In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00239-CR
____________________
TOMMY HOLCOMB, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 11-06-07078-CR
________________________________________________________ _____________
MEMORANDUM OPINION
In a single appellate issue, Tommy Holcomb argues that in final argument,
the prosecutor improperly commented on Holcomb’s failure to testify, which he
argues violated his right against self-incrimination. See U.S. Const. amend. V.
Because the trial court could reasonably have determined that the prosecutor’s
argument referenced trial testimony and answered defense counsel’s argument, we
affirm the trial court’s judgment.
1
A jury found Holcomb guilty of aggravated kidnapping. After Holcomb pled
“true” to the enhancement paragraphs, alleging that he had committed two prior
felonies, the trial court assessed a sixty year prison sentence. In a single issue,
Holcomb complains the trial court erred in allowing the prosecutor in final
argument, over his objection, to make the following statement:
And even afterwards, after this has all happened, while this case
was pending in the last year, he is calling her on the phone and he is
saying, you know, “Why did you do this, Mary? Why did you get us
into this? Why didn’t you go to the preacher and talk to the preacher
about our problems instead of the police?” He is using her religious
beliefs and manipulating her mind, using that against her.
And he is blaming this on everyone but himself. It is Mary’s
fault. It is the hospital’s fault. He wants to sue them because they
shouldn’t have let him out because he was suicidal. He refuses at any
point to stand up and apologize and say, “I’m sorry. You know, I
never should have done that.” He never takes responsibility.
Holcomb contends this argument represents a comment by the prosecutor on his
exercise of the right not to testify.
Holcomb acknowledges that an important part of his defense concerned his
claims that he was mentally ill and that his actions toward the person he was
charged with kidnapping were not intended as threatening. Holcomb suggests that
his actions showed he “was trying to commit ‘suicide by cop.’” Holcomb’s trial
attorney made arguments that are consistent with these themes during closing
argument.
2
In response to the arguments that Holcomb presented, the prosecutor asked
the jury to determine Holcomb’s intent from his actions and not merely his motive.
The prosecutor suggested that Holcomb’s conduct represented an effort to shift
blame to his victim he kidnapped. The State argues that the prosecutor’s comments
were based on the evidence and was in response to the arguments Holcomb raised
to the charge of kidnapping during his trial.
Proper jury argument generally falls within one of four general areas: (1) a
summation of the evidence, (2) a reasonable deduction from the evidence, (3) an
answer to argument of opposing counsel, or (4) a plea for law enforcement. Brown
v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). In assessing whether the
State violated Holcomb’s Fifth Amendment right not to testify, we must view the
prosecutor’s argument from the jury’s standpoint and resolve any ambiguities in
the language in favor of it being a permissible argument. Randolph v. State, 353
S.W.3d 887, 891 (Tex. Crim. App. 2011). To be improper, the implication that the
State referred to the defendant’s right not to testify must be “clear and
necessary[.]” Id. If the argument “might reasonably be construed as merely an
implied or indirect allusion, there is no violation.” Id.
In our opinion, the jury would not have perceived the State’s argument as
comment on Holcomb’s failure to testify. In light of the evidence and arguments
3
made by Holcomb’s attorney in summation, the prosecutor’s arguments appear
designed to emphasize Holcomb’s pattern of blaming others for his problems. The
jury could have understood the prosecutor to have been referring to the testimony
regarding specific instances of conduct by Holcomb that occurred before the trial,
not to Holcomb’s failure to testify during the trial.
We conclude the prosecutor’s argument represents a reasonable deduction
from the evidence, and it answered the argument of opposing counsel. Brown, 270
S.W.3d at 570. We further conclude that the prosecutor confined her arguments to
permissible areas. Id. We reject Holcomb’s claim that the language used by the
prosecutor “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.”
Randolph, 353 S.W.3d at 891. We hold that the trial court did not err in overruling
the appellant’s objection to the State’s closing argument. We overrule the issue and
affirm the trial court’s judgment.
AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on March 4, 2014
Opinion Delivered May 14, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
4