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DELIVERED: June 18, 2025 DO NOT PUBLISH