Opinion issued August 30, 2007
NO. 01-05-00516-CR
FRABON CROCKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1012896
OPINION
Ajuryconvicted appellant, Frabon Crocker, ofaggravated robbery, and, having
pleaded true to two enhancement allegations, he was sentenced to 35 years'
confinement. TEX. PEN. CODE ANN. § 29.03 (Vernon 2003). In four issues, appellant
complains that(1) the pre-trial identification procedures used by the Houston Police
Department were impermissibly suggestive, (2) "the trial court erred in overruling
[his] objection to the prosecutor's comment on [ ] appellant's failure to testify,"
(3)thetrialcourtimproperly defined thestandard ofproofduring voirdire, and (4)he
received ineffective assistance of counsel. We reverse and remand for a new trial.
Background
On January 26, 2004, the complainant, Seyed Tabatabai, opened the flower
shop he and his wife owned together. After assisting a few customers, the
complainant, who was alone in the store, went into the back office to inventory the
store's merchandise. Shortly thereafter, the complainant heard the "clicking" noise
ofthe cashregisters and ran out of the office to find a manwith his hands in bothof
the store's registers. The man, startledby the complainant'spresence, pointeda gun
at thecomplainant, fledthe store, andgot intoa redvan. Thecomplainant chased the
man out of the store and attempted to grab the van's passenger-side mirror as it was
driving off. During his pursuit of the man, the complainant was able to write the
van's licenseplate number down on his hand, and he provided that informationto the
police when he reported the robbery.
According to his testimony, the complainant estimated the man to have taken
approximately $700 from the store. The complainant also stated that, as the robbery
2
was occurring, he had the opportunity to"lookQ into [the robber's] eyes ... .*' When
the police identified appellant as the registered owner of the van, they placed his
picture in a photo array for the complainant's viewing. The complainant tentatively
identified appellant astheman who had robbed his store in the photo array, but asked
to view a line-up.
After laterviewing a videotapedline-up, the complainantpositivelyidentified
appellant as the robber. On cross-examination, the complainant admitted that
appellant was taller, heavier, and dressed differently than the other line-up
participants. In addition, appellant was the only person who appeared in both the
photo array and the video line-up. There was testimony from the complainant
indicating that, before he viewed the video line-up, the police informed him they had
traced the license plate number and "got the person/'
At trial, the complainant again identifiedappellant as the robber. The jury also
heardthe testimonyofthree Houston policeofficers: Officers Hatrick, Chapnick, and
Villarreal. Officer Hatrick stated that he had responded to the complainant's 911 call
reporting the robbery. Other than the opencash register drawers, Hatrick found no
physical evidence of a robbery at the flower shop. He did not call the Crime Scene
Unit to come out and investigate the incident. Officer Chapnick testified that, one
day, as he was randomly "running plates," he came across a van matching the
description and license plate numberprovided by the complainant. WhenChapnick
stopped the van, appellant was driving. No weapons were found in appellant's van.
Finally, Officer Villarreal testified that he prepared the photo array and line-up for the
complainant's viewing. He also confirmed that (1) no fingerprints were taken in the
case, (2) the complainant was told before viewing the line-up that the man in the van
had been caught, and (3) appellant was taller, heavier, and dressed differently than
other line-up participants.
Comment on Failure to Testify
In his second issue, appellant argues that "the trial court erred in overruling
[his] objection to the prosecutor's comment on [ ] appellant's failure to testify." The
trial court, however, sustained appellant's objection, and we construe his complaint
to be one as to the adverse ruling against him—namely, the trial court's denial ofhis
request for an instruction to the jury to disregard the prosecutor's statement and a
mistrial.
In closing arguments, the following exchange occurred:
[Prosecutor]: And I will tell you this: The State and the defense have
the same ability to bring in witnesses in this case. The State can
subpoena witnesses. The defense can subpoena witnesses. Okay. You
heardfrom the State *s witnesses as to who was there January 26, 2004,
And the State's witnesses only. And I ask that you find him guilty.
[Defense Counsel]: Objection improper jury argument.
[Trial Court]: Sustained.
[Defense Counsel]: I'd ask the jury be instructed to disregard the last
statement of the prosecutor. We ask for mistrial.
[Trial Court]: Denied.
(Emphasis added.)
Preservation
The State argues that appellant's "improperjury argument" objection lacked
the specificityrequired to preserve the error, ifany, in the prosecutor's commenton
appellant's failure to testify. Texas Rule of Appellate Procedure 33.1 requires that
an objection state "the grounds for the ruling that the complaining party [seeks] from
the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds [are] apparent from the context;...." TEX.
R. App. P.33.1(a). Here, the specific groundsfor appellant's objection were apparent
from thecontext. Moreover,appellant's objection wassustained, and thusapparently
understood by the trial court. Any error has been preserved for our review.
Although weagree with thedissenting opinion that the better practice is foran
attorney to request an instruction to disregard the objectionable comment followed
by a motion for mistrial after the instruction is given, we disagree that error is not
preserved merely because the trial attorney chose to assert both those objections
concurrently ratherthan consecutively. Topreserve error, anattorney hastheburden
to make an objection withenough clarity forthecourtto understand its nature and to
obtain an adverse ruling. Both of those requirements are met here. Faced with the
dual motions to disregard the objectionable comment andto grant a mistrial, thetrial
court had the option to give the instruction and deny the mistrial; or to give the
instruction and grant the mistrial; or to deny giving the instruction and grant the
mistrial; or to deny giving the instruction and deny the mistrial. The trial court opted
for the last choice when it ruled "denied." We, therefore, disagree with the dissenting
opinion, which adds a new step for preservation of error that it acknowledges has no
foundation in case law.
Error
In determining whether this exchange entitled appellant to an instruction to
disregard, we must first decide whether the prosecutor's jury argument was improper.
Proper jury argument includes: (1) a summary of the evidence, (2) a reasonable
deduction from the evidence, (3) an answer to the opponent's argument, or (4) a plea
for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).
A comment on a defendant's failure to testify offends both the Texas and United
States constitutions, as well as Texas statutory law. U.S. CONST, amend. V; TEX.
Const, art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005)
(providing that "[a]ny defendant in a criminal action shall be permitted to testify in
his own behalftherein, but the failure ofany defendant to so testify shall not be taken
as a circumstance against him, nor shall the same be alluded to or commented on by
counsel in the cause").
A prosecutor's comment amounts to an impermissible comment on a
defendant's failure to testify only if, when viewed from the jury's standpoint, the
comment is manifestly intended to be, or isofsuch characterthata typicaljurywould
naturally andnecessarily takeit to be,a comment onthedefendant's failure to testify.
Bustamante v. State,48 S.W.3d 761,765 (Tex. Crim. App. 2001). We must consider
the context in which the comment was made. Id. It is not sufficient that the comment
might be construed as an implied or indirect allusion to a defendant's failure to
testify. Id. Where the remark calls the jury's attention to the absence ofevidence that
only a defendant's testimony could supply, however, the conviction is subject to
reversal. See Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982)
(explaining that "an implied or indirect allusion to the failure of the appellant to
testify" is not enough to support error unless the comment calls "for a denial of an
assertion of fact. . . that only the appellant was in a position to offer"); see also
Trevino v. State, 979 S.W.2d 78, 79-80 (Tex. App.—Austin 1998, pet. refd)
(holding that prosecutor's commentto jury that "[t]wo people were there that night
that know what happened, [the defendant] and [the complainant]" emphasized the
absence of appellant's testimony and constituted reversible error); Norton v. State,
851 S,W.2d 341,346 (Tex. App.—Dallas1993, pet. refd) (holding that prosecutor's
commentto jury that "[t]here were only two people out there and we heard from one
of them" was comment on defendant's failure to testify and constituted reversible
error).
7
Here, appellant's theory of the case was that the State failed to meet its burden
of proof beyond a reasonable doubt. There was no physical evidence connecting
appellant to the robbery. The complainant was the source of all of the evidence
offered by the State at trial. For example, the only identity evidence came from the
complainant's identification ofappellant as the robber in a videotaped line-up and in
court, and the investigating officers located appellant through the license plate
number the complainant provided. The complainant was the source ofthe evidence
because, as he testified, there were no other employees or customers present in the
store at the time of the robbery. That is, he and appellant were, allegedly, the only
two people present. As a result, the prosecutor's argument that the jury "heard from
the State's witnesses as to who was there .. . [a]nd the State's witnesses only," was
an indirect comment on appellant's failure to testify, as it drew the jury's attention to
the absence of evidence that only appellant's testimony could supply. See Garrett,
632 S.W.2d at 353. The prosecutor's argument thus was improper and warranted an
instruction to the jury to disregard.
Harm
Because the trial court erred in denying appellant's request for an instruction
to disregard, we must determine whether that error was reversible. See Chimneyv.
State, 6 S.W.3d 681, 703 (Tex. App.—Waco 1999, pet. refd 2002) (noting that trial
court commits errorwhere it sustains objection for improperjury argument but denies
request for instruction to disregard improper argument). A violation of the
prohibition against commenting on a defendant's silence at trial is not automatically
reversible error. See Madden v. State, 799 S.W.2d 683,699 n.28 (Tex. Crim. App.
1990). A careful reading ofthe rule for reversible error in criminal cases, alongside
relevant case law, reveals several types of error that may occur: (1) constitutional
error that is not subject to harmless error analysis (i.e. structural
error);(2) constitutional error that is harmful;(3) constitutional errorthat is harmless;
(4) non-constitutional error that is harmful (i.e. error that affects a substantial right);
and (5) non-constitutional error that is harmless (i.e. error that does not affect a
substantial right). See Tex. R. App. P. 44.2; Thompson v. State, 89 S.W.3d 843,
851-52 (Tex. App.—Houston [1st Dist.] 2002, pet. refd).
Our first task in making a determination as to whether the error requires
reversal here is, thus, to determine whether the error is one of constitutional
magnitude ormerely one thataffects a substantial right. Seeid. Here, bydrawing the
jury's attention to the absence of evidence that only appellant's testimony could
supply, the prosecutor's comment offended appellant's privilege against self-
incrimination under the U.S. and Texas Constitutions. U.S. CONST, amend. V; TEX.
CONST, art. I, § 10. Accordingly, we hold the error to be one of constitutional
magnitude. Other courts of appeals have similarly viewed such errors. See, e.g.,
Brown v. State, 92 S.WJd 655, 665 (Tex. App.—Dallas), aff'd, 122 S,W.3d 794
(Tex. Crim. App. 2003); Trevino, 979 S.W.2d at 80.
Having determined that the error is constitutional error, we next consider
whether it is subject to a harmless error review. Structural defects in the trial
mechanism "defy analysis by 'harmless-error' standards." Thompson, 89 S.W.3d at
853. This is because structural errors, such as the absence of counsel for a criminal
defendant, a partial judge, the unlawful exclusion ofmembers ofthe defendant's race
from a grand jury, or violations ofthe right to a public trial, affect the entire conduct
of a trial from beginning to end. Id. Stated differently, structural errors are
constitutional deprivations which affect the framework within which the trial
proceeds, rather than simply errors in the trial process itself. Id. Where the record
reveals constitutional error in the trial process itself, however, such error is subject
to a harmless error review, and we must "reverse a judgment of conviction or
punishment unless [we] determine[], beyond a reasonable doubt, that the error did not
contribute to the conviction or punishment." TEX. R. APP. P. 44.2(a); Thompson, 89
S.W.3dat853.
The error in the instant case arose during the State's closing argument.
Although the prosecutor's comment was improper, it was not a structural error that
affected the framework within which the trial proceeded. Rather, it was merely an
error in the trial process itself. Thus, a Rule 44.2(a) analysis is required, and we
apply the standard of review for constitutional errors as set forth in Harris v. State,
10
790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). In applying the harmless error
rules, a reviewing court should not focus on the propriety ofthe outcome at trial. Id.
"Instead, an appellate court should be concerned with the integrity of the process
leading to the conviction." Id. The court should examine (1) the source ofthe error,
(2) the nature of the error, (3) whether or to what extent it was emphasized by the
State, (4) its probable collateral implications, (5) the weight a juror would probably
place upon the error, and (6) whether declaring the error harmless would encourage
the State to repeat it with impunity. See id. In summary, the reviewing court should
ask "whether the error at issue might possiblyhave prejudiced the jurors' decision
making; it should ask not whether the jury reached the correct result, but rather
whether the jurors were able properly to apply law to facts in order to reach a
verdict." Id.
Turning to the first factor in the Harris analysis, we note that the State was the
source of the error here. See id. at 587. As noted above, during closing arguments,
the prosecutor improperly commented on appellant's failure to testify. The State
argues that any error was invited by defense counsel's closing arguments, during
which defense counsel argued that the State had failed to meet its burden of proof.
Specifically, defense counsel emphasized the lack of physical evidence, such as
fingerprints or a weapon, and the lack of any scientific investigation. We hold that
these defense arguments did not invite the prosecutor's argument. Moreover, to
11
conclude that such an argument invited error in this case would open the door to
comments on a defendant's failure to testify in countless criminal prosecutions, in
which a defendant merely elects to hold the State to its burden of proof rather than
present his own evidence.
Turning to the second factor, we consider the nature ofthe error. See id. The
prosecutor's comment on appellant's failure to testify was indirect. There is nothing
in the record which indicates that the prosecutor acted intentionally or with any ill
will in commenting on appellant's failure to testify. And, in consideration ofthe third
factor, we note that the prosecutor commented only once and did not emphasize the
error—albeit because, in part, an immediate objection to the argument was sustained.
Turning to the fourth factor, we consider the probable implications ofthe error.
See id. The error occurred during the prosecution's closing arguments in the
guilt/innocence phase oftrial. The charge, already read to the jury by the trial court
and provided to the jury during its deliberations, included an instruction that "[i]n this
case, the defendant has elected not to testify and you are instructed that you cannot
and must not refer to or allude to that fact throughout your deliberations or take it into
consideration for any purpose whatsoever as a circumstance against him." Moreover,
the charge was not the first place the jury encountered this instruction. During voir
dire, the jury was similarly informed by both the trial court and defense counsel that
"the law says that if an accused elects not to testify,... you cannot and must not use
12
it as evidence against him." Thejury is presumed to follow these instructions, and,
thus,the impactofthe prosecutor's statement was likely negated to some extent. See
Colbum v. State, 966 S.W.2d 511,520 (Tex. Crim. App. 1998).
Turning to the fifthfactor, weconsider the weight ajuror would probably place
upon the error. See Harris, 790 S.W.2d at 587. As previously stated, the facts here
showthat the offensewas committed at a timewhenonly two persons wereallegedly
present: the complainant and appellant. No other employees or customers were
present in the store at the time of the robbery. There was no physical evidence
connecting appellant to the robbery. Further, the complainant was the source of all
ofthe evidence offered by the State at trial. The only identity evidence came from the
complainant's identificationofappellantas the robber in a videotaped line-upand in
court, and the investigating officers located appellant through the license plate
numberthe complainant provided. The statementthat the jury had "[hjeard from the
State's witnesses. And the State's witnesses only," thus, called the jury's attention
to the absence of evidence that only appellant's testimony could supply. While the
trial court sustained the improper jury argument objection, it did not instruct the jury
to disregard the prosecutor's comment. It is possible then that a juror gave at least
some weight to the prosecutor's statement that the jury had heard from the State's
witnesses only.
Finally, we consider whether declaring the error harmless would encourage the
13
State to repeat it with impunity. See id. Because there is nothing in the record which
suggests that the comment was made intentionally, it is not likely that declaring the
error harmless in this case would encourage the State to repeat it in subsequent
prosecutions. However, we note that the facts here are akin to those in manycriminal
prosecutions. That is, a crime occurs when there are only two persons present: the
victim and the perpetrator. The defendant does not testify at trial, electing instead to
hold the State to its burden of proof beyond a reasonable doubt. During closing
arguments, the defense presents its theory that the State has failed to meet its burden.
To declare a comment on a defendant's failure to testify harmless here has some
potential to open the door to similar comments in other cases.
After due consideration ofeach ofthe factors in the Harris analysis, we cannot
say, beyond a reasonable doubt, that the error did not contribute to the conviction or
punishment. See TEX. R. APP. P. 44.2(a). Most compelling in reaching this
conclusion is the possibility that jurors gave some weight to the prosecutor's
statement that the jury had heard from the State's witnesses only.
Accordingly, we must sustain appellant's second issue. In light of our
disposition ofthis issue, we need not reach appellant's other issues.
14
Conclusion
We reverse the judgment of the trial court and remand for a new trial.
George C. Hanks, Jr.
Justice
Panel consists ofJustices Taft, Alcala, and Hanks.
Justice Taft, dissenting.
En banc consideration was requested. See TEX. R. APP. P. 41.2(c).
A majority ofthe Justices of the Court voted to deny en banc consideration. See id.
Justices Nuchia, Taft, and Higley dissent from the denial ofen banc consideration for
the reasons stated in the dissenting opinion. See TEX. R. APP. P. 47.5.
Publish. TEX.R. APP. P. 47.2(b).