dissenting.
The majority opinion states, inter alia: “The [complained of argument, which is set out in the majority opinion,] was intended to reflect upon what the appellant had testified about at the guilt or innocence portion of the trial. As such we cannot find that the language was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify at punishment.” I disagree.
In its unpublished opinion, that rejected appellant’s contention that the complained of argument was a comment on his failure to testify, in violation Art. 38.08, V.A.C. C.P., the Texarkana Court of Appeals held that “the statement [of the prosecuting attorney] reasonably may be interpreted, not as a comment on Jones’ [the appellant’s] failure to testify at the punishment stage, but to his attitude while previously testifying ...” [My Emphasis]. I also disagree with this statement.
In Dickinson v. State, 685 S.W.2d 320 (Tex.Cr.App.1984), this Court recently held that the prosecuting attorney’s argument at the punishment stage of the trial in that cause, namely, “You haven’t seen one iota of remorse, one iota of shame [from the defendant],” “constituted [an] indirect comment on the appellant’s failure to testify.” (324). This Court further held: “[F]or us to approve the argument that was made by one of the prosecuting attorneys would amount to permitting jurors to infer lack of remorse from the exercise by the appellant of his constitutional right to remain silent. We decline to approve the argument on the specious ground that it only went to appellant’s demeanor in the courtroom.”
Because I am unable to approve the complained of argument that was made in this cause, that appellant had not “indicated any remorse,” on the specious ground that based upon the entire argument, and taken in context, the above complained of argument was only intended to reflect upon what the appellant had testified about at the guilt or innocence stage of the trial, I must respectfully dissent. To approve what the prosecuting attorney argued in this cause is to erroneously reward him for devising a way to avoid what this Court has stated and held to the contrary in Dickinson v. State, supra; Owens v. State, 656 S.W.2d 458 (Tex.Cr.App.1983); Thomas v. State, 638 S.W.2d 481 (Tex.Cr.App.1982), and Elkins v. State, 647 S.W.2d 663, fn. 7 (Tex.Cr.App.1983). Also see Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982), which traces the history of prosecuting attorneys attempting to circumvent the rule against commenting on the defendant’s failure to testify by devising ways to get around the prohibition. See and cf. Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), in which this Court patently approved the prosecuting attorney’s jury argument, that the jurors had not seen any showing of remorsefulness by the defendant. However, this holding was clarified by this Court in Dickinson v. State, supra.
I believe that the majority opinion actually amounts to this Court, sub silentio, overruling many, many past decisions of this Court, as well as placing its seal of approval on a prosecuting attorney creating an ingenious device to make an impermissible comment on a defendant’s failure to testify and on his exercise of his constitutional right to remain silent. Also see Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.1981) (“The mere finding of guilt does not terminate the privilege against self-in*412crimination ... [T]he privilege ceases only when liability to punishment no longer exists ... ”)
I am also compelled to dissent to the majority’s holding that if there was error it was harmless error because of the trial court’s instruction to the jury.
The test, however, to determine whether the error is harmless, is not whether a conviction could have been had without the improper argument, or whether the punishment that was actually assessed might not have been assessed, but, instead, is whether there is a reasonable possibility that the argument complained of might have contributed to or affected the jury’s finding the accused guilty or the punishment that the jury assessed. In this instance, I will agree that the error might have been harmless as to the guilt stage of the trial. However, I am unable to agree that as to the punishment assessed the error was harmless beyond a reasonable doubt. See and cf. Garrett v. State, 632 S.W.2d 350, 353-354 (Tex.Cr.App.1982). Thus, this is another reason I am compelled to dissent.
In closing, I am compelled to state, as the First Circuit Court of Appeals recently did in United States v. Skandier, 758 F.2d 43 (1st Cir.1985), that this Court will in the near future realize that its “frequently finding ways to explain away, or to excuse, arguments that had better been left unsaid ... may, cumulatively, have given more comfort [to some members of the prosecution bar] than they should have.”
For all of the above and foregoing reasons, I respectfully dissent to the majority opinion approving the complained of jury argument that was made by the prosecuting attorney in this cause.