Cruz v. State

¶1concurring.

¶2I concur in the result. I write only to comment on points of error one and two. The majority declines to address the points. I believe they should be addressed as this court previously did in Kyles v. State, 747 S.W.2d 64 (Tex.App.—Beaumont 1988, no pet.), when we held a similar exchange was harmless error. Chief Justice Dies characterized the comment in Kyles as a “loose remark”, Id. at 65. Here, the state voiced an objection, it was not a “loose remark”. The state and the court should have been aware of our previous holding that it was error to engage in the “presumption of innocence versus innocent in fact” debate, yet the state made the objection and the court sustained it. I am unwilling to find harm in this case, therefore, the harmless error analysis of Kylesis appropriate. I certainly reserve the right to engage in a future harm analysis if *869the state1 continues to engage in the debate in the future.