COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00275-CR
SEVERIANO FLORES GARCIA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury found Appellant Severiano Flores Garcia guilty of felony driving while
intoxicated and assessed his punishment at six years’ confinement. The trial
court sentenced him accordingly. In a single issue, Garcia argues that the trial
court erred by overruling his objection to the prosecutor’s comment on his failure
to testify. We will affirm.
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See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
Around 8:45 one night, Wise County Police Officer Travis Waddell was off
duty and driving northbound on Thirteenth Street in Bridgeport, Texas when he
noticed a vehicle in front of him make a wide left turn, drive onto the shoulder,
and nearly strike a curb. Officer Waddell followed the vehicle and observed it
twice drift across the double yellow line and quickly return to the correct lane. At
that point, Officer Waddell saw a Bridgeport patrol unit driven by Officer Gregory
Romine, and Officer Waddell flagged him down. Officer Waddell relayed what he
had seen to Officer Romine, who began following the vehicle as well. After
observing the vehicle turn without signaling, Officer Romine initiated a traffic stop.
The driver, Garcia, took long pauses in answering the officer’s questions and was
slow to get out of his vehicle; when he did get out, his vehicle rolled forward
because it was not in gear. Officer Romine smelled alcohol on Garcia’s breath
and noticed that he walked with a stagger and had blood shot eyes. Garcia told
Officer Romine that he had consumed two beers, and the officer saw two open
beer cans and one unopened beer can in Garcia’s vehicle. Officer Romine
attempted to complete the horizontal gaze nystagmus test on Garcia, but he
would not comply.
Bridgeport Police Officer Chris Foster arrived about fifteen minutes after
the stop to assist Officer Romine. Officer Foster also noticed that Garcia smelled
strongly of alcohol, stumbled, and slurred his speech. Officer Romine placed
Garcia under arrest, which took over a minute because Garcia did not cooperate
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with the officer. Garcia refused to sign the DIC-24 statutory warnings and did not
give a breath specimen.
At Garcia’s trial, Officers Waddell, Foster, and Romine testified for the
State. The State also offered into evidence a videotape of the stop, the DIC-24
statutory warnings, and evidence of Garcia’s two prior DWI convictions. The
defense did not present any evidence.
III. JURY ARGUMENT
In a single issue, Garcia argues that the trial court erred by overruling his
objection to the prosecutor’s improper comment on his failure to testify during
closing arguments at the guilt/innocence stage of the trial and that the error
contributed to his conviction.
A. The Complained-of Comments
The prosecutor began his closing arguments with, ―Ladies and gentlemen,
all the testimony you heard came from four sources; those three officers and a
video; that’s it, that’s all there is in this case.‖ Garcia immediately objected to the
statement as an allusion to his failure to testify, and the trial court overruled the
objection.
B. Law on Comments on Failure to Testify
A comment on an accused’s failure to testify violates the accused’s state
and federal constitutional privileges against self-incrimination. Moore v. State,
849 S.W.2d 350, 351 (Tex. Crim. App. 1993); Smith v. State, 65 S.W.3d 332, 339
(Tex. App.—Waco 2001, no pet.). In addition, the code of criminal procedure
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provides that a defendant’s failure to testify on his own behalf may not be held
against him and that counsel may not allude to the defendant’s failure to testify.
Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).
To determine if a prosecutor’s comment constituted an impermissible
reference to an accused’s failure to testify and violated article 38.08, we must
decide whether the language used was manifestly intended or was of such a
character that the jury naturally and necessarily would have considered it to be a
comment on the defendant’s failure to testify. See Bustamante v. State, 48
S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275
(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). The offending language
must be viewed from the jury’s standpoint, and the implication that the comment
referred to the accused’s failure to testify must be clear. Bustamante, 48 S.W.3d
at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). A mere
indirect or implied allusion to the defendant’s failure to testify does not violate the
accused’s right to remain silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim.
App. 2004); Patrick v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995),
cert. denied, 517 U.S. 1106 (1996). A remark that calls attention to the absence
of evidence only the defendant can supply will result in reversal, but ―if the
language can reasonably be construed to refer to appellant’s failure to produce
evidence other than his own testimony, the comment is not improper.‖ Patrick,
906 S.W.2d at 491.
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C. Prosecutor Did Not Comment on Garcia’s Failure to Testify
The comment at issue here—that all of the evidence in the case came
from the three officers and the video of the stop, ―that’s it‖—was, at most, an
indirect allusion to Garcia’s failure to testify. See Wead, 129 S.W.3d at 130;
Patrick, 906 S.W.2d at 490–91. Viewed from the jury’s standpoint, the statement
could reasonably be construed as a comment on, or summation of, the evidence
presented at trial; as a comment on Garcia’s failure to submit to breath and field
sobriety tests; and as a comment on his failure to produce any evidence at trial—
not just his own testimony. See, e.g., Harris v. State, 122 S.W.3d 871, 884 (Tex.
App.—Fort Worth 2003, pet. ref’d) (upholding as proper prosecutor’s comment
that pointed to lack of testimony from other witnesses concerning any motive to
falsely accuse defendant); see also Benn v. State, 110 S.W.3d 645, 650–51 (Tex.
App.—Corpus Christi 2003, no pet.) (holding that comment to ―consider not only
who you heard, but who you didn’t hear,‖ was proper summation of the evidence);
Jordan v. State, 897 S.W.2d 909, 913 (Tex. App.—Fort Worth 1995, no pet.)
(upholding as proper comments directed at defendant’s refusal to consent to
breath or blood test). The complained-of comment did not clearly reference
Garcia’s failure to testify or otherwise refer to a particular aspect of the case that
only Garcia’s testimony could refute. Compare Livingston v. State, 739 S.W.2d
311, 338 (Tex. Crim. App. 1987) (holding prosecutor’s comment on appellant’s
power of subpoena to call witnesses to explain his actions ―did not refer to some
particular aspect of the case that only appellant’s testimony could refute‖ or call
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into question appellant’s right to remain passive), cert. denied, 487 U.S. 1210
(1988), with Crocker v. State, 248 S.W.3d 299, 304–05 (Tex. App.―Houston [1st
Dist.] 2007, pet. ref’d) (holding prosecutor’s reference to defendant’s power of
subpoena drew attention to absence of evidence that only defendant could
supply and improperly alluded to defendant’s failure to testify), and Harrison v.
State, 766 S.W.2d 600, 602–03 (Tex. App.―Fort Worth 1989, pet. ref’d) (holding
prosecutor’s comment that ―[n]obody else in this courtroom besides who was out
there that day testified from this stand‖ was improper because jury would
necessarily take it as comment on defendant’s failure to testify).
We conclude that the prosecutor’s comment was not manifestly intended
to refer to Garcia’s failure to testify and that it was not of such a character that the
jury would necessarily have considered it to be a comment on his failure to testify.
See Bustamante, 48 S.W.3d at 765; Patrick, 906 S.W.2d at 491.
D. Even Assuming Error, the Error was Harmless
Furthermore, even assuming the prosecutor’s comment was an improper
comment on Garcia’s failure to testify, any error was harmless. We apply a rule
44.2(a) constitutional harm analysis to comments on a defendant’s failure to
testify and reverse unless we determine beyond a reasonable doubt that the
error did not contribute to the appellant’s conviction or punishment. See Tex. R.
App. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
In applying the ―harmless error‖ test, our primary question is whether there is a
―reasonable possibility‖ that the error might have contributed to the conviction.
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Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999).
Our harmless error analysis should not focus on the propriety of the
outcome of the trial; instead, we should calculate as much as possible the
probable impact on the jury in light of the existence of other evidence. Wesbrook
v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
(2001). We consider the source and nature of the error, the extent that it was
emphasized by the State, its probable collateral implications, the weight a juror
would probably place on the error, and whether declaring it harmless would be
likely to encourage the State to repeat it with impunity. Harris v. State, 790
S.W.2d 568, 587 (Tex. Crim. App. 1989). This requires us to evaluate the entire
record in a neutral, impartial, and even-handed manner, not ―in the light most
favorable to the prosecution.‖ Id. at 586.
Our neutral, impartial review of the record demonstrates that the
prosecutor’s comment summarized the evidence presented to the jury at trial;
that the comment was, at most, an indirect reference to Garcia’s failure to testify;
that the prosecutor did not repeat or emphasize the statement; and that a juror
would probably not attribute much, if any, weight to any alleged error in the
comment.
The jury was informed by both the State and the trial court that it could not
consider Garcia’s failure to testify. In its rebuttal argument, the State
distinguished Garcia’s right to refuse a breath test and field sobriety test from his
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right not to testify. The State explained that the jury could not ―use the fact that
[Garcia] didn’t offer any evidence; that’s a whole different right; that’s a Fifth
Amendment Right. [The right to refuse to submit to breath and field sobriety
testing] is a different kind. You can use that against him.‖ The trial court’s charge
to the jury also included an instruction not to consider Garcia’s failure to testify,
and the jury is presumed to follow this instruction. See Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998).
After reviewing the record and applying the required harm analysis under
rule 44.2(a), we hold beyond a reasonable doubt that, even assuming that the
trial court erred by overruling Garcia’s objection to the complained-of comment,
any error did not contribute to Garcia’s conviction. See Tex. R. App. P. 44.2(a).
We overrule Garcia’s sole issue.
IV. CONCLUSION
Having overruled Garcia’s sole issue, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 28, 2011
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