DIAZ, GUSTAVO v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0189-25

GUSTAVO DIAZ, Appellant

V.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

Per curiam.

OPINION

Appellant was convicted by a jury of aggravated robbery and the trial court sentenced

him to 23 years in prison. He argued on appeal, inter alia, that, during the punishment

hearing, the judge, sitting as finder of fact, improperly commented on his right to remain

silent in violation of the Fifth Amendment. The Court of Appeals held that Appellant failed
DIAZ - 2

to preserve error and affirmed the conviction. Diaz v. State, No. 14-23-00653-CR, 2025 Tex.

App. LEXIS 1248 (Tex. App. – Houston [14th Dist.] Feb. 27, 2025).

Appellant has filed a petition for discretionary review complaining about the appellate

court’s “remarkable” conclusion that his failure to object to statements made by the

prosecutor waived any error in the judge’s comments. We agree with Appellant that this

conclusion by the lower court is not supported by this Court’s jurisprudence. Regardless of

any error in the prosecutor’s closing argument, Appellant’s lack of objection to that argument

did not waive his Fifth Amendment rights as to comments by the trial court.

We therefore grant review of Appellant’s petition, vacate the judgment of the Court

of Appeals, and remand this case to the Court of Appeals for proceedings consistent with this

opinion.

DELIVERED: June 18, 2025

DO NOT PUBLISH