Opinion issued June 10, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00143-CR
MAJOR DEE LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 923450
MEMORANDUM OPINION
A jury found appellant, Major Dee Lewis, guilty of aggravated robbery and assessed punishment at 16 years confinement. In two issues on appeal, appellant contends that the trial court erred (1) in admitting irrelevant testimony over objection, and (2) in failing to grant a mistrial after the State commented on his failure to testify.
We affirm.
Facts & Procedural History
On September 6, 2002, appellant and another man approached Gina Gonzalez, complainant, and Julia Ordaz as the two women were walking from Ms. Ordaz’s apartment to complainant’s car. Appellant grabbed complainant around the neck, put a gun to her head, and demanded money. The other man grabbed Ordaz by the hair as she tried to flee, threw her to the ground, and held her down. Appellant took complainant’s bracelet and ring, demanded her car keys, and asked complainant to point out her car. Complainant acquiesced.
As the two men began leading the women to complainant’s car, one of Ms. Ordaz’s neighbors approached and intervened, causing appellant and his accomplice to flee in different directions through the apartment complex. As the men fled, a car pulled up to the scene and Ms. Ordaz’s neighbor briefly spoke with the driver before getting in the car and pursuing appellant. Shortly thereafter, the neighbor and other occupants of the car captured appellant on the street outside the main entrance to Ms. Ordaz’s apartment complex.
Just after appellant had been captured, Houston Police Officer John Garcia arrived at the apartment complex. While at the scene, Officer Garcia recovered a loaded gun and complainant’s jewelry from appellant’s pockets. Furthermore, complainant positively identified appellant as the robber. However, Officer Garcia did not speak with the neighbor or the car’s occupants who helped capture appellant, as these parties left the scene just after the officer’s arrival.
Admissibility of Evidence
In his first point of error, appellant contends that the trial court erred in overruling his objections to certain portions of Officer Garcia’s trial testimony because the testimony was irrelevant and prejudicial. Specifically, appellant complains of the following exchange:
[State]:Would you say that there is a heavy population of individuals who are not U.S. citizens or who may be here on Green Cards, Hispanics that are not citizens?
[Officer Garcia]:Yes, ma’am.
[State]:What kinds of problems does that create in that area?
[defense counsel]:Objection, Your Honor, to the relevance of that.
[trial court]:I will let him explain just briefly. Just briefly.
[State]:As far as in your investigations, what kinds of problems result from that?
[Officer Garcia]:Usually when we go to a scene and come across someone who doesn’t have legal residency, they are scared to testify because they think they will either get possibly in trouble with the law because they’re not legal.
[State]:Do you have trouble getting them to cooperate with your investigation?
[Officer Garcia]:Yes, ma’am.
[State]: Do they generally stick around to talk to the police?
[Officer Garcia]:No, ma’am.
[State]:Do you find that areas like that get targeted for crime?
[defense counsel]:Again, I object to the relevance.
[trial court]:Overruled. I will let him testify briefly.
[Officer Garcia]:Can you repeat the question, ma’am?
[State]:Do you find that areas like that get targeted for crime?
[Officer Garcia]:Yes, ma’am.
[State]:And why is that?
[Officer Garcia]:Because the lack of–their lack of willingness to testify.
[State]:Is it generally known on the streets that they don’t usually want to cooperate with the police and often don’t report crime?
[defense counsel]:Your Honor, I’m going to object. This is basic self-serving as to why certain witnesses aren’t here to testify.
[trial court]:Okay. I’m going to let him answer that, and then you can move on.
[Officer Garcia]:Yes, ma’am.
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules and principles–that is, whether the court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). We must uphold the trial court’s ruling so long as it is “within the zone of reasonable disagreement.” Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).
Appellant complains that Officer Garcia’s testimony was introduced for the sole purpose of explaining why a number of the State’s witnesses were not present and thus was not relevant to the question of appellant’s guilt. Generally, however, the State is allowed to introduce evidence to account for an absent witness in order to escape any adverse inference from its failure to produce the witness. Mendoza v. State, 840 S.W.2d 697, 701 (Tex. App.—Corpus Christi 1992, no pet.) (citing Green v. State, 320 S.W.2d 818, 822 (Tex. Crim. App. 1959)). In the instant case, the jury would no doubt have expected to hear testimony from Ms. Ordaz’s neighbor and the car’s occupants. However, these witnesses were conspicuously missing from the trial. The State was entitled to account for their absence. Thus, we hold that the trial court did not abuse its discretion in allowing Officer Garcia’s testimony on the basis of relevancy.
We overrule appellant’s first point of error.
Improper Jury Argument
In his second point of error, appellant complains of the following argument by the State:
[State]:Mr. Lewis wants you to put him on probation, but he’s told you a little bit about himself; and Lord knows what he hasn’t told you.
[defense counsel]:Objection, Your Honor, that’s a comment on the defendant not testifying. We’d ask the jury be instructed to disregard.
[trial court]:Ladies and gentlemen, you will disregard the last remark by the assistant district attorney and not consider it for any purposes.
[defense counsel]:Move for mistrial.
[trial court]:That will be denied.
Although appellant testified during the guilt innocence stage of his trial, he elected not to testify at punishment. Appellant contends that the above argument by the State was an improper comment on his failure to testify during the punishment proceedings.
Neither the trial judge nor the prosecutor may comment on the defendant’s failure to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). Such a comment violates the privilege against self-incrimination and the freedom from being compelled to testify contained in the Fifth Amendment to the United States Constitution and article I, section 10, of the Texas Constitution. Id. A prosecutor’s comment on an accused’s failure to testify also violates Code of Criminal Procedure, article 38.08. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); Palermo v. State, 992 S.W.2d 691, 694 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
To be violative, the comment, as viewed from the jury’s standpoint, must clearly refer to the accused’s failure to testify. Bustamonte, 48 S.W.3d at 765. It is not sufficient that the language might be construed as an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Id.
In the instant case, the prosecutor’s comment was not of such a character that the jury would necessarily and naturally take it as a comment on appellant’s failure to testify during the punishment phase of the trial. Indeed, it appears as if the prosecutor was specifically referring to appellant’s testimony during the guilt-innocence stage of the trial. Nonetheless, had the comment been improper, such impropriety may be cured by an instruction to disregard the comment. See Linder v. State, 828 S.W.2d 290, 300 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Only offensive or flagrant error warrants reversal when there has been an instruction to disregard. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994). The trial court instructed the jury to disregard the prosecutor’s comment. Furthermore, the comment, itself, was not so flagrant that the instruction to disregard was ineffective. Thus, we hold that the trial court did not err in denying appellant’s request for a mistrial.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).