. See Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App.1986).

¶61In Holliman v. State, 879 S.W.2d 85 (Tex.App.-Houston. [14th Dist.] 1994, no pet.), we addressed the extra-legal extraneous argument of the state. The prosecutor suggested the reason appellant didn’t go the hospital or call the police was because the fight was over drugs. The prosecutor again went outside the record and argued why Moore refused to give her forty year old son a key to their home. There, we held the prosecutor fabricated “her own explanation by injecting facts not in evidence.” Id. at 87. These arguments were deemed harmful error. Id.Here, even had Tarauniqui told one sister she was saving some money, there is not a shred of evidence that that sister told another sister or anyone else, much less that anyone told her absent boyfriend the whereabouts of any money. To suggest Tarauniqui told an unknown sister, who told Alicia, who told Driver, who told Me-lencon is like a fisherman throwing chum on the water.

¶62Because the trial court erred in overruling appellant’s objection to the argument, I now consider whether those errors warrant reversal. See TEX. R. APP. P. 44.2. Erroneous rulings related to jury argument are generally treated as non-constitutional error within the purview of Rule 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Rule 44.2(b) requires any error that does not affect substantial rights to be disregarded. In other *388words, “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after reviewing the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). The following three factors are used to analyze the harm associated with improper jury argument: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.

¶63I have already discussed the tenuous nature of the state’s case, turning as it does upon the thirteen year old’s identification through a T-shirt, of appellant. After sustaining the identical objection to the same extraneous argument moments before, the state reiterates not once, but twice, for a total of three times, the highly improper argument. By the repetition of this extra-legal speculation as fact, the prosecution was able to fabricate just enough motive and opportunity to sway the six jurors who had held out more than a day for acquittal. This is patently not a ease with certainty of conviction; this is the weakest of cases, against a man without a felony record, who testified on his own behalf. In effect, the state’s illicit argument provided the corroboration through illegitimate words, while the defense failed tó produce corroboration through the legitimate witness.

¶64Finally, the futility of the en banc court’s treatment of this case for well over one year palpably demonstrates the wisdom of Tex.R.App. P. 41.2(c). En banc consideration of a case is disfavored and reserved to preserve uniformity or for extraordinary circumstances. I disagree with the court’s consideration of this case en banc.

¶65Even without addressing the visiting judge’s improper solicitation from the jury of its vote before verdict and giving of an Allen charge, I would reverse and remand 4 this case for a new trial based upon the prejudicial and prohibited argument of the state.