Montoya v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

DUNCAN, Judge.

On original submission appellant presented seventeen points of error, none of which was held to constitute reversible error. In his motion for rehearing, the appellant urges this Court to reconsider its original finding relative to point of error fourteen, or, his contention that the prosecutor’s argument was a comment on the appellant’s failure to testify at the punishment hearing.

On original submission, we determined that the prosecutor’s allegedly offending argument was not of an inflammatory nature and moreover, it was not a direct allusion to the appellant’s failure to testify. Instead, we concluded that the prosecutor’s comments were a reference to appellant’s failure to produce testimony from other sources. Appellant argues that such a *34finding ignores not only the words which were actually used but also, the prosecutor’s conduct. After reviewing the record we agree with the appellant’s assessment of the prosecutor’s comment.

The appellant testified at the guilt-innocence phase of the trial but not at the punishment hearing. During the State’s closing argument at the punishment phase of the trial, the following occurred:

MR. BANKS: What do we hear from this man over here that it couldn’t be deliberately, all my prior conduct, all these past actions, that the man that I am is not such that I’m going to commit acts of violence in the future and I did it?
MR. PARKS: I object to a comment on this defendant’s failure to testify in the second phase of the trial.
THE COURT: Sustained.
MR. PARKS: Ask the jury be instructed to disregard.
MR. BANKS: I hadn’t finished the statement at the time.
THE COURT: All right. Let Mr. Banks finish the statement then I’ll permit you to finish your objection.
MR. BANKS: We know this man’s father and cousins were in Dallas, Texas in 1983, in January of this year and if he wanted to call them or anyone else as witnesses to testify that he had a good reputation they could have done that and we did not hear from those witnesses. That’s my entire statement.
MR. PARKS: I want the record to reflect when Mr. Banks was stating the words to the effect that he has, whatever those exact words were, he was pointing directly at Mr. Montoya as he said those words and that he had finished the statement when I made my objection.
THE COURT: Well, the record may reflect that he jested [sic] [gestured] toward the Defendant. The record will speak for itself whether or not he finished the statement. In an abundance of caution I want to sustain your objection. I already have.
MR. PARKS: I respectfully move for a mistrial.
THE COURT: That’s denied.

It is a well-known, accepted, basic, and fundamental law in this State that the failure of an accused to testify may not be the subject of comment by the prosecution. Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975). Such comment is in violation of the privilege against self-incrimination contained in Article I, Sec. 10 of the Texas Constitution and the express provisions of Article 38.08 V.A.C.C.P., which reads:

Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any 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.

In addition to violating the constitution and laws of Texas, a comment on the defendant’s failure to testify constitutes a violation of the self-incrimination clause of the Fifth Amendment, which is made applicable to the states by the Fourteenth Amendment. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968); Bird, supra.

Although the appellant testified during the guilt-innocence portion of the trial, this does not in any way limit or restrict his right to not testify during the punishment hearing. The separate dignity afforded each half of the bifurcated trial in relation to a defendant’s right not to testify was aptly stated in Dickinson v. State, 685 S.W.2d 320 (Tex.Cr.App.1984):

Recently, in Brown v. State, 617 S.W.2d 234 (Tex.Crim.App.1981), this Court stated that “the right of self-incrimination does not end with the jury finding the defendant guilty for, as Presiding Judge Onion said in Brumfield v. State, 445 S.W.2d 732 (Tex.Crim.App.1969), ‘The mere finding of guilt does not terminate the privilege against self-incrimina*35tion.... the privilege ceases only when liability to punishment no longer exists Id. at 322.

In order to violate the right against self-incrimination and therefore Article 38.08, supra, the offending language, when viewed from the jury’s standpoint, must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused’s failure to testify. Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1982); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975). It is not sufficient that the language might be construed as an implied or indirect allusion to the defendant’s failure to testify. Banks, supra, Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974). In applying this standard, the facts and circumstances of each case must be analyzed to determine whether the language used was of such a character. Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Cr.App.1984). If the remark called the jury’s attention to the absence of evidence that only the testimony from the appellant could supply the conviction is subject to being reversed. Myers v. State, 573 S.W.2d 19 (Tex.Cr.App.1978).

In defense of its conduct the State cites Davis v. State, 670 S.W.2d 255 (Tex.Cr.App.1984) and Jones v. State, 693 S.W.2d 406 (Tex.Cr.App.1985) and claims that the present argument was not manifestly intended to be nor necessarily was a comment on the defendants’s failure to testify. On the contrary, the State argues that the prosecutor’s comments may reasonably be interpreted as a reference to the appellant’s failure to produce evidence of good reputation. Both cases are distinguishable from the present situation.

In Davis v. State, supra, the prosecutor made the following remark during closing arguments at the punishment hearing:

You think he can be rehabilitated? Look at that witness stand. Was there one shred of evidence before you to tell you he’s going to change, he can be changed, he wants to be changed, he will change? Id. at 256.

The Court held that “it is obvious that the prosecutor was not manifestly intending to comment on the accused’s failure to testify. The prosecutor could have just as easily been discussing the failure of the accused to call any witnesses to testify regarding rehabilitation.” Id. at 257. In Davis the Court held that the prosecutor’s argument in that case was not a direct reference to the defendant’s failure to testify-

In Jones v. State, supra, the other case cited by the State, the court concluded that the prosecutor’s argument during the punishment phase “viewed in its entirety can most reasonably be interpreted as a comment not on the appellant’s failure to testify during punishment, but upon his testimony in the guilt/innocence phase of the trial.” Id. at 409. Therefore, any reference to the defendant’s failure to testify was at most indirect and was thereafter cured by the trial court’s instruction to disregard.

Unlike the situations in Davis and Jones, the facts and circumstances of the instant case present a direct reference to the appellant's failure to testify. The prosecutor’s argument took place during the punishment hearing of a capital murder trial. The jury was to be charged with answering two special issues under Art. 37.071(b) V.A.C.C.P. so as to determine whether a life or death sentence should be imposed. Those issues are:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death would result.
(2) whether there is a probability that ^ the defendant would commit criminal acts of violence that would constitute a continuing threat to society. (emphasis added)

It is apparent from the prosecutor’s argument that he is rhetorically asking “what do we hear from this man over here” with regard to the two special issues. Moreover, the uncontradicted and unobject-ed to record reveals that the prosecutor was at the least gesturing towards the *36appellant when the comment was made. Examining this comment from the standpoint of the jury, it is evident that the prosecutor’s comments were directed at the appellant despite his subsequent attempts to redirect the comments.

As a general rule “[t]he prosecutor may comment on the failure of the defendant to call to attest to his reputation any witnesses at all or some particular known witness who is competent to give material testimony on the matter.” Mosley v. State, 686 S.W.2d 180, 183 (Tex.Cr.App.1985). The State, in this case, contends that taken as a whole, the prosecutor’s argument clearly refers to the evidence with respect to the defendant’s reputation in the community, not as a direct and flagrant reference to the appellant’s silence. This contention simply ignores both what was said and how he said it.

After directing the jury’s attention to the appellant by gesturing towards him, the prosecutor used the pronoun “I” or its possessive form four times. In Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974), the prosecutor began suggesting to the jury several defenses which the defendant could have raised, but did not. In doing so the prosecutor said:

Now what defenses are available to a person in a case like this? Number one, alibi, I was somewhere else, I was with someone else. Id. at 550.

The Court held that the choice of the word “I” contradicts any theory that the prosecutor was referring to witnesses other than the appellant. Cherry v. State, supra; see also, Cook v. State, 702 S.W.2d 597 (Tex.Cr.App.1984).

Likewise, the prosecutor in Cook v. State, Id., while discussing the possible defense of alibi said, “using the alibi, because, T was somewhere else, I’ve got my alibi, because I was playing poker with the guys.’ ” Id. at 598. The Court held that, “the prosecutor’s use of T was inescapably a reference to appellant and his failure to testify.” Id. at 600. The conclusions of the Court in both Cherry and Cook are just as applicable to the present case where the prosecutor made repeated use of the pronoun “I”.

Furthermore, while it is well recognized that a prosecutor may comment on a defendant’s failure to produce evidence, this is limited in one major respect. Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974). Such a comment cannot concern the failure to produce evidence of which only the defendant has knowledge. Angel v. State, 627 S.W.2d 424 (Tex.Cr.App.1982); Nickens v. State, 604 S.W.2d 101 (Tex.Cr.App.1980). For example, in Myers v. State, supra, an indirect comment on the defendant’s failure to testify was reversible error where the prosecutor drew reference to the fact that no explanation had been offered as to why the defendant was in possession of such a large quantity of marihuana.

Similarly, in Cook v. State, supra, the only real issue was the consent or lack thereof of the complainant in an aggravated sexual abuse trial. It was held improper for the prosecutor to refer to the lack of evidence concerning the attack itself or any “affirmative consent ... during the attack,” Id. at 600, because “[t]hat evidence could only have come from the appellant himself.” Id.

Returning to the prosecutor’s argument in the present case, only the appellant could testify directly as to whether the offense with which he had been convicted was committed deliberately. The appellant was also the only one who could testify as to whether “I’m going to commit acts of violence in the future”. Despite the State’s contentions, neither the appellant’s father or cousins could directly testify as to either of these matters.

Further, the prosecutor’s contention at trial that defense counsel’s objection had interrupted his statement strains credulity. The two separate statements bear absolutely no continuity of thought or purpose. The appellant’s failure to call reputation witnesses bears no logical relationship to the prosecutor’s rhetorical question, “[w]hat do we hear from this man over here” with regard to whether he acted de*37liberately or whether he would commit future acts of violence.

As noted in our original opinion, after objecting to the prosecutor’s argument, defense counsel requested a motion to instruct the jury to disregard the comment. Before obtaining a ruling on his request, the prosecutor was given an opportunity to “finish” his statement, which he did. Thereafter, rather than again seeking an instruction to disregard, defense counsel only requested a mistrial which was denied. The original opinion held that the appellant waived any error for failure to request the proper instruction. This was based on the erroneous finding that the prosecutor’s argument was not a direct allusion to, or manifestly intended to comment on the appellant’s failure to testify and that it was not so inflammatory that its prejudicial effect could not have been alleviated by an instruction to disregard.

A reference to the defendant’s failure to testify is either direct or indirect. The importance of requesting a motion to instruct the jury to disregard depends on whether the reference is classified as either direct or indirect.1 The prejudicial effect of a direct reference to the defendant’s failure to testify normally cannot be cured by an instruction to the jury to disregard. For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. Losada v. State, 721 S.W.2d 305 (Tex.Cr.App.1986); Short v. State, 671 S.W.2d 888 (Tex.Cr.App.1984). Any other indirect comment must be properly preserved for review or it is waived.

The failure to request an instruction to the jury to disregard the comment of the prosecutor before seeking a mistrial was before this Court in Johnson v. State, 611 S.W.2d 649 (Tex.Cr.App.1981). Despite the defendant’s failure to request an instruction to disregard, the Court nonetheless reversed the defendant’s conviction because the prosecutor’s argument was a direct and flagrant reference to the defendant’s failure to testify. Normally, the failure to request a motion to disregard will waive error only if the prejudicial effect of the prosecutor’s remarks could have been cured by a proper instruction. Johnson v. State, Id. In Johnson, however, it was recognized that the prohibition against a direct comment on the defendant’s failure to testify is mandatory and the adverse effect of any reference to the accused’s failure to testify is not generally cured by an instruction to the jury. See also: Owen v. State, 656 S.W.2d 458 (Tex.Cr.App.1983); Overstreet v. State, 470 S.W.2d 653 (Tex.Cr.App.1971). Thus, given a direct reference to the accused’s failure to testify, an instruction to disregard is of dubious value.

Johnson should not be read to lessen the importance of requesting an instruction to disregard. It does however, recognize the tremendous protection which is extended to a defendant who exercises his State and Federal Constitutional rights not to testify. In the instant case, the prosecutor made a direct reference to the defendant’s failure to testify in regard to the two special issues which must be answered during the punishment phase of a capital murder trial. Article 37.071, V.A.C. C.P. A motion for an instruction to disregard was not necessary to preserve error of this magnitude. Johnson v. State, supra. By requesting a mistrial, defense counsel made a proper request for relief in this instance. In acknowledging the dubious value of requesting a motion to disregard, it is apparent that the only request which could possibly yield effective relief was a motion for mistrial.

As previously noted, in Cook v. State, supra, on the State’s Motion for Rehearing the Court again concluded that the prosecutor’s use of the pronoun “I” “was inescapably a reference to appellant and his failure to testify.” Id. at 600. Despite its conclusion that the prosecutor’s *38comment was a direct comment on the defendant’s failure to testify the Court reviewed the evidence to determine whether the impermissible argument constituted harmless error under the test set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Although we do not approve of the prosecutor’s blatant violation of Article 38.08, V.A.C.C.P. we nevertheless feel that such an analysis is appropriate in this case. The test, which is adopted from Chapman v. California, supra, is that it must be determined beyond a reasonable doubt that the error did not contribute to the verdict. Cook v. State, supra. To determine whether an improper prosecutorial argument is harmless the totality of the facts and the arguments of the parties must be examined. Cannon v. State, supra. The issue of harm must be determined from the facts of each individual case and resolved according to the “probable effect [the argument] has on the minds of jurors.” Cook v. State, supra at 601 (citing Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1975)).

It is well established that at the penalty stage of the trial, the jury may consider all of the evidence adduced at the guilt stage. Turner v. State, 698 S.W.2d 673 (Tex.Cr.App.1985); Green v. State, 682 S.W.2d 271 (Tex.Cr.App.1984). The appellant testified at the guilt-innocence phase of the trial that the shooting of Officer Pasco was an accident. According to the appellant, he ran from Officer Pasco because he did not want to be apprehended with a pistol in his possession. As he was trying to throw the pistol away, Officer Pasco caught him by the arm. This caused the appellant to fall and Officer Pasco to then fall on top of him. As this was happening the appellant’s gun discharged resulting in Officer Pasco’s death. Appellant also testified that after the shooting he went home and changed clothes. Shortly thereafter, appellant began to walk to a local store when he was arrested. When asked by the prosecutor why he was going to the store, the appellant responded “[t]here were machines to play. Maybe I was going to play some machines.”

The appellant’s description of events at trial differed significantly from the version given in a written statement to the police:

I went running from the policeman. He chased me through the alley. He was catching up to me and I had a pistol in my right hand. I had the pistol all during the time he was chasing me. When the policeman was about to catch me he pushed me and I fell on my back. I pointed the pistol and shot at the policeman. I was pointing at his chest when I fired. The policeman fell to one side of me. I got up and ran.

The jury obviously rejected the appellant’s testimony and accepted this latter version when it returned its verdict of guilty of capital murder.

The appellant’s admitted desire to avoid apprehension while in possession of a weapon was well founded. Less than one year prior to his shooting and killing Officer Pasco, the appellant was arrested by Officer Pasco and another officer for unlawfully carrying a weapon, after the appellant was seen pointing the pistol at another man. For this offense the appellant was sentenced to ten days in the Dallas County Jail and subsequently deported to Mexico.

During the punishment phase of the trial the State presented thirteen witnesses who each testified that the appellant’s reputation in the community where he lives as a peaceful and law-abiding citizen was bad. Understandably, the defense did not cross-examine any of the State’s witnesses.

In addition to the reputation witnesses the State presented additional testimony during the punishment stage of the trial. For example, Robert Aguilar, who lived in the same neighborhood as the appellant, testified that the appellant stabbed him twice.

Several other witnesses described another incident in which the appellant again wielded a knife. According to the witnesses, the appellant accompanied another individual to attempt to get repayment for an alleged debt. In doing so, the appellant exhibited a knife and later chased several people with it. The police were called and *39appellant was arrested while hiding in an apartment.

San Juanita Ramirez testified that on one occasion she found the appellant beating her roommate. The witness left to call the police. Before she could finish dialing the number at a nearby phone, appellant arrived and began beating her with his hands and a cast which he was wearing on his arm. Apparently, not satisfied with the two previous attacks the appellant then gratuitously beat another woman who was using a nearby telephone.

Officer D.L. Cannon of the Dallas Police Department testified that less than one year prior to the shooting of Officer Pasco he had occasion to arrest the appellant for unlawfully carrying a weapon. Ironically, Officer Cannon was accompanied and assisted by Officer Pasco at the time. The appellant was observed pulling a pistol on another man in an alley. The appellant was arrested and transported to the police station. Officer Cannon testified that the appellant spent the entire journey staring directly at Officer Pasco, his future victim. As previously noted, the appellant eventually served ten days in the county jail and was deported to Mexico.

Another Dallas police officer, Officer Sal-cedo, described another violent incident involving the appellant. Officer Salcedo testified that while working on an unrelated incident the appellant walked up to him and began talking in Spanish. The officer replied in Spanish that he was involved in another matter and that the appellant should not get involved and should leave. Instead of leaving the appellant began cursing the officer in Spanish. The officer again told him to leave, whereupon the appellant attempted to strike Officer Salce-do. The appellant was arrested.

Finally, the appellant’s pen packet was introduced. It revealed that in 1975 the appellant received three years probation for burglary of a building. In addition, the appellant was assessed punishment of forty days in the county jail for evading arrest on the burglary offense. In 1982, appellant was convicted of unlawfully carrying a weapon in the incident previously described by Officer D.L. Cannon. The defense did not call any witnesses at the punishment hearing.

The totality of the evidence introduced during the punishment hearing established a pattern of violence, intimidation and lawlessness on the part of the appellant. This testimony was neither contradicted, impeached or rebutted by the appellant. The evidence made it very clear that the appellant has a proclivity for violence. For example, the appellant was known to carry a knife and on at least two occasions was shown to have used or attempted to use the knife to stab another person. The evidence also showed that the appellant after beating one woman, beat another woman who was attempting to call the police, and then beat still another woman who happened to be nearby.

In addition, on another occasion the appellant was convicted of attempting to evade arrest. The appellant was also arrested for trying to strike a police officer who was investigating another incident. In addition, the appellant was found hiding underneath a stack of clothes in an apartment after police had been called to investigate an attempted stabbing. Finally, the appellant admittedly ran from Officer Pas-co when he attempted to apprehend the appellant. The appellant has consistently engaged in a pattern of violent conduct that has posed a danger to police officers and others.

This pattern of conduct ultimately led to the confrontation between the appellant and Officer Pasco. Officer Pasco had been called to investigate a report of shots being fired. When Officer Pasco arrived he saw the appellant with a gun and gave chase. As Officer Pasco tried to apprehend the appellant, he was shot in the head. Immediately after shooting Officer Pasco the appellant ran home and changed his clothes. He then began walking to a store to perhaps play video games. On the way to the store the appellant was stopped by Officer Loudermilk. Despite the appellant’s effort to flee he was subdued and arrested. Before anything was said between Officer Loudermilk and the appel*40lant, the appellant told the officer, “Fuck You.”

The appellant’s conduct before and after the shooting give no indication that Officer Pasco’s death was the result of an accident.

An examination of the totality of the facts and the arguments of the parties indicates that the prosecutor’s comment on the appellant’s failure to testify was harmless. Although the prosecutor’s comment was unnecessary and under a less compelling set of facts would have caused a reversal of the appellant’s conviction and sentence, we find beyond a reasonable doubt that the prosecutor’s comment did not contribute to the jury’s resolution of the special issues which were submitted. Chapman v. California, supra.

The appellant’s Motion for Rehearing is denied and the conviction and judgment are affirmed.

ONION, P.J., not participating.

. See Gardner v. State, 730 S.W.2d 675, 700 fn. 13 (Tex.Cr.App.1987) (“More recent decisions have shown that while it is indeed rare, it is not unheard of that an instruction to disregard an oblique allusion to an accused's failure to testify may be found to have cured error.”) (emphasis added).