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Click here for the full text of this decision FACTS:David Lemos appeals his conviction for two counts of intoxication manslaughter and two counts of causing an accident involving injury or death. HOLDING:Reversed and remanded. Lemos argues that the trial court improperly precluded his counsel from arguing that defendant’s drug alcohol concentration could have been rising, rather than falling, between the time of the collision and the time his breath was tested. The court agrees, as does the state. Although the trial court has broad discretion in controlling the scope of closing argument, it may not prevent defense counsel from making a point essential to the defense. Prohibiting counsel from making such a jury argument is a denial of the defendant’s right to counsel when that argument is one the defendant is entitled to make. McGee v. State, 774 S.W.2d 229 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990). Only when the trial court restricts the defense counsel from doing something it had the legal right to do, however, is it considered a deprivation of counsel. Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999). The defense has the legal right to argue any theory supported by the evidence. All inferences from the evidence that are legal, fair, and legitimate may be argued by defense. Melendez v. State, 4 S.W.3d 437 (Tex. App. � Houston [1st Dist.] 1999, no pet.), overruled on other grounds by Small v. State, 23 S.W.3d 549 (Tex. App. � Houston [1st Dist.] 2000, pet. ref’d). The court cannot see that defense counsel was doing more than suggesting that the jury draw certain inferences from the evidence, or lack thereof, on Lemos’s blood alcohol level at the time of the accident. Nothing should have prevented defendant from “arguing that his alcohol concentration increased from the time of arrest to the time of testing.” Forte v. State, 707 S.W.2d 89 (Tex. Crim. App. 1986). The state concedes that excluding the argument was erroneous. The court concludes that the trial court committed error in preventing trial counsel from arguing this legitimate inference to the jury. When Lemos’s counsel attempted to make the argument that defendant’s levels may have been rising after the accident, the state objected and the trial court sustained. This led to a lengthy discourse. Moreover, and more importantly, the trial court stated in front of the jury that there was no evidence to support Lemos’s argument, while commenting that the state’s argument that Lemos’s blood alcohol content was falling was only “common sense.” The court finds the erroneous denial of a legitimate defensive theory caused Lemos harm, and cannot find beyond a reasonable doubt that the harm did not contribute to his conviction or punishment. OPINION:Larsen, J.; Barajas, C.J., Larsen and McClure, JJ.

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