In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00446-CR
ADAM GALO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1840268
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Adam Galo appeals from his conviction by a jury of theft. In a single point on
appeal, he contends that the trial court erred by overruling his objection to the State’s
alleged improper jury argument alluding to his decision to not testify. We will affirm
the trial court’s judgment.
Background
In August 2024, Galo entered a Target store, concealed a baby-vitals monitor
and a baby-monitor camera in a bag that he had brought with him, and attempted to
depart the store with the bag, passing the point of sale without attempting to pay.
Loss-prevention personnel intercepted Galo; he told them that he had intended to
resell the items on Facebook Marketplace. After arriving on the scene, Officer Robert
Fulton of the Grand Prairie Police Department discovered additional baby monitors
in Galo’s car, along with five unattended children.
In October 2024, a grand jury indicted Galo for one count of theft of property
with a value of less than $2,500, with two prior theft convictions, a state-jail felony.
See Tex. Penal Code § 31.03(a)–(b), (e)(4)(D). On November 17, 2025, Galo pled not
guilty and the case was tried to a jury, which found Galo guilty and assessed his
punishment at eighteen months’ confinement in state jail. See id. § 12.35. The trial
court sentenced him accordingly and this appeal followed.
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Applicable Law and Standard of Review
To be permissible, the State’s jury argument generally must fall within one of
the following four areas: (1) summation of the evidence; (2) reasonable deduction
from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law
enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). We review
a trial court’s ruling on an objection to improper jury argument for an abuse of
discretion. Kitchens v. State, 721 S.W.3d 467, 485–86 (Tex. Crim. App. 2025). A trial
court does not abuse its discretion where its ruling falls within the zone of reasonable
disagreement. Id. at 486.
Counsel may not allude to a defendant’s decision to not testify. U.S. Const.
amend. V; Tex. Code Crim. Proc. art. 38.08. To determine if a prosecutor’s comment
impermissibly referred to an accused’s decision to not testify, we must decide whether
the language used was plainly intended to comment on the defendant’s decision to not
testify or was of such a character that the jury naturally and necessarily would have
considered it to be so. Sandoval v. State, 665 S.W.3d 496, 550 (Tex. Crim. App. 2022).
We must view the offending language from the jury’s standpoint, and the implication
that the comment referred to the accused’s decision to not testify must be clear. Id. A
merely indirect or implied allusion to the defendant’s decision to not testify does not
violate the accused’s right to remain silent. Id. Thus, we must consider the comment’s
context. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011).
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Application
The following exchange occurred at the beginning of the rebuttal portion of
the State’s closing arguments:
[Prosecutor]: Ladies and gentlemen of the jury, it’s a nice story. But part
of what you’re doing today is you’re considering the evidence. You’re
considering what people got up on the stand and testified to while they
were under oath. For Mr. Galo, we did not hear any evidence that he
was destitute.
[Defense counsel]: Your Honor, I’m going to object. He’s
testifying on his right to remain silent. It’s an improper argument. We
asked that it be struck from record as well and instruction of the jury.
THE COURT: It’s overruled.
[Prosecutor]: There was no witness that testified to this destitute
condition. Speculation. And I get it. I come from a family of five kids.
I’m the 2nd to youngest.
Because context matters in determining this argument’s permissibility, we
examine what preceded this exchange. Prior to the State’s argument, defense counsel
gave a closing argument heavily focused on “[t]heft, the effects it has, and why people
do it.” Defense counsel went on to argue that Galo had “gone through some hard
times. Hard enough that he was pushed to the point where he had to go commit theft
to try to keep the lights on and food in his kid’s mouth.” The defense further argued
that Galo had not been “acting in some type of organized criminal activity . . . [or]
some type of gang” but was “simply . . . trying to feed his kids.” Defense counsel
concluded by reinforcing to the jury the importance of considering that Galo “had no
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choice but to steal in order to keep his life going” and by asking the jury to deliver a
verdict of not guilty.
A “prosecutor may comment on the defendant’s failure to produce witnesses
and evidence so long as the remark does not fault the defendant for exercising his
right not to testify.” Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000).
Additionally, a comment about the decision to not testify is permissible if it is a fair
response to the defendant’s claims or assertions. Randolph, 353 S.W.3d at 892.
Here, it is clear the prosecutor was referring to the defense’s immediately
preceding argument that Galo had committed theft out of necessity when he said,
“[I]t’s a nice story.” The prosecutor then reminded the jury of its duty to consider the
evidence, specifically “what people got up on the stand and testified to while they
were under oath.” Thus, the following statement––“For Mr. Galo, we did not hear
any evidence that he was destitute”––was not a clear allusion to Galo’s choice to not
testify but instead to the defense’s failure to produce evidence of Galo’s economic
circumstances.1 See, e.g., Taylor v. State, No. 12-21-00176-CR, 2022 WL 1751372, at *5
(Tex. App.—Tyler May 31, 2022, pet. ref’d) (mem. op., not designated for
publication); Devereaux v. State, No. 2-09-030-CR, 2009 WL 4114601, at *1–2 (Tex.
1
Even if the comment could be construed as alluding to Galo’s decision to not testify by referring to evidence only he could provide, we would consider it merely an indirect allusion and therefore not impermissible. See Woodard v. State, No. 02-24-00148-CV, 2025 WL 494642, at *3–4 (Tex. App.––Fort Worth Feb. 13, 2025, no pet.) (mem. op., not designated for publication) (holding permissible argument that defendant never apologized or “at any point, [got] down on his knees and say, ‘What did I do? I can’t believe what I’ve just done’” because the murder “was planned”).
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App.—Fort Worth Nov. 25, 2009, pet. ref’d) (mem. op., not designated for
publication).
Nothing in this record indicates that the prosecutor’s argument was plainly
intended to comment on Galo’s decision to not testify or was of such a character that
the jury naturally and necessarily would have considered it to be so. Rather, the
comment was made in response to the defense’s argument about Galo’s economic
situation at the time of the crime and the lack of evidence in support of that
argument. See Jackson, 17 S.W.3d at 674; see also Sandoval, 665 S.W.3d at 550. We
overrule Galo’s sole point.
Conclusion
Having overruled Galo’s sole point, we affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 13, 2026
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