State v. Herndon

OPINION

Opinion by

Justice HINOJOSA.

The State appeals from the trial court’s order granting the motion for new trial of appellee, Ronald Herndon. We reverse the trial court’s order granting a new trial.

A. BACKGROUND AND PROCEDURAL HISTORY

Appellee was charged by information with the offense of driving while intoxicated (“DWI”). The case was tried to a jury. During closing arguments, the prosecutor made a remark that defense counsel objected to as an improper comment on ap-pellee’s failure to testify. An unrecorded bench conference was subsequently held. The trial court sustained the objection…